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Ethics for Virtual Lawyering

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Ethics for Virtual Lawyering

Interacting online as a lawyer is a minefield of potential ethics violations. What ethics opinions are there that provide guidance for day-to-day activities? This course will review ethics opinions from the ABA and state bars around the country that address issues of blogging, selling legal informational recordings, engaging in social media, responding to negative online reviews, how to handle inadvertent email communications, and whether you can accept virtual currency as payment of legal fees.

Transcript

- This is Melody Kramer. And today, we're going to be talking about ethics for virtual lawyering. There's a lot of ethical opinions out there regarding the intersection between the practice of law and new technical developments. Today, we're just gonna talk about two aspects. And that is the entirety of having a virtual law firm. Is that ethical? What are the rules that apply to that? And then specifically looking at the issue of cloud computing, having your files kept in the cloud, as opposed to in a filing cabinet. You'll find that all of the ethical considerations regarding virtual law practice seem to center around the same five core ethical considerations. So we'll be spending some time on that before going into all of the different quirks that come up with different ethical opinions in different states. So the ABA formal opinion 498 does have a discussion about virtual practice and explained that it is permitted, but what lawyers really need to pay attention to are these key ethical rules: competence, diligence, communication, confidentiality, and supervision. So let's talk about those requirements a little bit. The competence, diligence, and communication aspects are really just saying that, whether you're practicing out of a brick-and-mortar law firm or virtually, your obligations to the client remain the same. You are supposed to reasonably consult with them and talk to them about how objectives are going to be met in the case, keep them informed on status and progress of their legal matter. And they need to make sure that all of the structure is in place to protect the client's work and what you're doing for them. What I've seen in my practice on this front is the fact that communication with your clients needs to be adapted to what is going to fit with their mode of communication. And we can't just assume that our preferred mode of communication is going to match theirs. It used to be that if you wanted to have a conversation with your client, they would come into your office and you'd sit and talk to them face to face, or sometimes you'd get them on the phone and talk to them that way. Those modes of communication have become more and more infrequent as we have the increase in virtual law practices. This has especially become the case during the pandemic where face-to-face meetings almost entirely stopped. What I've found, though, is the real need to communicate with your client and both ask them directly and figure out just from how they communicate with you what the best way is to convey information to them in a way that they understand it. For me, personally, I would be happy to conduct the bulk of my business via email because that is comfortable to me, keeps a record of what's going on, which is easily accessible. And I'm on email all the time, anyway. So I know when communications come in. However, I have figured out that there are certain clients that that just doesn't work. They don't check their email that often. Maybe their email box is overflowing with emails from other sources, and they just don't want to have their legal matters conveyed in that way and in that place. For some clients, the best mode of communication is to pick up the phone and talk with them and get instant feedback on whether they understand what you're talking about and give you decisions on what you want. For some situations, a Zoom call might be better, where you can show them documents and various informations, and also see their faces while they are interacting with you. Keep in mind that your clientele is probably going to come from a varying range of ages and familiarity with technology. For example, with millennials, for sure, and even some a bit older than that, texting is a usual mode of communication and might even be a favored mode of communication for at least simple matters. However, if your client is a baby boomer, odds are they don't want to get messages by text. Talk to your client up front about these things to make sure that you are meeting your ethical obligations of conferring with and communicating necessary information to your client. Another common communication problem that I've seen is that we as lawyers set up something that is efficient and useful for us and just assume that our clients will get on board with that. But that isn't always the case. For example, I had set up a case management system for my office that allowed my client to have full transparency of every document that came in the office, all of the calendaring for their cases, and even all of my task lists, so they could see what I was working on and working towards on any given day. I provided my client with the necessary login information and proceeded to use that platform as what I considered the bulk of communication with my client. I found out many months later that my client never logged into the system and never checked all of those things I had meticulously placed to give them transparency. That client preferred getting tons of emails every day from me giving status updates, even though that was the less efficient way to do it. Don't fall into those traps. Ask questions and adapt where necessary. Now let's talk a little bit about confidentiality. Again, it used to be that client information was kept in paper files in a lawyer's brick-and-mortar office. That is no longer the case, even for law firms that don't have a huge online presence. At