Social Distance Lawyering – How Close is Your Ethical Compliance?

Social Distance Lawyering – How Close is Your Ethical Compliance?

6.12.2020

By Devika Kewalramani, John Baranello and Eliza Barrocas

 

New Yorkers are grappling with the post-COVID-19 return to life from lockdown, whenever that may be. For months now, serious public health and safety concerns have, rightfully so, dominated the conversation: social distancing, face coverings, and contact tracing, to name but a few.  In the wake of the pandemic, the personal and professional lives of New York lawyers have been dramatically dislocated with office closures, work-from-home orders, new court procedures, and executive orders. However, lawyers’ ethical obligations to comply with the New York Rules of Professional Conduct (the “N.Y. Rules”) have not been paused, relaxed or changed. The same ethical duties – essential duties – continue to govern the conduct of lawyers and firms, pre- and post-COVID-19.

As New York lawyers began to swiftly navigate their practices in the perilous COVID-19 terrain, shifting offices to homes, replacing in-person contact with technology tools, and perhaps temporarily relocating out-of-state, what ethical risks should they watch out for in this increasingly distanced relationship with colleagues, clients, courts and adverse counsel? With remote lawyering extending deeper into 2020, how should New York lawyers ensure that they and their firms are in compliance with their ethical duties? Since the COVID-19 outbreak, the New York State Bar Association and other state bar associations across the country have responded quickly to analyze the ethical impact of the pandemic on the professional conduct of lawyers, and to issue guidance on how to practice ethically during the crisis. Much of the guidance has focused on the rules regarding confidentiality, competence, communication, supervision, multijurisdictional practice, safekeeping property, advertising, solicitation, and lawyer capacity, as discussed below.

Is Client Data Safe At Home?

As COVID-19 ravaged New York, the New York State Bar Association released an important alert (“Alert”) on how New York lawyers should be working securely while working remotely, making sure that their firms have an accessible digital workspace and that lawyers and staff are prepared to work from home. The Alert warned lawyers to be ready for cybersecurity risks that may come with working remotely. It cautioned against storing or transferring client confidential data outside a firm’s secure environment and on unapproved personal cloud service accounts or personal devices that are not secure, and encouraged ensuring personal devices are segregated with separate passwords to restrict access by family members (and if possible, encryption when not in use). In addition, the Alert suggested that firms’ IT departments should keep a watchful eye on remote access to monitor any irregularities, keep better logs of network activity to identify any threats and perform random “stress tests” on existing security protocols to detect any vulnerabilities.^[1]

American Bar Association (ABA) Formal Opinion 482 (2018) (“ABA Opinion”) previously issued guidance concerning the impact of natural disasters (i.e., hurricanes, floods, fires, etc.) on the ethics rules.^[2] It is equally relevant to the COVID-19 pandemic and echoes many of the security concerns raised in the Alert. The ABA Opinion concluded that lawyers should be mindful of their duty of competence to be aware of technology that is relevant to legal practice (ABA Model Rule 1.1) and their duty of confidentiality to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client (ABA Model Rule 1.6(c)), which are similar to N.Y. Rules 1.1 and 1.6. A recent article on the ABA Opinion (“ABA Article”) noted that lawyers should retain consultants to ensure that client matters are handled appropriately and securely, and should not only be aware of “Zoom bombing,” but also careful not to engage in confidential conversations while devices like Alexa and Google Homes are plugged in or within range as they are susceptible to hacking.^[3]

Guidance issued by the State Bar of Wisconsin (“WI Guidance”) provided practical suggestions to avoid cybersecurity risks involving the remote use of video conferencing platforms during COVID-19. It noted that lawyers should understand the need for computer security, have basic knowledge of video conferencing and its implications, recognize the importance of using a video conference provider that implements appropriate security measures, and carefully review and comprehend the terms of use and service agreement. The WI Guidance suggested that when video conferencing with clients and colleagues, lawyers should manually check that Zoom is up-to-date, even if set to automatically update, use the waiting room feature to control participants, manage screen sharing options for video and audio, and use randomly generated meeting IDs and passwords transmitted by different means of communication, e.g., sending the meeting ID via email and the password via instant messaging.^[4] Similarly, Pennsylvania Bar Association Formal Opinion 2020-300 (2020) (“PA Opinion”) cautioned lawyers to ensure that video conferences are secure, meetings are private, and passwords and links are not shared publicly.^[5]

