ABA Issues Ethics Guidance On Virtual Law Practices

Since the COVID-19 pandemic began, millions of professionals and other workers, including lawyers, went from working in offices to working remotely, from their homes, in spare bedrooms, or on dining room tables. Rather than appearing personally at client conferences and court hearings, during the pandemic lawyers met with clients via telephone conferences, deposed adversaries remotely and appeared in court via ZOOM videoconferences, phone calls and FaceTime. Even though the world and law practices are beginning to open up, some of the conveniences and efficiencies experienced in a virtual practice are sure to continue.

Addressing this new reality, on March 10, 2021 the Standing Committee on Ethics and Professional Responsibility of the American Bar Association released Formal Opinion 498, entitled Virtual Practice. In the opinion, the ABA clarifies how an attorney’s ethical obligations are affected by working remotely. The short answer is, “Not much.”

Opinion 498 defines virtual practice broadly, as “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” Although the ethics rules apply to both traditional and virtual law practice, a lawyer’s practice may be entirely virtual because there is no requirement in the ethics rules that a lawyer have a brick-and-mortar office.

The opinion makes clear that a lawyer’s basic ethical requirements are fundamentally unchanged by a change in practicing law from a physical location to practicing law remotely or virtually. The ABA specifically focused on the ongoing duty of an attorney with respect to competence, diligence, communication, confidentiality and supervision.

The opinion also emphasizes the ethical requirements of competence and diligence with regard to the use of technology. The opinion addresses a variety of the technology issues that may arise in a virtual practice, particularly with regard to a lawyer’s duty to be competent in technology, to maintain client confidences, and to supervise staff

With regard to technology, lawyers are expected to stay abreast of the risks and benefits of relevant technology. The opinion urges lawyers to consider using secure Wi-Fi, virtual private networks, unique complex passwords, implementing firewalls and anti-Malware/AntiSpyware/Antivirus software on all devices, the encryption of data that is physically stored on a device and multi-factor authentication to access firm systems, and secure virtual teleconferencing technology. The opinion also recommended that attorneys working remotely disable technologies like Siri and Alexa to avoid electronic eavesdropping.

Lawyers practicing remotely must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. However, a lawyer may transmit information relating to the representation of a client over the Internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access.

Lawyers also must properly supervise subordinates, by adopting and tailoring policies and practices “to ensure that all members of the firm and any internal or external assistants operate in accordance with the lawyer’s ethical obligations of supervision.” The lawyer must ensure that law firm tasks are being completed in a timely, competent, and secure manner, requiring regular interaction and communication with associates, legal assistants, and paralegals.

The Opinion concludes as follows:

The ABA Model Rules of Professional Conduct permit lawyers to conduct practice virtually, but those doing so must fully consider and comply with their applicable ethical responsibilities, including technological competence, diligence, communication, confidentiality, and supervision.

Formal Ethics Opinion 498 is attached here – [gview file=”https://vanarellilaw.com/wp-content/uploads/2021/03/aba-formal-opinion-498.pdf”]

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