Ethics Corner Article
Dear Ethics Committee:
I just started a new job with a law firm in New Hampshire. At the time I received the offer of employment, my partner and I were living in New Hampshire. We have now relocated to Vermont. I am working remotely and have two first year associates who work directly for me. My partner also works from our home in Vermont for a different firm in New Hampshire. Do you have any tips or practical concerns that I should consider in order to maintain an ethical practice?
It has now been more than two years since the COVID-19 pandemic increased the number of employees, including attorneys, who are working digitally from a location other than their principal law firm or office (hereafter referred to as “remote work”). The Pew Research Center recently reported that nearly 57 percent of the remote workforce either rarely or never worked from home prior to the coronavirus outbreak. With this rise in remote work, there are unique ethical considerations that attorneys must consider.
The ABA has defined virtual or digital practice as “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” See ABA Opinion 498 (March 10, 2021). The Ethics Committee comments to the New Hampshire Rules of Professional Conduct (the “Rules”) reflect acceptance of the changing face of the legal practice in this state noting “[t]he assumption that a lawyer must be licensed in New Hampshire simply because he or she happens to be present in New Hampshire no longer makes sense in all instances.” See Rule 5.5 (Comments). New Hampshire’s modifications of Rule 5.5(b)(1) and (2) and adoption of new Rule 5.5(d)(3) clarify that a lawyer who is licensed in another jurisdiction but does not practice New Hampshire law “need not obtain a New Hampshire license to practice law solely because the lawyer is present in New Hampshire.” Ethics Committee Comment 3 to Rule 5.5. Similarly, the Comments to the Rules recognize that remote and multi-jurisdictional practice is a “modern reality” which must be accommodated by the Rules. Id. (“The increased mobility of attorneys, and, in particular, the ability of attorneys to continue to communicate with and represent their clients from anywhere in the world, are circumstances that were never contemplated by the Rule. The adoption of Rules 5.5(b) and (c) in 2008 reflected the State’s growing recognition that multi-jurisdictional practice is a modern reality that must be accommodated by the Rules.”)
However, Vermont’s Rule 5.5(b)(1) bars a lawyer (who is not admitted to practice in Vermont) from establishing an office or other systematic and continuance presence in Vermont and does not include the permissive New Hampshire language. While we are unable to weigh in on how broadly Vermont authorities might read this provision, it is an issue of which the lawyer should be aware. See Vermont Rule of Professional Conduct 8.5(a) (granting disciplinary powers over lawyers from other jurisdictions who provide “legal services in this jurisdiction.”); New Hampshire Rule of Professional Conduct 5.5(a) (“A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.”). Any attorney practicing remotely in a state where they are not admitted to practice should take note of Rule 8.5(a) and 5.5(a) because they may be subject to discipline in the state in which they are located, even if they are not admitted to practice in that state, and subject to discipline in the state in which they are admitted to practice. The New Hampshire lawyer practicing in Vermont must ensure that such practice does not constitute the “unauthorized practice of law” under Vermont’s version of Rule 5.5, in order to avoid a violation of N.H. Rule 5.5(a). Attorneys working remotely must be cognizant of the laws and Rules of Professional Conduct in the state in which they are located and should ensure that their practice of law outside of New Hampshire does not violate that state’s Rules of Professional Conduct.
While the New Hampshire Rules recognize that remote work is a modern reality, attorneys working remotely must consider and comply with applicable ethical responsibilities and ensure they can competently represent clients in the same or similar manner that they could in the office. See Rule 1.1. Lawyers must have plans in place to “ensure responsibilities regarding competence, diligence and communication are being fulfilled when practicing virtually” including staying abreast of the risks and benefits of relevant technology and promptly respond to a client’s needs no matter the attorney’s physical location. ABA Opinion 498 (March 10, 2021); see also Rule 1.3. Accordingly, attorneys are encouraged to evaluate whether it is possible to represent clients in a same or similar manner when they are located at home, or other locations that may invite distractions not present in the office.
Attorneys and timekeepers must be aware that there remains skepticism from some employers, and clients, whether attorneys are efficiently using their time while working remotely. For example, if an attorney working from home becomes distracted by an unexpected delivery or a pet that needs attention, he or she must ensure that a client is not inadvertently charged for that time just as they would in the office when a call comes in or a coworker stops by to chat. In some instances, there may be different or greater requirements to justify time entries or how an attorney maintains their time if timekeeping software is not available during remote work. Attorneys must remain diligent in timekeeping and vigilant to avoid discrepancies or inadvertent errors and to some extent, be aware that it is possible that remote time may be scrutinized in a different manner.
Most remote workspaces are not designed with complete confidentiality in mind. It is possible that due to the circumstances of remote practice, attorneys may place themselves at greater risk of disclosure of confidential client information. A remote lawyer’s obligation regarding protecting confidential client information is identical to that of an attorney practicing in a traditional office setting. A lawyer shall take “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to representation of the client.” Rule 1.6. It is not hard to imagine multiple scenarios in which Rule 1.6 is ripe for violation in a remote setting. Remote attorneys should review the non-exhaustive list of factors in Comment 18 to Rule 1.6 and consider whether he or she has made reasonable efforts to comply with the Rules. For example, attorneys who are working remotely from home or at locations in which neighbors or other tenants live close by may want to make efforts to avoid certain locations of the property during client telephone or video calls so that confidential information is not overheard.
