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Can I Keep Working From Home?: The Ethics of Remote Work

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Can I Keep Working From Home?: The Ethics of Remote Work

Can I Keep Working From Home?: The Ethics of Remote Work

During the COVID-19 pandemic, many lawyers began working remotely from home every day. How do the ethics rules apply to long-term remote or “hybrid” practice? In this course, we will explore some of the rules of professional responsibility implicated by long-term remote and hybrid practice—including the rules of confidentiality, communication, supervision, and competence—and offer practical tips for ethical compliance. We will end with a discussion of the rules on unauthorized practice of law and the ethics opinions offering guidance to lawyers who may be living and working remotely from a state in which they are not admitted to practice.

Presenters

Deepika Ravi
Partner
HWG LLP

Transcript

- [Amy] Okay, there we go. All right. Hello and welcome. My name is Amy Richardson and I'm here with my colleague Deepika Ravi. And we're gonna do a presentation and try and make ethics as exciting as we can. We're really gonna focus on working from home and kind of the ethics of remote practice. So as far as an intro, the world has changed. I think we all know that as the result of the COVID pandemic. It has changed the way we work, how we work, even the physical location for which we work. And then the result of having to do that through the pandemic has kind of changed how workplaces, if they even are coming back to physical spaces or acting, and the legal world is not exempt from this. And so we're gonna approach kind of the ethics issues associated with that. So if you, your workplace, or people at your firm or workplace are working not from the physical space that they normally were, we're gonna look at how this applies and the impacts of that under the ethics rules. So the agenda of what we're gonna go through today, we're gonna talk about really the difference between telecommuting and remote work, what the ramifications of that is. And it's interesting to think about in some ways the ethics rules necessarily are backwards looking, right? They react to changes in technology, changes in work habits. So you'll see throughout our presentation state bars and the American Bar Association kind of catching up with this, even with the idea of something being called telecommuting, where it was the idea that, okay, you maybe had a computer, but your primary way of interfacing with people was just over the telephone and remote work. And telecommuting has changed so much where it's not really even just telephones now. In fact, most of us have a telephone and a computer in our pocket through our cell phones, and interact with our computers in a totally different than you did, you know, even just a few years ago. So the other things we're gonna talk about is really the rules of professional conduct that are implicated by these differences between telecommuting and remote work. We're gonna focus on confidentiality, communication, supervision, which is a big section of rules that is oftentimes not talked about. Then we're gonna talk about competence. And one of the most important things we're gonna talk about that Deepika is gonna really dive into is the unauthorized practice of law. If you're suddenly practicing from a place that you're not barred, does that matter? And how does it matter? So with that, I'm gonna turn it over to Deepika to start talking a little bit, or actually it's me to start talking a little bit more in depth about the telecommuting. So telecommuting involves obviously when a lawyer is working from an office in one location, but they are different from where that physical place. So for example, a home office or if you have a vacation home, if you're lucky enough to have that, or you're spending an extended period of time somewhere else, another time that remote work comes up is, for example, if you have a partner or spouse that happens to get into school in a different state and you don't, you wanna continue working for your organization or your law firm, and you were originally in New York City and suddenly your partner has a residency in Minnesota, how does that work? And as I said at the top, during COVID, a lot of lawyers were mandated to work remotely. Some of us had exceptions where we were allowed to go into physical offices, but the majority of lawyers, including government lawyers, pro bono lawyers, in-house lawyers were working from home every day. You saw this massive shift and state bars themselves started thinking, "Well, this is not just gonna happen as a result of the pandemic, it is happening from the pandemic." But for example, states like California in 2021 very recently said, "Well, this could happen due to natural disasters." You may remember in 2021 there were some pretty significant fires and California was reacting to that. And just seeing the reasons that people might need to work remotely could be personal based, preference based, but it could be other issues other than just a pandemic such as the fires. And really, I think the majority of people that I talk to, and it might actually be your experience if you're listening to this, that many lawyers are actually engaged in a hybrid practice where they spend some time in a physical office and other time in a remote setting, which is why understanding these rules is really critical, because you might be working in a different way in those two different settings. You might be working from a home office where you're in the kitchen or working from a physical office where there's a closed door or even a cubicle, and understanding the implications of both of those. I was talking to a client today who said that their law firm is now requiring there to be just two days a week where everyone comes in. And then the other three days it is the attorney or non-lawyers decision that works at the firm where they're gonna work. I think a lot of workplaces are moving to that. So the question then becomes how do the ethics rules apply to the idea of long-term remote practice? So that I will now actually turn it over to Deepika to talk about confidentiality in particular and how those rules apply to long-term remote practice.


