Ethical Issues With Remote Work During COVID-19

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).

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Ethical Implications When Acting as Local Counsel

Many litigators have either retained or served as “local counsel” in state or federal courts.  Litigators with national practices may work with local counsel more often than not.  Those with niche practices handling cases in specialized courts, such as the Delaware Chancery Court, also frequently serve as local counsel to those who are admitted to practice outside the jurisdiction.  However, when that out-of-state lawyer calls and wants you to serve as local counsel in a major case, it is important to establish the ground rules before entering your appearance for the new client.   

Typically, the out-of-state lead counsel (“lead counsel”), relies on local counsel for compliance with local rules, filing and service responsibilities, and other seemingly mundane tasks, but maintains primary authority over strategic decisions and direct contact with the client.  In fact, more often than not, lead counsel will not want local counsel to have any contact with their client.  Lead counsel will assume responsibility for all substantive matters in the case, including written discovery, drafting and responding to motions, all depositions, and trial if necessary.  Local counsel is generally responsible for reviewing pleadings to ensure that procedural requirements are satisfied, advising on the applicability of local rules or the personal policies of the assigned judge, and moving for the pro hac vice admission of lead counsel.  In a perfect world, the matter eventually concludes through settlement or a trial and the client is pleased with the result.  But what if the client is dissatisfied with the quality or result of the representation?  The short answer is that both lead and local counsel could face a legal malpractice claim, regardless of which counsel truly controlled the matter, or even committed any alleged errors.  There are steps attorneys should take to protect themselves when acting as local counsel.

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Ethical Implications When Outsourcing Legal Work

Outsourcing on the Upswing

In an era where lawyers and law firms seek to run “lean” as a way of keeping costs down, outsourcing legal and nonlegal services once performed in-house by law firms can be a wise financial move. The advent of COVID-19 has accelerated consideration of outsourcing various administrative services so as to streamline back office functions.

‘‘Outsourcing’’ generally refers to ‘‘the practice of taking a specific task or function previously performed within a firm or entity and, for reasons including cost and efficiency, having it performed by an outside service provider.’’ See ABA Commission on Ethics 20/20, Revised Proposal – Outsourcing (Sept. 19, 2001). Due to the COVID-19 pandemic, additional reasons for outsourcing include the need for social distancing and the necessity of firms working remotely.

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Failure to Adjudicate Conflict of Interest Issue Leads New Jersey Appellate Division to Reinstate Ex-Client’s Malpractice Case

Plaintiff, Engine Distributors, Inc. (“EDI”), appealed an order from the Superior Court of New Jersey, Law Division, denying its motion for summary judgment and granting defendant Archer & Greiner’s motion for summary judgment and dismissal of EDI’s malpractice complaint against Archer.  On July 1, 2020, the Appellate Division reversed and remanded the case to the trial court for further proceedings.

EDI was represented by an attorney in various legal matters beginning in the late 1970s.  Floyd Glenn Cummins was EDI’s president and majority shareholder during that timeframe.  In 2003, EDI’s attorney defended it in an age discrimination lawsuit.  That attorney later joined Archer as a partner in 2005.  Afterward, another Archer partner assisted him on the discrimination case.  During that representation, Archer received confidential information from EDI including various financial records.  

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