Since the COVID-19 pandemic, many attorneys shifted to fully remote work, with some firms or offices rolling out plans for long-term or permanent remote work environments. For many, this was welcome news. However, it is important to be aware of the risks that accompany an increase in remote practice. Below are the top five ways to get yourself into hot water in a remote working environment.
When practicing remotely, situations can arise that unexpectedly pull you away from your work for hours or entire days, potentially leading to two pitfalls. The first is failing to be responsive to your clients. Rule 1.4 of the ABA’s Model Rules of Professional Conduct (the Model Rules) states, in part, “A lawyer should promptly respond to or acknowledge client communications.” When these situations arise, ensure that you or a colleague can promptly respond to client communications. Failure to do so is a violation of the Model Rules and can also cost you a client.
The other danger is failing to be responsive to supervisors. It is easier to miss emails and phone calls when working from home than when sitting in your office. Failing to respond to your supervisors promptly can cost you assignments, learning opportunities, clients, and in the worst-case scenario, your job.
When working remotely, you must prepare in advance for certain contingencies that may never arise when working in an office setting. Tasks that are normally simple in the office may require extra preparation. Are you able to send certified mail from home if necessary? Can you notarize a document from your remote setting? If an emergency hearing is set, can you print, create binders, and prepare for an oral argument outside the office? Clients, judges, and supervisors expect that you can deal with these situations. Developing a plan for these contingencies can help you avoid lost cases and clients and unnecessary stress. Additionally, Model Rule 1.1 provides that competent handling of a matter “includes adequate preparation,” so failure to be prepared can be a violation of the Model Rules.
3. Differing Laws and Court Rules
Remote practice may require you to familiarize yourself with differing laws and court rules that otherwise may be irrelevant. For instance, are you allowed to notarize a document in your state remotely? What modes of filing does your court accept during the pandemic? You need to know the answers to these questions. Failure to understand unique aspects of the law relevant to remote practice could lead your clients or supervisors to look elsewhere for the answers. Rule 1.1 of the Model Rules on competence also refers to a lawyer’s “legal knowledge.” Failure to possess the requisite knowledge can be a violation of the Model Rules.
Attorneys must take reasonable precautions to prevent cyber-attacks that could potentially impact client information and data. The recent increase in remote work has correspondingly increased the cyber threat. Subjecting client data to a cyberattack is a near-certain way to lose clients and potentially subject yourself to a malpractice lawsuit. Additionally, Model Rules 1.1 and 1.6 require attorneys to “keep abreast of . . . the benefits and risks associated with relevant technology” and state that “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Accordingly, failure to take reasonable precautions against cyber-attacks can be a violation of the Model Rules. Formal Opinion 483, issued by the ABA’s Standing Committee on Ethics and Professional Responsibility, outlines steps attorneys should take to comply with the Model Rules both before and after a cyber-attack.
The COVID-19 pandemic caused a dramatic increase in remote work and was financially devastating for many law firms and companies. Many firms reduced salaries and furloughed or laid off attorneys. One thing seems clear, though: Companies and firms are retaining attorneys who continue to provide revenue, client solutions, or other tangible benefits. Separate yourself from your peers by
- pushing to maintain or even increase your billable hours and revenue,
- taking on additional legal or managerial responsibilities within your company or firm, and
- taking other actions that increase your—and your firm’s—exposure and reputation, including offering thought leadership and developing potential client relationships.
Taking these actions will dramatically decrease your chances of being furloughed or laid off and will set you apart from others within your company or firm.