What Lawyers Must Understand About Cloud Computing and Ethics While Working Remotely
1.25.2022
When having a conversation with a client while working at home, take a close look at your surroundings. Is there a smart device, like an Amazon Alexa, in your presence?
If so, move immediately or shut it off, because a third-party could have access to your client’s sensitive information.
More than 600 lawyers listened to Niki Black, legal technology evangelist at MyCase, as she described the pitfalls of working from home on the Annual Meeting program, “The Ethics Of Working Remotely During The Pandemic And Beyond.” She focused on three core issues: technology competence, secure communications, and the unauthorized practice of law.
Technology competence
The COVID-19 pandemic pushed lawyers into the cloud.
According to the MyCase Legal Industry Survey, 88 percent of respondents shared that their firms used cloud computing software in 2001, up from 76 percent pre-COVID.
Eighty percent reported that remote working tools were part of their firm’s long-term business continuity strategy.
Because we have all been working remotely, bar association ethics committees have stepped up their game with practical guidance, Black said.
She explained that part of attorney competence is technology competence.
Michigan Bar Ethics Opinion EI-381 states that: Lawyers have ethical obligations to understand technology, including cybersecurity, take reasonable steps to implement cybersecurity measures, supervise lawyer and other firm personnel to ensure compliance with duties relating to cybersecurity, and timely notify clients in the event of a material data breach.
She credited the NYSBA Guide for Virtual Court Appearances for helping to fill in “the Zoom gaps” when the pandemic started, which included dressing as if appearing in court, one person speaking at a time, and avoiding food and drinks on camera. Water is OK, but nothing else, she advised.
“We are more forgiving of dogs barking or kids showing up on camera,” said Black. “We’ve all been there.”
Secure communication
The Pennsylvania Bar Association Formal Opinion 202-03 said that it is ethical to use cloud computing. American Bar Association Opinion 477 affirmed that lawyers may need to use a secure client portal option over “inherently insecure” email.
Black suggested that lawyers note the use of client portals in their engagement letters, as patients do to communicate with their doctors and nurses securely. She has advocated for lawyers to embrace client portals since 2009.
Benefits include a centralized location for all communications, the ability to review all changes and edits, and the ease of use for clients.
The Pennsylvania Bar also recommended that Zoom links should not be shared publicly, certainly not on social media. Hosts should require a password and remind guests to update the latest versions of software.
Black recommended to use strong passwords; avoid public wifi; secure all remote locations; save data on the office network rather than the device; and update software regularly.
“Any account that you have online should have MFA,” said Black, on two-step authentication.
She advised not to have work-related conversations in the presence of smart devices such as Alexa or Siri. “It is unclear how much they are listening, but they absolutely are listening,” said Black. “You will likely see ads after you mention a product. You do need to be aware of your phones in that respect.”
Attorneys should also opt for professional versions of email over AOL or Gmail, as well as file storage systems like Dropbox.
Unauthorized practice of law
“Where technology goes, the business world follows,” said Black. She cited the examples of Xerox and Kodak not adapting to technology advances that sealed their fate.
ABA Formal Opinion 495 states that lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted. There are some conditions, though. The lawyers must not hold themselves out as being licensed to practice in the local jurisdiction and the local jurisdiction must not consider it the unlicensed or unauthorized practice of law. Lawyers cannot advertise in the local jurisdiction and cannot provide or offer to provide legal services in the local jurisdiction.
Black also said that New York’s Judiciary Law 470, which requires lawyers admitted to practice in New York – but residing in other states – to maintain a physical law office in New York State, is outdated and antiquated.