- [Deepika] All right, thanks, Amy. So the first rule that we're gonna talk about, the first rule of professional responsibility in the context of long term remote or long term hybrid practice is the rule on maintaining client confidences. And this in particular has really become an issue during the pandemic. Of course, this rule has existed long, long before the pandemic became an issue. But the idea here is that with the increased use of technology to work remotely or to work from home part-time and in the office part-time, there's potentially greater risk that client material can get disclosed, that conversations might be had in a setting that is not as private as an office with a closed door. And so there's greater and renewed focus, I think, on the rule about maintaining client confidences and what that looks like as a practical matter when lawyers are working from home part-time or full-time. So we'll start with the text of the rule. We're seeing here the model rules of professional conduct. Of course, as with any question of ethical compliance, we always recommend checking the ethics rules and the ethics opinions issued in the jurisdictions where you are barred. But the model rules provide a nice starting point for the discussion. And of course, the rule, starting with 1.6a, requires that a lawyer shall not reveal information relating to the representation of a client. Different jurisdictions express this in different ways. DC for example, speaks to confidences and secrets of a client. But the idea is that lawyers are required to keep confidential information relating to a client representation. 1.6c goes on to provide more detail on this rule, and it says that lawyers need to make reasonable efforts to prevent inadvertent access to information, inadvertent disclosure of information relating to the representation of the clients. So the question is, I think, what are the contours of this rule when we're speaking about maintaining client confidences when working remotely? And I'll note too, in looking at the comments to the rule that the comments say that, you know, provided that a lawyer has made these reasonable efforts to prevent unauthorized access, inadvertent disclosure, then if something should occur, if there was unauthorized access or unauthorized disclosure, if the lawyer has made those reasonable efforts, then that means that the lawyer might be protected, right, from an allegation of a breach of rule 1.6, that if something did happen, if there was unauthorized access or disclosure, the question is, well, has the lawyer made those reasonable efforts to prevent that from happening? So of course, I think that leads us to the question, right? How does this rule apply in the context of remote and hybrid practice, right? In this different setting where we're working remotely full-time or part-time where lawyers are kind of making different decisions about their work environment, what reasonable efforts are lawyers expected to make to maintain those client confidences? And I think there is, there's a few factors that we can look to, to think about what reasonable efforts need to be made. So this again, is found in comment 18 to model rule 1.6. The comments are clear that this is not an exhaustive list of factors that a lawyer should consider in thinking about whether her efforts are reasonable or not. But they are a starting point of factors to consider. One, for example, is the sensitivity of the information. Not all client information is of the same degree of sensitivity. And so if some information is particularly sensitive, for example, if we're talking about medical records of a client, there can be a consideration about providing that information with more protection, making more efforts to preserve that confidence, versus if the information is something that is really far less sensitive and maybe merits a different level of protection. The likelihood of disclosure is also a factor to consider. If additional protective measures aren't taken, what's the likelihood that the information could be accessed by someone who should not be accessing it, right? So the likelihood of the risk is also a factor to consider. It can be a balancing act, right? The cost and the difficulty of taking additional measures can be a factor in thinking about whether what the lawyer did or is contemplating doing is reasonable or not, right? So if something is excessively costly or very difficult to implement, then maybe it's not reasonable to expect its use across the board. It's more of a fact specific determination. And of course, practicalities, right? If a lawyer has made a particular piece of information just difficult to access in order to do their job, right? If the lawyer has taken so many safeguards to protect the information that it's difficult to use for the client's representation, that also can be a factor in thinking about, well, is it reasonable to expect the lawyer to take that excessive measure? So this is again, not an exhaustive list, but is a helpful starting point when thinking about whether a lawyer has made reasonable efforts to protect client's information. There have been a number of ethics opinions that have come out over the last few years providing lawyers with more guidance specific to the pandemic context, right? When thinking about working remotely, working from home in the context of the last few years, state ethics opinions, the ABA have come out with some just really helpful and practical guidance about what lawyers could do in order to preserve client confidences in this kind of new normal that we're all thinking through. One is right, thinking through the environment. If working from home, can your communications, can your conversations be overheard by others in your environment, right? If you don't have the normal routine we all used to have where we used to go to the office, shut the door, and have a private conversation with a client, thinking through how to assure that privacy in a different environment can be really helpful to think through. Other ethics opinions suggest implementing a clear screen, clean desk policy, right? If at the end of the day you have a bunch of papers on your home office desk, if everything that you've been working on is up on your monitors for people to see, that could potentially be an issue if others in your household might be using that same room later. So some ethics opinions suggest, you know, clicking out of the materials on your monitor at the end of the day or if you're going to step away from your computer for a while, shuffling papers that you're not using or have finished using for the day into a folder so they're not out on your desk. Another, I think kind of more recent recommendation is thinking about whether there is a device in the room in which you're working remotely and having these private conversations with colleagues or with clients thinking through if there's a device in that room whose job it is to listen to what you are saying and do what you asked to do, right? These smart devices that kind of have that listening and recording capability, ABA ethics opinion 498 in particular, which came out during the pandemic, suggested disabling the listening capacity of these smart devices if they're in the same room where you are having private conversations for work or of course you can simply just move them out of the room altogether if you're not using them. A few more technical tips that the ethics opinions offer, you know, using a secure Wi-Fi connection, right? If you're working using a private Wi-Fi network, making sure that it's password protected, considerate using a VPN or another type of secure internet portal where your communications can be encrypted in transit using unique and complex passwords, right? And updating them every so often. This again, of course is nothing new, right? We all had this requirement before, but the ethics opinions remind us that this can be really helpful to stay on top of, again, as we're all continuing to use more and more technology to practice remotely. Keeping on top of these security issues can be really helpful to protect against unauthorized data access. And of course staying on top of security and software updates, it can be tempting if there's a software update that comes through to just kind of deal with it later or maybe forget about it, but it is helpful to install those updates promptly because they do help patch potential vulnerabilities in software. So being mindful about implementing those updates when you can can be another just really helpful practical measure. And finally, just a few kind of more, I think interpersonal practical tips, training employees. And training staff colleagues on best practices when it comes to cybersecurity measures, when it comes to maintaining privacy of communications and email. Consider whether to encrypt information that you're sending by email. The ABA has issued a couple ethics opinions at this point, talking through the level of privacy that an attorney can have in their email and whether certain particularly sensitive types of emails should be encrypted in transit. Reviewing terms of service, right? If you're using an entirely new platform that you haven't used before, maybe working with IT or reviewing the terms yourself to make sure you understand what it is that you're using and that you understand kind of how to use it, how to put yourself on mute on a new platform so that you can have a private conversation. Those types of very practical ways to understand a new type of device, ensuring that a data breach policy is in place. This is something that has really come to the forefront in the last few years thinking about whether your organization has an incident response plan, right? It can be difficult if something should occur to be reactive to that situation. Having a plan in place ahead of time to know who to contact, what measures to take can be really helpful and periodically reviewing the measures that you're taking and thinking about, well, do they remain reasonable in light of the circumstances or has the world evolved? Is it time to update those security measures? And of course, I think one of the real bottom lines is asking for help when needed, right? And especially asking IT professionals for help is really recommended I think by the professional responsibility opinions and I think just kind of as a general matter to think about knowing what you don't know and knowing when it's helpful to loop someone else in. And with that I will turn it back over to Amy to discuss our next rule of professional responsibility, which is communication.


