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Luddites Out, Remote Work in for Legal Ethics Post Pandemic (1)

March 22, 2021, 8:46 AMUpdated: March 22, 2021, 7:13 PM

More lawyers will work from jurisdictions where they aren’t licensed after the Covid-19 pandemic ends and all attorneys will need to get more comfortable with the technology needed to practice virtually.

Those are just two ways the pandemic has prompted a rethinking of ethics rules governing how attorneys practice. Some old rules preserved on ethical or business grounds no longer make sense while others have gotten new attention, legal ethics experts say.

“The pandemic has accelerated the realization of many in the legal profession that we should be emphasizing what consumers want and need,” said Arthur J. Lachman, whose practice in Seattle focuses on legal ethics.

The legal profession has undergone a “major cultural shift” since last March, said Jan Jacobowitz, a legal ethics consultant.

Effective Remote Work

No legal rules got more attention since the start of the pandemic than restrictions on lawyers working from jurisdictions where they aren’t licensed as remote work exploded. Increased remote practice isn’t going away after offices reopen as law firms look to cut costs or meet new workforce expectations.

“Remote work is a huge issue,” said Nicole Hyland, an attorney with Frankfurt Kurnit Klein Selz in New York. The legal profession for years was “very resistant” to allowing lawyers to work from jurisdictions where they weren’t licensed.

States imposed rules and laws to prevent this practice for the stated purpose of protecting consumers. But ethics scholars and practitioners say protecting firms from competition was the real motive.

Even before the pandemic, there was “momentum building,” to rethink the restrictions, said Jacobowitz. The ”idea that lawyering can’t be done effectively and ethically in a remote environment has been blown out of the water by the pandemic,” Hyland said.

The American Bar Association’s December opinion easing Model Rule 5.5 that governs remote work has been praised as an important step toward greater lawyer mobility.

The opinion interpreted the rule as saying that lawyers working in a jurisdiction where they aren’t barred, or licensed, isn’t per se a violation of ethics rules as long as they don’t hold themselves out as practicing where they work or violate state unauthorized practice rules.

Bars in Wisconsin, Pennsylvania, Washington, D.C., and Florida have issued opinions or proposals since the onset of the pandemic all or partly in line with the ABA shift.

Hyland said that remote work will likely become more “mainstream” and acceptable, and that more jurisdictions will relax the “butt in seat” approach to practicing, the view that physical presence in a jurisdiction is evidence that a lawyer is practicing there.

Technological Comfort

More remote work has also demonstrated why attorneys need to master technical skills such as how to properly back up data and participate in virtual proceedings.

It’s another area where lawyers and law firms had been slow to adapt partly because they didn’t really have to before virus fallout turned their businesses inside out.

“The world has turned a bit” since last year, and there’s an expectation that lawyers be conversant in technology and can practice with it, said Arthur D. Burger, chair of Jackson & Campbell’s professional responsibility practice group in Washington.

The ABA adopted technology amendments to the duty of competence—Rule 1.1—in 2012, and the lawyers’ group earlier in March explained in an ethics opinion that so-called technological competence is essential for virtual practices.

“In this day and age, you cannot provide competent representation to clients if you don’t know how to use email,” Hyland said. “Very soon, the same will be true for lawyers who can’t adapt to virtual hearings and conferences.”

Courts have signaled the use of video in certain types of proceedings could continue after normalcy returns.

For instance, the U.S. Tax Court may allow for remote mediation proceedings and document subpoena hearings after the pandemic ends, according to judges on the court. And many Big Law litigators have taken to remote depositions with little pushback. This suggests the change is likely to remain, partly due to cost savings.

The judicial system also has moved to e-filing; migrated a lot of motions practice, status hearings and “accelerated pre-COVID experimentation with online dispute resolution platforms, including diversion programs for evictions and other high-volume case types,” said David Freeman Engstrom, co-director of the Stanford Center on the Legal Profession.

Technical competence also means understanding how to use technology to safely store and transmit information, and how to satisfy the ethical obligation to safeguard client information in the post-pandemic era.

The ABA’s March opinion said lawyers must install security-related updates as soon as they’re available, and use “strong passwords, antivirus software, and encryption,” the opinion said.

Other measures to take when working virtually include making sure third parties can’t access confidential client information, according to a New York County Lawyers Association opinion from August 2020. This includes listening-enabled devices.

But remote work makes it harder for firms to control what lawyers and staff are doing in their own homes, Hyland noted. “A lot more vigilance is needed at all levels to protect confidential information,” she said.

Access to Justice

The pandemic also has spotlighted tension within the legal community over broadening the range of those who can provide legal services.

Ethics rules like ABA Model Rule 5.4 “that absolutely prohibit nonlawyer investment in law firms and fee-sharing with nonlawyers restrict access to capital and discourage technological innovation,” said Lachman.

Those restrictions were under pressure in some states even before the pandemic as technology evolved rapidly. Rising unemployment during the pandemic made the need for help with legal services more acute and further improved the prospects for change.

For example, Stanford’s Freeman Engstrom said more limited licensed professionals eventually will be allowed to provide legal help to the poor, and additional software providers will likely be admitted “into the fold as a potential solution to access to justice concerns.”

The pandemic “has highlighted the challenges of how we do things now, and how to do things better,” Lachman said.

(Added quote in fourth paragraph from Jan Jacobowitz.)

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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