The Lawletter Vol 47 No 1
As the world’s efforts to combat COVID-19 continue, most practitioners have adapted their practice by virtual hearings and meetings. Virtual law practice was clearly contemplated before the pandemic, but health concerns and court closures have dragged many practitioners further into the future than may have been contemplated even five years earlier. These adaptations have permitted attorneys to keep their lights on their virtual practices while providing clients with continued access to legal representation. The ever increasing reliance on technology to deliver legal services, however, carries its own set of ethical concerns that must not be overlooked.
The traditional ethical obligation of competence set forth in Model Rules of Professional Conduct Rule 1.1 includes the obligation to remain competent in changes in the law and its practice, including the benefits and risks associated with relevant technology. The ethical obligation of communication, usually applied in apprising the client of any developments in representation, includes with it the ethical duty relating to disasters. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 482 (Sept. 19, 2018). Most attorneys have learned that their ethical obligation of confidentiality includes safeguarding electronic communications. A virtual practice is not inconsistent with these ethical obligations. The practice of law no longer mandates a physical office location.
ABA Committee on Ethics & Professional Responsibility, Formal Opinion 498 (Mar. 10, 2021) highlights the application of traditional ethical obligations to a virtual law practice. For instance, attorneys have an obligation to ensure that the internet access they use is secure and reliable. This would include the security of routers and the potential use of VPNs to access office files. Client files must be securely backed up, archived, and readily accessible to the attorney. Virtual meetings must ensure the confidentiality of the client and not be casually overheard by nonlawyers in the household. Further, particular care must be taken to ensure that assistants and support staff using their own equipment at home are equally secure as the equipment in a brick-and-mortar office. This would include the ability to remotely wipe lost or stolen devices, frequent changes of passwords, and the use of encryption programs when needed. Further, attorneys must have ready access to files and materials stored on support staff’s equipment. More basic to a virtual practice would be the implementation of a policy to close all files while communicating with a client to avoid an unintentional on-screen disclosure. Virtual practitioners must also ensure that traditional “snail mail” is processed, trust account funds are accessible to clients, and timely deposits are entered.
While practitioners may need to adopt new office policies to ensure that all ethical obligations are squarely met, the growth of virtual law practices appears to be a permanent evolution in the practice of law.