New ABA ethics opinion addresses professional responsibilities of virtual practice

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Lawyers can practice law virtually but must ensure that they consider various ethical responsibilities related to the duties of competence, diligence, communication, confidentiality and supervision, according to a new opinion released by the ABA’s Standing Committee on Professional Responsibility.

Formal Opinion 498, released Wednesday, defines virtual practice as “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” Many more lawyers now practice at home or from a location outside of a traditional law office.

An ABA press release is here.

Even so, lawyers engaging in virtual practice must ensure that they adhere to the related duties of competence and diligence under ABA Model Rules 1.1 and 1.3, respectively.

The duty of competence also requires lawyers to stay abreast of “the benefits and risks associated with relevant technology,” as noted in Comment 8 to Model Rule 1.1. Lawyers practicing virtually also must ensure they pursue matters on behalf of clients diligently and without unnecessary delay. There is also a duty of communication under Model Rule 1.4, which requires lawyers to “reasonably consult” with clients and keep them updated about their cases.

Lawyers practicing virtually also must take steps to ensure confidentiality of client information. This often requires lawyers to install “any security-related updates and using strong passwords, antivirus software and encryption.”

When connecting over Wi-Fi, lawyers should consider using virtual private networks. Lawyers need to ensure that virtual meeting or teleconferencing platforms used are secure. “Likewise, any recordings or transcripts should be strongly secured,” the opinion cautions.

In addition to their own virtual work, lawyers practicing remotely retain an ethical responsibilities to supervise subordinate lawyers and nonlawyer assistants under Rules 5.1 and 5.3. Lawyers running virtual practices must exercise managerial authority in such a way as to ensure compliance with the ethical rules. “This duty requires regular interaction and communication with, for example, associates, legal assistants and paralegals.”

The opinion also cautions that there are limits to virtual practices and technology. The lawyer must still be able to write and deposit checks, make electronic transfers and maintain full trust-accounting records. “Finally, although e-filing systems have lessened this concern, litigators must still be able to file and receive pleadings and other court documents,” the opinion reads.

While comprehensive and informative, the opinion notes that it does not address issues involving interstate virtual practice and unauthorized practice of law issues that might arise from such practices.

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