As working remotely becomes the new norm in the era of COVID-19, attorneys cannot slack off on rules of professional conduct, according to new guidance issued by the state bar of California’s Standing Committee on Professional Responsibility and Conduct.
The draft opinion stems from a law firm questioning what ethical obligations arise as a result of implementing a hybrid work environment to provide lawyers and staff with the flexibility to work remotely and in the physical office when necessary.
“This opinion will focus on the primary rules that may be implicated by a lawyer’s remote legal practice,” the draft opinion states in response. “The ethical obligations discussed herein would apply to lawyers who work remotely regardless of the underlying reasons or whether a traditional, physical office space remains available.”
Reuters reported that public comment on the guidance is being accepted by the state bar until Nov. 12.
“This COVID-19 is going to be around for a while and the changes we’ve experienced are going to be around for a while, too,” said attorney Nicole Kuklok-Waldman. “There aren't any excuses anymore.”
The following are three of the primary rules that are implicated by an attorney’s remote practice of law.
Duty of Confidentiality, Rule 1.6
Confidentiality can potentially be compromised by working from home because it's harder to find privacy when household members are present, according to Kuklok-Waldman.
“Not a lot of us had good work-life boundaries before COVID because we didn't need them,” she said. “Today, you might have to take calls from the bathroom because of other people's ears. There may be family members, a housekeeper, or a babysitter around whom you trust but you have to be very mindful that those people are not subject to attorney-client privilege the way you are as an attorney.”
Duty of Competence, Rule 1.1
The committee recommends third-party cloud providers to store or backup confidential client files or other technology solution vendors to facilitate remote practice.
“The firms have built-in several layers of security but when you're working at home, if you're not set up to work from home by your firm, you may not have the same level of security or it may be difficult to comply,” Kuklok-Waldman told the Southern California Record.
Duty of Communication, Rule 1.4
In certain circumstances, phone conferences or video conferences may be needed to ensure clients are receiving and understanding litigation information, according to the draft opinion.
“Lawyers are having to learn to manage their time differently because even though we’re in a pandemic, we still have obligations,” Kuklok-Waldman said. “We’ve had more than a year and a half to figure this out. There's no reason you can't call or text your client back within a reasonable time and let him or her know what's going on or email them and give them an update. Even if the update is, ‘I don't have an update,’ that's still a valid update.”