In the past year and a half, many attorneys have shifted their law practice from the traditional brick-and-mortar law firm to a virtual practice. While this transition may have started out of necessity, many have grown to appreciate and enjoy virtual work and are looking to remain virtual permanently.
Rewind to the beginning of 2020, the transition to the virtual practice of law was a rocky one. Many looked to the American Bar Association as well as local bar associations for guidance on how to practice law virtually. Blog posts, guides, and webinars helped many of us through the transition and provided helpful advice on working from home.
Fast forward a bit to March of 2021, and the ABA Standing Committee on Ethics and Professional Responsibility has responded with Formal Opinion 498 on virtual practice.
While the formal opinion is broad, it does permit the use of technology to enable law practices to operate virtually. Those who choose to practice virtually must fully consider and comply with their applicable ethical responsibilities, including technological competence, diligence, communication, confidentiality, and supervision.
Professional Conduct Rules For Attorneys
Although the ethics rules apply to both traditional and virtual law practice, virtual practice implicates an additional set of unique ethics rules.
Formal Opinion 498 reiterates the ethical rules which apply to all attorneys, virtual or not. Particularly in the areas of competence, confidentiality, and supervision, such as:
- Model Rules 1.1, 1.3, and 1.4 address lawyers’ core ethical duties of competence, diligence, and communication with their clients. Comment [8] to Model Rule 1.1 explains, “To maintain the requisite knowledge and skill [to be competent], a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
- Under Rule 1.6 lawyers also have a duty of confidentiality to all clients and therefore “shall not reveal information relating to the representation of a client”
- Model Rules 5.1 & 5.3 Lawyers with managerial authority have ethical obligations to establish policies and procedures to ensure compliance with the ethics rules, and supervisory lawyers have a duty to make reasonable efforts to ensure that subordinate lawyers and nonlawyer assistants comply with the applicable Rules of Professional Conduct.
Ethical Obligations for Technology and Virtual Practice
Guided by the rules highlighted above, lawyers practicing virtually need to assess whether their technology, other assistance, and work environment are consistent with their ethical obligations. Below is a summary of the virtual practice considerations outlined in Formal Opinion 498.
1. Hard/Software Systems
Lawyers must ensure their hardware and software systems are up to date and equip to protect confidential information from unauthorized access. This includes but is not limited to installing security updates, utilizing strong passwords, antivirus software, and encryption.
2. Accessing Client Files and Data
Attorneys should always have reliable access to client files, contact information, and data. Data stored in the cloud and any backup data should be easily accessible to the attorney. In the event of a data breach, law firms should have a data breach policy and communication plan in force.
3. Virtual meeting platforms and video conferencing
Virtual meeting platforms should be properly vetted to ensure the terms of service are consistent with the lawyers' ethical obligations and the appropriate security is being maintained.
To avoid violating the ethical duty of confidentiality, virtual meetings should not be recorded without client consent and should be conducted in a private space where third parties are unable to overhear client information and interactions.
4. Virtual Document and Data Exchange Platforms
Similar to the rule above, the terms of service for document and data exchange platforms should also be reviewed. Attorneys should ensure their chosen platforms have the proper security and archive features.
5. Smart Speakers, Virtual Assistants, and Other Listening-Enabled Devices
Unless the technology is assisting the lawyer’s law practice, the lawyer should disable the listening capability of devices or services such as smart speakers, virtual assistants, and other listening-enabled devices while communicating about client matters.
6. Supervision
To be in accordance with the ethical obligations of supervision, lawyers should tailor their policies to fit their virtual practice. For example, routine communication with associates, assistants, and paralegals should be conducted to ensure tasks are being completed and the team is doing well.
All law firm employees who have access to client information must receive appropriate oversight and training to maintain the confidentiality of such information, including when working virtually.
Practicing law virtually comes with its own set of challenges that brick and mortar law firms simply don't. Technology has come a long way in recent years and has made it possible for attorneys to not only practice law from the comfort of their homes but do so securely and within compliance with their ethical duties.
As technology evolves, so do the ethical standards and professional conduct surrounding it. Be sure to annually revisit the Model Rules of Professional Conduct as well as staying up to date with the latest technology and security standards.
Read the full Formal Opinion 498 released by the American Bar Association Standing Committee on Ethics and Professional Responsibility.
