New Ethics Rules for the New Normal

Here are some best practices for remote work.

The pandemic not only introduced a new normal for practicing law, it also created a new normal for legal ethics.

Take Rule 5.5. In general, the rule prohibits lawyers from practicing in states where they aren’t licensed. But remote work and social distancing have changed the game. Lawyers can now work virtually from anywhere, including from second homes and sites in other states.

“ABA Model Rule 5.5 – adopted by many states – already contemplates providing legal services on a ‘temporary’ basis in a jurisdiction where a lawyer is not barred, under certain circumstances,” according to attorneys Deepika Ravi and Amy Richardson in this post for the NC Bar Association blog. “But if your remote practice is longer term, and you are working in a state where you are not barred, that exception may not apply to you.”

Step one is to research the rules in the state where you’re licensed – plus the state where you want to work, if only temporarily.

Another pointer: review ABA Formal Opinion 495, issued in December 2020, which lays out ethical guidelines for working virtually.

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Five “New Normal” Ethics Considerations

Here are five other ethics issues to keep top of mind, from the article by Ravi and Richardson. All quotes are theirs, from the article.

  1. Rule 1.6 Confidentiality. “Remote work poses special challenges not present in the traditional office setting,” write Ravi and Richardson. “This includes, for example, the risk of being overheard on calls with clients or colleagues. If you have not already done so, take some time to designate a space where you can work without being overhead by others in your household – such as a partner who is also working remotely, children who may be home from school, or repair personnel or individuals making deliveries. If you tend to move around during the day – from kitchen table, to home office desk, to backyard patio—make sure you think through how to maintain client confidences in each setting. If you work from a home office, consider implementing a ‘clear screen, clean desk’ policy.”
  2. Rule 1.1 Competence. “[G]et comfortable with the technology you are using to work from home or from other non-office locations – and if you don’t know how to operate a particular piece of software, or have questions about how to safeguard information transmitted using technology, make sure you ask.”
  3. Rule 5.1 Supervision. “Remote work underscores the need for effective, frequent supervision. A few best practices: check in early on with new hires to communicate expectations about maintaining client confidences and appropriate use of technology; check in with all attorneys and non-attorneys on a periodic basis to answer any questions and reinforce expectations; and make sure you communicate with vendors and other outside support staff to understand their practices and assure yourself they are consistent with your own ethical obligations.”
  4. Rule 1.3 Diligence. “When not in the office, it can be more difficult to keep track of important deadlines. Create a system for calendaring important deadlines so that they are on your radar, and where possible, factor in extra time for internal or client review of work product. If you are going into the office only occasionally or not at all, make sure that you have a plan to process mail you receive at the office – one option is to request that someone going in on a more regular basis open and scan your mail to you. And while some courts and agencies relaxed requirements for submitting courtesy paper copies of filings, expectations are in flux. So, make sure you are familiar with the up-to-date rules for the agencies, courts, and judges you frequently appear before, and have a plan to submit filings by hand if needed.”
  5. Rule 1.4 Communication. “If you primarily communicate with your client by email, make sure that your emails are actually being received and understood. And, be diligent about checking your spam folder, in case your client’s efforts to reach you, or confirmation of a court filing, is inadvertently redirected into that folder.”

Source: Ethical Compliance in the “New Normal”: How to Comply with the Rules of Professional Responsibility When Practicing Remotely – NCBarBlog

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