The world is full of divides. There are socio-economic divides, cultural divides, religious divides and political divides. There are divides of every type.

In the legal community, there are divides that separate midsize and large firms from solo and small firms. During this COVID-19 pandemic, the economic parameters of that divide are even more distinct. For example, I sit on a board of a legal magazine, where 13 of the 18 board members have job assurance. In other words, when the pandemic ends, 13 of my colleagues know that they will be able to return to their offices and will have suffered none or minimal economic hardship. As a result, those board members are able to devote part of the quarantine period to arguing in emails about irrelevant minutiae, while five of us must focus on how to pay our staff and ourselves until, we hope, the situation returns to "normal."

There is one area, however, where lawyers can bridge the divide and size does not matter: legal technology. We all need to use technology, whether to work remotely or to connect with family during Passover or Easter dinners. And during a pandemic, technology can be an equalizer, or perhaps an advantage, not based upon firm size, but upon a firm's and a lawyer's willingness to recognize that technology is a friend, not the enemy.

This column will therefore explain the basics of what attorneys can do to thrive while working remotely. In general, attorneys must cross the Red Sea that divides the tech Luddites from their more tech-savvy colleagues and recognize the importance of employing technology in a manner that maximizes efficiency while also complying with their ethical obligations to protect client confidentiality.

Legal technology is a great equalizer. Firms of all sizes use it, not just now but all the time to gain advantages not easily transferable to paper. Technology it is not necessarily expensive, and it often can be up and running quickly—even in a way that makes remote work relatively simply. Yet ever since we all discovered quarantined life, we have heard the screams.

One colleague sent the following email:

Everyone—I am forced to disconnect my office computer in about an hour or so, to take home, where I have no computer or INTERNET CONNECTION. I have to choose an ISP and learn how to get back on the internet to start working. Talk about a babe in the woods! So I am not on email till I get my ISP, get set up, and learn stuff. Please call me at home for anything important, including telephone or virtual meetings, etc.

Another wrote the following email:

What good is working from home? When I log into my computer all I see are a few things, but I can't work this way.

One columnist in this publication even lamented that the "stay-at-home orders and quarantines have proven disastrous" and are a "wake-up call" to "learn how to fix things on a computer and learn how to electronically file motions with the court without relying on secretaries and paralegals to do so for them." His fear was so paralyzing that he believed that "If electronics did not work, most firms would go totally out of business, and run out of revenue very quickly."

Of greater concern, his understanding of his ethical obligations was woefully lacking, as evidenced by his statement that "It is illegal to text or email anything of substance." He is almost certainly not alone in that mistaken belief.

Working remotely is not new, it is something lawyers and countless other workers have done for a long time. Some lawyers even have virtual offices, where they serve clients online and do not have traditional brick-and-mortar locations.

Many companies devote their efforts to helping law firms and other businesses prepare not just for pandemics, but for when their employees need to work remotely. In my office, for example, one attorney was under the weather and worked remotely for weeks before the current quarantine period. Her work product did not change, but by having her work from home, we avoided catching whatever she had. And she wasn't using a typewriter to do her "home work."

Perhaps that is why Google only lists two businesses in the results of a search for local typewriter stores, and lists seemingly endless pages of results when searching for "small business technology consultants in Philadelphia."

Fortunately, there is help even for those searching for an internet provider. There is also ethical guidance to dispel any notion that the police will arrest lawyers who send "anything of substance" by email. To provide even more guidance, on April 14, the Pennsylvania Bar Association committee on legal ethics and professional responsibility issued Formal Opinion 2020-300 ("Ethical Obligations For Lawyers Working Remotely"), which summarizes the considerations relevant for attorneys working remotely, not just now, but whenever the need arises.

