An overview of the remote work ethic

A lot has happened in 2021, not least of which is the continuous shift to remote working. Now that we are well into the second year of the pandemic, remote working has become commonplace, even in the legal profession. In fact, according to the results of MyCase’s Legal Industry Report 2021: Lessons Learned from the Pandemic, more than half of legal professionals surveyed (53%) said their firms would allow lawyers and firm staff. lawyers to work remotely. fulltime once their offices are fully reopened. And nearly three-quarters (70%) said their firms would allow lawyers and staff to work part-time remotely once reopened. (Note: I am the legal technology evangelist for MyCase.)

This transition to accepting remote working has been so dramatic that in 2021 a growing number of ethics committees across the country have addressed ethical issues related to remote working, with many giving it the green light. I wrote about some of these opinions earlier in the year. Over the past few months, a number of additional opinions have been released, focusing on ethical issues raised when lawyers practice law from a distance.

More recently, a joint opinion from New Jersey was issued in October: Committee on the Unauthorized Practice of Law Opinion 59 / Advisory Committee on Professional Ethics Opinion 742. In this opinion, the committees examined the ethical issues posed when lawyers work in law. distance from New Jersey. but are not permitted in New Jersey. The committees determined that these attorneys did not have a “continuing and systematic presence” in New Jersey sufficient to trigger the ban on “engaging in the unauthorized practice of New Jersey law” until they present of “external physical manifestations of presence”. “

Then there is the advisory issued by the Delaware State Bar Association Committee in July: Professional Ethics Formal Opinion 2021-1. The committee gave attorneys licensed to practice law in Delaware – but who worked remotely from another jurisdiction – the green light to do so, with an important caveat. According to the committee, Deleware lawyers can practice law remotely from outside the state, but only if “the law of the local jurisdiction does not prohibit such conduct, and these lawyers do not appear publicly in court. as an attorney in that jurisdiction or do not offer to or accept client representation in that jurisdiction.

Finally, there is California’s perspective on remote work issues in Interim Advisory No. 20-0004. In this opinion, the State Bar of California Standing Committee of Professional Responsibility and Conduct considered this question: “What are the ethical duties of a California lawyer when working remotely in response to the COVID-19 pandemic or a other disaster situation? “

In arriving at its decision, the committee focused on a number of different ethical obligations, including the duty of confidentiality and the duty of jurisdiction. Notably, in addressing the duty of confidentiality, the committee recognized that by 2021, it is clear that lawyers can ethically use cloud computing software in their practices. The committee explained that “law firms can use third-party cloud providers to store or back up confidential client files or other technology solution providers to facilitate remote practice,” and noted that before to do this, it is necessary to verify the suppliers before using the technology.

The committee ultimately concluded that: “Lawyers may ethically practice remotely under California Professional Conduct Rules and state bar law, provided they continue to adhere to those rules. , including the duties of confidentiality, competence, communication and supervision. Lawyers should implement reasonable measures to ensure compliance, appropriate to the relevant circumstances and the remote working environment. “

In other words, times are changing. The pandemic has ushered in a new era, in which working remotely and practicing law in jurisdictions in which you are not licensed is part of the course. As a result, ethics committees across the country are finally recognizing the realities of 21st century law practice and more appropriately applying ethics rules in a way that enables lawyers to reap the many benefits of technology. It’s a shame it took a global pandemic to get us here.

Nicole Black is a lawyer in Rochester, New York and director of business and community relations at My case, online law firm management software. she was blog since 2005 wrote a weekly column for the Daily Record since 2007, is the author of Cloud computing for lawyers, co-authors Social media for lawyers: the next frontier, and co-authors Criminal law in New York. She is easily distracted by the potential of bright and shiny tech gadgets, as well as great food and wine. You can follow her on Twitter at @nikiblack and she can be reached at [email protected].

Maria D. Ervin