Ethical Issues With Remote Work During COVID-19

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In March of 2020, international and national events triggered an immediate and emergent need for employers to transition their entire work force to working remotely. The World Health Organization officially declared the novel coronavirus outbreak a pandemic on March 11 and President Donald Trump declared a national emergency on March 13. Federal, state and local regulations were in a state of flux and by May, 29 states implemented shut down orders halting in- person business operations. In Pennsylvania, Governor Tom Wolf dodged a constitutional challenge to his shut down Order of “non-essential” businesses by modifying it to permit law offices to stay open on a restricted basis. Per the Pennsylvania Office of General Counsel’s guidance, lawyers and their staff have been able to access their offices to the degree necessary to participate in essential court functions. The guidance reiterated that all other businesses must continue to operate remotely. Businesses in regions where shut down orders were not issued took measures to protect the health and safety of their employees, customers and operations. As widely recognized, “[o]ne of the key measures to reduce the spread of Coronavirus COVID-19 is social distancing, which for many organisations means encouraging – or instructing – staff to work from home.” Steve Ranger, “Working from home: Cybersecurity tips for remote workers” (March 16, 2020).

For employers, the rapid migration of workers to a remote environment triggered a host of potential operational, employment and legal ethical issues. From a business operations standpoint, companies needed to be prepared to take necessary measures to maintain and manage critical functions remotely, which included altering supply chains or suspending certain operations as well as coordinating and communicating directly with customers. These companies had to identify key personnel to manage both the internal response to employees and coordinate with third-parties, including customers and vendors.

Fast forward seven (7) months from President Trump’s initial declaration of a national emergency as a result of the COVID-19 pandemic and we find ourselves in another season of remote work due to the pandemic. Lawyers, for the most part, continue to work either fully or partially remotely. A national survey conducted by MyCase, a practice management company, concluded that 87% of law firms were conducting their operations either entirely or partially remotely. (See LawSites, “87% of Law Offices Working Remotely, Survey Finds, As They Struggle To Maintain Financial Stability,” April 30, 2020). Federal courts have approved the use of remote technology to conduct a number of procedures, including oral arguments, preliminary hearings and misdemeanor sentencings. (See United States Courts, “Courts Deliver Justice Virtually Amid Coronavirus Outbreak,” April 8, 2020.) As Ninth Circuit Court of Appeals Clerk Molly Dwyer aptly put it, “[w]e’re building the bike as we ride it and we’re going to do everything in our power to make sure that it doesn’t break.” Id. Guidance from the medical community suggests that the current paradigm could continue into 2021, so now is a good time to re-visit your approach to working from home and ask yourself if you are employing the best practices with respect to these issues.

Even amidst a crisis, lawyers are bound by their ethical obligations and must protect their clients’ interests in pending matters. (See ABA Special Committee on Disaster Response and Preparedness (February 12, 2011), and note to Model Rule 1.1, Comment [3] regarding an emergency). Lawyers must continue to competently and diligently represent clients, communicate relevant information, safeguard clients’ confidential information, comply with court issued filing deadlines and appear remotely for court appearances, and fulfill fiduciary duties regarding safekeeping of client property. Law firms should have Business Continuity Plans (“BCPs”) in place which address how to continue carrying out critical business operations during or immediately after a disaster. Even if a law firm does not have a current BCP, there are a number of steps firms can take to comply with their ethical obligations and mitigate risk. The ABA Special Committee advises that law firms take the following steps in the event of an emergency:

  1. Create internal and external messaging regarding the firm’s status and ability to operate;
  2. Coordinate with records management to ensure that incoming documents are being stored securely and that records are accessible as necessary;
  3. Ensure that attorneys are performing analyses to identify and prioritize urgent matters, including docketing litigation deadlines and court appearances; and
  4. Identify firm leadership responsible for responding to questions about essential firm functions.

(See Surviving a Disaster: A Lawyer’s Guide to Disaster Planning (2011)).

The Pennsylvania Bar Association issued guidance on protecting clients’ confidential information in Formal Opinion 2020-300 and suggested that attorneys could competently preserve electronic information by observing the following:

  • Avoiding the use of public internet or free Wi-Fi;
  • Using virtual private networks to enhance security;
  • Using dual-factor authentication;
  • Assuring that video conferences are secure;
  • Backing up any data stored remotely;
  • Securing any devices used remotely; and
  • Verifying that websites have enhanced security;

Formal Opinion 2020-300 also noted that lawyers must ensure that their firm has appropriate measures in place to ensure that other lawyers whom they supervise and non-lawyer staff comply with the Rules of Professional Conduct relating to protecting client confidentiality.

Lawyers must also continue to represent clients competently in the remote environment. They must continue to prepare documents and monitor their matters so that they meet deadlines. In addition, lawyers may need to consider new trial strategies and stay abreast of rapid legislative changes. Trial lawyers may have to weigh the benefit of conducting remote depositions against the downside of in person depositions where a witness is wearing a mask. They may also need to consider the benefit of proceeding with a bench trial versus waiting for a jury trial. Comment [3] to Rule 1.1 (“[i]n an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical”), provides some leeway with respect to using professional judgment in emergency situations, but in order to comply with ethical obligations, lawyers must take necessary measures to get up to speed on these novel issues in the COVID-19 environment. These strategies could include attending industry or CLE conferences on emerging topics in their practices areas, dividing research on new COVID laws and guidelines within practice groups, and having someone within the firm monitor daily the relevant state and federal court websites for rule changes and other emergent announcements.

