Legal Ethics and Coronavirus: Tech Solutions for Health, Safety, and Efficiency

As health and safety concerns mandate social distancing and other precautions due to the coronavirus outbreak, lawyers and law firms can turn to technology for efficient and ethical practice solutions that serve to promote public health.

Approximate Read Time: 5 Minutes

In recent months, the coronavirus pandemic has caused not only immeasurable human tragedy across the globe, but has also unleashed a cascade of rapidly developing economic impacts that will continue into the indefinite future. Industries worldwide are being shaken up as businesses adjust operations in response to the quickly changing public health landscape, and the practice of law has been no exception with regard to this need to adapt.

While the primary concern on most people’s minds during this time is (and should be) health and safety, many legal professionals are in a position where clients are depending on them to continue carrying out critical services. Further, the public’s need for legal services may not be diminished as a result of the COVID-19 outbreak, and in fact it may grow in relation to the changing needs of businesses, employers, health care providers, and individuals seeking to traverse the new normal we are learning to live in. At the same time, law firms must do their part not only to comply with current government directives around social distancing and public health, but also continue to be subject to professional ethics requirements that are unique to the legal industry as they strive to remain available to new and existing clients. While navigating these rules in a crisis situation may seem daunting, the common solution to many of these challenges involves the intersection of law and technology, which can improve efficiency, increase access to legal services, and serve to promote public health and safety.

Technology and the Duty of Competence

As we have discussed in an earlier blog post, not only is technology becoming more central to everyday life and business for many law firms, but keeping up with tech developments is also now required for lawyers in most states. These jurisdictions have generally followed the example provided under the American Bar Association (ABA) Model Rules of Professional Conduct (“Model Rules”) Rule 1.1, comment 8, which provides that competent legal practice involves “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” While the legal profession has at times been notoriously slow to adopt many tech practices, the coronavirus pandemic could bring an unprecedented degree of urgency to that transition as lawyers and law firms struggle to fulfill their duties to current clients, and make themselves available to new clients in need of legal help.

Connecting Virtually With Clients

As an initial matter, many attorneys may be concerned with the question of how to connect face-to-face with prospective and existing clients in light of current CDC guidelines and other government mandates related to social distancing and slowing the spread of the virus. This can be of particular concern in light of an attorney’s professional responsibilities to provide diligent and competent representation and communication to their clients (see Model Rules 1.1, 1.3, & 1.4 and state analogs). A relatively simple solution can be to implement or expand your firm’s use of videoconferencing or video chat technology through services such as Google Hangouts, Skype, Zoom, FaceTime, WebEx, and GoToMeeting.

Though this can seem intimidating if your firm is new to using this kind of technology, there are a number of online resources you can consult to get started. At Justia we have published an overview of some of the most widely used video chat and conferencing services, including free options. You can read more here about the relationship between these services and professional responsibilities related to secure and confidential client communications, and consult ABA Formal Ethics Opinion 477R for guidance related to the level of security appropriate relative to a given situation. Once you have chosen a videoconferencing service or app, you can let your clients know they can contact you this way by adding this feature on your Justia Lawyer Directory listing or your website.

Taking Your Law Firm Online

In addition to meeting with clients during a time when face-to-face conversations are not necessarily feasible, it is important to ensure that other core aspects of your firm’s operations can adapt to the current environment as well. While many law firms may be struggling somewhat to convert to a virtual work environment, the good news is that many lawyers have been making headway in this area in recent years, and both legal ethics authority and practical guidance are becoming more and more accessible.

In addition to the overview of secure client communications provided in Opinion 477R (referenced above), state authority such as Washington State Bar Association Advisory Opinion 201601 outlines specific rules related to virtual law offices and the ethical duties of competence and confidentiality, among others. General takeaways include that lawyers must have a basic understanding of the technology they are using in relation to client communication and information, thoroughly vet any third party vendors who will have access to client information (such as cloud computing or practice management software providers), and confirm that electronic client data will be securely stored and adequately backed up. Guidance from the New York City Bar Association in Formal Opinion 2019-2 highlights some of the same issues, and also discusses the potential need to make adjustments with regard to supervision of subordinate lawyers and non-lawyers in a virtual work environment pursuant to [Model Rules] 5.1 and 5.3.

As referenced here, it is important to be aware that some jurisdictions have historically frowned upon virtual law practice. There are also differences between states in terms of whether a physical office is required in order for a lawyer to provide virtual services, so it is important to check the rules in your state before proceeding. However, common sense would seem to dictate that a temporary relocation of these services in an emergency situation such as the current one would hopefully allow for some flexibility if needed.

Further, and as discussed here and here, if you cross state lines into a jurisdiction in which you are not admitted to practice while working remotely, bear in mind that this can have implications related to rules against unauthorized practice of law.

For help with the practical aspects of taking your legal services virtual and navigating other pandemic impacts on your firm, Bob Ambrogi’s Lawsites Blog is featuring a continuously updated list of coronavirus resources for legal professionals. Justia has also recently published an article with ideas for improving your law firm’s online presence.

Operations

While not exclusively related to technology, there are a few more ethics considerations law firms may wish to make during this time of uncertainty and shifting operations. As pointed out in this ethics checklist, ensuring that your calendar and conflict check systems are not only updated but also able to function in a remote work setting are critical to ensuring compliance with your professional responsibilities. Checking in with your malpractice and/or business insurance carrier can also be helpful in terms of troubleshooting new challenges that arise, and obtaining guidance regarding what other firms have done under circumstances involving other crisis situations.

If you are a solo or small firm practitioner, it can also be essential to ensure that you have a succession plan in place in the event that you become ill, quarantined, or otherwise unable to carry out your duties with regard to client representation. The Oregon State Bar has published a short primer on considerations related to succession planning, withdrawal from client representation, and answers to other practical questions related to competent and ethical legal work in the current environment.

Finally, the ABA maintains an updated list of disaster planning and emergency information resources for lawyers and law firms.

Conclusions

The most important thing for all of us to do in the weeks ahead is to do our best to keep ourselves and our communities healthy and safe. For lawyers and law firms striving to find ways to remain accessible to clients in need of legal help during this time, technology offers a wide range of solutions that can assist with the efficient and ethical delivery of legal services, while also prioritizing health and safety.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Justia Inc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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