The Oklahoma Bar Journal August 2023

of the lawyer. 76 A lawyer can be held responsible under the rules for another person’s conduct if “(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct super visory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.” 77 It is much easier for supervisory attorneys to fulfill these obliga tions if the colleagues they are supervising are right down the hall. “Whether via video con ferencing, email, or phone calls, lawyers should stay connected to their staff and to other lawyers using the same tools they would use to stay connected with clients” and provide the necessary assis tance and instruction concerning ethical aspects of their work. 78 Of particular concern is employees’ use of their own devices to conduct firm business. The ABA counsels that “[i]f lawyers or nonlawyer assistants will be using their own devices to access, transmit, or sort client-related information,” poli cies should be in place to “ensure that security is tight (e.g., strong passwords to the device and to any routers, access to VPN, updates installed, training or phishing attempts), that any lost or stolen device may be remotely wiped, that client-related information cannot be accessed by, for example, staff members’ family or others, and that client-related information will be adequately and safely archived for later retrieval.” 79

an email from a coffee shop where a third party can view it over the attorney’s shoulder. Even when the attorney is alone, devices like Amazon’s Alexa may be present with the ability to record a private

ABA advises attorneys to “review the terms of service (and any updates to those terms) to ensure that using the virtual meeting or videoconferencing platform is con sistent with the lawyer’s ethical

conversation. 74 When working remotely, it is further advisable to implement a “clean desk” or “clean screen” policy to secure documents and data when not in use so that they are not visible or audible to others. 75 SUPERVISION OF OTHER LAWYERS AND NONLAWYERS A virtual law practice, likewise, makes it more difficult to super vise less experienced lawyers and nonlawyer staff. The Rules of Professional Conduct require lawyers with managerial author ity over other lawyers and non lawyers to take reasonable steps to ensure there are measures in place to give assurance that the subordinate lawyers’ and non lawyers’ conduct is compatible with the professional obligations

obligations.” 71 “When video conferencing with clients and colleagues, lawyers should manu ally check that Zoom is up-to-date, even if set to automatically update, use the waiting room feature to control participants, manage screen sharing options for video and audio, and use randomly gen erated meeting IDs and passwords transmitted by different means of communication, e.g., sending the meeting ID via email and the password via instant messaging.” 72 Working remotely raises confi dentiality risks untethered to the technology itself as well. “Lawyers should be aware of their surround ings and avoid having confidential conversations around others.” 73 Attorneys may run afoul of Rule 1.6 simply by having a phone conver sation with a client within the ear shot of a family member or sending

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.

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THE OKLAHOMA BAR JOURNAL