To enhance online security during the pandemic, the PA Opinion warned lawyers to avoid public Internet and free Wi-Fi to access or transmit confidential data due to the ability of hackers to use unsecured Wi-Fi to distribute malware and access unencrypted data, i.e., emails and credit card information. It suggested that lawyers use Virtual Private Networks, two or multifactor authentication, long and complex passwords, back up remotely stored data, when possible, access websites with enhanced security, i.e., HTTPS rather than HTTP, firewalls, use and update anti-virus and anti-malware software, avoid opening or clicking on suspicious attachments or unusual links, avoid using websites with illicit content, use USBs, flash drives, or other external devices that the lawyer owns or was provided by a trusted source, and when appropriate, take reasonable precautions to ensure the data is not infected or corrupted, including contacting the supplying or sending party directly.

Guidance by the State Bar of Michigan (“MI Guidance”) reminded lawyers that as a practical matter, with lightning advances in technology, what is considered reasonable cybersecurity today, may evolve over time. Therefore, lawyers should periodically assess whether their policies and procedures regarding electronically-stored information are consistent with current technology.^[6]

Protecting Confidentiality While Practicing Remotely

A key concern regarding the remote work-setting is how to maintain client confidentiality in compliance with N.Y. Rule 1.6. The ABA Article noted that lawyers should be aware of their surroundings and avoid having confidential conversations around others. The MI Guidance cautioned lawyers on the use of technology and its impact on client confidentiality, noting that although video conferencing, shared files and emails allow lawyers to work remotely, they must exercise reasonable care to ensure that associates, employees, and others do not disclose or use confidential information. Similarly, guidance published by the Florida Bar (“FL Guidance”) suggested that, to ensure that others, including family members, do not have access to client information, lawyers should safeguard their computers, tablets and phones with password protection, and if they use cloud computing technology, they must understand that technology and how it may impact confidential client information. It emphasized that this obligation applies whether legal work is done in the office or from home.^[7]

Similarly, the PA Opinion stated that whether the client communication occurs via email, text message, phone call, chat, or online conferencing, they must remain confidential, and lawyers should take reasonable precautions to prevent unauthorized persons from intercepting and reading such communications. It noted that lawyers should dedicate a private area where they can communicate with clients out of earshot from Amazon’s Alexa, Google devices or other smart devices, which may record private conversations. In addition, the WI Guidance concluded that lawyers’ reasonable efforts to prevent disclosure or access to client data must be proportionate to the risks presented by the technology involved, the type of practice and the individual needs of a particular client.

Supervision By Remote Control

N.Y. Rules 5.1 and 5.3 require law firms and supervisory lawyers to ensure that all lawyers under their supervision conform to the N.Y. Rules, and that the work of non-lawyers is adequately supervised, based upon their experience, amount of work and likelihood of ethical issues arising during the course of work. But how can lawyers effectively supervise other lawyers and non-lawyers remotely? The MI Guidance, FL Guidance and PA Opinion suggested that supervisory lawyers should keep track of important dates and deadlines, provide inexperienced lawyers with supervision, have resources available to resolve ethical problems, account for client funds and property, and make sure that there are procedures in place to detect conflicts of interests.

To supervise remotely, the MI Guidance recommended that supervisory lawyers ensure that non-lawyers are provided with the necessary assistance, instructions and supervision concerning the ethical aspects of their work, especially to protect client confidences and to avoid accidental straying into the unauthorized practice of law. It suggested that whether via video conferencing, email, or phone calls, lawyers should stay connected to their staff and to other lawyers using the same tools they would use to stay connected with clients. In addition, the PA Opinion stated that lawyers should ensure that their firms have appropriate policies requiring staff, consultants or other third parties to restrict use and disclosure of confidential client information to which they may have access.

