New Ethics Advice on Working from Home in Pandemic

The Pennsylvania Bar Association (PBA) has issued new guidance to attorneys on working from home during the COVID-19 pandemic. Formal Opinion 2020-300 addresses a host of issues relating to remote practice, including an attorney’s duty of technological competence when handling sensitive client information in a home environment. ABA Section of Litigation leaders observe that although the opinion was prompted by the current shelter-in-place orders, its guidance reaches well beyond the present circumstances, and will continue to apply as attorneys increasingly depart from the traditional brick-and-mortar office model in favor of “virtual” law firms and other arrangements.

On April 1, 2020, Pennsylvania’s governor, Tom Wolf, ordered all “non-essential businesses” in Pennsylvania, including law firms, to close. Because an extended work-from-home period was new to many attorneys, the PBA Committee on Legal Ethics and Professional Responsibility issued Formal Opinion 2020-300 to address issues of legal ethics relating to remote practice. Finding that “no Pennsylvania Rule of Professional Conduct specifically addresses the ethical obligations of attorneys working remotely,” the PBA drew upon its previous opinions on cloud computing and virtual offices for guidance on an attorney’s “duty of technological competence.” As the opinion observes, this duty “requires attorneys to understand the general risks and benefits of technology, including the electronic transmission of confidential and sensitive data, and cybersecurity, and to take reasonable precautions to comply with this duty.”