this stage in technology, I would consider it almost incompetence to not have client files in some sort of electronic fashion, even if it's internal to the law office. Now, locking a file cabinet is, in some ways, a lot easier to maintain confidence of clients' matters. However, it's not very convenient to work with your client that way. For certain types of practice, sure. You could, if you wanted to, maintain everything on paper. But it just isn't realistic for most things. In fact, a great deal of client matters are going to absolutely require you to fax something, to email something, to submit something online. For me, I do a lot of litigation practice, which means I'm going to be filing documents online. Yes, if it's highly sensitive documents, they'll sometimes be submitted in paper under seal to the court. But that's very rare. Usually, it's going to be electronic. Litigation is also very paper heavy in a lot of ways, and you're gonna be killing an awful lot of trees unnecessarily if you maintain everything on paper. It also keeps you from being able to search documents and to be able to transmit them from your client to you, from you to your client. For example, document productions in even a relatively small litigation matter can often exceed hundreds of pages. Having to get all those papers in hard copy, standing in front of the copy machine, making a copy for your client or for whomever else, and then packaging up and mailing it places is just not efficient, either for your client or for you. All of this goes to say that you still have an obligation to take reasonable precautions when transmitting communications. Don't send confidential documents in a way that's easy to be hacked, or easy to be disclosed to someone else. For example, if the only email address you have for your client is a shared email address with another person, you might not wanna be sending communications there, at least not with a specific consent, without a specific consent from them for that. Same way with voicemails or texts. Make sure you know where those communications go. Make sure they can be maintained confidential to your client. You cannot completely avoid the risk of your computer being hacked or emails being hacked, but you can reduce those by having some basic precautions in terms of encrypted email, email accounts that are not shared between multiple parties, and secure online portals for exchanging sensitive documents. The obligation is to take reasonable precautions, reasonable efforts to prevent inadvertent or unauthorized access. Now, let me talk for just a minute about inadvertent disclosure because that has happened to all of us. There are actual ethical guidelines regarding inadvertent disclosure of documents, which we're not gonna get into in depth here, but just to say that you need to understand when you are sending emails, in particular, to be very, very cautious about who you reply to, who you copy on emails. The most common error on this is when you do a reply all to an email chain that includes opposing counsel and your client. It is a very easy and common mistake and can have pretty embarrassing, if not devastating, consequences. If you are on the receiving end, you have an ethical obligation to stop reading as soon as you realize it is an inadvertent disclosure, notifying the sender and destroying the copy of what you received. If you are on the inadvertent sending end, immediately notify the recipient that it was an inadvertent disclosure, which triggers their ethical obligations to do the same. But do have some procedures and methods of how you send emails to avoid that in most cases. Do not hesitate to start a new email thread to make sure that it does not include communications from parties that should not be included. On the issue of supervision, of course, as a lawyer, you have managerial control over the people who work for you. Paralegals, secretaries, whoever it is that works in your office. Practicing virtually does not change your obligations for supervision. It just makes those obligations a little more complex Start with appropriate instructions and office procedures in terms of how work is done, where documents are saved. And when people are working outside of your presence, to have some understanding of where they're working and what steps they're taking on their end to make sure that no confidences are disclosed. For example, if you have a paralegal who works from home on a computer that is accessible to the entire family, which is not an unusual situation, what precautions are taken to ensure that other family members don't stumble over client information or work product from that paralegal? As the supervising lawyer, you have an obligation to know what's going on and to take steps to make sure that all of those confidences are maintained. Also, when you don't have personnel working right with you or right down the hall from you, you need to be extra aware of how they are doing their work, how they're compiling information, where they're getting documents from, and so forth. You don't really want a situation where your staff is not very well trained, and they just get on online forums or free document websites in order to create documents for you. Training and supervision are key. And as a personal recommendation, I suggest that you don't work with people that you haven't met in person, for the most part. It is true that I have used freelancers on occasion in my office that I have never met in person. However, I take as many steps as necessary to get to know them as well as I can, even without a face-to-face meeting. And I always limit their access to information to just the project that they are working on for me, not the entirety of my law firm files. Let's talk next about the different technologies and considerations that you need with respect to those when you are starting and maintaining your virtual law office. I'm going back here to the ABA opinion that we started out with and going through some of the things that they say we should consider in terms of the actual