Crossing State Borders, Physically, to Practice, Virtually

Working remotely can mean different things to different New York lawyers. Some are remote lawyering during the pandemic without having left their New York residences while others have moved (temporarily) to another home in-state or out-of-state where they are not licensed or admitted to practice. New York lawyers who have relocated to another state due to the COVID-19 outbreak should be careful not to engage in the unauthorized practice of law in violation of N.Y. Rule 5.5. The ABA Article observed that lawyers who have relocated should determine whether they can serve clients in their home jurisdiction. In some states, it may be against the rules to practice remotely on behalf of home state clients. Further, lawyers should not assume that ABA Model Rule 5.5(c), which allows temporary multijurisdictional practice, will apply in a particular jurisdiction and should consider consulting qualified counsel in their temporary jurisdiction to ascertain whether major-disaster provisions are in effect and whether any local rules or requirements may impact their ability to practice. Moreover, the ABA Article noted that out-of-state lawyers providing disaster victims with representation should also consider the rules regulating temporary practice and seek counsel from qualified lawyers.

Interestingly, D.C. Court of Appeals Opinion 24-20 (2020) (“D.C. Opinion”) analyzed the potential dangers of teleworking from home and its implications on the unauthorized practice of law during the COVID-19 pandemic. The D.C. Opinion concluded that the “incidental and temporary practice” exception under D.C. Court of Appeals Rule 49(c)(13) permitted an attorney who is not licensed in D.C. to practice law from their residence located in D.C., as long as the attorney “(1) is practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdiction where the attorney is admitted to practice; (3) avoids using a D.C. address in any business document or otherwise holding out as authorized to practice law in D.C., and (4) does not regularly conduct in-person meetings with clients or third parties in D.C.”^[8]

Advertising Services in a Pandemic

Cultivating client relationships is an integral facet of lawyering. In times of uncertainty, lawyers may feel increasing pressure to expand their client base and may even consider embarking on less conventional marketing and business development practices. New York lawyers should be alert to N.Y. Rules 7.1, 7.3, 7.4 and 7.5 that place various restrictions on the content and context of advertising and solicitations regarding legal services. The ABA Article notes that lawyers should advertise cautiously during the COVID-19 crisis, being mindful that they must still comply with advertising and solicitation rules, specifically ABA Model Rules 7.1–7.3, in addition to any other requirements imposed by particular jurisdictions. Further, if lawyers comply with applicable rules, they may communicate with prospective clients in targeted written or electronic recorded material. The ABA Article also observed that during the pandemic, it may be possible for lawyers to solicit pro bono clients in real time because their motives do not involve pecuniary gain, which would otherwise violate the solicitation rules.

Communicating While Social Distancing

Communication is key to any relationship, and N.Y. Rule 1.4 lays out the duty to communicate with clients. Although most New York lawyers are not working in a traditional office-setting during the pandemic, they must still ensure that they are in regular contact with clients. The ABA Article states that lawyers should ensure their clients know that they remain available to handle their matters and to discuss with them how the COVID-19 pandemic may impact case strategy. In addition, lawyers should consider how these circumstances may impact their ability to serve clients, and should promptly notify their clients of their unavailability if, due to exigent circumstances such as a mental health crisis or a family member’s positive COVID-19 diagnosis, they are unable to devote necessary attention to client matters. The ABA Article suggested that lawyers should provide an alternative that provides seamless client service.

The MI Guidance provided practical suggestions on how to maintain client communication during the coronavirus crisis, noting that pursuant to ABA Model Rule 1.4, lawyers must keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information. Lawyers should provide their clients with the best method of contact, whether it be by phone, email, text, or video call. Lawyers should also keep clients updated on the status of their case and stay up-to-date on any business being conducted at the courts. The MI Guidance and the Utah Bar Coronavirus Response (“UT Response”) stated that if lawyers have a succession plan in place should they become ill or are unexpectedly unable to represent their clients, they should inform their clients of this plan and discuss what the clients can expect moving forward, including who will contact the client.^[9] Furthermore, the MI Guidance recommended that lawyers should find out from their clients who their power of attorney or legal representative is, should the client become ill or otherwise unable to communicate with their lawyers, and added that it would be prudent to obtain this information in writing and alternatively, to be prepared to provide resources if clients do not have a plan. The FL Guidance added that if withdrawal from representation becomes necessary, the tribunal’s permission may be required, and the lawyer must take reasonable steps to protect the client’s interests.

