Zoom is booming. Covid19 has pushed attorneys out of their offices and into their homes to work remotely. As a result, video conferencing has taken on a greater role in the workplace. Attorneys need to be able to interview clients, attend hearings, and conduct depositions as a matter of routine. 

Video conferencing platforms such as Zoom, GoToMeeting, and Microsoft Teams, have made that possible in a pandemic world. Although many law firms had been using video conferencing tools before the pandemic, their use has escalated. But these platforms are not without concerns for an attorney and for their clients.

Understanding these concerns is a starting point toward solving problems before they manifest. Many of these issues stem from an attorney’s ethical duties to their clients. The Model Rules of Professional Responsibility have been adopted in most jurisdictions in the United States, including California. These Model Rules, as adopted, govern an attorney’s ethical duties. Three Model Rules are relevant to the ethical concerns raised by such platforms as Zoom.

Attorneys Must Be Competent

Model Rule 1.1 states that an attorney must provide competent representation to the client. This requires that an attorney have or gain the legal knowledge, skill, thoroughness, and preparation necessary for that representation. Much of the issue of competence lies in an attorney’s skill in providing legal analysis. Comments by the American Bar Association and State Bar of California make it clear that competence includes keeping abreast of relevant technology.

According to Brian White, a lawyer and founder of Attorney Brian White & Associates, PC, “An attorney must understand how technological changes affect issues such as confidentiality and protecting work product. All video conferencing platforms have some security involved. Zoom is the most studied platform on security. However, it is important to understand a platform’s security tools and any deficits in those tools.”

Using Zoom as an example, maintaining security of the meeting link and password are critical to ensuring that only those who should be attending the meeting, are. That may mean using a new meeting link for each meeting or sending a password separately from the link itself.

There are other issues regarding security and encrypted sources for the sharing of documents. Again, using Zoom as an example, it is possible to share the screen during a client meeting. Attorneys must be careful that in doing so, they do not disclose other client information. Sharing screens can and should be regulated by the meeting host and documents should only be shared via encrypted means.

Attorneys Must Protect a Client’s Confidentiality

Model Rule 1.6 requires that an attorney protect a client’s confidentiality. This includes various aspects from the representation itself to client disclosures to work product and other client documents. Confidentiality is the bedrock of the attorney-client relationship.

The above security discussion is relevant to the issue of confidentiality. It is important that extra precautions be taken for sensitive meetings. An attorney may want to consider locking the meeting after everyone has joined.

Recording a session can mean that an attorney considers the issue of storage of the recorded session. For example, Zoom allows the meeting host to store the recording on the attorney’s computer, or it can be stored on Zoom’s cloud. The location of the cloud server may be an issue for sensitive material. For sensitive communications, an attorney should consider whether the platform allows end to end encryption or not. This can be an important component in determining which video conferencing tool to use for what kind of meeting.

An Attorney Must Keep the Client Up to Date

In both the Model Rules and in the California Rules of Professional Responsibility, the attorney must keep the client reasonably informed about the status of a matter and follow reasonable requests for information. (Rule 1.4) This imperative requires that despite the pandemic, that an attorney keeps their client advised of the status of the legal matter. During representation, some matters are more sensitive than others, but all client communications are subject to confidentiality concerns.

Picking the medium most suited to the level of security needed is critical to keeping the client informed and protecting confidential information. This duty extends to any other staff conducting the meeting on behalf of the attorney.

Finally, a word of caution for the attorney working at home. It is important that an attorney work in a dedicated area free from traffic from other family members. While a dog entering the camera shot may be cute, a spouse entering the same camera shot is a violation of the client’s confidentiality.

Concluding Thoughts

Attorneys must fully investigate and use tools available to protect client communications. This may mean spending time learning about security tools available and making appropriate choices depending on the level of sensitivity involved. For sensitive matters, an attorney may want to choose a video conferencing tool with end to end encryption.

Technology is ever-evolving. It is important to stay abreast of the technological tools that are available at present and other tools as they become available. This will help attorneys do their job and help clients feel secure.

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Covid-19 has affected every aspect of our lives, including our working lives. Suddenly, firms are advertising remote legal positions on job board sites around the country. An attorney licensed to work in New York, lives and works remotely in his home in New Jersey.

This doesn’t just involve those whose work and home lives are in close proximity but in separate jurisdictions. Attorneys are looking to work far outside their normal jurisdiction. Remote work makes this possible. However, attorneys are bound by ethical standards and some of those standards are relevant to remote working. In particular, lawyers are licensed or authorized to work in a particular state. They are not licensed to work outside that state. Doing so may open them to a charge of the unauthorized practice of law, which can lead to sanctions or possible disbarment.

The Movement Toward Loosening Restrictions

Even before the onset of Covid-19, attorneys had been calling for reform of what many view as protectionist rules that prohibit an attorney admitted in one state from practicing in another. Computers, internet, and conferencing platforms all make it possible to do much of the work involved in an attorney’s work life from any location. According to Jason Stephens of Stephens Law, PLLC, “With the realities of Covid in the workplace, remote working has become the norm for many attorneys”. As a result, more attorneys are now working outside their jurisdiction.

