When the COVID-19 pandemic began in March of 2020, businesses had to make adjustments. Law firms were no exception.
Instead of working in the office, attorneys and legal staff worked remotely from home. Someone typically reported to the office to pick up mail or organize files, but most communication and work were handled virtually from multiple off-site locations.
Together, we stumbled through 2020 as best we could, adapting to constant changes and trying to learn from our mistakes. It took a full year for the American Bar Association (ABA) to issue an opinion on the virtual law practice.
Because our country is still in the grips of a global pandemic, many law firms may continue practicing virtually, at least in part. Some clients may be hesitant to come into the office. Therefore, attorneys may have no choice but to continue virtual consultations to secure new clients.
Because we do not know how the pandemic will evolve, it is a good idea for lawyers to read and analyze the ABA’s opinion now. We never know when we might be required to operate virtually again, and we do not want to make the same mistakes regarding business ethics and technology.
What is a Virtual Practice?
The ABA Formal Opinion 498, released on March 10, 2021, defines virtual practice as a “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” The ABA Model Rules of Professional Conduct allow for virtual practices.
However, the opinion points out that while lawyers can practice law virtually, there are several ethical duties to consider when using technology. The areas of confidentiality, competence, and supervision are of particular importance.
The opinion discusses some of the issues related to virtual practice. It points out that the ABA Model Rules of Professional Conduct provide minimum requirements and some suggestions of best practices for a virtual practice.
Commonly Implicated Model Rules of Professional Conduct
The opinion discusses specific Model rules related to:
Competence, Diligence, and Communication
The Model Rules require that attorneys keep informed about changes in the law and its practice. This duty includes the benefits and risks of relevant technology.
Therefore, attorneys should take steps to ensure they are aware of changes. They need to comply with continuing legal education requirements and research the matter independently.
Attorneys also must ensure they exercise due diligence on behalf of their clients. Lawyers must communicate regularly with their clients regarding the status of their matters.
Lawyers have a duty to pursue a matter, despite any obstruction, opposition, or personal inconvenience. Clients have a right to be consulted about their case and receive the information they request.
Attorneys need to develop plans that ensure they can comply with these requirements, even if they practice virtually.
Confidentiality
Model Rule 1.6 prohibits lawyers from revealing information related to representing a client. The duty persists even if an attorney is practicing virtually. There must be informed consent, a specific exception, or implied authorization for the attorney to discuss client matters.
An attorney must make reasonable steps to protect client confidentiality.
According to the ABA Formal Opinion, a lawyer should consider:
- The sensitivity of the information
- The cost of employing additional safeguards
- Likelihood of disclosure if no other safeguards are installed
- The extent to which the safeguards negatively impact the representation of clients
- The difficulty in applying the safeguards
A virtual practice adds additional concerns related to confidentiality. Transmitting documents virtually poses a risk of disclosure. Discussing information online could result in breaches of confidential information. Additional steps may be required to protect confidentiality in a virtual practice.
Supervision
Lawyers have a duty to ensure nonlawyer staff members and subordinate lawyers comply with ethics rules. Practicing virtually does not lessen the attorney’s duty.
An attorney should instruct employees about ethics, especially related to confidentiality. Employees should understand the rules about safeguarding information. They must avoid inadvertent disclosure or unauthorized access to client information.
Other Matters Covered by the ABA Formal Opinion for Virtual Practice
There are several other topics covered in the ABA Formal Opinion, including:
- Hardware and software systems
- Accessing client data and files
- Videoconferencing and virtual meeting platforms
- Virtual data and document exchange platforms
- Virtual Assistants, Smart Speakers, and other listening-enabled devices
- Supervision
The opinion also discusses the possible limitations of virtual practice. Virtual practices may not be suitable for all areas of law or law firms.
The Bottom Line
Attorneys are expected to follow all ethics rules. They must continue fulfilling their duty of care. These requirements exist regardless of whether they are virtual or meet with clients in a traditional law firm setting. It is up to each attorney to ensure compliance with the rules for themselves and their staff members.