More Tech, More Problems? New ABA Rules on Professional Conduct for Working Virtually Provide Guidance
In March, the American Bar Association (ABA) released a lengthy opinion on virtual practice. Formal Opinion 498 states that while the ABA Model Rules of Professional Conduct allow lawyers to conduct their practice virtually, they need to ensure compliance with ethical responsibilities while conducting business in this manner. With the increased reliance on remote work and adoption of advanced technologies in the legal industry, lawyers need to be extra mindful to remain ethical when completing tasks virtually. From conducting a client meeting via Zoom to working on a brief on a personal laptop over home WiFi – lawyers must keep ethical considerations for confidentiality, competence, communication, supervision, and diligence at the forefront.
Ethics and Digital Competence
In the digital age, the duty of competence acts as a precursor for several other ethical obligations. Lawyers need to uphold their ethical duty of competence before being able to adequately protect confidential information, communicate with a client or coworker over a new collaboration platform, or successfully supervise a subordinate remotely. ABA Rule 1.1 states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The comments discuss how this obligation extends to keeping advised of the benefits and risks associated with relevant technology. As of March 2021, 39 states have adopted the duty of technological competence.
So, what does this mean for practicing lawyers today? Even if someone chooses not to utilize all the latest technologies, they still need to be aware of the tools other lawyers in the same practice area are using and understand the basics. For example, it would serve litigators well to have proper education about technology assisted review (TAR) and for contracts lawyers to learn about contract analytics software. It is also of the utmost importance to know how platforms, apps, and devices operate before using one for a client or other work-related matter and to ensure that there are no serious security risks present. Without competence in situations like these or holding onto the unwillingness to adopt emerging technologies, lawyers can put client data at risk and even inadvertently provide disadvantaged representation. This can result in serious ethical violations and all lawyers should review their current policies, procedures, and workflows to ensure they are meeting the duty of competence – especially when carrying out work functions virtually.
Based on the recent guidance from the ABA, here are a few best practices that lawyers should implement to maintain the duty of technological competence, particularly with the legal industry’s uptick in remote working and collaboration platforms:
When working remotely, whether from home or another location, make sure to understand what security measures need to be deployed. This includes having competence about secure WiFi, virtual private networks, firewalls, antivirus software, encryption, strong passwords, and more. Lawyers should implement security measures like these to safeguard confidential information and protect communication on all devices used for work purposes. Also, carefully review the terms of service for hardware devices, software systems, cloud providers, and virtual document platforms to make certain there are no security concerns with using certain technologies or devices and that vendors deploy acceptable standards.
Research virtual meeting platforms and videoconferencing apps before setting up a meeting with a client or business associate. Confidential information discussed over audio or video needs to be kept secure. Lawyers need to know if a certain app or platform records conversations or creates a transcript so they can get client consent before conducting a meeting.
Be aware of devices that have listening-enabled features so these capabilities can be disabled when communicating about a confidential matter. Failure to be aware of this puts client data at risk for inadvertent disclosure or hacking.
Create policies that promote technological competence and provide mandatory training for the department or firm. Lawyers need to ensure that the subordinates they supervise keep up to date on new technologies and implement proper security measures because senior lawyers can face ethical violations for inadequate supervision that results in an ethical violation.
Keeping these ethical considerations in mind and adopting policies around virtual practice will help lawyers uphold the duty of competence and other duties in the same manner as if they were conducting business in person. Just remember that the competence obligation is evolving and requires more diligence than ever before as the legal industry navigates the digital age. While every lawyer will not adopt the same level of technology, proper education about what other lawyers are doing in a given practice area is crucial. This requires taking a step past actually embracing emerging technologies. Lawyers also need to have some level of operational understanding about the technology they use. This includes things like Zoom meetings, communication apps, data exchange platforms, AI solutions, and electronic devices. Failure to properly maintain technology competence can result in ethical violations, court sanctions, hacking, and client confidentiality breaches. If hesitancy to adopt and learn about relevant technology remains, just remember that there are several added bonuses like client marketability, cost savings, more efficient workflows, better outcomes, and faster results.
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