- [Amy] Yeah, and I will say real quick, Deepika, I just as someone who has been practicing for a few years on the Ask IT, I do think sometimes people are hesitant to do that 'cause they wanna show that they understand technology, right? But there's new stuff coming up all the time. I just learned that there's a QR code thing going on right now where I think a lot of people when you go into restaurants now, they're not menus, instead you scan a QR code, the people were putting fake QR codes over those menu things that you scan and when you scan it, it takes over as a Trojan horse, your cell phone. If you're not kind of talking to someone who does regular security stuff like your IT team, you may know about older issues with technology but you may not know that one. So I just really encourage people, as you said, in that very practical advice to be interfacing with IT and if you're a solo practitioner or a small firm to be using resources at your bar association or your bar to try and get that information. So I'm gonna talk about communication model rule 1.4 and we're talking about the model rules all day. You should be checking your individual state where you are a barred for the rules, but the majority of states adopt these rules from the model rules or something similar. So they're a really good place to start and understand and then double check with the rules that apply to you and where you're barred. But rule 1.4a is really focused on what you're required to do in terms of communication with your clients. I like to think of 'em as the first three being kind of proactive and the last one being reactive. And you are required, it is a mandatory requirement to properly inform your client about big things in the case and in particular decisions or circumstances that require that client's informed consent. Of course that would be things like a decision to take a plea agreement or a settlement or a very large transaction that is pivotal to the case. You also have to consult with a client about the means in which you're trying to achieve the big objectives from their case. This actually overlaps with rule 1.2 that says the client, not the attorney controls the ultimate objectives of the case. And while the attorney has most authority over the means, how you're gonna get to the objectives, like who are you gonna interview? You know, what paperwork are you gonna use if it's a transaction, if it's a litigation, what court to file in, you still under rule 1.4 have to consult with your client about that. You also have to keep your client reasonably informed about the status of their matter if you yourself have ever been a client, for example, I got a speeding ticket once and had to hire counsel to help me with it 'cause I was speeding in a work zone, something I won't do again and wasn't able just to pay the ticket. I was on the receiving end of not really knowing like when my hearing was, who was going, what was gonna happen and felt the frustration of that. So especially depending on the type of work you do, you gotta keep your client up to date under the terms of this rule. And then finally the reactive one, which is you have to promptly comply with reasonable requests for information. And again, these are all mandatory requirements that we have to do. Now ABA opinion 498 came out towards the end of 2021 and I don't wanna play favorites, but this is one of my favorite ethics opinions 'cause it was kind of, it was timely, it was released at a time when they were trying to kind of give attorneys proactive guidance of how to meet the ethics rules in the midst of the pandemic. And this was a period of time where very few people were meeting with their clients face to face. It was in some ways the exception, not the rule. And the rule 1.4 of how do we communicate became a bit of an issue because there was this kind of idea of, okay, I'm gonna schedule a meeting with a client, they'll come in, we'll meet face to face, we'll both know how to interact face to face. I will give 'em an update on their case, they'll ask me questions, it'll be just kind of the way that we've always interacted with our clients. Well when you weren't meeting face to face, instead it was through technology, right? You still, according to this ABA opinion, had the same requirements under rule 1.4. You still had to consult with them about the means, you had to keep them up to date even if you couldn't have these kind of in-person meetings. And in a very practical way, the opinion gives some practical tips. Deepika and I are really trying to give you practical ideas to go along with these rules. So if you're in a situation where you're working remotely or you're gonna have a hybrid setting is having a plan with your client, frankly, how they wanna be communicated with and how they can understand, right? Some clients like email, some like the phone, some like a particular virtual meeting platform, they like Teams or they like Zoom and understanding the abilities of those platforms as well as the limitations. 'Cause it has to be that the communication happens in a way that the client gets the information they need in a way that they can understand it. So if you happen to have a client base of people who don't have access to computers and you're working remotely not in the same place they are, you gotta figure that out. Or if you have a very sophisticated client is making sure that you're meeting that need that way, right? If they wanna use a particular type of platform because of its security features. So the other thing to think about is email is so prevalent right now is making sure if part of your security, that kind of meeting 1.6 in creating confidentiality, that if you have a spam filter, that it's not so aggressive that you're actually preventing client communication, where if a client is emailing you that you're not getting it in a timely manner. The fact that a spam filter prevented the client communication is not a kind of get out of jail free type of card when it comes to your requirements under rule 1.7 or 1.4, excuse me. So those are some very practical ways of thinking, okay, if I'm gonna have these mandatory requirements for communication, how can I make it work in the new way that we work, not only just for me, but also for my clients where the emphasis really is. So with that, I'll turn it over to Deepika to start talking about supervision, which is another critical part of the rules, and especially in our new hybrid remote working situations.