technology and the systems that you're using. First, take a look at the hardware and software systems. Read the terms of service. I know as lawyers we're so used to writing contracts and terms and so forth and not actually reading them, but it's really important to read them. Who's gonna have access to that information? What safeguards does the company have in place to ensure that your information is kept confidential, even from them? What do they use in terms of having strong passwords, antivirus software, encryption? All of these things go into how safe, how confidential, how protected your client's information is. Then look at the issue of accessing client files and data. As a lawyer, of course, you need to be able to have easy and complete access to the client files. Clients probably should have access to some of them, but not all of them. Certain members of your staff probably get access, but some may not have access. For example, if you're working on a case that has a two-tier protective order, some information coming into your office has to be kept within a very small circle, excluding your client from access to that information. Make sure you have the means for segregating things in that way and designating who has access and who does not have access to that information. You also have a requirement to maintain your client files and preserve that information. So make sure that there are backups in place and that that information is properly regularly maintained and saved, so it can be accessed by you, and then later when you turn over the file, back to your client. Virtual meeting platforms take on a new and interesting sort of dynamic in the law practice. And we've had some kind of interesting examples of that in the last few years, especially with the pandemic, when so many people who really didn't understand these platforms were using them and using them for confidential information. Two things, in particular, you should understand. Number one, you need to understand the terms of service and how your platform actually works. You don't have to be a complete tech nerd to do this. You just need to generally understand what they're doing and how they do it. For example, is it being recorded? And where does that recording go, and who has access to it? There were a couple news stories out a few years ago where there were therapists and psychiatrists who were having appointments with their clients via Zoom because of the pandemic. The problem was they were saving those or the default saving of those recordings they were making was going to the cloud. And it was going to the cloud in a way that it was really easy for a third party to hack into those files, to find them and basically guess what the file names would be and how to access those. I'm sure that happened to lawyers, too. Keep up on the technology and understand where those things are, where frequent hacks are, and take all reasonable steps you can to avoid that. I've noticed of late that Zoom is one of those commonly used platforms, and they now have a notice when the meeting is being recorded, which is something they didn't have originally. I'm sure there are a lot of people who violated California law, which requires consent before recording a conversation, but the platform just wasn't built to do that to begin with. So understand those things, understand what your platform can do to help you comply with the law. And take all those reasonable steps to maintain the confidentiality. You also need to be aware that when you're talking on the phone, for example, usually someone else that walks by the room or nearby on the other side probably can't hear what you're saying. However, when you have a video conference, and especially now that so many people have been working from home, it's a lot easier for someone in the household, someone in the office, someone to see and hear what's going on in the conversation. Make inquiries with your clients. Advise them on their end to have this confidential conversation, what's the best time, best place, so that they can maintain confidentiality on their end. And you need to do the same on your end. Even if you're working from home or wherever you're working, don't be sitting at the kitchen table having a confidential conversation on Zoom with your client when the kids are coming and going getting snacks. That's not workable. Take reasonable steps and just think it through. I think I already touched on this briefly, but I'll mention it again. In terms of archived documents, you need to make sure that that is in a place where you can make sure your documents are gonna remain, and they're not inadvertently going to be destroyed. So be careful in your choice of vendors for that. Now, the next consideration I hadn't even thought about until I read this, but really important to do. There are these smart speakers, virtual assistants, listening-enabled devices. So I'm talking about Siri, Alexa, devices like that. It would be all too easy to accidentally activate one of those devices when you are having a conversation with your client. And although it could be completely innocuous, you really should turn off those devices because you don't know what you might accidentally trigger. There are plenty of stories out there of two-year-olds ordering ordering big screen TVs. Accidents can happen, and just don't take that kind of risk when you are talking about your client's matters. I'm gonna talk briefly again about supervision, subordinates, and assistants. And as I said before, you need to have policies and procedures in place, but one thing you really need to be careful of is understand that people access work information on their home devices. Even if you provide them with their own devices, just sometimes that happens. You need to make inquiries, have rules, and check on things to make sure that when your assistants, your virtual staff, are working on work, that the data is secure, that it's not accessible to anybody else. The bottom line is that you are legally allowed to have a partial or entirely virtual