Ethical Guidelines for Trial Attorneys Working Remotely

Technology is an essential part of any modern practicing attorney’s toolkit. In Tad’s Tech Corner, join me as I discuss how to best utilize technology– both from a device and software standpoint– during your daily lawyering tasks and trial. Discussions, as always, are welcome in the comments section below.

— Tad Thomas

For over a year, the COVID-19 pandemic has led to attorneys practicing law out of offices and out of courtrooms for the safety of themselves, their clients, and others. While there are certain benefits to working remotely, attorneys need to consider the ethical concerns related to this operational format and ensure they are following the proper guidelines.

In December 2020 and March 2021, the ABA discussed how lawyers can properly work from home while continuing to provide their clients with the best legal representation. The two opinions discussed, Formal Opinion 495, Lawyers Working Remotely, and Formal Opinion 498, Virtual Practice, discussed jurisdiction considerations and how to use technology and continue to uphold the duties of competence, diligence, and communication.

The Ethics of Cross-Jurisdictional Remote Work

In regard to cross-jurisdictional remote work, lawyers need to be aware if they are performing services on behalf of a client located in another jurisdiction than where they are licensed to practice. In some situations, an attorney can do this, but the overall ethics are not straightforward.

Under Model Rule 5.5, lawyers are ethically permitted to practice law in the jurisdictions where they are licensed, even if they are physically located in a jurisdiction where they are not licensed. However, that same rule prohibits establishing “an office or other systemic and continuous presence” where they are not licensed. Essentially, this means that you can work remotely in a jurisdiction where you are not licensed, but you cannot make it seem like you are licensed in that area via your website, letterhead, advertising, etc.

Lawyers should heed caution and check the local rules and laws of the jurisdiction where they are practicing to ensure they do not violate anything when they work remotely.

Ethical Consideration for Virtual Legal Work

When it comes to actually conducting legal work virtually, there are a number of factors to consider to ensure you are practicing law ethically. Ethical duties do not disappear in the virtual world. It’s the responsibility of attorneys to continue to maintain client communication and confidentiality, pursue matters diligently, and maintain appropriate supervision of nonlawyer assistants.

Remote work often requires the implementation of new practices or new technological skills to meet ethical duties. Opinion 498, referenced above, highlights these considerations:

• Hardware and software systems should be protected from unauthorized access by means of encryption, anti-virus software, security updates, and secure routers.
• Client records should be easily but securely accessible. It’s important to back up data and have a data breach policy and plan in place in the event of any data losses.
• All virtual documents and exchange platforms should be secure and allow for backup.
• It’s important to consider the listening capabilities of devices like smart speakers and ensure that the functions are disabled when appropriate to avoid unauthorized access.
• All video conferencing platforms should be secure. All meetings should only be accessible through strong passwords, and clients should be informed if a recording is requested so the attorney can obtain consent.
• Any supervising attorneys need to routinely communicate with subordinates and assistants to ensure that staff members, firm members, and outside vendors maintain confidentiality.
• Attorneys also need to be aware of the limitations surrounding virtual work and have plans to address those issues.

In these extraordinary times, trial attorneys need to ensure they stay on top of their bar associations’ practices and useful guidance while continuing to provide legal services. While we may not be able to predict what’s to come, we can stay abreast of trends and be as prepared as possible.