A Refresher on the Ethical Considerations for Telecommuting Attorneys in the USA

Working from anywhere has become easier than ever for lawyers. With many clients working remotely, law firms have embraced technology to also allow lawyers to do a lot of their work from anywhere with ease. Even courts have integrated remote appearances, where appropriate.

With this increased flexibility comes the need to re-evaluate the ethical responsibilities impacted by remote work. Simple best practices, including maintaining a professional appearance, staying engaged and remaining responsive, are important practices, but are not the only necessary elements of a lawyer’s ongoing professional self-assessment. When a lawyer works remotely, important ethical duties are implicated. Whether you just started working remotely, or have been doing it for several years, it may be time for a refresher course on the key ethical requirements.

If this is the first time you are reading that the American Bar Association (ABA) endorsed remote practice across state lines (with certain restrictions), you may need to do a deeper dive on the remote practices that impact the Rules of Professional Conduct. In Formal Opinion 495, the ABA’s Standing Committee on Ethics and Professional Responsibility determined in 2021 that an attorney may remotely practice law of the jurisdictions in which the attorney is licensed, while physically present in a jurisdiction in which the attorney is not admitted, so long as:

The ABA Opinion references an important additional consideration – the “host” state’s law. States may set out their own definition of the unlicensed practice of law. The law can be different in every state and may present nuances the remote lawyer needs to be aware of.

New York issued its own rule in this area. Under the Rules of Admission of Attorneys and Counselors at Law (NYCRR Part 523), an attorney not licensed in New York may remotely practice in a jurisdiction where the attorney is licensed, so long as the attorney does not practice New York law, advertise as a New York attorney, conduct regular in-person meetings or allow a person to mistakenly think the attorney is licensed to practise in New York.

Similar rules exist in other states, including New Jersey, where practising out-of-state law is acceptable for an attorney not licensed in New Jersey so long as the attorney does not maintain a continuous and systematic presence in the state for the practice of law from a New Jersey office, or hold themselves out as being available to practise law in New Jersey.

These rules all contain a common theme. It is vital that a telecommuting attorney refrains from displaying themselves to others as an attorney who practises in a state where they are not licensed. Advertising, a letterhead and formal offices may all indicate where an attorney practises.

Writings alone are not the end of the evaluation. Attorneys involved in events designed to attract business should still be mindful of these rules. Attorneys involved in networking events outside of the state in which they practise are a good example. Remember that the definition of attorney advertising is much broader than billboards and television commercials. The ethical rules extend everywhere, even the golf course and tennis court.

Telecommuting attorneys should also reassess the application of other ethical rules to their now-comfortable remote work environment.

A common rule that took on new meaning is the duty of confidentiality. Included in this duty is a requirement that an attorney make reasonable efforts to prevent inadvertent disclosures of privileged or confidential information. In a remote environment, this means that friends and family should not be able to access confidential documents, privileged material should be secured and no unnecessary parties should be present during video conferences or phone calls. When your dog trots by in the background of a video conference, it is cute. When your brother-in-law slouches past, it is wildly inappropriate.

Confidentiality applies to the world of cybersecurity as well. It is common knowledge that digital information is susceptible to hacking, and email inboxes might receive daily phishing attacks. As part of a remote attorney’s reasonable efforts to prevent unintentional disclosures, cybersecurity should be a top priority. Utilising secure networks, email mindfulness and regular security training are minimal, ethical best practices.

Proper supervision is another area impacted by remote and hybrid work. Yet, there is not a lot of commentary or attention paid to this crucial requirement. In addition to the ethical requirements, it is an important business consideration for lawyers and their team members.

The ABA Model Rules 5.1 and 5.3 mandate that partners and other managing lawyers make reasonable efforts to ensure their firm has reasonable measures to assure that lawyers and non-lawyers employed or retained by the lawyer conform to the rules of professional conduct. As part of this mandate, partners and managers may be responsible for ethical violations of other attorneys and non-lawyer staff or agents.

This issue is heightened with new attorneys, as well as paralegals, administrative assistants and other employees who may not be as aware of the ethical requirements as applied to their remote work environments. What steps have you taken to ensure that those with whom you work are acting with diligence and competence in protecting your client’s information, your firm’s work product and other private, confidential or otherwise sensitive information or data? Remote work requires increased quality control in ways that were not considered back when everyone was in the office.

Careful planning and technology help provide the tools for adequate oversight. Onboarding plans for new attorneys, systems training and easy avenues of communication can show new attorneys how to get help before a simple mistake becomes an ethical violation. Regular contact, team meetings, training and mentoring are needed to ensure that your staff are furthering your and your firm’s ethical standing, not to mention your reputation with your clients.

Remote work, in some form, is here to stay. The flexibility and efficiency it offers are difficult to argue against. With these gains, impacts on ethical obligations must remain at the forefront, and should be part of every attorney’s considerations.