- [Deepika] All right. So I think talking about the responsibility of supervision is one of the professional responsibility rules that became really tricky in the context of remote practice, starting with rule 5.1a and b, the rules of course require that lawyers with managerial authority in their organizations need to have reasonable efforts in place to make sure that their organization has measures, rules, giving reasonable assurance that the lawyers in the organization are following the ethics rules. And of course, lawyers having direct supervisory authority over other lawyers need to make those same reasonable efforts to ensure that the other lawyer they're supervising is following the rules of professional responsibility. Rule 5.3 extends this type of supervisory responsibility to lawyers who are working with non-lawyers as well. So for example, document discovery vendors, translators or interpreters with whom the lawyer might be working to facilitate client communication, right? All of the non-lawyers with whom lawyers interact to be able to do their jobs. I think that this became a really tricky balance during the pandemic and during this ongoing kind of long-term remote work when lawyers and non-lawyers that they were supervising aren't necessarily in the same environment, right? They're not in the office full time, not interacting as frequently as they used to in person or even in other ways. So the question I think is really how this, this looks as a practical matter in a remote practice environment. If lawyers and other colleagues haven't met in person for months, or maybe they meet in person only infrequently if they're going into the office part-time, how do the rules on supervision apply in that situation and what does it look like for a lawyer to effectively be supervising a colleague or a non-lawyer with whom they're working? So going back to ABA formal opinion 498, which again came out and in 2021 and as Amy said, provided some very helpful and very timely advice and guidance on how lawyers should be thinking through their ethical obligations in the context of remote work. The opinion essentially said that lawyers who have this type of managerial authority do have this duty to make reasonable efforts to ensure that the lawyers with whom they're working, the non-lawyers with whom they're working, are complying with the rules of professional responsibility. And it concluded that practicing virtually working remotely does not change that supervisory obligation and it doesn't diminish that supervisory obligation. So I think this presents a little bit of a trend that we're seeing, right? Despite the rise of work from home and remote work, the ethics rules haven't changed in response to that and the kind of the level of compliance that's expected hasn't changed in response to that. So the question is, in this new environment and in a situation where lawyers are not necessarily working together in person every day, how can a lawyer continue to meet that same standard? And I think this is in particular one of the rules that's really underscored by remote practice, keeping in mind that lawyers who fail to adequately supervise those with whom they're working and those over whom they have supervisory authority can be held responsible in some situations if a lawyer takes a particular action that's not consistent with the ethics rules. So, you know, the idea of just really effective and frequent repeated supervision I think is particularly helpful to think through in the context of long-term remote work or hybrid practice because it's one of those types of rules of professional responsibility where its importance is really highlighted in this new normal. So just a few practical tips that are offered by a variety of ethics opinions, letting people know, right, what their ethical obligations are, including the obligation to maintain client confidences as we've discussed, but also all the other rules of professional responsibility that govern lawyer's conduct. I think having this conversation early on can be very helpful to make sure that people are kind of aware of their responsibilities and are aware of your role in that process. And I think, you know, having one conversation is probably not considered sufficient to meet this responsibility. One New York formal opinion, which was issued in 2020 suggests engaging in sufficiently frequent contact between supervising lawyers and those who are supervised to kind of reinforce these requirements and to reinforce the message, right? To not just have it be an onboarding conversation, but to have it be an ongoing conversation. Thinking too about those outside your organization whom you might have an obligation to supervise, vendors who you might be working with, support staff and others who might have their own practices in place to satisfy confidentiality and other obligations if you're working, for example, with a new document discovery vendor, thinking through what their terms of service are and what their practices are to preserve client confidences and to keep documents safe. And then thinking through what do you think those practices are sufficient in order for you to meet your own ethical obligations. Another example is, you know, if you're working with an interpreter for the first time to facilitate client communication and you haven't worked with this individual before, having a conversation upfront about the rule on client confidences and that person's kind of obligation to follow that rule. So kind of having these conversations initially and then again kind of throughout the course of that working relationship can be a really helpful tool. Another really practical suggestion, and this was, this came up in ABA opinion 498 as well, is thinking about establishing a bring your own device policy, right? Some organizations have people work remotely from their personal devices and maybe they, they remote in or they use a VPN or some other type of way to get access to work information. Other organizations issue firm issued devices where people can use that device to do their work for the legal organization. So there's a number of different ways to approach this issue, but the question is really, if you are allowing people to use their personal devices to work remotely, thinking through what policies apply to that practice, right? Do you have rules around what people should be doing and on those devices to keep them secure about what people are understanding about the policies behind using personal devices for work purposes? So the ethics opinions I think provide some very hands on guidance about what should be in these BYOD policies and organizations thinking through if they don't have one, whether they need to establish one. And with that I will turn it over to Amy to talk about our next rule of professional responsibility, which is competence.


