ABA Provides New Guidance on Remote Work for Lawyers

On March 10, 2021, the American Bar Association released new guidance for attorneys working remotely. While there has never been a distinction in the Model Rules for Professional Conduct between working in a brick-and-mortar office or working remotely, the prevalence of remote work has increased significantly within the last year. Attorneys will likely continue working remotely for several months and many firms may transition to some form of permanent remote working, as firms recognize the benefits of allowing attorneys to work from home part-time or full-time.

In this guidance, the ABA highlights certain ethical obligations that are implicated more than others when attorneys work remotely – specifically the duty to practice competently, to adequately supervise those who work for you and to preserve confidentiality.

ABA Model Rule 1.1 requires that attorneys practice competently. While this is generally thought of as a very basic requirement, it is more taxing in the context of remote work. Attorneys working remotely must understand the technology they are using and any risks associated with that technology. For example, attorneys should understand whether the hardware, software or internet connection being used is secure or whether the attorney needs to take extra precautions – such as encrypting files or adding passwords – to make sure their work platforms are safe and secure. Attorneys also need to understand the basics of how to use the platform for their remote work, such as whether documents and electronic communications are automatically saved or whether they need to regularly backup their emails and documents. Finally, attorneys are also expected to know what tasks cannot be done remotely, such as whether courts require paper filings or whether any local rules require appearances to be done in person.

Another important rule implicated by remote work is the requirement to properly supervise attorneys and non-attorney staff. Working in different physical locations from those you supervise can be very challenging. However, the same ethical obligation to ensure that associates, paralegals and support staff comply with all ethical rules applies. Attorneys working remotely – or whose staff members are working remotely – should set up clear policies and procedures that address remote work, such as requiring everyone to work from devices with secure internet connections or explaining how work done remotely must be saved to the law firm’s computer system. Supervising attorneys should also make a concerted effort to frequently check in with those who they work with as they no longer have the benefit of simply stopping by someone’s office.

Finally, attorneys must be aware of the ways working remotely can impact the attorney-client privilege and attorney work product doctrine. Working remotely, particularly during the pandemic, often means working from one’s home, where other people are present. Attorneys need to ensure that no one else can overhear their privileged communications with their clients and/or have access to confidential information. Attorneys should also turn off any smart speakers, virtual assistants and other listening-enabled devices, such as Google Home or Amazon Alexa, as many of these devices automatically listen to and record conversations. If attorneys are communicating with their clients through video-chat platforms, they should make sure those platforms are not automatically recording, saving, or transmitting those conversations. With regard to confidential or privileged documents, attorneys should take steps to ensure that these documents are protected both on their devices and when transmitting them to others. Attorneys should make sure any device being used to access confidential documents is password protected and should only send documents through secure channels, such as those that encrypt files or otherwise require a password.

While COVID-19 upended the legal industry last year, it appears that working remotely, at least in part, is here to stay. Attorneys need to take extra precautions to make sure that while they are practicing law in a remote environment, they continue to comply with their ethical obligations and are following their state’s mandates and court procedures.