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January 01, 2022 January/February 2022

Future Proofing: Stress Testing the ABA Model Rules for a Post-Pandemic World

Dan Pinnington and Reid Trautz

As the world enters the third year of the COVID-19 pandemic, it is helpful to reflect upon how the legal profession’s ethics rules will operate in a world far different from when the rules were enacted. How have the rules fared and what changes have we seen, if any?

In this column, Law Practice has asked noted ethics expert Lucian Pera to share his thoughts on how the ABA Model Rules of Professional Conduct, as adopted in our many varied jurisdictions, have performed and how they, and the lawyers that follow them, may need to change or adapt in a post-pandemic world.

Law Practice: Lucian, how well did the Model Rules fare as we all moved to work from home (WFH) at the start of the pandemic?

Lucian Pera: Remarkably well, actually. The first big challenge was cybersecurity. Working from home, of course, confined most of us to a familiar environment where we had to do things we weren’t used to doing there. How do you have a client call with toddlers or a dog underfoot? How do you maintain confidentiality of client communications in your living room or your basement?

Soon after many of us went home to work, several things became very clear.

Lawyers were very much aware of the challenges, from basic confidentiality—Where can I talk with clients privately from my family?—to the increased threats of phishing and other scammers preying on those of us working in an unfamiliar environment. That awareness was crucial.

Lawyers also radically accelerated their adoption of new tech, from Zoom to Microsoft 365, to make WFH possible and effective. As Legal Evolution’s Dan Currell has written, necessity is the mother of adoption, not innovation. In doing so, the vast majority of lawyers, despite our many Zoom gaffes, knew of their need for confidentiality and security. In my early-pan- demic CLEs on cybersecurity, I saw hordes of lawyers eager to figure this out and do the right thing.

And they were able to do so, largely because bar ethics committees, especially the ABA, had laid the groundwork, in well-thought-out and well-written opinions, for thinking about how to handle technology and cybersecurity, both in terms of competence and security. ABA Formal Opinions 477R on cybersecurity generally, Opinion 482 on disasters and planning for them, and Opinion 483 on cyber breaches and incidents, plus a host of other state bar opinions, laid a fairly complete foundation for lawyers to understand what the ethics rules meant in daily tech life. And by the way, for lawyers conscious of the need to tweak their software toward more security—think two-factor authorization—offerings like Microsoft 365 and other well-built cloud products have allowed lawyers to “outsource” their cybersecurity to vendors who do it better than we can.

Law Practice: So, the rules and these ethics opinions were, in a sense, prepared?

Lucian Pera: Yes. By the time the pandemic hit, the majority of jurisdictions had adopted the ABA Model Rules’ 2012 “technology” amendments, and that trove of ethics opinions I mentioned interpreted them well. They gave us a flexible framework that accommodated the rules to the dramatically changed circumstances in which we found ourselves.

Law Practice: Were there any areas that the rules came under stress?

Lucian Pera: One area of incongruity was the unauthorized practice of lawyer (UPL) by lawyers operating where they were not licensed. Can I work from home in my mom and dad’s home two states away without being licensed there, for example? But rather than changing the UPL rules, we saw a sea change in how regulators approached and interpreted the UPL rules. (For a broader discussion of this issue see “WFH UPL?” by Lucian Pera in the May/June 2021 issue of Law Practice.)

Law Practice: Are you talking about the opinions like the one from Florida, saying it’s not UPL in a jurisdiction for a lawyer not licensed there to practice remotely from a home in that jurisdiction to continue her practice somewhere else?

Lucian Pera: Exactly. Florida Opinion SC20-1220 says just that, with a few limitations. And the ABA in its recent Formal Opinion 495 and at least a half dozen other jurisdictions have said something similar. A few of these were very specifically keyed to pandemic circumstances. And they include some key limitations—the remotely working lawyers cannot open an office in the host jurisdiction, can’t represent clients in that jurisdiction, can’t advise on the host jurisdiction’s law and generally cannot appear in court in the host jurisdiction.

Still, these opinions collectively seem to have disposed of a regulatory view that some of us ethics lawyers feared—incorrectly, as it turns out—that, if a lawyer licensed somewhere else was physically present in a jurisdiction, no matter where her work was aimed, then that was UPL. Well, that view is apparently dead, if it ever was alive.