law practice, but you still have to comply with all the ethical rules and regulations. And these ethical considerations will give you some guidance in doing that. Let's talk next about a few other state ethics opinions that gives a little more depth to the discussion we just had about the ABA opinion on virtual law practice. California formal opinion 2012-184 is one of those opinions. And as with the ABA opinion, it says that there's no greater or different ethical obligations on virtual law practices than brick-and-mortar firms, but the VLO may require additional steps to ensure compliance, which is absolutely the case, as we talked about before. The California opinion works on a factual scenario, which is sort of, I would say, more in the extreme for law practices. And that is they're talking a exclusively virtual law practice where all of the client matters, all the client work is done through a secure internet portal, and that all the information is exchanged back and forth between those, and that the attorney doesn't plan to communicate with the client by phone, email, or in person at all. While this may appeal to certain tech nerds, I would suggest that never having any interpersonal exchange with clients may not be the best choice for a law firm, but it is something that is an alternative and that some people may pursue. So let's look at it from an ethical fashion. The short version is that the ethical opinion concludes that, yeah, you can absolutely do this. You just have to go through some steps to make sure that everything you're doing is in compliance with all of those ethical rules. You can't short circuit the rules just because you wanna be more efficient in a technological fashion. Now, this hypothetical virtual law firm has one immediate problem right off the bat. That is that when you have a website, an internet portal where you are getting clients, it is very easy to accidentally stray into unauthorized practice of law territory because it's easy for people outside of the state where you are licensed to be able to access you and ask for services. So make sure you're careful in how you market and reach out, and then how you vet clients that are coming into that portal to make sure that, even though it seems silly, these geographical limitations on practice, that you're not violating those rules of practice. Then let's look at the actual technology itself. There are a number of platforms out there where you can run pretty much the bulk of your law firm on it and exchange information with your client back and forth and could do sort of this entirely virtual practice, if you wanted. Like I said, usually most law firms still will have some interpersonal interaction, which I recommend, but having that platform is important, and you've gotta look at it. What this opinion talks about is how you really need to do your due diligence on the platform. You can't just use any platform. You've gotta make sure that there are all of these steps in place to make sure that the lawyers' obligations are being met. Usually the first step is to look at what is the confidentiality of information that you have on there. Obviously, you don't want to have a platform whose purpose is, like Facebook and some other ones, to collect data from the users, and then use and sell that data. That's not acceptable. That doesn't work for a law practice. So you need to work on those things. Then this opinion walks through several different things that you should be aware of with the vendor. What are the credentials of the vendor? What is their data security procedures and protocols? How do they transmit information, and through what jurisdiction? Now, that was kind of interesting to me because I realized, again, from my litigation background, if you have data that is being regularly transferred through another state, perhaps, and then back to where you are, that may cause some jurisdictional issues, if you're sued, if your clients are sued. So you need to have a little understanding of that. And I know that seems really tech nerdy for those who aren't really tech involved, but you need to just dig into the extent that you can, talk to your designated tech person, whoever that is, and get a better understanding of how these things work and how it affects your practice. You also need to know your ability to supervise the vendor and make sure that they are doing the things they need to do. And what are the terms of service of the contract with the vendor? What happens to your data? What happens if there's a breach of data? All those different things, you need to know what they are and make sure that they meet the compliance with ethical rules that you have. Next, the opinion talks about competence and the inherent problems with a totally virtual practice. I've run into some of these situations before. They can kind of sneak up on you. So really want to be aware of these things. And I would recommend reading the whole opinion, but let me just go through some of the highlights here. You need to have an intake system set up in a way that you can understand what you're receiving from the prospective client is enough for you to determine whether you can provide the services that they need. Keep in mind that laypeople don't always know what legal services they need. They have a problem, they want to solve it, but they may think it needs to be done in a way different than what you know needs to be done. You need to collect enough information to make those decisions. You also need to be able to confirm your client's identity. This is obviously more concerning in certain types of cases than others. If you're drafting a will, a power of attorney, you really need to know who you're dealing with, and you really need to make sure that you're doing it for the right person. The same goes with litigation, business contracts. You need to make sure you know who you're dealing with. Another aspect that is hard to gauge with a totally virtual practice is ensuring that the client is receiving the information, advice, and whatever that they