By Edward McIntyre
Professional Responsibility Lawyer
To overstate the obvious, COVID has upended everything. As it rages even worse in California, lawyers are deemed “non-essential” and ordered to stay home except in the most limited of circumstances. Likely, that will remain the case for months to come.
So, the remote practice of law — Zooming into client meetings and court appearances while sharing “office” space with spouses, kids, roommates, partners, and pets — will continue to be with us. Our practice has changed, for some dramatically, but ethical mandates remain. Here are some suggestions on how to make them fit within the “new normal.”
First, the three “C’s” of ethics:
Competence
Rule 1.1 tells us we must not intentionally, recklessly, with gross negligence, or repeatedly fail to represent clients competently. Pandemic-driven remote practice has done one thing: it has underscored the critical importance of the modern coda to the competence rule — that “learning and skill” now include keeping abreast of the risks and benefits of relevant technology.
Remote practice has pushed all of us to learn and develop skills in a whole range of new technologies just to meet with our clients, prepare and exchange documents, do research, draft and file pleadings, confer with colleagues, and appear in court, all to get our work done and keep our practices alive. We’ve been shorn of the convenience of having other lawyers, paralegals, assistants, and staff support us in person. On our own, it has been survival of the technologically fit.
The “learning and skill” mandate of the competence rule has, all of a sudden, taken on a whole new meaning. Whenever the “new normal” returns, our greater dependence on technology will likely remain, giving the competence rule yet a further dimension.
Confidentiality
We’re all aware of the importance of client confidentiality that is the subject of Rule 1.6 of the Rules of Professional Conduct1 and Business and Professions Code section 6068, subdivision (e)(1). Remote practice, however, has added new stress to how we “maintain inviolate the confidence, and at every peril to himself and herself protect the secrets of” our clients. Now our “office” may be a space shared with a spouse, roommate, partner, or children. A formerly quiet client meeting is now broadcast aloud on Zoom; client documents are left on a shared printer.
Our changed work environment, however, does not exempt our confidentiality obligations. Rather it requires extra vigilance on our part that client confidences remain intact. Somehow, in our remote offices, we have to snatch enough privacy that we can communicate with and about our clients securely; that we can create and share their documents without the danger of interception; and that we can research their legal issues without interference.
In our former offices, we may have given little thought to such security. We had closed offices and conference rooms. Firm management made sure we had secure networks on which we could communicat with clients, do our research, and file documents with courts. We had firewalls, passcode-protected data caches, and segregated internet systems. But we likely do not have these things in our home offices.
Much has been written about the levels of wireless security lawyers must consider in order to protect client confidentiality — more and in greater detail than we can discuss here. But pandemic-driven remote practice, where almost everything is digital, is a stark reminder to visit or revisit the need for reliably secure levels of wireless communication and digital security.
Communication
Rule 1.4(a)(2) tells us reasonably to consult with our clients about the means by which to accomplish the clients’ objectives. This is a new element to the communication rule, adopted in November of 2018. Circumstances can require almost constant fine tuning.
If COVID has done one thing, it has disrupted and affected everyone’s objectives, and continues to do so as promise and disaster loom and retreat, hand-in-hand, almost daily. That underscores the need for greater communication with our clients to ensure we know their objectives and how they may have changed, even overnight. It requires more frequent discussions with them about how we’re adapting and what we are doing to meet those shifting objectives.
Necessarily, COVID has forced all of us to turn inward, however unwillingly. Client communication in the age of COVID, however, may require even more client rapport, not less.
Management and Supervision
Rule 5.1, new in California as of November 2018, imposes particular obligations on those who have management or supervisory authority over other lawyers. Rule 5.3 imposes the same obligations on those who manage or supervise non-lawyer personnel.
One area made particularly difficult by the pandemic and remote practice is the mentoring and supervision of other lawyers and our non-lawyer assistants. When we were together in a physical space, getting or giving advice, often informally, was frequently as easy as walking next door. Not now.
Yet, COVID does not exempt lawyers in management and supervisory roles from their obligations to ensure that their firm’s practice still has measures in place that reasonably ensure that all firm lawyers and non-lawyer personnel — now remotely scattered — are complying with the rules and the State Bar Act. Truly, not an easy task that demands time and ingenuity and, perhaps, the development of new management techniques as we go forward.
Since mentoring is so critical to development in the practice of law, remote practice also puts an additional burden on younger lawyers — to find new ways to virtually walk next door to ask a question or test an idea. Again, a new demand on time and a test of ingenuity.
COVID — a curse and an invitation to innovate.
Editor’s Note: COPRAC has circulated for public comment Formal Opinion Interim No. 20-0004 that addresses many of these issues. It is available at https://www.calbar.ca.gov.