ABA Model Rule 5.5

The American Bar Association’s (ABA) Model Rule 5.5 addresses practicing across jurisdictional lines. Most states have adopted Rule 5.5 in some form.

Rule 5.5 prohibits any attorney from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Nor may an attorney assist another in doing so. Specifically, the Rule states that an attorney may not establish an office or other systematic and continuous presence in that jurisdiction for the practice of law, or hold themselves out to the public as being admitted to practice law in that jurisdiction.

The Rule also carves out exceptions to this general rule. It is acceptable for an attorney to work in another jurisdiction in which the attorney is not licensed provided the employment is temporary. However, the attorney may not have been disbarred or suspended in any jurisdiction. In addition, the attorney must be working in association with a duly licensed attorney in that jurisdiction.

The Rule also provides another safe harbor provision. It is acceptable for an attorney in good standing within their home state to work temporarily, providing legal services that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

So, when does work stop being temporary and cross into persistent practice? While there is no bright line, the work may not be so long that it rises to the level of systematic and continuous presence in that jurisdiction. This standard is one that is open to interpretation.

States Are Beginning to Address the Problem

Seeing the possibility of remote working as a necessity for some time to come, states are beginning to address the jurisdictional issue. Some states already allow lawyers to practice across state lines, Minnesota, North Carolina, Arizona, and New Hampshire among them. These states allow out-of-state lawyers to practice as long that they disclose that they’re not licensed to practice in that state.

Washington D.C has also relaxed its rules during the pandemic. The DC Court of Appeals Committee on Unauthorized Practice of Law has opined that the necessity to work remotely due to Cvid-19 fits within the temporary practice exception outlined in Rule 5.5. New York has allowed a similar exception.

Florida is considering making the change permanently. A Florida state bar advisory opinion has stated that an out of state attorney is not engaged in the unauthorized practice of law if solely practicing federal intellectual property matters, which was his area of expertise as long as the attorney was not practicing Florida law. While this will have to be confirmed with Florida Supreme Court action, it represents movement toward an ethical approach to serving client needs.

What Will Happen After The Pandemic Ends?

It is uncertain whether the rules regarding crossing jurisdictional boundaries will continue to relax after the pandemic ends. The trend is likely to continue into the near future. But as one year stretches into two, the question of what is “temporary” will undoubtedly have to be revisited.

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Law school deans join recent law school graduates, the American Bar Association, and others in states across the country asking for states to take steps to allow law school graduates to practice law without taking the bar. Many states have postponed or even canceled bar exams for recent law school graduates. These individuals cannot practice law until they pass the bar exam and are admitted to practice in that state.

STATES CONTINUE TO ADDRESS THE QUESTION OF BAR EXAMS

Unfortunately for law students, many states keep changing their policies for the bar examination. Some states held in-person exams in July, while other states rescheduled the July exam. Other states have decided to hold remote bar exams instead of in-person exams.

The National Conference of Bar Examiners (NCBE) has a list of the announcements for each state on its website. 

Students in states that have postponed the bar exam are under a lot of pressure. They want to go to work, but they cannot practice law. 

A few states have adopted policies that allow law students to bypass the bar exam. Diploma privilege allows a person with a Juris Doctorate to obtain a license to practice law without taking the bar exam. A few states have adopted this option for dealing with the bar exam.

Other states allow law school graduates to petition to practice under the supervision of an attorney. In some states, graduates can apply to engage in the limited practice of law. There does not seem to be a perfect answer to the situation.

As the courts and state bars continue to struggle to find a solution to the problem, the public, as well as law students, may suffer from the delay in admitting new attorneys to practice.

LEGAL NEEDS OF THE PUBLIC

Courts and states attempt to balance the risk of COVID-19 with the needs of law school graduates and the public. While there is a push to protect the public interest by ensuring that lawyers have a minimum level of competency, there is also a public interest in having more attorneys admitted to the bar.

With the economic hardships caused by COVID-19, there are many more individuals seeking legal advice regarding financial matters. People need assistance with legal matters, including bankruptcy, personal injury claims, foreclosure, eviction, debt collection, and contract law.

Also, low-income individuals are seeking help as they apply for government benefits, such as Social Security, workers’ compensation, and Medicaid. Since many new attorneys enter areas related to public service, it can be in the public interest to admit attorneys to practice law as soon as possible. 

A DIFFICULT DECISION FOR ALL PARTIES 

Deciding how to handle state bar examinations and admissions to practice law in the era of COVID-19 is challenging. Courts and State Bar Associations must balance the needs of graduating law students with the public interest. Many states include ethics questions on the bar exams, in addition to questions about legal theories, laws, and rules.

The professional conduct for attorneys is closely monitored. Attorneys have a high duty of care to their clients, the public, and the courts. Violating the rules of professional conduct and ethics can result in various disciplinary sanctions. 

Allowing attorneys to practice without taking the bar exam could be problematic. Permitting an attorney permanent admission to the bar without measuring competency through a bar exam could put the lawyer’s qualifications into question throughout the attorney’s career. 

