Ethical Home Practice In a Pandemic
Most attorneys are still working from their homes as the COVID-19 pandemic evolves. It is unclear when they will be returning to their offices and it appears certain that many will still be working remotely at least from time-to-time as law firms either delay reopening or institute rotating office schedules. This is a good time for a reminder of some key ethical obligations that arise from working at home.
On 10 April 2020, the Pennsylvania Bar Association issued one of the first written advisories on the ethical obligations for lawyers working remotely. The primary focus of the opinion is on maintaining the confidentiality of client information and communications with clients. While the normal office environment is carefully set-up to keep confidential documents and information secure, attorneys are now working from home offices that are not as carefully set-up, and often not intended as the sole location for their practice. There are perils with the internet as well as communicating by phone in ad hoc locations.
Some of the key bullet points identified in the Order are that attorneys and staff must take reasonable precautions to assure that:
- All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information;
- Information transmitted through the Internet is done in a manner that ensures the confidentiality of client communications and other sensitive data;
- Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form;
- Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud;
- Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; and,
- Appropriate forms of data security are used.
The Opinion elaborates on these points in further detail.
The primary focus of the opinion is on maintaining the confidentiality of client information and communications with clients.
Another helpful article was issued by the Massachusetts Board of Bar Overseers (BBO). Its ethics advisory takes the form of Frequently Asked Questions. The BBO article also focuses first on the duty to “take reasonable steps to maintain client confidentiality.” This includes: setting up a separate work area in your home; conducting conversations so that they cannot be overheard or intercepted; and maintaining internet security by using secure connections and avoiding public or shared Wi-Fi connections.
The BBO writes that lawyers have an obligation to “maintain competence in technology” and that “a lack of technology” is not an excuse for an attorney to stop working on their cases. This gives rise to a conundrum for the attorney who lacks the necessary technological resources or competence to properly work from home. The BBO essentially opines that the attorney either needs to secure the technology and competence or “consider referring matters to other lawyers.” The BBO article goes on to address questions such as closing offices, client expectations, and getting sick. It is worth taking a moment to read.
Last, many of the pitfalls of ordinary practice are heightened when an attorney’s usual practice is disrupted. For example, with absent face-to-face contact, it is harder than ever to detect scammers employing spoofed email addresses to misdirect the disbursement of escrowed funds, particularly in residential real estate closings. Attorneys need to take extra care to ensure that confirm disbursement instructions are authentic by phone or video conferencing. Another classic pitfall is the tracking of deadlines. Attorneys separated from their office calendaring systems must take steps to track critical dates such as statute of limitations deadlines, or contractual deadlines.
Attorneys need to take extra care to ensure that confirm disbursement instructions are authentic by phone or video conferencing.
In conclusion, working from home in 2020 is very different than working from home in the past, when many attorneys worked remotely on an intermittent basis. In 2020, attorneys were given little advance notice before relocating their practice to their homes, have been required to work remotely on a continuous basis, and have been cut-off from their offices. It is worth taking a moment to carefully consider the ethical obligations and pitfalls arising from this sudden and continuous displacement.
Edward S. Cheng is a partner at Boston-based law firm, Sherin and Lodgen. He has over two decades of litigation experience, specializing in complex commercial disputes, professional malpractice cases, insurance coverage disputes, and real estate litigation. He also represents attorneys in disciplinary proceedings before the Massachusetts Board of Bar Overseers and has lectured and written on the subject of legal ethics.