Ethical Implications of Working Virtually

Are you tired of COVID-19 and the impact it has had on your law practice (not to mention your life and the lives of billions around the globe)? Same. But COVID fatigue aside, we must be careful not to run afoul of our ethical obligations, especially because COVID-related excuses cannot absolve all mistakes (or misconduct).

Take, for example, State ex rel. Okla. Bar Ass’n v. Burton, 482 P.3d 739 (Ok. 2021), where respondent attorney Burton, who was before Oklahoma’s Professional Responsibility Tribunal for earlier disciplinary charges, attempted to delay disciplinary proceedings due to a self-imposed quarantine for upper respiratory symptoms consistent with COVID-19. When the proceedings ultimately went forward, he appeared in person on the second day of proceedings with no symptoms and offering no testimony of illness. The Oklahoma reviewing court rejected Burton’s claim for violation of due process, finding that “using an excuse of illness appears to be a common theme with [Burton]” and that despite his willful failure to appear in person, Mr. Burton was afforded an opportunity to be heard. Ultimately, Mr. Burton was disbarred.

The lesson from Mr. Burton? A global pandemic does not excuse a lawyer’s responsibility to meet his or her professional and ethical responsibilities. In fact, the situation in which many of us find ourselves—working remotely from luxurious home office spaces such as the dining room table or the kids’ playroom—implicate unique ethical considerations. Let’s examine a few.

Confidentiality

NRPC 1.6, relating to confidentiality of client information, is uniquely implicated in a remote work scenario for obvious reasons. While the rule itself remains the same whether working in a traditional office or remotely, the analysis a lawyer must conduct to determine whether he/she is making “reasonable efforts” to maintain confidentiality naturally shifts in a remote working environment. See Nev. R. Prof. Cond. 1.6(c) (“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.”), Does this mean that the lawyer must lock his/her kids and spouse out of his/her home workspace throughout the workday? Not necessarily. But the same factors generally implicated by the rule—sensitivity of information, likelihood of disclosure if additional safeguards are not employed, cost of employing additional safeguards, difficulty of implementing safeguards, and the extent to which safeguards adversely affect the lawyer’s ability to represent clients—apply in a remote working environment. See ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 498 (2021) (hereinafter, “ABA Opinion 498”).

Thus, while it may not always be reasonable to keep your entire bedroom (or dining room table) under lock and key, using a work-only password on electronic work devices (or on that iPad through which your tech-savvy six-year old can backdoor into your iPhone and work email) might be a reasonable effort to maintain confidentiality. And, holding especially sensitive conversations out-of-earshot from your family might be necessary, lest your conversation be picked up on your kindergartener’s Zoom class or your chatty tween repeat the details of your call to her friends.

Supervision

NRPC 5.1 and 5.3’s supervision requirements likewise extend to supervision over other subordinate lawyers and non-lawyer assistants’ proper handling of client confidential information. Whether in-office or remote, the obligation of supervisory lawyers to ensure their subordinates’ compliance with the NRPC remains intact. Lawyers must make reasonable efforts to ensure that those to whom they delegate tasks are also maintaining client confidentiality (and conducting their work in compliance with other applicable rules). This can be a challenge when not physically occupying the same workspace as your colleagues.

Technology

Finally, technology concerns are particularly implicated in our new remote working environments. ABA Opinion 498 provides valuable guidance on how to avoid technological pitfalls of remote working, including topics regarding:

• protecting hardware with strong passwords, antivirus software, and encryption (including wi-fi connection);
• back-ups and secure access to data;
• terms of service of virtual meeting platforms (and related privilege implications); and
• transmitting data electronically.

In sum, we are living through extraordinary times, but our ordinary ethical obligations remain. While COVID-19 may be novel, it is no excuse for failure to meet our professional and ethical responsibilities.

About the authors

Jessica Whelan, Esq. and Sydney Gambee, Esq. are associates in the Las Vegas office of Holland & Hart. Jessica focus is in commercial litigation, appeals, and professional ethics. Sydney’s focus is in commercial litigation and health law. Both are mothers of young toddlers who have significantly complicated their remote work experience.