Deepika Ravi, Hilary Gerzhoy and Grace Wynn, partner and associates from Harris, Wiltshire & Grannis LLP respectively, discuss the ethical restrictions on virtual hearings through the American Bar Associations Opinion 498...
A year into the pandemic, the ABA’s Standing Committee on Ethics and Professional Responsibility published ABA Opinion 498, providing guidance on how lawyers can comply with the Rules of Professional Conduct while practicing virtually. The ABA Model Rules permit the virtual practice, defined as practicing law anywhere other than in a brick-and-mortar office. But they do not provide a roadmap for how to practice virtually while staying within the bounds of the Rules of Professional Conduct. Opinion 498 summarizes the minimum requirements for compliance and provides some best practices for those of us working from home. This article explains those requirements and provides practical tips for compliance.
To comply with her duty to provide competent representation, a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Practically, that means you must develop sufficient mastery of the technology needed to meet your representational duties. For example, if depositions in your case are being held remotely, you should be sufficiently fluent with whatever video service is being used.
Failure to meet deadlines or other obligations due to the technological issues will not necessarily be forgiven based on challenges related to the pandemic. For example, in Clodgo v. Green Mountain Transit, the Vermont Supreme Court affirmed the lower court’s decision to grant a motion for judgment on the pleadings based on the plaintiff’s failure to timely respond. Plaintiff argued that the delay should be excused in light of the pandemic, but the court disagreed. The court reasoned that in the absence of a specifically applicable executive or administrative order extending deadlines, it had no obligation to excuse missed deadlines.
Nor is “personal inconvenience to the lawyer” an excuse to abandon diligent vindication of a client’s cause of action. In other words, a bad internet connection won’t excuse being unresponsive to client communications. It also means that a lawyer needs to check whether she has received mail delivered to a physical office even if she is temporarily engaged in virtual practice. A lawyer should have a plan to process paper mail and other documents directed to her physical office. Where applicable to their practice, lawyers should also ensure that they can continue to submit and receive e-filed pleadings and other court documents while practicing virtually, just as they would in a physical office.
Pandemic or not, ABA Model Rule 1.4 requires that a lawyer keep her client “reasonably informed about the status of the matter; [and] promptly comply with reasonable requests for information.” For example, the State Bar of Michigan has advised that when choosing among the various methods of communication, such as mail, phone, text, and video calls, a lawyer must consider both her client’s and her ability to effectively utilize technology.
The virtual practice also won’t excuse noncompliance with trust accounting rules, which vary state-to-state. Lawyers should create a plan to ensure they can do everything needed to comply with trust accounting rules, such as depositing checks, making electronic transfers, and maintaining complete and accurate records while practicing virtually.
As part of her duty of confidentiality, a lawyer must take steps to “prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Comment 18 to the ABA Model Rule 1.6 provides a non-exhaustive list of factors to determine the safeguard measures necessary, including “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).” Comment 19, in turn, mandates that a lawyer take “reasonable precautions” when transmitting any information related to a client representation. Opinion 498 highlights the significance of these measures when practicing virtually. Where the information is protected by law or a confidentiality agreement, a lawyer “may need to take special precautions.”
As expressed by the State Bar of California Standing Committee on Professional Responsibility and Conduct, maintaining confidentiality during virtual practice requires “specific due diligence.” To comply with confidentiality obligations, a lawyer working virtually should ensure, at a minimum, that she has a secure internet connection, that she uses strong passwords when accessing and transmitting client information, and that she takes reasonable steps to guard against data breaches, which can affect law firms of all sizes. That means that lawyers should use anti-virus software, exercise diligence in installing security-related updates, review applicable hardware and software terms of service to assess whether and how confidential information is protected, and “periodically assess whether their existing systems are adequate to protect confidential information.” And where a lawyer accesses client information through a cloud-based service, the lawyer should ensure that the service is reputable and that the client data is regularly backed up, with secure access to the backed-up data readily available.
