New York Law Journal - Lights, Camera, Action: Effective Strategies To Avoid Ethics Violations Practicing Virtually
Virtual proceedings are here to stay. The ease and economy of convening meetings, depositions and trials online make it likely that we will continue doing so even when remote work is not mandated. However, the past year has shown that many lawyers were unprepared to represent clients through online platforms. This resulted in missteps that expose them to disciplinary consequences because the ethical rules are not relaxed during the pandemic.
When I started at a Wall Street firm nearly four decades ago, we worked differently. Lawyers did not have computers, laptops, tablets or cell phones so we did not have voicemail, email or texting at our disposal. Instead, our team used memory typewriters, faxes and photocopies. Court papers, contracts and correspondence came by mail and, if urgent, by hand delivery. Telephone messages were conveyed by pink slips left on our desks. And "if it absolutely, positively had to be there overnight," we splurged on Federal Express.
I can't imagine how we could function without the personal devices and virtual communication we take for granted today. With the unprecedented reliance on instant access comes both convenience and burden. Despite the challenges, duties to clients, courts, adversaries and the public remain in force. Lawyers must still be competent, diligent and communicative while also being careful stewards of clients' confidential information. We must still supervise others even if we are communicating over a screen. Representing clients without leaving home exposes us to greater risk. We may be inadvertently practicing in forums without the requisite license or providing advice in jurisdictions where we are not fully familiar with the law. Despite increasing stress, we must remain professional.
Before the pandemic, you left home in the morning for your firm, government office or corporate law department where you had a quiet personal space to work, colleagues to assist you, Internet access and computers as you put in long hours. Meals were available so you could focus on attracting, serving and retaining clients. Your life partner (not your firm partners) maintained the household or also left for their workplace where similar accoutrements were accessible whatever their profession. Your school-age children were occupied from sunrise to sunset and your elderly parents enjoyed their retirement in a sunny climate. The new year, 2020, started off soundly. Family was well, firm was thriving, economy was booming … until we pulled the emergency brake and jolted to a stop.
Before long, you, your partner and children found yourselves confined to limited space, each trying to stake out a nook to work, homeschool, or care for aging relatives. This has been a challenge for everyone but implicates unique duties for lawyers. How do you meet these responsibilities in close quarters with limited devices and inadequate Internet bandwidth? It isn't easy even for those of us with comfortable living spaces and substantial resources. As New York-licensed lawyers our conduct should be guided by the New York Rules of Professional Conduct, the New York Standards of Civility (22 NYCRR Part 1200, Appendix A) and appended Statement of Client's Rights (NYCRR 1210.1). An exhaustive treatment of these issues in our current environment requires a treatise; we focus instead on some key principles.
Duties to our Clients: Competence, Diligence, Communication and Confidentiality. Our paramount duties relate to the lawyer-client relationship. The duty of competence under Rule 1.1 "requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." As the Comments expound: " To maintain the requisite knowledge and skill, a lawyer should, inter alia, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information. (Emphasis supplied.) Under Rule 1.3, a lawyer must "act with reasonable diligence and promptness in representing a client." A lawyer is not relieved of that duty due to "personal inconvenience" (Comment ), and are "encouraged to adopt and follow effective office procedures and systems; neglect may occur when such arrangements are not in place or are ineffective." (Comment ).
Faced with heightened logistical challenges, we need to have protocols to handle matters efficiently while working remotely. Failure to do so leads to "client needless anxiety and undermine[s] confidence in the lawyer's trustworthiness."(Comment ). Rule 1.4's directives recognize the duty to keep clients informed so they can make meaningful decisions. Confidentiality, the cornerstone of the lawyer-client relationship, encourages clients to share information necessary to obtain legal advice. Rule 1.6(a) mandates: "A lawyer shall not knowingly reveal confidential information" defined as "information gained during or relating to the representation of a client" (except in limited circumstances).
These duties, as well as the Statement of Client's Rights, are harder to meet when we face new logistical obstacles. Ideally, we must respond promptly to clients, colleagues, courts and other counsel. We should not share devices but what if we don't have enough to go around with home-schooling? We must limit access to our devices, Internet and other means of communication and our work must be password protected. We must have a secure place for storing documents and a private place for work conversations and virtual proceedings. Confidentiality does not include an exemption for family, roommates or neighbors having access to our papers or our calls.
There are some steps we can take to address these challenges. Even with shared devices you can password-protect select files and documents; you can create a schedule for using devices and inhabiting quiet areas. If budgeting permits, invest in individual devices, noise-cancelling headphones and locked cabinets. An old-fashioned gym lock can work on cabinets we already have. Create a cozy space in an unfinished basement or heated garage. Sometimes, a car is the next best thing to a prehistoric phone booth for privacy. If the weather permits, you can create an "office" on the front porch or back patio. Finally, if you are appearing virtually, do not forget that others can see you and your workspace. Don't "show up" wearing pajamas, exercise gear, reclining in bed or displaying a desk littered with snack wrappers and coffee cups. Whatever you cobble together, it should allow you to handle matters professionally without waiving confidentiality.
Duties to Others: Adversaries, Third Parties and Judicial Officers. Rules 3.1-3.9 and 4.1-4.5 generally provide the myriad ways in which lawyers in different capacities owe respect to opponents, unrepresented parties and tribunals. Many of these mandates are echoed in the Standards of Civility. There are a few key themes that resonate most during these trying times.
Lawyers should not exploit the pandemic and associated restrictions to seek unfair advantages, cause undue delay or otherwise prejudice the adversarial process. For example, Rule 3.2 mandates: "In representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense." As Comment  notes, "Dilatory practices … are prohibited if their only substantial purpose is to frustrate an opposing party's attempt to obtain rightful redress or repose … The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay or needless expense."
Similarly, when working remotely without our usual safeguards, we may inadvertently transmit a document to someone with whom we did not intend to share it. Rule 4.4(b), regarding respecting the rights of third parties, provides, in part: "A lawyer who receives a document, electronically stored information, or other writing relating to the representation of the lawyer's client and knows or reasonably should know that it was inadvertently sent shall promptly notify the sender." Further, the Standards of Civility are guidelines to encourage professionalism without the threat of disciplinary sanctions. That said, New York lawyers "should" abide by these principles, which are particularly important when we are working under unprecedented constraints.
Supervising Others: Colleagues and Professional Staff. Rules 5.1, 5.2 and 5.3, respectively, state the duties of (1) law firm leaders, managing and supervisory lawyers as to subordinates; (2) subordinate lawyers as to their own conduct; and (3) lawyers as to professional staff. Fulfilling our duties for others' conduct is challenging even when we work side-by-side and can address issues firsthand. It is more difficult when we cannot meet in person to hash things out. Notwithstanding the challenges, lawyers need to have regular contact with colleagues to assure that our conduct and theirs does not falter. Calendaring routine check-ins, promulgating procedures for addressing concerns and systematically following up via a virtual "face-to-face" method is critical during this crisis.
Meeting our ethical duties takes conscious effort, but it can make the difference between keeping your team on the right side of the line and facing avoidable sanctions.
Reprinted with permission from the February 5, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or firstname.lastname@example.org.