Tech Tips, 0621 WYBJ, Vol. 44 No. 3. 50

• Author: Blake A. Klinkner, Washburn University School of Law Topeka, Kansas
• Position: Vol. 44 3 Pg. 50

Tech Tips

Vol. 44 No. 3 Pg. 50

Wyoming Bar Journal

June, 2021

Working Remotely During the Pandemic (and Beyond): How Remote Technologies Can Implicate Your Ethical Duties

Blake A. Klinkner, Washburn University School of Law Topeka, Kansas

In its most recent ethics opinion, Formal Opinion 498, the American Bar Association provided guidance to attorneys who are engaged in the virtual practice of law, particularly in response to the COVID-19 pandemic.^[1] Although some of the guidance provided in Formal Opinion 498 is a mere reminder to attorneys of best practices which were already recommended pre-pandemic, much of the guidance in Formal Opinion 498 is in response to pandemic-related "trial and error" practitioners have encountered as they have navigated the practice of law during a worldwide pandemic. In particular, Formal Opinion 498 addresses ethical concerns associated with two technologies which have proved particularly vexatious to attorneys engaged in virtual practice during the pandemic: videoconferencing and virtual meeting platforms, and cloud-based data storage.

Videoconferencing Software and Virtual Meeting Platforms

The pandemic forced many attorneys to begin using videoconferencing software and virtual meeting platforms, such as Zoom, for the first time. The pandemic also forced attorneys who were already casually familiar with videoconferencing and virtual meeting platforms to become "experts" in navigating the myriad features, settings, and tools embedded within these technologies, including those related to security, recording, and functionality. Videoconferencing during the pandemic generally pertained initially to intraoffice meetings among coworkers, but quickly expanded to intake interviews, client consultations, conferences with opposing parties, and eventually to hearings and trials. As COVID-19 subsides and the legal profession returns to "normal," there is presently a fair amount of debate as to how much virtual hearings, trials, and related proceedings will become part of the "new normal."

The ABA recommends that one of the first things attorneys should do when deciding on a videoconferencing or virtual meeting platform is to review the platform's terms of service. The attorney should see how the platform may store and utilize user information, to make sure that the platform's management of user information is consistent with the attorney's ethical...