March 10, 2021

ABA issues guidance on model rules, ethical tech duties to consider when working remotely

CHICAGO, March 10, 2021 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released today a formal opinion that catalogues the relevant model rules and technological considerations that lawyers should be alert to when practicing virtually.

Coming near the one-year anniversary of when most attorneys departed their offices because of the emergence of the COVID-19 pandemic, Formal Opinion 498 identifies some of the minimum requirements under ABA Model Rules of Professional Conduct and suggests several best practices to meet ethical obligations in a virtual setting.

“When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology,” the opinion said. “In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information.”

The opinion also noted that the “duty of supervision” requires that lawyers who supervise others “make reasonable efforts to ensure” that their direct reports comply with the model rules, particularly if these colleagues are still working virtually.

The best practices cover hardware devices and software systems; accessing client files and data; using virtual meeting platforms and videoconferencing; and virtual document and data exchange platforms, among others.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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