need. If you're meeting with a person face to face, or even on a phone call, you have some ability to gauge whether they're understanding what you're saying. This is even if there's no language difficulty per se, you both speak the same language, but that understanding of legal concepts, of what's being said, is a lot harder to do when it's just black and white words on a screen, as opposed to a conversation between two human beings. If there's also a language barrier, that just makes it more complex and more important to make sure you know what's going on. Honestly, I would not provide legal services to a non-English speaking client in a virtual fashion only ever because I could never be sufficiently confident in my own mind that they understood what I was saying, what we were doing. If I did represent someone who spoke another language, at a minimum, at a minimum, I would have conversations done on a Zoom call, a recorded Zoom call with an interpreter, And then I would have that conversation, they would have that conversation to go back through and make sure there was more understanding. Just sending an email, just sending a message on a virtual platform just isn't good enough, as far as I'm concerned to meet those obligations. Another issue they discuss, which I already touched on, is if you are informing your client about status developments in their matter, and you just post that on a virtual platform or an email, you need to take steps to make sure that they actually receive and read that. It's really easy to just put stuff out there and just assume the other side is reading it, but maybe they're not. Maybe your emails are accidentally going into their spam folder. Maybe they lost the password to the virtual platform or forgot that it's there. What I like to do is periodically make sure that I am sending out messaging that asks for a response back, so that I actually see. And if I don't get a response back, I will assume they haven't read it. And then I will pick another mode of communication. So if I sent an email and, after a few days, I don't get a response, then maybe I will switch over to text and say, "Hey, I sent you an email. Did you get it?" That doesn't work, I'll pick up the phone and say, "Hey, I've been trying to reach you. I need a decision about this." And do whatever you need to do to ensure the communication gets through. Sometimes you gotta take more steps when you have a virtual law practice, but that's what you need to do. If you discover after initially taking on a matter that in fact it is not going to be a workable thing for you, that you're not competent to take on this representation, you again need to take the proper steps to disengage that interaction, return any funds that need to be returned, return any files that need to be returned. And because your reputation is at stake, you need to find a good way of conveying that message to explain, I thought I was gonna be able to do this. However, I think you'd be better served by an attorney who has more expertise in this and this. Give them a little guidance on where to go to find additional representation. That will go a long way to keeping people from posting nasty reviews or suing you. This ethics opinion also touches on another hotly contested issue that probably should be the subject of a separate seminar, but it comes up a lot and it comes up a lot virtually. And that is the issue of limited scope representation on matters. It is very tempting in a world where we have so many things that are outsourced and dealt with in piece-by-piece fashion to do limited scope representation. As in sometimes someone wants to represent themselves in court instead of hiring a lawyer to save costs. But they just gotta demur their complaint, and they don't know how to respond. And so you agree to do limited scope representation, you'll write the motion and maybe appear in court just for hearing on that motion. This may sound all well and good to you and may sound all well and good to the client, but it has significant hazards and things that are a little harder to convey than if you have a regular, ongoing relationship with the client, especially one that's had some one-on-one FaceTime or phone time communications, at least. In a limited scope representation mode, the client that you're working for needs to have a full understanding of what you are doing and, more importantly, what you are not doing. They need to understand what scope of work still needs to be done by them or by others and sometimes what risks there are to the client in doing a piecemeal approach. I've seen this especially in the litigation context. Some non-lawyers do have the level of expertise and experience in managing projects that they're able to adapt enough to reasonably competently represent themselves in court with just a little assistance from an attorney. But I've seen many other cases where people are just trying to save money, but don't understand that... The analogy I use is playing a chess game. And you bring in a chess master to say, "What move should I make right now?" but don't have them looking at the entirety of the game and the entirety of the board and what all the moves should be, as opposed to just this one. So all I would say is be very, very cautious about limited scope representation matters. Think through those. And don't use the technology as an excuse to do a haphazard job as a lawyer. Now that you've gotten the big picture on these ethical rules from those opinions, let's just go through, tick through a few other ethical opinions to give a little more contour to that. New York State Bar Association ethics opinion 1025. This one also talks about that a virtual law office is permissible, but the attorney advertising legal services in New York needs to have an office that meets the minimum requirements of judiciary law 470. The point here is that your state likely has some rules regarding brick-and-mortar law firms. There's some states that don't allow you to practice, unless you have an actual physical address. You need to look at those