July 30, 2020 4 minutes to read ∙ 1000 words

TAPAs: The Ethics of Practicing Law from Home

By Jeffrey Allen and Ashley Hallene

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How do you work from home the right way?

How do you work from home the right way?

Image courtesy of Life-of-Pix at Pixabay.com

Even once the fog of panic brought on by the COVID-19 pandemic lifts, attorneys may still find themselves working from home. In some cases, the savings on operating costs may be too great to give up. Children forced to attend school by remote learning may require an adult in the home for supervision. COVID-19, or some variation of it, could reappear. Either way, it is important that you understand and employ ethical measures at home as you would at the office. It may not be only your own conduct that you need be concerned with—your office staff and colleagues must be in compliance as well.

Tip 1: Your Communications Should Comply with the Model Rules of Professional Conduct

When you communicate with staff while working from home, be sure to comply with the ABA Model Rules (as well as your applicable state bar rules). Under Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistance), attorneys with direct supervisory authority over a nonlawyer “shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” The rule goes on to explain that the lawyer is responsible for conduct of a nonlawyer that is in violation of the Rules of Professional Conduct if:

  1. the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
  2. the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

At a minimum, you need to take steps to ensure that all communications, including telephone calls, text messages, e-mail, and videoconferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information. Make sure everyone understands that they cannot share a firm-issued laptop or desktop with family members.

Tip 2: Maintain Diligent Representation and Client Communications

Make sure you and your staff are able to communicate with clients, other attorneys, firm staff, and vendors if necessary. Circulate a list of personal contact numbers to your staff as a backup. Security measures that apply when you travel still apply in this scenario. For instance, you should never use publicly available WiFi when accessing your firm’s systems. You should always use strong password protection for your WiFi at home, too.

Be mindful of where you discard documents. When discarding paper drafts, do not throw them away in the home garbage or recycling bin. Either run them through a shredder at home or take them back to the office for shredding.

Also, be cognizant of what others can see whenever you are videoconferencing. Consider whether the camera will display personal and confidential information anywhere on your desk. If you host a “screen sharing” session, be sure to close out all unrelated files. Don’t leave any revealing file names stored on your desktop.

Tip 3: Have a Plan in Place in the Event of Your Death or Disability

Most people do not want to consider that they might be so adversely affected by the pandemic. However, with more than 100,000 people already dead because of the virus, and scores of people suffering short- and long-term effects, it is important that solo practitioners have a plan in place in the event of the attorney’s death or disability. The plan should designate another competent lawyer who can review the solo’s client files, notify the clients of the lawyer’s death or disability, and determine whether there is a need for immediate protective action. Failure to do so may trigger Rule 28 of the ABA Model Rules for Lawyer Disciplinary Enforcement, which provides for court appointment of a lawyer to inventory files and take other protective action in the absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer.

Tip 4: Ensure That Your Firm’s Remote Access Maintains Confidentiality

Before you store any of your clients’ confidential information in the cloud, understand your state’s requirements concerning cloud storage. You should always use a virtual private network (VPN) when accessing information while offsite. If you have not set up a VPN yet, check out NordVPN for an easy-to-use option.

Make certain that client information (documents, notes, files, billing statements, etc.) are kept in a secure location and out of sight from other household members.

Tip 5: Ensure Your Remote Workspace Is Designed to Prevent the Disclosure of Confidential Information

Create a private area in your home to communicate privately with clients, and confirm that no one (including your smart devices such as Google Home or Amazon’s Echo) can hear or see those communications. Your computer should be dedicated to your work and not the “family computer”; otherwise, you will need to take even further measures to ensure confidential client information is protected.

You should also make sure the computer that you use at home has up-to-date antivirus software. You should stay current with all your software updates while you are at it. To see the importance of software updates, you need look no further than the Mossack Fonseca law firm, the firm behind the infamous Panama Papers breach in 2016. Mossack Fonseca neglected updating systems for years, including its confidential client portal, e-mail program, and main website software. The vulnerabilities created by this neglect allowed cybercriminals access to 4.8 million e-mails, 3 million database files, 2.1 million PDFs, 1.1 million images, 320,166 text files, and 2,242 other files. Be smarter. Make sure everyone in your office stays current on all security updates.

In many practices, telecommuting is the new norm. While some may welcome the break from a daily commute, all must still exercise diligence and care concerning their clients. These tips will help guide you around the pitfalls that can be found in the remote workplace.

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Jeffrey Allen is the principal in the Graves & Allen law firm in Oakland, California, where he has practiced since 1973. He is active in the American Bar Association (particularly in the GPSolo and Senior Lawyers Divisions), the California State Bar Association, and the Alameda County Bar Association. He is Editor-in-Chief Emeritus and Senior Technology Editor of GPSolo magazine and the GPSolo eReport and continues to serve as a member of both magazines’ Editorial Boards. He also serves as an editor and the technology columnist for Experience magazine. A frequent speaker on technology topics, he is a former member of the ABA Standing Committee on Information Technology and the Board of Editors of the ABA Journal. Recently, he coauthored (with Ashley Hallene) Technology Solutions for Today’s Lawyer and iPad for Lawyers: The Tools You Need at Your Fingertips. In addition to being licensed as an attorney in California, he has been admitted as a Solicitor of the Supreme Court of England and Wales. He is on the faculty of California State University of the East Bay. He may be reached at jallenlawtek@aol.com.

Ashley Hallene is a petroleum landman at Macpherson Energy Corporation in Bakersfield, California. Ashley is Editor-in-Chief of the GPSolo eReport and is the coauthor of the technology overview Making Technology Work for You (A Guide for Solo and Small Firm Attorneys) along with attorney Jeffrey Allen. She has published articles on legal technology in GPSolo magazine, GPSolo eReport, and the TechnoLawyer Newsletter. Ashley is an active member of the American Bar Association’s General Practice Solo & Small Firm Division, ABA’s Senior Lawyers Division, and the Bakersfield Association of Petroleum Landmen. She frequently speaks in technology CLEs. She may be reached at ahallene@hallenelaw.com.

Published in GPSolo eReport, Volume 9, Number 12, July 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.