- [Amy] Yep, so rule 1.1 governs competence and it's a pretty simple one. I like a two sentence rule that's straight up the middle, which is of course you shall, it's again a mandatory rule. You have to provide competent representation to a client. That competent representation is defined within the rule. It requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Now in a kind of environment that is remote or hybrid, we are kind of keep circling around this, the competence is defined not just in terms of like, do I know how to respond to an interrogatory? Do I know how to competently do an M&A deal? It also means dealing with the relevant technology and in fact the American Bar Association in 2020 added a comment to the rule, it added comment eight and explicitly said, In order to maintain your competency under this rule, you have to know how to use the technology. And that includes the benefits and risk associated with the relevant technology. So just like Deepika talked about in supervision and people understanding what device they're using, what system they use, you as an attorney need to understand what they're using and also what you are using and what the risk is associated with that. So if you're going to be traveling and you're gonna be staying at a place for a while and working remotely and you're deciding to use public Wi-Fi, is that competent representation and maintaining things like confidentiality and caring for your clients? It really depends, but it could be an issue. And again, opinion 480 or 498 but I said was, you know, I don't like to call favorites, but one of my favorites, it talks about this increasing use of technology and practicing virtually. And that you have to know that it's connected to your not only ethical obligations under rule 1.6 and confidentiality, but also your competency. If you're going to use this technology, you have to use it effectively. You have to use it to properly communicate, you have to use it to keep the client's secrets and you have to use it in general. I've seen this in two ways come up, we all remember that silly cat video where that poor attorney got on and became kind of like a national story about not understanding a filter and not knowing how to get rid of that filter in the middle of a court hearing. While that was a pretty fun story and everyone I've ever met who knew I was an attorney sent it to me, that did have an impact on how he looked to the court and whether or not he was able to be a competent advocate on behalf of his client. So you see in the sense of people using technology and not knowing how to do it, virtual hearings are a really important part of that. You also see it on kind of the other side, which is if clients are sending you stuff or in other words the technology on the client's side and making sure that you're able to meet them where they're sending you. And this includes remotely if someone's sending you or needs a link to send a large amount of documents that are gonna be secure or they want to be secure, do you know how to do that? And are you able to get the documents properly to them? And with this increased remote practice, it takes this issue that happened before and only elevates it. So I'm a member of the DC Bar, I'm also a member of the North Carolina Bar and the North Carolina Bar Association now requires in conjunction with meeting the requirements for rule 1.1, that members of the bar get a technology credit every year. We have mandatory CLE in North Carolina and you have to get a certain amount of hours and it used to be that it was certain hours including some type of wellness, substance abuse and a mandatory ethics. So those two were mandatory depending on the years. One ethics every year. In addition to both of those, we now have to get a technology credit and it's really related to this rule and this ethics opinion and kind of starting that trend. You may not be in a jurisdiction that even has mandatory CLE, but to know that that's becoming kind of a nationwide trend really tells you where the emphasis of this is on, especially if you're in kind of that hybrid remote workplace. So again, we are trying to give you really practical tips and here are some ones that apply to competence. You of course wanna stay informed about emerging technology and its risk and benefits. If you have a new thing that comes into your firm or you hear about it from other practitioners, if you're not in a big firm or if you're in a company, the responsibility is on you to make sure you understand the risk and benefits. The great example that's kind of maybe that dual factor authentication is started being implemented by a lot of law firms and a lot of businesses understanding what the purposes of it is, making sure it's implemented, making sure you know how to safeguard it so that that dual factor authentication is working and it's not being manipulated by something else. Now on the other side of competence is if you are moving to electronic systems, right? Where you're mainly interacting with your clients through Zoom meetings or through email or even through text messages, is to have a plan though if someone contacts you outside of this new technology, it's kind of the reverse idea. This came up in the pandemic a lot when people were doing like paper filings, right? Or clients wanted to call or go to an actual kind of brick and mortar office where some law firms don't even have those anymore. You have to have a plan in place where you are competently serving your client if they want to use that alternative method. And it may just be communication like we've talked about, making sure you're clearly communicating with a client about how they can get in touch with you. But you also need to be looking to see what your bar association or stage requires for this, do you actually have to have an audit office? And if you don't, what do you have to clearly communicate to clients so that they know that? You should also have a plan in case there's any type of emergency including a personal health emergency of yours, or let's hope this never happens, but the amount of cybersecurity attacks went up 75% during the pandemic on law firms. So let's say that there's some type of emergency where there's a cyber attack on a law firm or even a company where you're not able to then use all those tools that you've been using to communicate with a client or to have their materials. You are still required to provide them with competent representation. So you need to have a backup. And the California State Bar actually put out a formal opinion on this in 2021. It's the same one where they were talking about natural disasters and making this idea of like, okay, COVID-19 has put us in the place of thinking about this, how do we stretch it further? And this includes maybe not a global pandemic, but you or someone in your firm getting sick or not having access to things or a security attack. And that is really tied into competence both through the rules but also through these state bars and the opinions that they are issuing. So that brings us, we've kind of gone through the rules up until the point of now we're gonna turn to the unauthorized practice of law. Deepika's gonna take that over and I'm gonna chime in a little bit because this is really the area where if you are practicing from somewhere remotely where you may or may not be admitted to the bar, it's critical to understand what the rules allow and don't allow. So with that I'm gonna turn it over to Deepika.