Prepare to Be Unprepared (or Unwell)

There are a number of technological competency requirements under N.Y. Rule 1.1 that lawyers should be mindful of during the COVID-19 pandemic. For example, the PA Opinion noted that lawyers are obligated to understand the risks and benefits of technology, pointing out that while some lawyers may be technologically competent and know how to implement safeguards, others should seek proper guidance from appropriate staff or outside consultants in order to do so. To illustrate, the WI Guidance recommended that when using video conferencing for court appearances, lawyers should understand how video conferencing works, since preparing for court appearances is part of the duty of competence. The FL Guidance urged lawyers to be on high alert for email scams, avoid downloading links from unfamiliar senders, and be aware of wire transfers that may be fraudulent, to prevent risking technological incompetence.

The Oregon State Bar Coronavirus Response (“OR Response”) highlighted another aspect of the duty of competence, observing that part of being a competent and diligent lawyer is to stay up-to-date on current events, including information and updates from the court.^[10] The FL Guidance provided helpful tips to ensure that lawyers competently represent their clients, for example, having an emergency plan to access calendars and stay on top of client matters, hearings, closings, or appointments, to collect packages and regular mail, to retrieve voicemail, e-files, and e-portals, to manage attorney trust accounts, and to monitor court and administrative office closures and how they may impact client matters, filing deadlines and hearing dates.

Notably, the UT Response analyzed how the health of lawyers may impact their ability to competently and diligently represent their clients. Lawyers may have to consider withdrawal in the event that a client will be harmed by delay or if they will be unable to adequately prepare for the client’s matter. In addition, the OR Response concluded that in the event that lawyers become impaired, incapacitated or die, they must arrange to safeguard clients’ interests, including withdrawal if needed, or retain another lawyer to take over the matter with client consent.

Last but not least, lawyers have an obligation to act with civility. The Los Angeles County Bar Association released an important statement imploring lawyers to do their best to help mitigate stress and health risk to litigants, counsel and court personnel, and to avoid any practices that may increase such risk or seek to take advantage of the public health and safety crises.^[11]

In these extraordinary times, bar associations across the nation have provided lawyers with practical and useful guidance that will go a long way to inform lawyers of their continuing ethical obligations to clients that are unchanged and uninterrupted by the unprecedented disruption inflicted by COVID-19. It remains to be seen if other aspects of our professional conduct rules are implicated by the pandemic, and whether bar associations will issue further guidance as COVID-19 lingers on. Lawyers cannot foresee the future, but they can plan for pandemics in order to continue to protect the interests of their clients and to comply with their ethical obligations – with masks on.

Devika Kewalramani is a partner and chair of Moses & Singer LLP’s legal ethics & law firm practice. John Baranello is of counsel and managing attorney in the firm’s litigation department. Eliza Barrocas is an associate in the firm’ litigation department.

[1] See Cybersecurity Alert: Tips for Working Securely while Working Remotely, Technology and the Legal Profession Committee of the New York State Bar Association (March 12, 2020).

[2] See Ethical Obligations Related to Disasters, American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 482 (September 19, 2018).

[3] See Five Pointers for Practicing in a Pandemic, published on the ABA website, Margaret Monihan Toohey (April 8, 2020).

[4] See Videoconferencing and COVID-19: Zooming in on our Ethical Obligations, published on the State of Wisconsin Bar website, Aviva Meridian Kaiser, Ethics Counsel with the State Bar of Wisconsin (April 7, 2020).

[5] See Ethical Obligations for Lawyers Working Remotely, Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Formal Opinion 2020-300 (April 10, 2020).

[6] See Ethics in the COVID-19 Pandemic, State Bar of Michigan (2020).

[7] See Ethics during COVID-19, The Florida Bar Ethics and Advertising Staff (April 8, 2020).

[8] See Teleworking from Home and the COVID-19 Pandemic, D.C. Court of Appeals Committee on Unauthorized Practice of Law Opinion 24-20 (March 23, 2020).

[9] See Utah Bar Coronavirus Response: Ethical Considerations during a Coronavirus (COVID-19) Outbreak, Utah State Bar (2020).

[10] See Coronavirus Response: Legal Ethics FAQ, Oregon Bar (2020).

[11] See Statement by the Los Angeles County Bar Association Professional Responsibility and Ethics Committee, published on the Los Angeles County Bar Association website (2020).