ABA Ethics Committee Provides Tech Guidelines for Practicing Remotely

On March 10, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility published Formal Opinion 498 permitting the virtual practice of law. A year into pandemic shutdowns which included the widespread closure of courts and law offices, this is unsurprising. With much of the industry forced to practice remotely during this period, it’s become clear that it can indeed be done.

Much of what the committee reviews in this opinion is predictable and general, reinforcing that a lawyer’s ethical responsibilities stand even under abnormal circumstances. The document gives particular attention to potential issues of confidentiality that may arise when lawyers work from home.

Taking client calls a few feet away from a family member or roommate who is not under the same ethical obligations as a law firm colleague could, for instance, expose confidential details of a client matter. On a similar note, the committee recommends a “clean screen” policy so work documents aren’t visible to others in the home.

Perhaps what is most interesting about this opinion is the committee’s decision to reference specific uses of technology. Handy for lawyers new to practicing virtually, it could be used as a starting checklist for a remote office. Beyond simple steps like shutting off smart speakers that listen for voice commands, the opinion also includes instructions for ensuring privacy in how client data is stored and shared through third party platforms.

While opinions from the American Bar Association are advisory in nature, they are also frequently referenced by regulatory authorities in determining actual standards of conduct. This means that Formal Opinion 498, in detailing ethical responsibilities around remote work technology, may raise standards relating to lawyers’ use of particular categories of software and hardware. It is possible, going forward, that lawyers could be disciplined for failing to follow specific language regarding the use of technology.

While it does indirectly reference a prior opinion focusing on lawyers’ duties during an emergency, Formal Opinion 498 establishes that the Rules of Professional Conduct apply fully to virtual arrangements outside of these circumstances as well. The virtual law practice is here to stay, and this opinion provides useful information. Pronouncements regarding the uses of technology, especially in a home environment, cry out for some application of a harmless error rule or related doctrine. But given the composition of the committee, its history, and its mission, it is probably asking too much to expect an opinion with that kind of nuance.

Can You Take Work Product With You When You Change Firms?

With an increasing number of lawyers (especially partners) changing firms, procedures relating to such moves have become more standardized. Most notably, the use of a Lateral Partner Questionnaire (LPQ) is now commonplace, particularly among larger law firms. The LPQ helps lawyers and the firms to which they might be moving address key financial issues and identify potential client conflicts.

One issue that remains a bit murky is the degree to which a departing lawyer may take work product with them. The lack of clarity is an outgrowth of the conflicting authorities that have addressed the duty of an attorney to turn over work product more generally.

When deciding what to do with work product, it is important for the departing lawyer and the firm to be aware of the essential governing principles. As we previously wrote about, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released an opinion in December of 2019 on the responsibilities law firms and lawyers have to clients when an attorney transitions out of a firm. The ABA ‘s opinion emphasizes that the law firm and the departing lawyer have a duty to cooperate with each other during the transition period after a lawyer announces their intent to leave but before they have actually left.

A second principle is that the client owns the client file. What constitutes the client file is, however, not entirely clear. Rule 1.16(e)(1) of the California Rules of Professional Conduct (formerly Rule 3-700(D)) identifies what needs to be returned to a client, specifically including “pleadings, deposition transcripts, exhibits, and physical evidence,” as well as “other items reasonably necessary to the client’s representation.”

Whether the “reasonably necessary” documents include attorney work product has been the subject of ongoing disagreement. Some bar associations’ ethics committees have determined that work product paid for by the client should be part of the file and must therefore be turned over, while other bar associations have reached the opposite conclusion.

So what is a departing lawyer supposed to do?

As with many areas of practice, the best approach lies at the intersection of good communication skills and sound judgment. To the extent that the departing lawyer is worried the firm won’t turn over key work product in an ongoing matter, they are probably better off not taking the work product and instead having the client ask for it in writing. That puts the firm in the difficult situation of having to potentially go to court to explain why the client shouldn’t get the work product in question. That is generally a stronger position for the departing lawyer than simply taking the work product.

Likewise, if the departing lawyer created the work product in question and the matter is now dormant or otherwise uncontroversial, the firm is less likely to object to the lawyer making a copy of the work product as long as they notify the firm that they intend to do so. If the firm takes the position that departing lawyers may not take any work product they created, it might be helpful for the departing lawyers to forward the December 2019 ABA ethics opinion to the firm.

Although the law in regards to the handling of attorney work product could be clearer, the fortunate reality is that this ambiguity need not derail or become a significant issue in a vast majority of attorney departures.