- [Deepika] All right, so this last rule and this last issue area we're gonna talk about is really something that affected a lot of lawyers during the pandemic and it became an issue I think that's ongoing today as lawyers continue to think about long-term remote practice or long-term hybrid practice. I live and work in the DC area, and I think this was especially at the forefront in this area. You know, it's not uncommon for lawyers, for example, to be barred in DC but have their home in Maryland or Virginia or somewhere else close by. And the question in light of long-term remote practice, right? When a lot of lawyers started practicing from their homes, from their vacation home, it's somewhere other than their office is whether that attorney might inadvertently run afoul of the rules governing unauthorized practice of law. There's a lot of discussion about long-term remote work becoming this new normal in many industries, right? If lawyers can do their job remotely, whether they'll return to the office at all or whether they'll only return to the office part-time. And the question I think is whether that's feasible as a practical matter for the legal industry given the rules on unauthorized practice of law and lawyers not practicing from a jurisdiction in which they are not barred. Can lawyers live and work remotely in a state where they are not barred? And if so, what are the limitations on that? So the unauthorized practice of law rules and the statutes serve multiple purposes, right? They prevent non-lawyers from practicing law anywhere. So they require that in order to engage in the practice of law a person needs to be admitted to a state bar. And many lawyers are admitted to more than one state or other jurisdictions bar. And of course they prevent lawyers from practicing in jurisdictions where they're not licensed or where they're not otherwise permitted by one of the exceptions to the rules to practice. And we'll talk about some of those exceptions in a moment. The rules do vary by state. So again, as with every question of ethical compliance, it's always important to check the rules in your jurisdiction, but a lot of jurisdictions have adopted something that's functionally equivalent to the model version of the rule, which is found in rule 5.5. So again, the model version of the rule says that lawyers who are not admitted to practice in this jurisdiction and by this jurisdiction, the opinion is kind of saying, or the rule is saying the jurisdiction at issue, right? A lawyer who is not admitted to practice in the jurisdiction shall not establish an office or some other kind of systematic and continuous presence in the jurisdiction for practicing law. So lawyers can't be long-term present in the jurisdiction, establish and set up an office in the jurisdiction where they're not barred and they also can't hold out to the public or represent right to make it seem like lawyers are admitted to practice law in the jurisdiction if they're not actually admitted to the bar there. So there's two components to that, right? The first is whether the lawyer has essentially set up shop, right? Is there some kind of systematic and continuous presence in a jurisdiction where the lawyer isn't actually admitted to the bar? The rules say that a lawyer's presence can be systematic and continuous even if they're not physically present in the location, right? Setting up a physical office is one way to establish that kind of presence, but it's not the only way. So that kind of more continuous presence and jurisdiction would be prohibited if the lawyer isn't admitted to the bar in that state. And the other side of that is not making it seem by conduct, by advertising that the lawyer is admitted to practice law in the jurisdiction where they're living and maybe working remotely, but where they're not admitted to practice law. And we'll talk in more detail about what it looks like when lawyers have a systematic and continuous presence, what it looks like when lawyers are holding themselves out to the public in a way that's prohibited by the rules. One way to avoid kind of that holding one self out as authorized to practice law where you're not actually admitted to that state's bar is to avoid using the information from your local area. If you're working from home, for example, and you're not admitted to the bar in the state from which you happen to be working remotely, you wouldn't wanna use your home address, for example, in your email signature block. If you're filing something with a court, you wouldn't wanna put your home address in the signature block of the filing. You wouldn't wanna put it on your bio if you have a website, you wouldn't wanna say, come to my home for meetings, you know, this is where I conduct work meetings, right? All of those things. Using a local address can suggest to someone that you are in fact admitted to the bar that you're admitted to practice law in that state, right? Where that address shows up. Where in fact if you're not admitted to practice law in that jurisdiction, you wouldn't wanna be using that local address, which could kind of create that confusion, and hold yourself out as authorized to practice law in a way that's inconsistent with the rules. So that's part two, right? B2 of rule 5.5, what about the systematic and continuous presence prohibition, right? And, as we've said, the model rules and then the comments point out that a lawyer's presence can be systematic and continuous in a way that the rules is frowned upon, even if the lawyer isn't physically present in the state that we're talking about, the state where the lawyer is working remotely from, but where they're not actually admitted to practice. And I'll note too that when it comes to this discussion of systematic and continuous presence, this is also not an issue that's new to the pandemic, but it is something that really became an issue almost overnight for a lot of people whose offices maybe closed down right in early 2020, and where they didn't have a lot of options, they had to go work from their homes or from some other location because they didn't have an office that they could go to at that point. So the question is, you know, with offices reopening, with people making the choice to work remotely full-time or part-time going forward, what does it look like for a lawyer's presence to be systematic and continuous in an area where the lawyer's not admitted to practice law? Some examples of where this occurred even previously is, for example, if a lawyer unfortunately had to work on vacation, right? If they were vacationing in a different state and