CBA Record May-June 2021
home will become a common occurrence. But what does this mean to the practic- ing lawyer? Given the requirement that a lawyer must be competent in the “benefits and risks associated with relevant technol- ogy” (Model Rule 1.1), the lawyer must: (a) acquire such competence, (b) hire a competent consultant, or (c) work for an institution that has a technical staff. Normally, the column would end here. But the column in the last issue of the CBA Record [March/April 2021] was on the subject of businesses ancillary to the practice of law and the financing of law practices. Obtaining the expertise to comply with the requirements of the Rules pertaining to the new technologies will generate expense items that will have to be financed. An unintended consequence of the virtual law practice may be the development of ancil- lary businesses to support those practices and the need to locate new sources of capital investments.
LEGAL ETHICS BY JOHN LEVIN
Virtual Law Practice: The NewNormal A s we near the end of pandemic lock- downs, more lawyers are returning to work from their offices. This is after a year-plus of working from home or in transient office space – interfacing with clients, co-workers and opposing counsel over computer screens. In some instances, your office may have been a plane ride from your licensing jurisdiction. Given these experiences, what will be the “new normal?” Two recent ABA Formal Ethics Opinions (495 and 498) may forecast what is to come.
2021) states that “[w]hile the [Model Rules] permit virtual practice, the Rules provide some minimum requirements …” and concludes that lawyers “must fully consider and comply with their applicable ethical responsibilities, including technological competence, diligence, communication, confidentiality, and supervision.” The Opinion (which is worth reading in its entirety) first reviews several Model Rules and their specific impact on the vir- tual law practice – mostly dealing with the application of the technology needed to implement the practice. A second section begins by stating that “lawyers practic- ing virtually need to assess whether their technology, other assistance, and work environment are consistent with their ethical obligations.” A lengthy review fol- lows of technological developments and their impact on the Model Rules – many of which have been the subject of these columns. The Opinion concludes that the Model Rules “permit lawyers to conduct practice virtually, but those doing so must fully consider and comply with their ethical responsibilities… .” So, what will be the “new normal”? It will probably resemble the “current normal” as much as it does the “old normal.” This prediction is based in part on the results of a recent survey published by Harvard Busi- ness School Online. City Square Associates surveyed nearly 1,500 professionals who worked remotely during the Covid-19 shutdown from March 2020 to March 2021. Of this group, 61% stated that they would like to work 2-3 days a week from home. Only 18% stated that they wanted to go back to the office full time. Given the preferences of the working public and the technological capability to meet those preferences, it is likely that working from
Formal Opinion 495 (dated December 16, 2020) addresses the issue that “[t]ech- nology has made it possible for a lawyer to practice virtually in a jurisdiction where the lawyer is licensed, providing legal services to residents of that jurisdiction, even though the lawyer may be physically located in a different jurisdiction where the lawyer is not licensed.” After an analysis of the Rules, the Opinion concluded that: “in the absence of a local jurisdic- tion’s finding that the activity con- stitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that juris- diction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or avail- ability to perform legal services in the local jurisdiction or actually perform legal services [in that jurisdiction].” Formal Opinion 498 (dated March 10, John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.
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