On March 10, 2021, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 498 to provide guidance on ethical issues associated with the virtual practice of law. Although the opinion provides few bright-line rules, it does address several important issues that lawyers should consider in the age of the virtual practice of law.
Commonly Implicated Model Rules
Ethics rules govern both traditional and virtual law practices. Lawyers engaged in remote practice must remain cognizant of how virtual practice implicates the key ethics rules.
First, a lawyer always has duties of competence, diligence, and communication. See ABA Model Rule 1.1 (competence); ABA Model Rule 1.3 (diligence); ABA Model Rule 1.4 (communication). Comment 8 to Model Rule 1.1 explains that 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.” Id. r. 1.1, cmt. 8 (emphasis added).
Second, a lawyer have a duty to preserve his client’s confidences. See ABA Model Rule 1.6. Lawyers in traditional and virtual practices electronically store large amounts of confidential client information. Considering that a lawyer’s iPhone can hold gigabytes of confidential information, the duty of technological competence is important even as to something as seemingly innocuous as using a mobile device.
Third, a lawyer in a supervisory role has an obligation to ensure that subordinate lawyers and nonlawyer assistants comply with the applicable rules of professional conduct. This duty to supervise includes making sure that those who work with a lawyer use technology appropriately.
Particular Virtual Practice Technologies and Considerations
Formal Opinion 498 addresses these common virtual practice issues:
- Hardware/Software Systems: Lawyers should ensure that they have carefully reviewed the terms of service applicable to their hardware devices and software systems to assess whether confidentiality is protected. Lawyers should routinely check for security-related updates and use strong passwords. When connecting over Wi-Fi networks, lawyers should ensure that routers are secure and consider using virtual private networks (VPNs).
- Accessing Client Files and Data: Lawyers must have reliable access to client information and client records. A cloud based system for storage of client files, such as OneDrive or DropBox, is particularly helpful for the virtual lawyer. Lawyers using cloud based systems, however, must ensure the data is regularly backed up and that files are accessible in the event of a data loss. In anticipation of a data loss or hack, lawyers should also have a data breach policy and plan to communicate losses of information to affected clients.
- Virtual Meeting Platforms and Videoconferencing: Lawyers using videoconferencing to communicate with clients should investigate whether the platform will be recording the conversation. Formal Opinion 498 advises against recording conferences without client consent. Importantly, Formal Opinion 498 cautions virtual lawyers to remain cognizant of their surroundings when conducting virtual conferencing. Any client-related meetings should not be overheard by others in the household or office, or by any third parties who are not assisting in the representation.
- Virtual Document and Data Exchange Platforms: Lawyers should assure that document platforms are appropriately archived for later document retrieval and that the service remains secure. As an example, Formal Opinion 498 explains that a lawyer transmitting information over email should consider whether such information should be encrypted in transit and in storage.
- Smart Speakers, Virtual Assistants, and Other Listening-Enabling Devices: Lawyers should disable the listening capabilities of devices while communicating about client matters unless the technology is assisting the lawyer in his law practice.
- Supervision: Supervising lawyers must adopt and customize policies and procedures to ensure that all members of the firm are complying with the rules of professional conduct.
The virtual practice of law is accelerating rapidly because of improved technology and increased need. Such practice, however, presents practical and ethical hurdles for the technologically incompetent. All lawyers must fully consider and comply with their ethical obligations, including technological competence, diligence, communication, confidentiality, and supervision.