Ethics: Prudently Employing Remote Workers

Three years ago, virtual law firms were a novelty, and none of us knew much about “remote work.”

Today, post-pandemic, these concepts are almost old news. Or maybe it’s just that many of us are tired of hearing about them. Some large national firms are advertising to hire remote-working associates anywhere. Some lawyers looking for jobs are asking—or insisting—on the ability to work remotely. Geography and offices are so 20th century.

Speaking as your ethics lawyer, not so fast.

Doing Remote Work Right

Remote lawyering is here to stay, for good and ill. It’s a tool law firms and law departments are using, more and more regularly, in all kinds of settings and configurations.

But as your ethics and loss prevention lawyer, I urge you to add to your analysis of when and how to use remote work some crucial ethics and loss prevention steps. Even if you have now fully integrated remote work into your law firm or law department business model, you need to be sure that your ethics compliance and loss prevention are keeping up.

So, let’s review the ethical, legal and loss prevention concerns that need to be in your mind.

Follow the Rules

First and most important: Is the remote work approach you are proposing or already using legal and in compliance with the ethics rules? In an earlier column (“WFH UPL?,” Law Practice May/Jun 2021), I explored the somewhat changed landscape of ethics interpretation, led by ABA Formal Op. 495, Lawyers Working Remotely (Dec. 2020).

That opinion, now followed by a number of jurisdictions, allows a lawyer licensed in State A (License Jurisdiction) to physically work in State B (Host Jurisdiction) without a State B license, so long as the lawyer meets several conditions, including no Host Jurisdiction clients, no advice on Host Jurisdiction law, no work on Host Jurisdiction matters, no Host Jurisdiction office and no holding out that the lawyer is licensed in Host Jurisdiction. One way to see this permission is that the lawyer is not practicing in Host Jurisdiction. From a regulatory perspective, the lawyer is “invisible” to Host Jurisdiction, and Host Jurisdiction has no legitimate regulatory interest in the lawyer’s activities.

The Many Pitfalls of Remote Lawyer Work

These opinions have enabled and emboldened remote work.

In my humble opinion, that’s a very good thing. But before betting your law firm or law department’s business model (and your own law license) on remote work, please evaluate the potential pitfalls.

First, as with any other lawyers, firms and law departments need to independently verify the licenses (in any jurisdiction) of their remote-working lawyers. Then, they need to work through the remote-work ethics and legal analysis on their own, not leaving this analysis only to the remote-work candidate.

Second, there’s sometimes a State C involved. In other words, the lawyer licensed in State A is physically in State B and working for a law department physically headquartered in State C. Is the remote-working lawyer practicing law in State C for licensure purposes? Perhaps not, but few jurisdictions have offered much guidance, and it’s worth exploring.

Third, a remarkably small number of jurisdictions have expressly endorsed the compelling logic of ABA Formal Op. 495. The result in many jurisdictions—California is one, as of this writing—is still uncertain.

Set the ‘Rules of the Road’

Fourth, be sure to map out “rules of the road” for the remote lawyer to keep them in compliance with all ethics concerns. Seriously consider putting these guidelines in writing so the remote lawyer and other firm personnel know them. For example, if they’re banned from working with State B clients or matters, the lawyers (and maybe clients) they’re working with need to be aware of this, and the firm or department may well need to police this. Indeed, it may be wise to proactively have the remote-working lawyer inform clients where they are, or are not, working.

Think, too, about advertising and marketing. On the firm’s website, the remote lawyer’s bio page probably should not associate them with an existing firm office. Most states’ ethics rules still prohibit lawyers not licensed in the jurisdiction from opening an office there.

And think about any association drawn in firm marketing between the remote lawyer and any physical location. Perhaps you’d want to remove any physical address from the remote lawyer’s email signatures and business cards or use their State B home address and mark it “mailing address only.” Details matter.

A Longer-Term Plan for Full Admission?

Fifth, consider whether part of the remote work plan ought to be for the lawyer to seek full admission (or registration as in-house counsel) in State B (the Host Jurisdiction) or even State C (where the law department is). Sometimes it’s easy; it might even be an attractive benefit to offer the remote-working lawyer, and it might help remove uncertainty about the ethics or unauthorized practice of law (UPL) answers.

What If We Get It Wrong?

As you work through these issues, remember the consequences of a wrong answer.

A later conclusion that the remote lawyer was engaged in UPL and violated the ethics rules could lead to disciplinary issues for the remote lawyer and even the lawyer(s) employing them.

More seriously, the remote lawyer might have some serious explaining to do down the road, if they ever seek admission to another jurisdiction, about where and under what authority they had practiced during this period.

Issues Other Than Legal Ethics

Think about the nonethical considerations for taking on a new lawyer in a new jurisdiction. Before you finalize a remote work arrangement, talk with your tax lawyer or CPA about the tax implications of adding a remote lawyer in State B. And check in with your employment lawyer, too—must you have the lawyer post employee rights posters in their basement office?

Cyber-Securing the Remote Environment

But let’s assume your remote work plan checks all these boxes. It’s safe, ethical and legal in all the relevant jurisdictions. What concerns remain?

One surmountable issue is technology and confidentiality.

Law firms and law departments need to seriously support with technology and advice the way lawyers work remotely to protect against the still-new dangers of remote work.

How will the remote lawyer access, handle and work on confidential matters? What devices will they use? Are they fully secure? Is the remote lawyer’s internet connection secure (and robust enough)? Do they have a work environment that can exclude others who may be nearby?

Does this require that the firm or law department ask some personal, perhaps intrusive, questions of the remote lawyer? Yes. Might this concern also require the firm or law department to budget for the remote lawyer to upgrade their remote-working environment and equipment? Yes.

Integration and Supervision

In theory, law firms and law departments know how to supervise and integrate new lawyers. But do they know how to do this when the lawyer is three states away and working in their bedroom? Generally, no. But we all must learn.

Of course, supervising lawyers, whether in a two-person law office or a 200-person law department, have an ethics obligation under ABA Model Rule of Professional Conduct 5.1 to supervise the lawyers who work for them. That can be accomplished, of course, without the supervised lawyer being in the office next door. But most lawyers practicing today do not have remote-supervision skills, and most firms and law departments today do not have policies and cultures that focus on long-distance supervision.

Further, whether the remote lawyer is an entry-level associate or a senior partner and, indeed, whether that lawyer is in a firm’s one-lawyer office or working in their home office, legal malpractice carriers will tell you that such “siloed” lawyers are traditionally a real source of claims and liability.

Working Remotely More Closely

What’s the answer? Better integration and changes in culture.

How to most effectively do that is well beyond the scope of any ethics column. But this author is old-fashioned enough to believe that effective integration of any lawyer into a firm or law department must include in-person, human-to-human contact. Don’t hire that remote lawyer without more than one in-person interview. Plan, schedule and pay for travel and the opportunity for remote lawyers to meet and interact in person with other lawyers, and also with others who work for the firm. Almost all firms and law departments prioritize such meetings with clients and prospective clients; establishing and nurturing human connections within the firm or department are even more important.

The moral from your ethics lawyer: Be conscious and intentional about your strategy of using remote lawyers, check all the boxes on the legal and ethics issues, and don’t let the supposed convenience and efficiency of remote lawyering keep your firm or law department from establishing and nurturing the critical human connections that any law firm or law department must have to practice well and prudently.