Attorneys around the country are adapting their workflows to a largely virtual environment. In response, the American Bar Association (ABA) has issued Formal Opinion 498 to address new considerations for lawyers practicing virtually, including ethical responsibilities and best practices.

Here’s what attorneys need to know about the new formal opinion.

What is the ABA Formal Opinion 498: Virtual Practice?

Over the last year, there has been a significant shift to remote work in the legal world, a change that happened quickly when the pandemic began. But even before distancing restrictions were in place, many law firms were adopting some kind of transition to a more digitally run practice that involved some kind of virtual communication or work-from-home structure.

The ABA Formal Opinion 498 has been issued to discuss the new considerations attorneys need to take into account around their “ethical duties regarding competence, diligence, and communication, especially when using technology.” This includes ensuring that information is being shared safely and securely and that their staff is staying compliant.

The ABA Model Rules of Professional Conduct do permit attorneys to conduct their practices virtually. In fact, the new opinion states that “a lawyer’s practice may be entirely virtual because there is no requirement in the Model Rules that a lawyer have a brick-and-mortar office.” A virtual practice is when a lawyer works from home or from a location outside of the office, whether part of the time or all of the time. Opinion 498 will thus help any law firm practicing virtually in any capacity to ensure the same standards are put into place.

Important components of the new ABA opinion

The opinion outlines three areas of “commonly implicated” model rules of professional conduct:

1. Competence, Diligence, and Communication

For a lawyer to stay “competent,” ABA Model Rules state that they should “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” They must also make all effort to help clients and vindicate their cause no matter if there are any inconveniences to the lawyer, and be able to keep the client informed about the status of their legal matter. Attorneys thus must be sure that these standards can still be met virtually.

2. Confidentiality

Even while virtual, lawyers must make reasonable efforts to secure client information to prevent “inadvertent or unauthorized disclosure of, or unauthorized access to” information about a client or their case. When working remotely, this may require special precautions.

3. Supervision

If lawyers manage employees, they need to ensure that policies are in place to ensure that everyone is in compliance with ethics rules and that they are complying with the Rules of Professional Conduct. This involves directing assistants to meet requirements and supervising certain duties more closely. It may also involve using a confidentiality agreement.

Virtual technology updates

There are also guidelines specifically related to “Virtual Practice Technologies and Considerations,” including using secure Wi-Fi and a Virtual Private Network (VPN) or similar portal so that client information is always protected. Passwords should be more complex and changed regularly, and the right anti-virus or anti-malware software must be installed, among other protections. Security updates need to be made regularly in addition to using encryption and stronger passwords.

Mail correspondence

In addition, attorneys also need to display information at their physical office location that they are available by appointment only and that the address is only used for mail. There still must be a process in place for sending and receiving paper mail and correspondence.

BYOD policy

Many attorneys or their assistants may use their own devices for remote work, so lawyers should implement a bring-your-own-device (BYOD) policy that outlines security standards. This ensures that these devices will be updated and secure when accessing sensitive information.

Clean desk policy

A “clean desk” policy must be implemented, which means that documents and data are not accessible to others in their remote working location. When the lawyer or assistant is not on a videoconference or call, client-related information must not be visible or audible to other people. Practices should use two-factor authentication and VPNs so that only those who need this information can access it. Another safeguard is to only allow staff to use business email accounts and never personal email accounts.

Using Paralegal as a Service

Working with virtual paralegals is becoming a common option for attorneys who need an extra hand on a case-by-case basis. This kind of assistance is especially helpful in remote working environments, but care must be taken to ensure these professionals follow the aforementioned best practices.

Paralegal as a Service follows all necessary guidelines to ensure that client and case information is safe and secure when paralegals are working remotely. We make sure they:

• Use a business Gmail account
• Use secure platforms
• Require two-factor identification
• Follow the clean desk policy
• Agree to strict confidentiality agreements

Experienced virtual paralegals can help your law firm get work done while always following protocols and best practices in a remote environment. Start working with a virtual paralegal to get the extra help you need with your cases.