March 23, 2020 – The recent outbreak of COVID-19 has forced lawyers into the unusual territory of either working remotely or in their homes.
Continuity of operation planning requires an understanding of the technology and systems needed to run a physical office remotely, as well as an understanding of the corresponding ethical implications.
Here are some basic tips you can use to protect your clients and your firm while working remotely.
Tip 1: Maintaining Confidentiality
Wisconsin Supreme Court Rule (SCR) 20:1.6(a) states that:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation. …
This rule requires lawyers to take reasonable measures to protect client information, and also requires an understanding of the firm’s duty of confidentiality with respect to all information that relates to the representation of current and former clients.1
In addition, SCR 20:1.6(d) requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Confidentiality, therefore, requires lawyers and nonlawyers to have dedicated work spaces away from other members of the household to ensure confidentiality is preserved.
Tip 2: Implementing Cloud Computing
Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing concludes that “cloud computing is permissible as long as the lawyer makes reasonable efforts to adequately address the potential risks associated with it.”
The duty applies regardless of the format of the information. Consequently, lawyers must understand the technology they use that enables them to work remotely.
Lawyers should consider using separate computers for legal work or, if that’s not possible, segregate work data in password-protected folders that cannot be accessed by others. Documents should be stored away when not in use.
Free resources are readily available to help you:
access, protect, and store your digital files;2
safely using public or personal Wi-Fi networks;3
installing and utilizing a virtual private network;4
using your phone as Wi-Fi hot spot;5
encrypted email software;6
cloud-based practice management;7 and
video conferencing tools.8
Tip 3: Continuing Supervision of Lawyers and Nonlawyers
SCR 20:5.1(b) and 5.3(b) requires a lawyer having direct supervisory authority over another lawyer or nonlawyer to make reasonable efforts to ensure that the other lawyer or nonlawyer conforms their conduct to the Rules of Professional Conduct.
Failure to properly supervise could result in the supervising lawyer being held responsible for violation of the Rules of Professional Conduct completed by the lawyer or nonlawyer.
A common violation is failing to oversee the management of trust accounts.9 The American Bar Association has published Guidelines for the Utilization of Paralegal Services10 that help identify supervisory responsibilities and nondelegable duties.
Keep in mind that software companies that power your law firm devices also fall under the umbrella of supervisory responsibilities.11
Tip 4: Establishing Business Continuity and Disaster Planning
ABA Formal Opinion 482 provides guidance to attorneys regarding ethical obligations related to disasters:
Some of the specific ethical obligations addressed by the ABA opinion include communication with clients, loss of files and other client property, continued representation in the area affected by the disaster, withdrawal from representation after the disaster, and solicitation and advertising.12
The opinion reinforces the needs for law firm partners and managers to establish comprehensive policies and procedures to ensure compliance with the Rules of Professional Conduct.13
If your firm needs sample policies and procedures, or if you would like to review your firm’s existing policies, check out the State Bar’s Wisconsin Law Firm Self-Assessment tool.
Tip 5: Activating Succession Planning
ABA Comment to SCR 20:1.3 contains helpful guidance on succession planning, especially for solo practitioners.14 Paragraph [5] of this comment states:
To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action. …
Solo practitioners should strongly consider utilizing the State Bar’s Succession Planning Registry to comply with succession planning requirements. The registry is available on WisBar.org through myStateBar (click on the myProfile tab and scroll down the page to Advanced Profile).15
Bonus Tip 1: Finding Personalized Guidance
The State Bar is here to answer your practice management and ethical questions related to working remotely and other matters. You can obtain free advice from the State Bar’s:
In addition, other substantive laws may impact your ability to work remotely. If you have substantive law questions concerning your particular practice area, consider contacting a colleague via the State Bar’s Lawyer-to-Lawyer Directory.16
See more articles and notices about the impact of the coronavirus and COVID-19 on the table of contents page forthe Coronavirus & the Law Blog from the State Bar of Wisconsin.
Bonus Tip 2: Finding Assistance through Exclusive State Bar Member Benefit Discount Programs and Services
State Bar member benefits offer discounted programs and services exclusive to members. These programs are additional resources to help you as you transition to remote work. You can also find out more on the State Bar Member Benefits page, at wisbar.org/memben.