I was a primary author of the opinion and I am co-vice chair of the committee that issued the opinion. We issued the opinion to convey the information law firms needed in a nontechnical manner that would highlight that maintaining ethical obligations while working remotely is not difficult. To the contrary, it simply requires attorneys to take "reasonable" precautions, reasonable being the operative word. Of course, reasonable means that lawyers need to have basic technology, like the internet, a working desktop or laptop computer, and a working understanding of how to use the internet, and the software installed on those computers.

Opinion 2020-300 goes further. It explains what should be obvious, that "attorneys and staff working remotely must consider the security and confidentiality of their client data, including the need to protect computer systems and physical files, and to ensure that telephone and other conversations and communications remain privileged." This merely means that attorneys must employ the same considerations as they do with physical files and in-office phone calls.

Next, the opinion adopts the reasoning in American Bar Association standing committee on ethics and professional responsibility Formal Opinion 477R, released in 2017, that a lawyer generally may transmit information relating to the representation of a client over the internet without violating the Rules of Professional Conduct provided the lawyer undertakes reasonable efforts to prevent inadvertent or unauthorized access. The ABA opinion notes, however, that, a "lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security." In other words, if the information being sent is sensitive or confidential, a lawyer should send it in a manner (using techniques such as encryption or password-protection) that avoids allowing "anyone" to see it.

None of this advice differs from what lawyers were taught years ago. For example, in the early 1980s, my law school professors emphasized the importance of keeping client communications confidential. That obligation remains, it just must be done with computers now. In that regard, the PBA opinion explains that, at a minimum, when working remotely, attorneys and their staff have an obligation under the Rules of Professional Conduct to take reasonable precautions to assure that:

  • All communications, including telephone calls, text messages, email and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information;
  • Information transmitted through the internet is done in a manner that ensures the confidentiality of client communications and other sensitive data;
  • Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form;
  • Proper procedures are used to secure and back up confidential data stored on electronic devices and in the cloud;
  • Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; and,
  • Appropriate forms of data security are used."

Section III of the PBA opinion helps lawyers understand their duties of competence and confidentiality when working remotely. The opinion notes that the Pennsylvania Rules of Professional Conduct were amended in 2013 to explain that a "competent" lawyer must understand the risks and benefits of technology. In addition, the Comments to Rule 1.6 highlight that, at times, as was explained in ABA Opinion 477R, a lawyer must take additional precautions when sending confidential information electronically.

The PBA opinion further explains that the duty to assure confidentiality depends upon the information being transmitted. Lunch plans, for example, are not confidential but a memo about the intricacies of a client's merger are.

From there, the opinion urges attorneys to avoid using public Internet and free Wi-Fi, the type of connections found at coffee shops and other locations. Instead, lawyers should utilize technology such as virtual private networks (VPNs), two- or multi-factor authentication, and strong passwords to enhance the security of their communications.

The opinion also discusses the problems highlighted recently by the FBI about security risks with some videoconferencing services. And finally, there is guidance about other cybersecurity concerns. This is the same information often found in a daily newspaper's technology column, just refocused for lawyers and their staff.

The COVID-19 pandemic has forced all lawyers, and judges, and virtually everyone else involved in the legal system, to recognize the need to work remotely in a secure manner that protects client confidentiality. Even if there were no computers during this period, lawyers would still have to communicate with clients in a confidential manner. Technology is just the means that we now use.

Technology in law is also not new. Shiva Ayyadurai invented email in 1971. Westlaw was released in 1975, in response to the launch of Lexis online research in 1973. Finally, by 1986, IBM discontinued sales of the Selectric typewriter, the mainstay of law firms and other businesses, because those staples of virtually every business were being supplanted by word processors and computers.

As social media entrepreneur Matt Mullenweg said, "Technology is best when it brings people together."

During the COVID-19 pandemic, it is technology that brings us together, not just for holiday celebrations, but as part of infrastructure that unites lawyers, law firms and clients.

Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms. He is the editor of "Fee Agreements in Pennsylvania (6th Edition)" and author of "Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms (Second Edition)," published by the Pennsylvania Bar Institute. Contact him at [email protected].

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