Throughout COVID-19, including the Delta and Omicron waves, many lawyers have adapted their practice to working from home. Although the last two years have been stressful for all, some practitioners have found that they enjoy the convenience and comfort of working from home. Indeed, some lawyers have indicated that they intend to continue to work from home a few days a week, even as offices reopen.
Working from home is different from working remotely when on the road for work. One of the biggest challenges in working from home is ensuring the same level of client confidentiality that typically exists in an office. Among other things, lawyers working from home may be less diligent about maintaining client confidentiality than they are when in the office.
While most lawyers are sensitive to maintaining protection for privileged materials, they may forget that Rule 1.6 of the ABA Model Rules of Professional Conduct treats “confidential” information as broader and sometimes more expansive than privilege. Confidential information can include client identity, business information, or other data (even if that information is otherwise publicly known). Rule 1.6 and other state-specific statutes call on lawyers to maintain confidences and secrets.
In-office work is conducive to maintaining confidentiality, given its secure physical storage, layouts that allow lawyers to caucus in private, and internet security. Working from home—with family members, roommates, or even delivery or repair people—may not have the same inherent structural protections.
Even with just other family members in the home, lawyers should take care not to leave confidential information about, unattended. Ideally, the lawyer will work in a separate room within the home with a door that can be closed. The lawyer can consider whether to use headphones when in conferences to minimize the risk of being overheard. Sharing screens on a video call is a common occurrence, but lawyers may need to review the process to avoid accidentally sharing confidential information to viewers who should not receive it. Lawyers can also consider how to dispose of confidential documents, including by use of an at-home shredder or other secure depository.
Law firms have also seen an uptick in suspicious online activity targeting personnel working from home (when, perhaps, they are less likely to notify another employee about a phishing scam). These scams can seek to trade on general uncertainty or COVID-19-related disruption to try to obtain confidential information or log-in credentials. Sometimes a specific employee is targeted; other times, the phishing scam is sent to a larger group. Lawyers should warn their staff to raise any questions about the integrity of an email to an IT team or other risk manager.
By being mindful of these risks, lawyers can ensure that their at-home practice does not sacrifice client confidentiality.
This Practice Point originally appeared in similar form with the ABA Litigation Section's Professional Liability Litigation Committee.
