Over the past year, as attorneys increasingly have turned to out-of-office and out-of-courtroom work during the COVID-19 pandemic, ethical concerns specific to this operational format have come to the forefront. The American Bar Association has issued two formal opinions in response to these concerns that provide attorneys with helpful guidance in the ongoing virtual/remote legal landscape: Formal Opinion 495, Lawyers Working Remotely, issued on December 16, 2020; and Formal Opinion 498, Virtual Practice, issued on March 10, 2021. These opinions serve as a reminder that attorneys operating virtually: (1) need to ensure they are not engaging in the unauthorized practice of law if working remotely in one jurisdiction while practicing in another; (2) need to exercise care when utilizing technology; and (3) should ensure that they adopt virtual practices that enable them to continue to uphold their duties of competence, diligence, and communication.
Ethics of Cross-Jurisdictional Remote Work
ABA Formal Opinion 495, Lawyers Working Remotely, addresses whether a lawyer engages in the unauthorized practice of law if performing services on behalf of a client located in a jurisdiction where the attorney is licensed to practice, but doing so virtually in a jurisdiction where unlicensed. The answer is not straightforward. Broadly speaking, the ABA concludes that a lawyer is ethically permitted under Model Rule 5.5 to practice law in the jurisdiction(s) in which the lawyer is licensed, even if the lawyer is physically located in a jurisdiction in which the lawyer is not licensed. Key to this determination are the representations an attorney makes to the public.
Rule 5.5. prohibits an attorney from establishing “an office or other systematic and continuous presence” in a jurisdiction where not licensed, or representing that the attorney is admitted to practice in a jurisdiction where not licensed. According to the ABA, an attorney will not violate these requirements through remote work taking place in a jurisdiction where she is unlicensed, unless the attorney represents to the public, for example via a website, letterhead, or advertising, that her office is located in that jurisdiction or that she is licensed to practice law in that jurisdiction. Any such representation would constitute a violation of Rule 5.5. And of course, if an attorney actually practices the law of a jurisdiction in which she is unlicensed while residing in that jurisdiction, the attorney would violate Rule 5.5.
The ABA cautions that attorneys should always check the local rules and laws of the jurisdiction in which the attorney is physically practicing. Thus, Massachusetts attorneys practicing remotely in other jurisdictions should consult local statutes and rules concerning the unauthorized practice of law.
Ethical Considerations for Virtual Work
ABA Formal Opinion 498, Virtual Practice, addresses key ethical considerations relating to the virtual practice of law. The Opinion underscores the fact that an attorney’s ethical duties do not disappear in a virtual world: attorneys must continue to pursue matters competently and diligently, they must still maintain client communication and confidentiality, and those with managerial responsibilities must still maintain appropriate supervision of subordinate lawyers and nonlawyer assistants. The pertinent provisions of the Massachusetts rules related to these ethical obligations are identical to the model rules, and the ABA guidance therefore should be helpful to Massachusetts practitioners.
To the extent that an attorney must adopt new practices or gain new technological skills in order to meet these duties while practicing virtually, the attorney must do so. Indeed, Model Rule 1.1 explains that an attorney’s duty of competence encompasses a requirement to “keep abreast” of changes in the practice of law “including the benefits and risks associated with relevant technology,” and to engage in continuing study. Model Rule 1.1. likewise makes clear that “obstruction or personal inconvenience” to a lawyer is no excuse for failure to diligently pursue a client matter. Ultimately, it is an attorney’s responsibility to adopt the technological practices necessary to continue to meet all ethical duties while practicing virtually.
Opinion 498 highlights seven particular considerations for virtual practice:
- Attorneys should ensure hardware and software systems are protected from unauthorized access by utilizing encryption, anti-virus software, security updates, secure routers, and any other evolving technology as necessary.
- Attorneys should ensure reliable yet secure virtual access to client records, with the ability to back up data, and should adopt a data breach policy and plan to communicate any data losses to clients.
- Likewise, virtual document and exchange platforms such as those enabling email should ensure appropriate archival and security capabilities.
- Attorneys should consider the listening capabilities of devices such as smart speakers, and ensure that when not in use to assist practice, these functions are disabled to avoid unauthorized access.
- Videoconferencing platforms should be secure, meetings should be accessed only through strong passwords and should not be overheard/seen by third parties, and recordings are inadvisable absent client consent.
- Supervising attorneys must ensure that routine communication with subordinates and assistants continues in a virtual setting, and should ensure that both staff/firm members and outside vendors maintain confidentiality, for example by entering into confidentiality agreements with vendors and taking appropriate measures to secure personal devices used for work.
- Finally, attorneys must be aware of the limits of virtual work, and plan accordingly. For instance, attorneys should develop practices to handle checks, mail, and potential clients who arrive at a physical office location, and must be able to file and receive court documents to the extent that e-filing is not an option.
Even as the world looks toward a future in which the global pandemic has receded and “normal” life may resume, remote practice will become increasingly commonplace, and in-office work will continue to rely more heavily on technology. Given this evolving legal practice environment, these ABA opinions regarding remote and virtual practice will remain relevant even as more lawyers return to their offices.