Law Practice: What does that say about the ABA Model Rules?

Lucian Pera: It suggests that jurisdictions are taking a nuanced and intelligent view of what it means to practice “in” a jurisdiction—that’s the relevant word in ABA Model Rule 5.5. The opinions suggest that such a lawyer’s presence in a jurisdiction where they don’t represent clients in that jurisdiction, or have an office there, or advise on that jurisdiction’s law is “incidental” and that they are (and should be) “invisible” to that jurisdiction’s regulatory scheme. Frankly, the ABA and these jurisdictions have discovered flexibility in ABA Model Rule 5.5 that some lawyers didn’t know was there.

Law Practice: Will that view continue to prevail post-pandemic?

Lucian Pera: Absolutely, I think it will. And it already does. The WFH experience has already dramatically affected the willingness and desire of firms and law departments to have lawyers work remotely. And some lawyers are now exploiting these new interpretations to seek practice opportunities and employers willing to let them “WFH” where “home” is the lawyers’ lifestyle choice, not a house near the office. In my practice, I’ve seen an explosion of interest in these options. That is definitely not going away.

Law Practice: As we come out of the pandemic, how do you think the Model Rules will need to be updated or tweaked to function properly in the new normal?

Lucian Pera: As to cybersecurity concerns, I think the rules are broadly in good shape. Certainly, there’s no immediate need for revision.

As to UPL concerns for lawyers, there’s still a real need for reform and that need will only grow, despite the relief we got from the ABA and other opinions on working remotely and virtually.

The last big advances on these lawyer mobility issues came with the adoption of ABA Model Rule 5.5 in 2002, 20 years ago. Before the pandemic, many of us thought we’d reached the end of the road on this progress. The pandemic opinions have helped a bit. But their narrowness also highlights the fact that lawyers, today more than ever before, need to be able to practice more freely across jurisdictional lines to serve their clients’ needs.

And to be clear, this is not at all a purely BigLaw concern, as some might think. The needs of our clients have steadily grown to be more multijurisdictional. As more businesses have spread their reach regionally and nationally, lawyers need to be able to meet those needs. Lawyers serving individuals also need to address the legal needs spawned by those individuals’ increased mobility. Some solo divorce lawyers see more gnarly multijurisdictional issues than some big multi-state firm lawyers. It’s time for another round of reforms.

Law Practice: Any parting thoughts on the health of the Model Rules post-pandemic?

Lucian Pera: Just one. It has become increasingly apparent to me that the experience of the pandemic by lawyers and law firms has been wildly varied, like it has for everyone else. Recent ABA surveys—one by the Practice Forward working group and The Profile of the Profession Report—confirm this. That calls for a lot of humility in drawing quick or broad conclusions about things like whether our ethics rules are tuned up for the post-pandemic future. So we all need to stay tuned.

At this point, the pandemic has directly led to very few actual changes in the rules of professional conduct. The rules and the standards of conduct they impart held up reasonably well to the challenges the pandemic threw at them, and lawyers were able to comply despite the massive changes brought on by WFH. And where there were changes on the UPL front, albeit largely in interpretation, it seems greater flexibility on UPL is a change that is overdue and of benefit to both lawyers and their clients. The future-proofing lesson here is that the profession can change and adapt, even if driven by external factors, by adapting existing ethics parameters to new circumstances. Whether that leads the profession in the United States to an agreement for regional or national mobility as Canada has had for almost two decades, it is too soon to tell. (See the National Mobility of the Legal Profession page on the Federation of Law Societies of Canada’s website for more details.) 

Dan Pinnington

President & CEO

Dan Pinnington, is the president and CEO of Lawyers’ Professional Indemnity Company and was the driving force behind the innovative practicePRO claim prevention initiative. He is past editor-in-chief of Law Practice and was chair of ABA TECHSHOW 2007. [email protected]

Reid Trautz

Senior Director

Reid Trautz, is senior director of the Practice & Professionalism Center of the American Immigration Lawyers Association. He is a long-standing member of the ABA Law Practice Division, serving as chair of ABA TECHSHOW 2012, and currently he serves as co-chair of the Futures Initiative. [email protected]

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