Physical limitations imposed by the pandemic do not relax the ethical obligation to protect client confidences, even where attorneys are practicing virtually from their home. To safeguard the attorney-client privilege and meet her duty of confidentiality, a lawyer practicing virtually should ensure that client-related information, including information shared over videoconferencing meeting platforms, is not overheard by third parties or by others in the lawyers’ household—such as family members or roommates. Regulation Counsel for the State Bar of Michigan has advised that while lawyers can practice in shared spaces if they choose to do so, they must still comply with all ethical rules regardless of their environment.Opinion 498 also recommends that lawyers disable the listening capability of any “smart” devices while communicating about client matters.
Lawyers practicing virtually should also ensure that client-related files are not visible to others. Opinion 498 suggests implementing a “clean screen” and “clean desk” policy when client information is not in use. A clean (or “clear”) screen policy requires individuals “to lock their computers when leaving their desk and to log off when leaving for an extended period of time.” A clean desk policy “instructs that all employees must clear their desks at the end of each workday,” including documents, notes and post-it notes, and memory sticks. The Pennsylvania Standing Committee on Professional Responsibility and Conduct similarly advises that lawyers working from home “should make reasonable efforts to ensure that household residents or visitors who are not associated with the attorney’s law practice do not have access to . . . paper files and other client-related documents.”
Where lawyers or nonlawyer staff at a law firm use their own devices to “access, transmit, or store client-related information,” Opinion 498 recommends the firm establish a bring-your-own-device policy sufficient to ensure that client information remains protected. For example, law firm lawyers and nonlawyer staff could be instructed to use strong passwords, install regular software updates, and ensure that client-related information on the device is not exposed to unauthorized access by family members, roommates, or other third parties.
A lawyer who oversees the work of other lawyers, paralegals, or assistants, must provide instruction and supervision. Whether practicing virtually or from a brick-and-mortar office, lawyers who fail to adequately supervise their subordinates can be held responsible for their subordinates’ actions.
Part of that duty to supervise is instructing subordinates of their obligation to safeguard client information. The Model Rules put the onus on a supervising lawyer to ensure those whom she supervises do not inadvertently disclose information related to client representations. If anything, virtual practice makes that supervision all the more important. A supervising lawyer practicing virtually is not able to interact in person with those whom she supervises to ensure they are complying with their ethical and work obligations.
Lawyers practicing virtually should ensure that they engage in sufficient communication to properly supervise associates, legal assistants, and paralegals, just as they would in a brick-and-mortar office. The New York County Lawyers Association Committee on Professional Ethics advises that attorneys comply with this requirement by “[e]nsuring that sufficiently frequent ‘live’ remote sessions occur between supervising attorneys and supervised attorneys.” Law firm employees should also receive training on how to maintain the confidentiality of client information while working virtually. Similarly, lawyers should ensure that any outside vendors or support staff have practices in place sufficient to satisfy confidentiality obligations and other ethical responsibilities.
The virtual practice offers economic and lifestyle benefits, but those advantages mandate increased ethical diligence. Advance planning, clear systems, and (some) tech-savvy will go a long way towards ensuring a successful and ethically compliant virtual practice. When in doubt, review your state’s Rules of Professional Conduct and recent case law to ensure your practice does not run afoul of any rules in this emerging area of regulation.
Deepika Ravi is a partner and Hilary Gerzhoy and Grace Wynn* are associates at Harris, Wiltshire & Grannis LLP. *Admitted in North Carolina and Florida only. Practicing under the supervision of D.C. Bar members.
Suggested citation: Hilary Gerzhoy, Grace Wynn and Deepika Ravi, The Ethical Restrictions on Virtual Law Practice, JURIST – Professional Commentary, April 7, 2020, https://www.jurist.org/commentary/2021/04/gerzhoy-wynn-ravi-virtual-ethics/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org.
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