Diploma privilege could also be a problem for states that use the Uniform Bar Examination (UBE). UBE states allow applicants to transfer their passing UBE scores to other UBE states. The attorneys can practice law in that state without retaking the bar exam.

However, if an attorney is admitted to practice law under diploma privilege, does that admission transfer to another state that does not permit admission through diploma privilege? Will there be a question about an attorney’s understanding of ethics or basic legal principles because he did not take the bar exam?

COVID-19 AND THE PRACTICE OF LAW

COVID-19 has impacted almost every area of life in the United States. Law firms have had to change how they interact with clients and the courts. Some law firms that made offers of employment to third-year law school students are now dealing with delays in hiring as students wait to take the bar exam.

The debate about the bar exam is likely to continue. Each state must address the question. Unfortunately, it is unlikely that a uniform decision about diploma privileges or other ways to allow law school graduates to practice law until they can take the bar exam is forthcoming.

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The Texas Bar Journal publishes a list of disciplinary actions each month. The May 2020 edition has over a dozen instances regarding attorney disciplinary actions, including judicial actions, disbarments, suspensions, and public reprimands. Anyone searching for an attorney can access information about the attorney on the Texas Bar Association’s website.

The Texas Government Code §81.115 requires that an attorney licensed to practice in Texas has a public profile. The profile includes basic information about the attorney, including the firm size, law school attended, year graduated, and any specialties. The profile also includes the attorney’s public disciplinary history for Texas and other states.

The information for disciplinary sanctions is only available online for the past ten years. If someone needs disciplinary or sanction information beyond ten years, the person must contact the Texas Chief Disciplinary Counsel.

Rules Governing Professional Conduct of Lawyers

Ethics is a set of rules and codes that regulate the conduct of attorneys. The American Bar Association has drafted Model Rules of Professional Responsibility as a guide for ethical conduct by attorneys. However, each state is responsible for drafting and passing a set of codes and rules of professional conduct for attorneys licensed to practice within the state.

The code of conduct covers numerous concepts and areas related to the practice of law. Some of the topics covered in a code of conduct include, but are not limited to:

• Professional judgment;
• Conflicts of interests;
• Disclosure of relevant information;
• Confidentiality;
• Zealous representation;
• Competence; and,
• Fiduciary duty.

Code of Ethics for Attorneys Practicing in Texas

When individuals pass the Texas bar and are admitted to practice law in Texas, those lawyers take an oath to obey the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure.

The Texas lawyer’s Creed describes how a lawyer should conduct business within the legal system. It also directs that a lawyer should use all appropriate legal means to protect and advance a client’s best interest. The Creed also describes a lawyer’s duties for conduct with other lawyers and judges.

Reasons an Attorney May be Disciplined

Attorney misconduct may result in a variety of actions, including disbarment and suspension. Common reasons why a court may discipline a lawyer include:

• Willful violation of a court order;
• Theft of client funds or property;
• Crimes of moral turpitude;
• Failure to pay bar dues;
• Failing to maintain continuing legal education requirements;
• Personal misconduct that reflects negatively on the attorney’s character, honesty, or integrity;
• Failing to provide adequate communication with clients; and,
• Breach a client’s confidence and trust.

An attorney may face disciplinary action for conduct that is legal but unethical.

What is a Fiduciary Duty?

One of the essential elements of a lawyer’s duty to clients is the fiduciary duty. A fiduciary is someone whom another party has placed the utmost trust to handle a matter or protect money or property. A fiduciary has a duty to act in the best interest of the beneficiary.

The fiduciary relationship is created when the client hires the attorney, and the attorney agrees to represent the client. The attorney has several duties when acting as a fiduciary for the client.

For example, an attorney’s duty of loyalty to the client prevents the attorney from taking any actions that are adverse to the client.  Lawyers should not profit or gain material benefit from a third party in connection with the attorney’s representation of the client.

A lawyer also owes a client a duty of confidentiality. An attorney should not disclose or use information the attorney learns while representing a client for any other purpose than representing the client. A duty to maintain confidentiality goes beyond the attorney-client privilege.

The duty of confidentiality prevents a lawyer from using any information for the lawyer’s benefit. It also prevents the lawyer from disclosure information, either for the lawyer’s benefit or the benefit of a third party.

Lawyers Also Owe Clients a Duty to Exercise Reasonable Care

An attorney cannot guarantee a specific outcome in a case. The attorney gives a legal opinion based on the attorney’s experience and the attorney’s interpretation of the law. That legal opinion is not a promise of an outcome.

However, the attorney does have a duty to exercise reasonable care throughout the representation of a client. The attorney should take all reasonable measures and steps to achieve the outcome the client desires.

Examples of failing to exercise reasonable care include, but are not limited to:

• Failing to research case law adequately and apply statutes correctly;
• Failing to perform an adequate investigation and discovery;
• Failing to monitor deadlines; and,
• Failing to obtain a client’s consent.

If a lawyer fails to exercise reasonable care or fulfill any of the other duties required by the attorney-client relationship, a client may have a civil claim against the attorney for legal malpractice.

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