Lawyers should also be mindful of the duty to communicate with clients under Model Rule 1.4. For some lawyers working remotely, communication systems between the attorney and client may have changed. Lawyers should ensure that clients know how to reach them and should make plans to monitor any physical mail that reaches the office. Further, attorneys must keep their clients “reasonably informed” about the status of their matters. Given the current state of flux and the need to continually inform clients, attorneys and their firms may want to identify issues common to their clients and continually send blast emails, which do not identify the other clients who are receiving the emails to protect client confidentiality, regarding these status changes.

Lawyers should be sensitive to the anxiety their clients face and should also make sure that they are explaining matters so that their clients can effectively participate in the representation.

While working remotely is expected by many to be the “new normal” well into 2021, one significant issue attorneys need to consider is whether they are engaged in the unauthorized practice of law. Pennsylvania’s Rules of Professional Conduct set forth the parameters for the authorized and unauthorized practice of law in the Commonwealth. Pa.R.P.C. 5.5 states, in pertinent part, as follows:

Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law

  • A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
  • A lawyer who is not admitted to practice in this jurisdiction shall not:
  • except as authorized by these Rules, Pa.B.A.R. 302 or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
  • hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

Therefore, non-Pennsylvania lawyers should be aware that they can be subject to discipline in the Commonwealth even if they are not admitted in Pennsylvania. (See Office of Disciplinary Counsel v. Magee, (No. 2308 Disciplinary Docket No. 3 (2015)). An out-of-state lawyer who elects to practice from a home office in Pennsylvania may be subject to discipline for the unauthorized practice of law even if the lawyer’s practice strictly relates to his/her clients in his/her home state. Specifically, Rule 5.5(b)(1) prohibits a non-Pennsylvania lawyer from “establish[ing] an office or other systematic and continuous presence in this jurisdiction for the practice of law.” The Rule does not specify what constitutes a systematic and continuous presence, but Comment [4] states that a lawyer “must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” The ABA Ethics 20/20 Commission identified, without resolving, how to address the situation of a lawyer working remotely from a jurisdiction where he/she is not licensed, but ultimately referred the issue to the Standing Committee on Ethics and Professional Responsibility for its opinion.1

The possibility of engaging in the unauthorized practice of law is not isolated to Pennsylvania. In the Tri-State Area of NY, NJ and CT, thousands of New York lawyers live in neighboring states but are only admitted in New York. Similarly, in the District of Columbia, many lawyers who live within the city limits may not be admitted in D.C. and commute elsewhere for work.

A recent ethics opinion from the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law (the “D.C. Committee”), Opinion 24-20 (2020), cut through the red tape to make it easier for out-of-state lawyers sheltering in place in D.C. to continue practicing law in their “home” jurisdictions.

Like many states, D.C.’s unauthorized practice of law rules contain an exception for “temporary practice,” where a lawyer who is not admitted in D.C. is permitted (under certain circumstances) to practice temporarily in D.C. if the lawyer’s conduct relates to his or her practice in the state where the lawyer is admitted and regularly practices. The D.C. Opinion concluded that the requirement that lawyers work remotely as a result of COVID-19 fits within the broad temporary practice exception. Specifically, the Opinion concluded:

[A]n attorney who is not a member of the District of Columbia bar may practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13) if the attorney (1) is practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdiction where the attorney is admitted to practice; (3) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia, and (4) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.

Citing the official commentary to Rule 49(c)(13), the D.C. Committee stated “there is no absolute limit on the number or length of a lawyer’s visits to the District that makes the lawyer’s presence temporary,” making clear that a lawyer can work for weeks or even months in D.C. on a case based in their home jurisdiction without engaging in unauthorized practice. See Official Comment to

D.C. Ct. App. R. 49(c)(13) at 2. Thus, if an attorney residing in D.C. continues to hold herself out as  an  attorney admitted  in  and  practicing from  their home state,  and  complies  with  the four exceptions listed in Opinion 24-20, they may continue to physically practice from their D.C. residence for as long as the pandemic lasts.

Although this conclusion makes perfect sense, it raises another question of why other jurisdictions haven’t issued similar opinions on temporary practice during the pandemic. Many lawyers are in the same situation, sheltering in a “foreign” jurisdiction while continuing to hold themselves out as practicing from their home jurisdictions. Apart from Florida and Utah, who issued broader rulings allowing this form of multijurisdictional practice, no other jurisdiction has addressed the problem, either by court rule or Bar opinion. To remove any uncertainties, jurisdictions must step forward to make their unauthorized practice rules conform to the harsh reality on the ground during the pandemic.

As remote work continues indefinitely, lawyers should focus their efforts on confirming that they are practicing ethically, spotting emerging technical and strategic issues that they had not anticipated prior to the emergence of COVID-19, and recognizing the need to protect themselves from any claim that they are engaged in the unauthorized practice of law. If and when the pandemic subsides, it will be interesting to see to what extent the “new normal” for attorneys will involve returning to their offices on a regular basis to conduct business “as usual.”

1 “A lawyer may be licensed in one jurisdiction, but live in a jurisdiction where the lawyer is not licensed. If the lawyer conducts a virtual practice from the latter jurisdiction and serves clients only in the jurisdiction where the lawyer is actually licensed, there is a question of whether the lawyer has a “systematic and continuous” presence in the jurisdiction where the lawyer is living and thus violates Rule 5.5(b) in that jurisdiction. The Rule is unclear in this regard as well.” See Am. Bar Ass’n Comm’n on Ethics 20/20, Introduction and Overview, at 10 n. 27 (Feb. 2013).

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Last modified: November 12, 2020

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