Email Encryption: Identillect
Now that you’re working remotely, protect your email from getting into the wrong hands. Email Encryption services through Identillect Technologies ensure total security and control over your sensitive email communications, both outbound and when recipients respond. It’s simple and economical. Understand how to take the appropriate security measures in this new working remote atmosphere.
For more information, attend the free informational webinar on Wednesday, March 25.
Free (Non-CLE) Webinar on Securely Working Remotely
Todd Sexton, CEO of Identillect Technologies, recently hosted a free webinar for lawyers to discuss tips that lawyers can use to securely work at home. As the coronavirus pandemic unfolds, cyber criminals are targeting remote workers. Most security protocols exist within the law firm’s infrastructure. Thus, the weaknesses of remote workers are being exploited. Understand how to take the appropriate security measures in these uncertain times in a brief 30-minute session on how to protect information while working remotely.
Register and Watch Now
Cybersecurity Protection: BIZLock
BIZLock from Identity Fraud, Inc., is your go-to risk management partner for cybersecurity protection empowering small businesses to better prevent, protect against, and respond to cybercrime. BIZLock is affordable and tailorable to the size of your firm, so whether you’re a small firm or a large firm, BIZLock can meet your needs, provide the tools necessary to mitigate exposure, give you 24/7 access to experts to respond to incidents, and financial protection provided by one of the industry’s largest cyber insurers – AIG.
Contact BIZLock at (844) 432-5625 or via bizlock.net. To receive your discount, mention that you are a State Bar of Wisconsin member.
Crime Coverage: CapSpecialty
In addition to being an easy e-banking option to meet OLR trust account protection specifications (SCR 20:1.15(f)(3)c.2), CapSpecialty coverage also protects you from employee dishonesty, forgery, and computer fraud. In addition to covering social engineering fraud, it offers a partner inclusion endorsement, and covers loss of clients’ property, both of which are not commonly available.
For more information, email wisbarbonds@capspecialty.com
Computer Equipment Discounts: Dell and Lenovo
Need additional computer equipment for your team to work remotely? Check out special discounts from Dell and Lenovo with your State Bar membership. With Dell, save on a variety of computer products and accessories. With Lenovo, save on PC products, laptops, tablets and accessories.
Electronic Payments: LawPay
Our member benefit partners at LawPay understand the critical role that electronic payments will play as the global health crisis continues to unfold, and that’s why they’re offering a $100 credit on processing fees if you want to get started with a new LawPay account. Their team is fully operational and here to support you however they can. Learn more at lawpay.com.
Endnotes
1 See Wisconsin Ethics Opinion EF-17-02 for a full discussion.
2 Christopher Cody Shattuck, Managing Your Digital Files, Wisconsin Lawyer, June 2018.
3 Federal Trade Commission’s Tips for Using Public Wi-Fi Networks.
4 Max Eddy, How to Set Up and Use a VPN, PCMag, updated March 16, 2020.
5 Brian Nadel, How to use a smartphone as a mobile hotspot, Computerworld, May 29, 2018.
6 See State Bar of Wisconsin’s Member Benefits page for an outline of the software and discount.
7 The Secret to the Right Practice Management Software, InsideTrack, Dec. 19, 2018.
8 Nicole Black, It's now a Trekkie world: Top videoconferencing tools for lawyers, ABA Journal, July 26, 2019.
9 Dean R. Dietrich, Taking Care of Business: Supervising Nonlawyer Employees, InsideTrack, Oct. 8, 2019.
10 See ABA Model Guidelines for the Utilization of Paralegal Services.
11 See Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing for a full discussion.
12 Aviva Meridian Kaiser, Disasters and a Lawyer's Ethical Obligations, Wisconsin Lawyer, January 2019.
13 Id.
14 Aviva Meridian Kaiser & Christopher Cody Shattuck, Lawyer Death or Disability: Who Will Protect Your Clients?, Wisconsin Lawyer, March 2018.
15 For additional information, review How to Use the New Law Practice Succession Planning Registry, InsideTrack, March 21, 2018.
16 Lawyer-to-Lawyer Directory: Where Nearly 400 Lawyers Have Your Back, InsideTrack, Jan. 17, 2018.