before you do your virtual law practice. What I would suggest is that in those states, odds are you can do some mode virtual law practice, but you may still need to have an actual physical office. If your intent is to do primarily virtual, then just have a very small office. Maybe it's an office share somewhere. Maybe it's a coworking space. Meet those requirements of a physical presence in the state, whatever state that is and whatever those rules are, and then you still can probably do the virtual law office anyway. I haven't found any states that prohibits virtual law practice. It's just they have some extra requirements to it. The Pennsylvania Bar Association formal ethics opinion 2010-200, this one talks about the attorney practicing in a virtual law office can't state fees are lower than a traditional brick-and-mortar law office, but they can say, if it's accurate, that firm overhead may be lower, thereby possibly reducing fees. Now, that so sounds like just this hairsplitting that lawyers do all the time and sounds a little crazy, but be aware that the user of a virtual law office is probably gonna expect lower fees than if they go to some fancy law office. That's probably one of the reasons they're going virtual. May not be the only reason, may not be the reason at all, but be aware of that. And you can use it as a marketing tool to a certain extent. But I would look at the Pennsylvania Bar opinion. I haven't seen other states that have the similar rule, but you might wanna take that as sort of a cautionary sort of thing, is to just kind of go easy on that. You don't know for sure what the overhead costs are for brick-and-mortar law firms, other than your own, and maybe your fees aren't gonna be that much lower because of other things. I mean, maybe the platform that you use is very robust and very expensive. And maybe it's not that much cheaper. I don't know. But just be careful to be truthful in your advertising, as you're required to be anyway. And don't overplay the fact that we're a virtual law firm and therefore cheaper. Finally, there's also the Virginia State Bar legal ethics opinion 1872. And that one talks about if communication will be conducted primarily or entirely electronically, we already talked about that, the lawyer may need to take extra precautions to ensure the communication is adequate, that it's received and understood by the client. Again, this is the whole opinion that really focuses on that. And it is important, that it's so easy for us with increased technology to forget that communication involves both sending a message and receiving a message. And that interplay between attorney and client is so important to maintain that full understanding. Otherwise, it's not an effective attorney-client communication at all. Now that we've looked at the overall of virtual law offices, let's dive in a little bit deeper on the issue of cloud computing, which really, as I read through these ethical opinions, really comes down to knowing your provider and carefully picking that. Now, I love the way the Pennsylvania Bar Association refers to cloud computing as a fancy way of saying stuff's not on your computer. I'm sure, as all of you know, a lot of lawyers are not very tech savvy and explaining cloud computing to them may be a little difficult. That's a good way of explaining it. It's not sitting in your file cabinets and it's not on the computer on your desk. They're held somewhere else, not on your computer. As with the discussion of virtual law practice overall, again, the word is, ethically, you're allowed to do that. You just have to take steps to make sure that all of your other ethical rules are being complied with. This Pennsylvania Bar Association formal opinion 2011-200 is very helpful in sort of explaining what that is, that you can do it, and then they talk about reasonable standards, benefits of it. I think some of it's sort of to sell it to some lawyers. The benefits are reduced infrastructure and management, cost identification effectiveness, improved work production, quick, efficient communication. Reduction in routine tasks, enabling staff to elevate work level. Constant service, ease of use, mobility, immediate access to updates, and possible enhanced security. The idea is there's a lot of benefits to the client in cloud computing. A lot. And also, there's certain expectations. The discussion is always about how lawyers charge too much. And indeed they do, but part of that is they've been held back by ethical rules and different advertising rules and things that have stymied their effectiveness. And so you compare a law firm's efficiency versus even some just startup small businesses, the law firm tends to be way behind. By using a virtual law office, by using cloud computing, you're starting to elevate your standing as a lawyer and your ability to play with your clients who are a lot more tech savvy than you are. This Pennsylvania opinion is a good one to read because it does go back through and it reviews all the Pennsylvania rules of professional conduct, things that you need to pay attention to, things we've already discussed, but it really lays it out in a good fashion. It also talks about the standard of reasonable care for cloud computing. The issues of backing up data, firewalls, limiting information to who needs it and only that. Avoiding inadvertent disclosure, verifying identity of individuals, protecting the records, implementing audit trails. These are all things that you didn't have in a brick-and-mortar law practice and with paper files. So there are a lot of things you can do. But this has a lengthy list of ensuring that your provider meets all these standards. Agreeing they don't have ownership in the data, that they have enforceable obligations to preserve security, and so forth. Investigate the provider's security measures, their systems for backing up data, how long they've been in business, their funding and stability. Has a whole list of these things. And also, determining whether data is in a non-proprietary format, so that you can transfer