had to send a few emails, or if they had to, you know, if they were visiting family and they were working remotely from that location, but what is the line between systematic and continuous presence versus temporary practice? So that leads us to subsection C of rule 5.5. This subsection provides some examples of what it looks like when services are provided on a temporary basis that would be consistent with the rules on unauthorized practice of law, right? That dividing line and that gray area between providing services on a temporary basis versus a more systematic and continuous presence. So a few examples, right, is working with co-counsel. If you're working with another lawyer who is actually barred in the jurisdiction where you're not admitted to practice, then that might be permitted under the rule, right? If they're actively participating in the matter, if you have co-counsel or local counsel with whom you're working, the rule contemplates that as more temporary, less systematic and continuous. It's in a specifically contemplated exception in the rule where the work you're doing is reasonably related to a proceeding where you might be admitted pro hac, right? That's a very common I think, approach where lawyers might not be admitted to practice in a particular jurisdiction, but they can file a motion to be admitted pro hac vice. And for purposes of that proceeding, they're permitted to appear on behalf of their client in that proceeding in that jurisdiction. So again, another example of what this, what services might look like if they're provided on a temporary basis and fit within this exception. Services that are reasonably related to alternative dispute resolution, right? If you're working on an arbitration or a mediation in a jurisdiction where you're not barred if those services are reasonably related to your practice in your jurisdiction where you are admitted to practice law, right? And if you are working on this alternative dispute resolution process in another jurisdiction, the rule contemplates that as a potential exception to the rules. I will note that this particular exception also asks whether appearing in the alternative dispute resolution proceeding requires you to appear pro hac vice in that alternative proceeding, just as you would, for example, if it were a court proceeding in that state. Some states don't have as much stringent requirements on what out-of-state lawyers can do when it comes to participating in arbitration or mediation in the state. Other states require you to associate with someone who's barred in the state, to a peer pro hac vice or to find local counsel who can work with you on that alternative to speed resolution process. So the rules really do vary by jurisdiction as with all issues, but in particular with this issue. And then of course, this catch-all exception are the services you're providing reasonably related to your practice of law where you are admitted to practice law in your bar jurisdiction. If so, then that kind of, that can suggest that your services are being provided more on a temporary basis, less in that systematic and continuous presence that would be prohibited. I think this leaves open a question though of what's temporary when we're talking about remote work due to COVID, and what's temporary when we're talking about long-term remote practice or hybrid practice where you're home part-time and in the office part-time. DC came out with one of the earliest ethics opinions addressing this issue at the start of COVID in earlier 2020, this ethics opinion 24-20 came out and it noted that, in light of widespread telework caused by the pandemic, in light of the need of social distancing where people couldn't get to their offices, the DC Court of Appeals and the Committee on Unauthorized Practice of Law in DC issued an opinion laying out the circumstances where people could live and work remotely from a location in DC from a personal residence or other location, even though they were not admitted to the DC bar. So essentially this DC committee realized that people were living and working from DC out of necessity due to the remote work in the pandemic, and issued some guidance on when that would be appropriate, where those lawyers were not admitted to the DC bar. It's also helpful, I think, to look in particular at ABA ethics opinion 495. Again, this came out in 2020, so a little earlier in the pandemic, and it provided some really helpful guidance when thinking about when a lawyer can be physically present outside of the state where she's licensed to practice law and still be okay if she's working remotely when she's outside of that location where she's barred. This particular ethics opinion said that, you know, a lawyer can do this, can work remotely from jurisdictions where she's not barred, provided that she follows certain parameters and fits her practice, and what that looks like within these guidelines. The opinion speaks to a lawyer being invisible as a lawyer in the jurisdiction where she's living and working remotely from, but where she's not admitted to practice law, right? And I think that the question is, what does it mean to be invisible as a lawyer? This ethics opinion 495 said that a lawyer can live, for example, in state A while practicing consistent with her license to practice law in state B, right? So living and working in state A not admitted to the bar there, but practicing consistent with her license to practice law elsewhere, just as though she were sitting in her office in state B where she's admitted to the bar and practicing law from there. The opinions suggest that the attorney cannot establish a local office or a systematic and continuous presence or hold out availability to perform legal services. So circling back to some of these prohibitions we saw in the rule, the ethics opinion sets them out as well and says, provided that the attorney is practicing consistent with what state B would consider appropriate and state A doesn't otherwise prohibit the attorney's actions, then this type of remote practice potentially would not run afoul of the rules on unauthorized practice law. So of course, I think that leads to the question, what does it mean to establish an office, right? What type of systematic and continuous presence would mean that an attorney isn't following the specific parameters that's spoken to in this ethics opinion? There's a few very practical examples of what an attorney shouldn't be doing in this opinion, right? They can't hold out to the public, their local jurisdiction address as their home office. So as we talked about before, right? If