Virtual Practice

The Bencher—July/August 2021

By John P. Ratnaswamy, Esquire

At the World Science Fiction convention in Chicago, Illinois, in 2000, during Q&A, I suggested to a well-known sci-fi author and professional futurist that I believed that, due to the growth of the internet, over time a lot of people would stop having city center offices or any “office office” at all and that they simply would work over the internet from home. The sci-fi author/futurist mocked me, comparing my prognostication to past predictions that someday everyone would have a “gyrocopter.”

Yet, here we are, with significant numbers of lawyers still having an “office office” but working most, if not all, of the time from home, while many other lawyers have only a home office, at least for the near future but perhaps also going forward.

On March 10, 2021, in recognition of the growing “virtual practice” phenomenon, the American Bar Association’s (ABA’s) Standing Committee on Ethics and Professional Responsibility (SCEPR) issued its Formal Opinion 498: “Virtual Practice.” The Opinion uses the very flexible definition for virtual practice of “technologically enabled law practice beyond the traditional brick and mortar law firm,” noting that virtual practice may occur regardless of whether the lawyer has a physical office.

The March 2021 SCEPR Opinion mostly discusses legal ethics issues relating to competence, diligence, client communication, and confidentiality, especially in relation to remote access to information technology systems and cybersecurity. I addressed cybersecurity ethics issues in my column in the November/December 2020 issue of The Bencher. In that column I cited, among other things, the ABA’s Model Rules of Professional Conduct (MRPC), the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility’s Formal Opinion 202030 (April 10, 2020) (“Ethical Obligations for Lawyers Working Remotely”), and various other opinions and resources. One particular concern noted by the March 2021 SCEPR Opinion is that team members working remotely may be more likely to use their own electronic devices, which may or may not comply with firm security protocols.

The March 2021 Opinion also addresses a firm’s (including law departments) or lawyer’s duty of supervision of subordinate lawyers and of non-lawyer assistants in the virtual practice context. The Opinion states in part that lawyers with managerial authority have ethical obligations to establish policies and procedures to ensure compliance with the applicable ethics rules and that supervisory lawyers have a duty to make reasonable efforts to ensure that subordinates comply with the applicable rules, citing ABA MRPC 5.1 and 5.3 and prior ABA SCEPR opinions.

Under the principles discussed by the March 2021 Opinion, lawyers with managerial or supervisory roles would need to consider how a virtual practice setting affects policies and procedures. For example, when a lawyer and subordinate, for extended periods or indefinitely, are not working in the same office, the Opinion recommends consideration of how the lawyer’s interaction and communication with the subordinate should be structured to ensure completion of work in a timely, competent, and secure manner and to discern the health and wellness of team members (both for their own sake and in relation to meeting obligations to clients).

The March 2021 Opinion also notes other potential virtual practice issues, including but not limited to the potential complexity of accounting rules if more than one state is involved or establishing how a lawyer may be served with legal papers. It also includes things as simple as posting a sign that a lawyer is not available, or is available by appointment only, at an “office office” and covering who is going to pick up and distribute the mail.

Finally, note that the March 2021 Opinion mentions but does not address the unauthorized practice of law issues that might arise under state law and ABA MRPC  5.5. See, e.g., ABA SCEPR Formal Opinion 495 “Lawyers Working Remotely” (Dec. 16, 2020).

John Ratnaswamy is the founder of The Law Office of John Ratnaswamy, LLC, in Chicago, Illinois. He also serves as an adjunct professor of legal ethics at the Northwestern University School of Law. He is a former member of the American Bar Association’s (ABA’s) Standing Committee on Ethics and Professional Responsibility and is the current chair of the ABA Solo, Small Firm, and General Practice Division’s Committee on Ethics and Professional Responsibility. This column should not be understood to represent the views of any of those entities or Ratnaswamy’s or the firm’s current or former clients.
© 2021 John P. Ratnaswamy, Esquire. This article was originally published in the July/August 2021 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.