The Oklahoma Bar Journal August 2023

not, even unintentionally, holding themselves out as practicing in a state in which they are not licensed in violation of Rule 5.5(b). Some states have held that advertising legal services in a jurisdiction in which the lawyer is not licensed constitutes the unauthorized practice of law. 61 To avoid any confusion, all marketing materials – including the attorney’s website, email signature and social media sites – should identify the states in which the attorney is licensed. The ABA has opined, “If the lawyer’s website, letterhead, business cards, advertising, and the like clearly indicate the lawyer’s jurisdictional limitations, do not provide an address in the local jurisdiction, and do not offer to provide legal services in the local jurisdiction, the lawyer has not ‘held out’ as prohibited by the rule.” 62 It is axiomatic that lawyers who choose to practice virtually must do so competently, which means “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. 63 The pandemic was a game changer, forcing some of us to embrace technology in ways we were not prepared. “You’re on mute” became one of the most-uttered phrases of 2020. And we all felt for the Texas lawyer whose video went viral after he was trapped by a cat filter on a Zoom call while appearing virtually in court. He was nevertheless determined to proceed with the hearing, explain ing to the judge that while he did not know how to remove the filter, he was there “live,” and in case there was any doubt, “not a cat.” 64 COMPETENCE AND CONFIDENTIALITY

As videoconferencing becomes more commonplace, the Rules of Professional Conduct arguably demand more of attorneys to adopt and adapt to the technol ogy, even the tech averse. A virtual law practice may also present more obstacles in protect ing client information, including the risks of a cybersecurity attack. 65 The Rules of Professional Conduct impose upon attorneys only a duty to “make reasonable efforts” to prevent unauthorized disclo sure of or access to client informa tion and, in determining what is reasonable, take into account the costs of employing safeguards and difficulty implementing them, as well as the extent to which such safeguards interfere with the law yer’s ability to practice law. 66 “As COVID-19 ravaged New York,” the New York State Bar Association released an important alert “caution[ing] against storing or transferring client confiden tial data outside a firm’s secure environment and on unapproved personal cloud service accounts or personal devices that are not secure, and encourag[ing] ensuring personal devices are segregated with separate passwords to restrict access by family members.” 67 The bar also advised firms’ IT depart ments to monitor remote access for irregularities, log network activity and perform random stress tests to detect any vulnerabilities. 68 These warnings remain relevant even as COVID-19 fears have lifted. 69 If anything, the rules require more measures to satisfy the “reasonable efforts” standard. When in doubt, attorneys should retain a consul tant to make sure client informa tion is being handled adequately. 70 Videoconferencing platforms present their own concerns. The

attorney can find local counsel and be admitted to practice pro hac vice,” and there was no evidence the attorney took steps to associate counsel. 57 The court also rejected the attorney’s argument that his services arose out of or were rea sonably related to his practice in Colorado, as he primarily practiced environmental and personal injury law in Colorado, his in-laws were not Colorado residents, he had no prior attorney-client relationship with them and there was no con nection between his in-laws’ case and the state laws of Colorado. 58 Still, finding that the “nature of the misconduct in th[e] case was non-serious” and the only harm the in-laws suffered was a delay in resolving their debt, the court con cluded a private admonition was appropriate. 59 There is no clear answer as to the extent to which an Oklahoma attorney may operate a virtual practice and perform services for clients residing outside of the state or related to legal issues arguably arising beyond Oklahoma’s border. The text and comments of Rule 5.5, the legal commentary analyzing it and Birbrower and its progeny teach us that providing legal services in a state where an attorney is not licensed can be done but only if limited in time and scope and only if those services relate to a court proceeding or arbitration pending in the attorney’s state of licensure or the attorney’s practice in a juris diction in which they are admitted. Keep in mind that, regardless of where misconduct occurs, a mem ber of the OBA who engages in the unauthorized practice of law in another state is subject to discipline in Oklahoma. 60 Attorneys practicing virtually must take care to ensure they are

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

12 | AUGUST 2023

THE OKLAHOMA BAR JOURNAL