Ethical Compliance in the “New Normal”: How to Comply with the Rules of Professional Responsibility When Practicing Remotely

By Deepika Ravi and Amy Richardson

Many of us have heard discussions of a “new normal” when it comes to the practice of law – a movement toward a hybrid approach to work that gives lawyers the flexibility to work from the office, from home, or from another non-office location. One thing is clear: times have changed, and for many of us, remote practice (at least part-time) is here to stay. But when remote work is a choice, instead of a necessity while offices remained closed due to COVID-19, what are the implications for our ethical compliance?

State ethics opinions on the ethical contours of remote work provide guidance on how the rules of professional responsibility apply to remote practice. This includes, for example, working from home full time while law offices remain closed due to COVID, working from home part time and in the office part time, working from a vacation home for the summer, or working from a hotel while on business travel.

Here, we break down some of the implications of long-term remote practice on lawyers’ ethical compliance with the rules of professional responsibility.

Unauthorized Practice of Law

The rise of remote work means that lawyers can work from anywhere. But how does this intersect with the prohibition on unauthorized practice of law? If you are barred only in North Carolina but your North Carolina office is closed due to COVID, can you work from your family’s vacation home in Virginia? What if you are barred only in North Carolina and your North Carolina office is open for business, but you are caring for a family member in California and working from there for a few months?

ABA Model Rule 5.5 – adopted by many states – already contemplates providing legal services on a “temporary” basis in a jurisdiction where a lawyer is not barred, under certain circumstances. But if your remote practice is longer term, and you are working in a state where you are not barred, that exception may not apply to you.

As a starting point, identify the jurisdictions at issue: (1) the state(s) where you are barred; and (2) the state where you are physically located and working (but where you are not barred). Then, review the rules of professional responsibility and ethics opinions in both jurisdictions. Many states have issued ethics opinions weighing in on remote work – for example, Florida Advisory Opinion SC20-1220, issued in May 2021, opines on the circumstances under which an attorney not licensed in Florida can work remotely from his Florida home. Fla. Sup. Ct., No. SC20-1220 (May 20, 2021). ABA Formal Opinion 495, issued in December 2020, also provides helpful guidance.

If you are working remotely from a jurisdiction where you are not barred (your “local” jurisdiction), but you are not offering to provide legal services on the law of the local jurisdiction, and are not marketing yourself in a way that suggests you are barred in the local jurisdiction, you may not run afoul of the local jurisdiction’s rules on unauthorized practice of law. Again, the rules vary by state, so make sure you check the law that applies to you. A few best practices to avoid running afoul of the rule prohibiting unauthorized practice of law: don’t list your home address on correspondence if you are not barred in that state; have work mail sent to your office, not your home; and clearly list your jurisdictional limitations in marketing materials.

Confidentiality

The ethics rules require lawyers to protect client confidences and secrets – yet remote work poses special challenges not present in the traditional office setting. This includes, for example,  the risk of being overheard on calls with clients or colleagues. If you have not already done so, take some time to designate a space where you can work without being overhead by others in your household – such as a partner who is also working remotely, children who may be home from school, or repair personnel or individuals making deliveries. If you tend to move around during the day – from kitchen table, to home office desk, to backyard patio—make sure you think through how to maintain client confidences in each setting.

If you work from a home office, consider implementing a “clear screen, clean desk” policy. When you are done with work for the day, or if you step away from your desk for a while to deal with other matters, save and close out of any client documents on your monitor so they are not visible to others who may enter the room. If your home office desk is covered with papers at the end of the day, shuffle them into a folder and place them in a drawer or another secure location – again, so they are not visible to others.

On a more technical level, when using WiFi to work remotely, make sure you are using a secure, password-protected connection and not one that is generally available to the public. And, if you have “smart” devices in your home, disable their listening capabilities or power them down before you get on a call with clients or colleagues.

Competence

The pandemic gave all of us a crash course in technologies many of us had used rarely, if at all, before. Technology has made remote work easier than ever before – but the ethics rules on competent representation remind us to consider technology’s benefits and also its risks. And of course, an increased use of technology for remote work can lead to an increase in vulnerability to hacking, ransomware, and other inadvertent disclosure of or unauthorized access to client information.

Take some time to get comfortable with the technology you are using to work from home or from other non-office locations – and if you don’t know how to operate a particular piece of software, or have questions about how to safeguard information transmitted using technology, make sure you ask. For example, if you are familiar with videoconferencing via Zoom but know your client prefers to use a different platform, make sure you familiarize yourself with the platform, know how to turn your video and microphone on and off, and how to screen share only the information you want to make visible, and nothing more. If you choose to use cloud-based storage to remotely access client documents and draft work product, make sure you first review the ethics rules and opinions in your jurisdiction on cloud-based storage. Also review the terms of service for the cloud-based service provider and make sure the service will appropriately protect the client’s confidential documents and that you will still be able to access the stored material if the system crashes.

The bottom line: make sure you understand the risks and benefits of the technology that is facilitating your remote work, and ask questions when you are not sure.

Supervision

Lawyers with managerial authority in their law firm or organization, or any attorney working with a non-attorney such as a paralegal or outside vendor, have an obligation to supervise the lawyers and non-lawyers with whom they are working to provide reasonable assurances of compliance with the ethics rules. But how can you meet your duty of supervision when all your colleagues are working from home, or when your part-time-in-office schedule does not match up with your colleagues’ schedule?

Despite the complications of remote work, the duty to supervise has not changed – and in fact, remote work underscores the need for effective, frequent supervision. A few best practices: check in early on with new hires to communicate expectations about maintaining client confidences and appropriate use of technology; check in with all attorneys and non-attorneys on a periodic basis to answer any questions and reinforce expectations; and make sure you communicate with vendors and other outside support staff to understand their practices and assure yourself they are consistent with your own ethical obligations.

Diligence

When not in the office, it can be more difficult to keep track of important deadlines. Competing demands create greater risk that something could fall through the cracks. Create a system for calendaring important deadlines so that they are on your radar, and where possible, factor in extra time for internal or client review of work product.

If you are going into the office only occasionally or not at all, make sure that you have a plan to process mail you receive at the office – one option is to request that someone going in on a more regular basis open and scan your mail to you. And while some courts and agencies relaxed requirements for submitting courtesy paper copies of filings, expectations are in flux. So, make sure you are familiar with the up-to-date rules for the agencies, courts, and judges you frequently appear before, and have a plan to submit filings by hand if needed.

Communication

Communicating with your client can be a challenge when you are both juggling competing demands at work and at home, and when in-person meetings may not be an option. Keep in mind that not all communication is effective communication – so talk to your client about their preferred approach –whether by email, phone, videoconference, or some other method. If you primarily communicate with your client by email, make sure that your emails are actually being received and understood. And, be diligent about checking your spam folder, in case your client’s efforts to reach you, or confirmation of a court filing, is inadvertently redirected into that folder.

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When the pandemic struck, many of us transitioned abruptly from a full-time office environment to full-time work-from-home. With more than 18 months of remote work under our belts and with offices slowly reopening, now is a good time to reassess our remote work practices. As a best practice, make sure you review the rules of professional responsibility, the ethics opinions, and case law in your jurisdiction to determine how to comply with your ethical obligations.

Deepika Ravi is admitted in the District of Columbia and California. Amy Richardson is admitted in North Carolina and the District of Columbia. Deepika and Amy are partners at Harris, Wiltshire & Grannis LLP.