If you’re anything like most lawyers, you’ve undoubtedly been working remotely a lot more over the past year than ever before. By all indications, that trend will only continue in 2021 as we face additional pandemic turbulence. That’s why it’s so important to have a full understanding of the ethical implications when lawyers and other law firm employees work remotely.
The good news is that in recent months a number of different jurisdictions have handed down ethics opinions that address remote working issues. These opinions fall into two different categories. First, there are the ethical issues related to using remote technology tools to run a law firm and practice law. The second focus is the ethical issues presented when lawyers work virtually from jurisdictions in which they’re not licensed. Both are interesting issues, and both are incredibly relevant as lawyers practice law virtually in 2021. So without further ado, let’s take a look at how different jurisdictions have addressed these remote working issues.
The ethics of running a virtual law firm
In April of 2020 the Pennsylvania Bar Association addressed the ethical issues that arise when law firms operate virtually in Formal Opinion 2020-300. In its opinion, the Committee confirmed that it was ethical for lawyers to use cloud computing software in their practices as long as they exercised reasonable care to ensure the confidentiality of client data. The Committee also provided an overview of the issues lawyers should consider when vetting a cloud computing provider. Finally, the Committee adopted the ABA’s rationale regarding secure communication (set forth May 2017 in Formal Opinion 477R) and concluded that because of improved technology, unencrypted email is insufficient for particularly sensitive information. Therefore, lawyers need to assess the sensitivity of the information that they’re sharing on a case-by-case basis, and in many cases may want to consider using more secure, encrypted methods of communicating and collaborating with clients, including a “secure internet portal.”
For many lawyers, the idea of conducting a case-by-case analysis regarding the sensitivity of data in order to appropriately secure communication method for each matter may seem to be an overly burdensome and time-consuming process. The good news is that there’s an easy way to avoid having to make this determination: simply choose one form of encrypted communication for all matters and require that law firm employees use it routinely.
The Michigan State Bar Association reached a similar conclusion when it issued Opinion RI-381. In this opinion, the Committee also adopted the analysis set forth in ABA Formal Opinion 477R. It concluded that because of improved technology, unencrypted email is insufficient for discussing particularly sensitive information, and in those cases more secure communication methods such as encrypted email or secure online client portals will be required.
The bottom line: if your firm has shifted to remote working, the wise course of action is to ensure that your firm’s communications are encrypted. If your firm doesn’t already have a secure communication method set up, then the secure client portals built into most law practice management software programs are a great option to choose. For starters, they are easy to adopt. And the best part about client portals is that once you start using them for all law firm client communications, you’ll effectively ensure that all communications are sufficiently protected.
The ethics of working remotely from a location where you’re not licensed
Another important legal ethical issue that has arisen as a result of the remote working trend is whether lawyers are practicing outside of their license when working from a jurisdiction in which they’re not licensed. At least two different jurisdictions have addressed this issue in the past year. The first opinion was issued on March of 2020 by the District of Columbia Court of Appeals in Opinion 24-20. At issue was whether an attorney who was not a member of the District of Columbia Bar could nevertheless practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13).
The Committee determined that lawyers who are not licensed in D.C. may ethically practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception if the attorney “(1) is practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdiction where the attorney is admitted to practice; (3) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia, and (4) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.”
The ABA also opined on this issue in Formal Opinion 495. In this opinion, the Standing Committee on Ethics and Professional Responsibility explained that during the pandemic it is permissible for lawyers to work from a location in which they are not authorized to practice. The Committee explained that doing so does not trigger the prohibitions of Model Rule 5.5 since it is simply a temporary situation. The Committee emphasized that the rationale behind Model Rule 5.5 is to protect legal consumers from unlicensed or unqualified attorneys, and that “purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”
So those of you who are practicing law remotely can breathe a sigh of relief. This practice has been given the green light, as long as your remote work is temporary and your firm is taking sufficient steps to protect the security of the information being transmitted online while working remotely. For additional advice on ensuring that your firm is operating securely and efficiently while operating virtually, make sure to download this FREE guide: An Attorney’s Guide to Setting Up a Remote Law Firm.
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