Future Law

ABA Opinion Provides Guidance on Virtual Law Practice

virtual law officeIt’s been a year since the World Health Organization declared the novel coronavirus outbreak a pandemic, turning home spaces into workplaces for attorneys across the globe. While the ABA Model Rules of Professional Conduct haven’t required that lawyers have a brick-and-mortar office, virtual law practice has accelerated recently, due to the enhanced use of technology by lawyers and clients and social distancing guidelines.

The ABA released a formal opinion this week further defining best practices and minimum requirements for technologically enabled practices. The guidelines particularly fall into the areas of competence, confidentiality, and supervision.

Competence, Confidentiality, and Supervision

Lawyers should have plans in place to ensure responsibilities regarding competence, diligence, and communication are being fulfilled, especially when using technology, the opinion says.

The Model Rules lay out a lawyer’s ethical duty to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” (Model Rule 1.1, Comment [8]) To date, 38 states have adopted some form of this Model Rule for tech competency.

Whether interacting face-to-face or through technology, lawyers must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished; . . . keep the client reasonably informed about the status of the matter; [and] promptly comply with reasonable requests for information. . . .” (Model Rule 1.4(a)(2) – (4))

Similarly, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to client representation and take reasonable precautions when transmitting such information, the opinion says.

In determining the reasonableness of the expectation of confidentiality, lawyers should “include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.” (Model Rule 1.6, Comment [19])

Finally, lawyers have a duty to make reasonable efforts to ensure subordinate lawyers and nonlawyer assistants comply with the Rules of Professional Conduct, specifically regarding virtual law practice policies, the opinion says. This applies to those within and outside the firm. (Model Rules 5.1, 5.3)

A lawyer must “act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” (Model Rule 1.6, Comment [18])

How To Safeguard Client Information

Attorneys practicing virtually must assess whether their technology, other assistance, and work environment are consistent with their ethical obligations, the opinion says.

By implementing security protocols – like Virtual Private Networks, complex passwords, anti-Malware/AntiSpyWare/Antivirus software, data encryption, security updates, and multi-factor authentication – virtual law practices can securely communicate, access, and store client data.

Looking for ways to ensure your client data is protected? Check out these pieces:

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