it to other places. Making sure that you own the data, that they don't. Their third party audit of security, uptime guarantees, is really doing some due diligence on the vendor that you are doing and making sure that they can meet your ethical obligations, and then your practical obligations as a business. Obviously, you always need to be concerned about web-based email. This opinion says that unencrypted email is permissible, but do be cautious about it. And there may be times when you want to explicitly use encrypted email, depending on the sensitivity of the information. this Pennsylvania opinion also lists many different state opinion, summarizes those. So it's a really good use of your time to read this particular ethics opinion because it covers so much ground. This one is not the most recent one. This is dated back in 2011, and still, it has a lot of useful information for when you're setting up your virtual law practice. The main Professional Ethics Commission opinion 207 also concludes, as other opinions have, that it is ethical to use cloud computing and storage for client matters, assuming safeguards are in place. Again, it talks about the ethical rules that are implicated. So that's part of, should be part of your review every time you're deciding, for your practice, your state, what you can do. This one has a few additional ones to the ones I've already discussed. So they talk about competence, diligence, communications with client, confidentiality, safeguarding client property. Also talk about terminating representation, sale of practice, and supervision of third parties. So take a look at all of those as you're putting things together. It also has internal policies and procedures that you should follow: backing up data, installing a firewall. These things are really important to have in place. And also discusses the North Carolina opinion, which has already been touched on by other ones about making sure the vendor doesn't have ownership or security interest in the data, has obligation to preserve the data, and various audit provisions and things to ensure the safety and protection of that data, that information. The Connecticut Bar Association in formal opinion 2013-07 is just a good reminder that there's a starting point of issues when you're setting up cloud computing, but you have an obligation to continue following up with emerging standards that are out there. I've been practicing law for over 25 years. And when I started practicing, there was almost no online case management platforms at all. There was very little in that way that was available. In fact, fax machines were sort of new for a lot of law firms. Obviously, by 2022, we are so much further along in all the available tools we have as lawyers from a technological standpoint. And so it's important to keep abreast of those changes as we go along and not just pretend that when you first set it up, that this was state of the art, but it might be completely outdated now, several years later. Another new thing that this particular opinion addresses is the duty to comply with and respond to legitimate inquiry from disciplinary authorities. We try not to think that there's ever gonna be any disciplinary problems with our practice, but sometimes the complaints are made and we need to be able to address those. Being able to properly maintain our records, properly preserve and protect them properly turn them back over to the client, these are all really important on a disciplinary standpoint. Make sure that you have the ability to present those records to a disciplinary authority, should that need arise. The Florida Bar ethics opinion 12-3 also talks about cloud computing. And their focus in that opinion really is on the confidentiality, that that's the major concern. And I agree that that is like the primary concern on cloud computing, is confidentiality and security. And the major point is that everyone who needs access, such as the lawyer, needs to be able to have unfettered access and preserving that information, and those who shouldn't have access should not be able to access it. It depends on the tools that you're using, but whether it's really a advanced system or a less advanced system, they're always going to be ways that you can restrict access in one way or another. Don't give access to people that don't actually need it. And I'm talking even other people within your law firm. If it's an associate that's not working on the case, they probably don't need access to the client information in the case. If there's a way to restrict that, do that. Your receptionist probably doesn't need to have access to all the client information. Maybe just some of it. There are ways to segregate information. Sometimes you can have like different users and have restriction that way. You know, this particular user can access this information, the other one can't. And do it in a way too. that there's some sort of audit trail, so that if someone accesses the information, you know who accessed it and when. And that can protect you against actual or accusations of improper disclosure of information. I would say also that's so important when you have protective orders. Either just a standard protective order or a two-tier protective order. Two-tier protective order obviously are more challenging because the attorney has access. The staff probably, sort of, maybe usually have to sign something separate in order to do that. There are just a lot more rules on that. But you need to have a way to do it. And you also need to have a way at the end of the litigation to easily segregate and destroy or return those materials that are subject to the protective order. It used to be that was a very complicated process. I've noted in case management platforms that I've reviewed lately there seem to be pretty easy steps in place to segregate access to documents. So you just need to worry about inadvertent disclosure. But it's pretty easy to designate every document, every set of documents as to who is access and who does not have access. I was very happy to