New Ethics Advice on Working from Home in a Pandemic

• Author: John M. McNichols
• Pages: 6-6

he Pennsylvania Bar

Association (P BA) has is-

sued new guidan ce to attor-

neys on working from h ome

during the COVID -19 pan-

demic. Forma l Opinion 2020-300

addresses a hos t of issues relating to

remote practice, i ncluding an attor-

ney’s duty of technological compe-

tence when handling sensitive client

information in a home environment.

ABA Litigation Sec tion leaders ob-

serve that altho ugh the opinion wa s

prompted by shelter-in-place orders,

its guidance rea ches well beyond the

present circums tances and will co n-

tinue to apply as atto rneys increas-

ingly depar t from the tradition al

brick-and-mortar oce model in

favor of “virtual ” law f‌irms and other

arrangements.

On April 1, 202 0, Pennsylvania’s

governor, Tom Wolf, ordered all “non-

essential businesses” in Pennsylvania,

including law f‌ir ms, to close. Because

an extended work-from -home pe-

riod was new to many attorn eys,

the PBA Committe e on Legal Ethics

and Professional Responsibility is-

sued Formal Op inion 2020-300 to

address issue s of legal ethics relat-

ing to remote practic e. Finding that

“no Pennsylvania Rule of Professional

Conduct specif‌ically addresses the

ethical obliga tions of attorneys work-

ing remotely,” the PBA drew up on its

previous opinions on cloud comput-

ing and virtua l oces for guidance

on an attorney’s “dut y of technologi-

cal competence .” As the opinion ob-

serves, this d uty “requires attorneys

to understan d the general risks and

benef‌its of technology, including the

electronic tra nsmission of conf‌iden-

tial and sensitive dat a, and cyberse-

curity, and to take reasonable precau-

tions to comply with this d uty.”

A portion of the op inion concerned

the PBA’s recommended “ best prac-

tices” for using new te chnology, many

of which were of gene ral application

New Ethics Advice on Working from

Home in a Pandemic

rather than uniq ue to remote work.

These included “using f‌irewalls,

anti-virus and anti-malware soft-

ware,” and “requ iring the use of en-

cryption” to protec t emails contain-

ing client conf‌id ences. “They wanted

to say some things about technol-

ogy that they previous ly may not

have had an oppor tunity to say,” of-

fers John M. B arkett, Miami, FL, co-

chair of the Litigatio n Section’s Ethics

& Professionalism Committee. “Data

breaches are mo re of a concern now,

regardless of rem ote work, and the

committee used t he current situation

as an opportu nity to get into areas

they saw a need to addre ss,” ob-

serves B arkett.

One of the PBA’s recommen da-

tions was hiring an o utside expert for

attorneys not prof‌ic ient in cyberse-

curity. “For lawyer s who do not prac-

tice in the cyberse curity f‌ield, or who

may not be IT mavens, th ey may not

know what the ‘reaso nable practices’

are,” notes Sandy B ilus, Philadelphia,

PA, cochair of the Se ction’s Privacy

& Data Security C ommittee. “The

best practice s are explained in plain

language by the PB A, but the PBA

also says, ‘Loo k, if you just don’t un-

derstand thi s stu, you have to hire

someone who do es.’ That’s how im-

portant this is,” stresses Bilus.

The opinion als o covers “smart

devices” that listen f or and record

human speech, recommending that

attorneys “[p]rohibit[ ] the use of

smart devices su ch as those oered

by Amazon Alexa and Goo gle voice

assistants in l ocations where client-

related conversations may occur.”

“People may have got ten one as a

gift and set it up wit hout thinking

about it, and it’s potentially record-

ing everything t hey say,” warns Bilus.

“The opinio n is a helpful remind-

er that this is a form of tec hnology

that is particul arly invasive, and you

need to think twic e before you have

one in a location w here you’re going

By John M. McN ichols, Litigatio n News Contributing Editor

to be working on clien t matters,” he

continues.

“Smart devi ces have been in the

news a lot lately,” adds Bar kett. “But

what is the opinio n saying here? Are

they suggesting th at if an Amazon or

Google device rec ords a client con-

versation, that means that you’ve

blown the privileg e? That’s a little

scary. The opini on doesn’t actual-

ly come out and say tha t, but it does

suggest that you may n ot be taking

a reasonable pr ecaution if you’re not

mindful of wher e these things are,”

he observes.

Although working from home may

be a new experience w ith its own

technological challenges, Section

leaders do not b elieve the PBA’s

guidance will com e as a surprise.

“The overall mes sage is that your

world may have changed , but the

ethics rules rem ain the same,” states

Bilus. “L awyers have always been

aware that you should n’t be talking

about client inf ormation when you’re

out in public. T hey have also under-

stood that when you ’re at home, you

shouldn’t di scuss client matters with

visitors or family m embers. So this

opinion is much m ore a reminder

than a ground- breaker,” notes Bilus,

adding that “one s olution is to f‌ind a

dedicated spa ce that’s cut o from

other outside i nteraction and con-

duct business there.”

Barkett concur s: “Whether it’s

Amazon Alexa, peo ple in the eleva-

tor, or your children in the n ext room,

you have to be sure no one’s liste ning

when you’re discus sing client infor-

mation. That ’s not new.”

RESOURCE

Hon . Mark A. Drummon d (Ret.),

“Advocacy Through the Computer

Screen: Bes t Practices for Eecti ve

Remote Advocacy,” Litigation News

(May 2, 2020).

6 | S ECTION OF LITIGATION

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

ETHICS STR UGGLES IN THE LEGAL WOR LD