It is also vital for attorneys residing with roommates or family members to ensure that they have a separate workspace that is either locked or the workspace includes a secure area or file cabinet that cannot be accessed by anyone but the attorney. If remote attorneys maintain physical files, they should ensure that file names are redacted or hidden and not stored in common spaces. As in this inquiry, where two attorneys reside within the same household, they must also be careful to avoid inadvertent disclosures under Rule 1.6. This is especially true where an attorney may not be aware that an attorney household member or his or her firm represents an adverse party in a matter and inadvertent disclosures of confidential information could give rise to a conflict that may be imputed to an entire firm.
In addition, where a remote attorney plans to entertain friends or family, he or she should ensure that visitors cannot access any area that contains confidential client information, including laptops, file cabinets or work bags. It is clear from the ABA Opinions that in certain circumstances, a lawyer may be required to take special precautions where the nature of the client’s information requires a higher degree of security. ABA Opinion 498 fn. 11; see also ABA Comm. On Ethics and Prof’l Responsibility Opinion 477R (2017). Examples of this may include representation in juvenile delinquency cases, and matters involving protective orders.
Attorneys supervising other remote workers must also understand that their supervisory obligations extend to remote practice. The ABA and New Hampshire rules differ in one important way with respect to supervisory obligations of attorneys under Rule 5.1. The New Hampshire Rule uses the phrase “each partner” and “each lawyer who . . . possesses comparable managerial authority” instead of the ABA’s language of “a partner” and “a lawyer . . .” to emphasize that the rule applies to all managers of a law firm and cannot be delegated. Ethics Committee Comment to Rule 5.1. Each partner and each managerial lawyer in a New Hampshire practice has a duty to ensure other persons under their supervision are not making it possible for unauthorized disclosure of information. Rule 5.1 and 5.3. For supervising attorneys who are located remotely, the Committee suggests that you have a weekly check-in with nonlawyers and subordinates to remind them about their obligations and to troubleshoot any technological concerns. See Rules 5.1 and 5.3 (each partner, and each managerial lawyer shall take reasonable efforts to ensure the conduct of nonlawyers and subordinate lawyers is compatible with the professional obligations of the lawyer).
ABA Formal Opinion 477R (the revised version of Formal Opinion 477) also suggests that in the context of electronic communications lawyers must set policies, understand and use reasonable electronic security measures, and train subordinates and employees in technology and information security periodically. For example, it may be necessary to have a filing system that is accessible remotely to ensure the supervising lawyer can access client files and ensure that tasks undertaken by nonlawyers, or subordinate attorneys are in compliance with the lawyer’s professional obligations. Lawyers working remotely should be wary of the adage “out of sight, out of mind” to avoid potential violations of Rules 5.1 and 5.3.
Attorneys should also ensure that subordinate attorneys and staff are not using personal laptops, or email accounts to disseminate privileged information. ABA Formal Opinion 498 (supervising attorneys must supervise firms bring-your-own-device policy to ensure strong passwords to devices, routers, access through VPN, updates installed, and training completed on phishing attempts). Attorneys should consider using multi-factor authentication to access email or shared workspaces, firewalls, encrypted passwords and/or a password protected drop box or web-based document systems to exchange privileged information to ensure that documents are not intercepted. Finally, the ABA has issued guidelines regarding smart devices. ABA Opinion 498 encourages attorneys to disable smart technologies such as Siri or Alexa devices to avoid inadvertent disclosure of confidential information because “otherwise the lawyer is exposing the client’s and other sensitive information to unnecessary and unauthorized third parties and increasing the risk of hacking.” This is especially important for firms without full-time technical support.
A remote attorney’s obligations regarding practice-related administrative or supervisory tasks are also unchanged. The ABA considers this to be one of the potential limitations of remote practice and makes it clear that attorneys must be able to write and deposit checks where applicable, docket correspondence and communications, direct or redirect clients, check postal mail and maintain trust-accounting records while practicing virtually. ABA Opinion 498. Particularly for solo practitioners this is important. The ABA is clear that if a lawyer is not available at his or her physical office address “there should be signage (and/or online instructions) that the lawyer is available by appointment only and/or that the posted address is for mail deliveries only.” Id. Furthermore, attorneys must stay in contact with their clients. For example, if an attorney’s remote practice is located in a jurisdiction within a different time zone, it is this Committee’s recommendation that the attorney should make him or herself available at reasonable hours within the home jurisdiction.
For more remote practice considerations, check out these related Ethics Committee Topics:
i. Working Remotely Under NH Rule 5.5: https://www.nhbar.org/working-remotely-under-nh-rule-5-5
ii. For lawyers working remotely while traveling, see: 12-5-18 Ethics Opinion re: Border Searches: https://www.nhbar.org/2018-19-1-border-law-and-confidential-client-information-practical-considerations-and-ethical-obligations/
iii.Outsourcing Legal and Non-Legal Support Services: https://www.nhbar.org/ethics/opinion-2011-12-05
This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its February 16, 2023 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.