see that at least one state very specifically addressed Google Documents. And that's the Massachusetts ethics opinion 12-03. So actually, this is also an older opinion from 2012. However, it does discuss the dynamics of Google Documents. As we've discussed before, confidentiality is paramount. But also, this one talks about the lawyer remaining bound, however, to follow an express instruction from his or her client. And it was a reminder to me that, although we may have a certain comfort level with certain platforms and certain document exchanges, our client may not have that same sort of sense of safety in that. And that is something we need to inquire into and to respect. For example, perhaps you need to see the tax returns for your client for some purpose. That is obviously highly confidential, usually is not subject to discovery. It's very sensitive information. It may be that your client has no desire to transmit those via email or even something like a Google Drive or Dropbox. They're just not comfortable with that. Well, fine. Then set up for them to drop them by the office, send them in the mail, whatever. FedEx them. Whatever is the comfort level for them. And then don't scan and upload it onto your computer system where it is subject to potential vulnerability, even if you have good, strong systems in place. Respect that request from your client. And you can usually work around those things without too much problem. With respect to Google Docs itself, this opinion seems to approve that it's fine to use that type of platform and that type of interface, as long as the client is on board with it. Now, the final case that we're discussing here is the New Hampshire Bar Association Ethics Committee advisory opinion 2012-13/04. I don't know why they have such a complex numbering system. But again, this is approving the use of cloud computing, as long as reasonable steps are taken to ensure that sensitive client information remains confidential. What this one did add, I thought, that the other one's only touched on briefly is not only do you need to make sure that it's kept confidential while you're using it and that there isn't inadvertent or unauthorized disclosure, but also that you have obligations to preserve that documentation, that information for your client and so you can turn that over. It cites rule, so this would be New Hampshire's ethics rule, I guess, 1.15 safekeeping property. Electronic communications are part of the client's file. It's part of what you are required to maintain. It's considered property of the client that you need to safeguard and then return to them at the end of your representation. I suspect this is a step that a lot of us forget because when we close the file, it's like, "Okay, that's done." And we hit close on whatever platform we have, put away whatever paper documents we have, and call it good. But really, the proper practice would be to have a closeout check sheet. And one of those things would be to either return or remove those documents that are no longer needed. Obviously, you may need to keep them for the duration of any statute of limitations on a malpractice action, or some derivative action that those would be needed for. But other than that, there's no sense in keeping that confidential information for an extended period of time. It just increases the chance of inadvertent disclosure or some sort of unauthorized disclosure of that information for the client. It is nice to remember, and this ethics opinion does affirm that, that when it comes to the use of cloud computing, the rules of professional conduct do not impose a strict liability standard. Thank God, because we all make mistakes. As one ethics committee observes, such a guarantee is impossible, and a lawyer can no more guarantee against unauthorized access to electronic information than he can guarantee that a burglar will not break into his file room, or that someone will not illegally intercept his mail or steal a fax. That is very true. So the point is it's a different mechanism than paper records and paper interaction with your client, but you just need to take reasonable precautions. If you're in a brick-and-mortar office, lock your file cabinet, lock your doors. For electronic records, make sure you have systems of security in place. Pick a platform that has the proper security in place, proper safeguarding the files, your access, other peoples being prohibited from access, all of those reasonable sort of precautions. And as long as you do that, you'll be fine. You can protect against risk of disciplinary proceedings or other legal action by meeting that reasonable standard and, of course, having some malpractice insurance. But certainly want to just be reasonable and remember that ethics standards apply, even within this sort of new technological world that we operate in. I would say that this last opinion we discussed, this New Hampshire one, has a great list of 10 different considerations that you should look at before using a cloud computing service. And some of the things that you wouldn't sort of expect. I mean, reputable organization, what are their security measures, and so forth. But one they mention is, does the provider co-mingle data belonging to different clients or different practitioners such that retrieval may result in inadvertent disclosure? Various different things that you might not think of, but that are obvious, possible security concerns. So it's worthwhile to read through all of those opinions, especially when you are dealing with first setting up your virtual law office, or when you are doing just kind of routine yearly every other year review of whether your policies and procedures and practices meet the ethical standards that you have as an attorney. Best of luck as you set up or maintain your virtual law office. I hope this session has been helpful to you.

Presenter(s)

Melody Kramer
Attorney & Founder
Legal Greenhouse

Credit information

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    Pending
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