Wednesday, April 7th, 2021
By Gideon Grunfeld
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.