you're living and working remotely from one state long-term and you're not admitted to the bar there, you would not want to put that local home address on court filings on your website beholding client meetings in your home office, right? All of these suggest that you have established an office in a jurisdiction where you're not admitted to the bar. Other areas where this might come up is on letterhead, on business cards, any other advertising materials, right? Like noting your jurisdictional limitations, noting where you are admitted to practice law can help avoid confusion about where you're not admitted to practice law. And of course, the opinion goes back to beyond not holding yourself out as a licensed lawyer in your local jurisdiction where you are in fact not barred, the opinion also reminds us not to offer to provide legal services in the local jurisdiction, right? So that two-pronged approach, not actually practicing law and a pining on the law of the state where you're not admitted to the bar and don't fall within one of these exceptions we talked about in 5.5c, but also not holding oneself out as authorized to practice law in the state where the attorney isn't actually admitted to the bar. So as we said, you know, this is set out in ABA ethics opinion 495. There were a lot of ethics opinions that set out these parameters and not all of them were issued after ABA opinion 495, right? You can see some here that were issued prior to that date. And in fact, as early as November of 2005, recognizing that in some of these jurisdictions there was a trend of lawyers working remotely from that area, living in that area, but not admitted to that area's bar. So the question was, what do different jurisdictions have to say about that? We've seen, you know, Maine and Utah, we've talked about this DC bar ethics opinion issued in March of 2020 and some others that were issued in 2020 as well from Pennsylvania and this New York County Lawyers Association. There were a number that were also issued after ABA opinion 495. So kind of continuing that trend of offering very specific guidance about what individual states, Wisconsin, Pennsylvania, again, all the way down to Virginia more recently had to say about lawyers working remotely in these states when they weren't admitted to the bar of the state. So again, every jurisdiction, has a different take on this. I think we're seeing a trend of similar guidance being offered, but it is really helpful to consult the specific ethics opinions in your jurisdiction. Not only where you're barred, but if you're living and working in a different jurisdiction where you're not barred to look at, in particular, at what that state's ethics opinions have to say about remote work and the contours of what's acceptable under rule 5.5. So we'll end with a few practical tips on the compliance issue when it comes to unauthorized practice of law and long-term remote work or long-term hybrid work. As you have said, the rules and the ethics opinions vary by jurisdiction. So it's important as a first step to review the rules and the opinions in the jurisdiction where you're barred and also from the jurisdictions where you're living or working remotely long-term, but where you're not barred, right? And understanding the contours of both of those jurisdictions. Avoid holding yourself out as a lawyer in a jurisdiction where you're not barred, right? So avoiding the holding out problem of using a local address, creating a misimpression that you might be barred in a jurisdiction where you're in fact not admitted to the bar, that can be a helpful first step to think through whether any of your marketing materials or other information that you're providing might create that holding out issue. And of course, not offering to provide legal services in a jurisdiction from which you're working, but where you're not barred, right? Not running a file of the prohibition of actually practicing law in a state where you're not admitted to the bar and where you don't otherwise fall underneath one of those exceptions that we talked about in rule 5.5c. And then finally, you know, just some very practical tips, having work related mail sent to your office, not your home, right? If you've given out your home address, that can create a potential misimpression that you are in fact, that that is your office, right? That you have an office and that you're admitted to practice law on the jurisdiction. Having work related mails sent your office can be a helpful way to avoid that potential confusion. Now, of course, if you're taking that approach, and if you're not going into the office somewhat regularly, you wanna make sure that you're actually getting your mail, right. So having a plan to make sure that maybe someone is, for example, scanning your mail who is in the office and making sure that it's sent to you so you can stay on top of the correspondence you're receiving for your job. Again, noticing, noting your jurisdictional limitations on your marketing materials, indicating with a disclaimer, for example, on your organization's bio or on your other marketing materials where you are admitted to practice law can help avoid confusion about where you're not admitted to practice law. And again, as we've said, not listing your local address on websites, letterhead, or business cards or other types of business documents, that can be a broad list. DC sets out its parameters on unauthorized practice of law in Rule 49. It recently revised rule 49 to provide a more specific definition of what business documents mean and when attorneys need to provide a disclaimer on their business documents, and it's a broad category that includes all of these things that we've talked about and some others as well, right? Other areas where attorneys might list where they are practicing law from. So again, thinking broadly about where you would want to put those jurisdictional limitations and make that clear can be very helpful. And with that, I will turn it over to Amy for any final thoughts.


- [Amy] Thanks, Deepika. I hope that this has been helpful for people who are kind of trying to navigate these new waters and really think about the ethics roles, but especially practical. I mean the rules are important, but having them in practice and being ready to implement them into your day to day practice, we think is critical. So of course, if you have any questions, our information is here. Otherwise, we thank you for your time and attention. Thanks so much.

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1h 2m 31s

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