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Tech Skills, Ethical Awareness Virtual Practice Keys, ABA Says

March 10, 2021, 3:01 PM

The traditional ethics rules of confidentiality, competence, and supervision still apply for lawyers working remotely, the American Bar Association said.

“As lawyers increasingly use technology to practice virtually, they must remain cognizant of their ethical responsibilities,” the ABA’s ethics committee said in an opinion on Wednesday that stressed the importance of safeguarding confidential information.

Lawyers should take “reasonable precautions” when transmitting this information, the opinion said. Special precautions may be necessary if the law or an agreement with a client requires it.

Technological competence goes hand in hand with the duty of confidentiality, it said.

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

They need to be able to access client files wherever they are, it said. If using a cloud service, lawyers have to use a “reputable company” that regularly backs up data. In the event of data loss, attorneys must be able to easily access backup information.

Other measures to take when working virtually include making sure third parties can’t access confidential client information, the opinion said. This includes listening-enabled devices.

“Otherwise, the lawyer is exposing the client’s and other sensitive information to unnecessary and unauthorized third parties and increasing the risk of hacking,” the opinion said.

Video conferencing also has the potential to expose sensitive information, it said.

The opinion noted best practices for video conferences from a 2020 Pennsylvania Bar ethics opinion, include requiring a meeting password and providing the meeting link directly to specific people.

And working virtually doesn’t mean managing attorneys can shirk their duty to supervise, it said.

“Practicing virtually does not change or diminish this obligation,” the opinion said. Policies pertaining to how to detect conflicts of interest, keep abreast of deadlines in cases, and safeguard client property must be in place.

This includes making sure security is “tight” for personal devices firm members use to store or access client information.

And lawyers have to regularly communicate with attorneys and law firm staff. “Routine communication and other interaction are also advisable to discern the health and wellness of the lawyer’s team members,” the opinion said.

The opinion is ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 498, 3/10/21.

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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