Fulfilling ethical obligations practicing during a pandemic

The COVID-19 pandemic has caused lawyers who have spent their entire careers working in an office to move their practices home, sharing space with kids learning online and spouses working from home. Lawyers continue to work full time while serving as teachers, housekeepers, chefs and caregivers. As a result, lawyers must find creative ways to fulfill their ethical obligations. Lawyers are particularly challenged with effectively communicating with clients (California Rule of Professional Conduct 1.4) and keeping client secrets (California Rule of Professional Conduct 1.6).

Rule 1.4 outlines a lawyer’s obligation to communicate with clients during a pandemic. It requires lawyers to promptly inform clients of significant developments in their cases. Lawyers must provide clients with sufficient information to participate in decision making and the means by which objectives are pursued. Rule 1.4(a)(2). The pandemic, however, has increased the uncertainty and unpredictability of client matters, which mandates a greater level of communication. Clients may not understand the extent to which court closures may impact their cases — not to mention their fees and costs. They may not understand the cause of increased costs associated with discovery and depositions and the frequent unavailability of witnesses. An article published by the American Bar Association in April, “Five Pointers for Practicing in a Pandemic,” is consistent with this rule.

Fortunately, lawyers have new tools available to communicate with clients, like video conferencing. However, because clients have varying degrees of sophistication with technology, lawyers should be prepared to offer multiple methods of communications to ensure the client is comfortable and the communication remains confidential. For clients who are used to meeting at the lawyer’s office where no third parties are present, the client may need to be reminded not to take a phone call in a public park or while sitting on a coffee shop patio.

Lawyers who increasingly choose to communicate with clients informally must ensure that informal communications — like all other client communications — remain confidential. California Rule of Professional Conduct 1.6, and Business and Professions Code Section 6068(e)(1) uncompromisingly require lawyers to keep client secrets. This obligation is broader than the attorney-client privilege and applies to information a lawyer acquires by virtue of the representation, no matter the source. Absent client consent, a lawyer is almost always forbidden from revealing client confidential information.

Compliance with Rule 1.6 requires more than silence when it comes to protecting secrets. Lawyers must take proactive steps to protect client information from unauthorized or inadvertent disclosure. The Standing Committee on Professional Responsibility and Conduct, in formal opinion 2020-203 issued last month, examined a lawyer’s ethical obligations with respect to unauthorized access by third persons of electronically stored client information. COPRAC explained that lawyers owe a duty of competence to understand the risks associated with technology and lawyers must take reasonable steps to protect client information from unauthorized disclosure.

COPRAC recognized that attorneys do not have strict liability for ensuring the safety of client secrets, however, and the measures an attorney is obligated to take depends on the circumstances. COPRAC explained that lawyers are required to expend only reasonable efforts to protect their client’s secrets.

“Reasonable efforts” are those which are reasonably calculated under the circumstances to minimize particular identified risks. For example, when law firm personnel work on client matters remotely, the law firm must ensure that all data flowing to and from those remote locations and the firm’s servers or cloud storage is adequately secured. The particular method or methods selected (VPN, encryption, etc.) will reflect the firm’s due consideration of the risks, the relative ease of use of different security precautions, time that would have to be spent training staff, and the like. Some security precautions are so readily available and user-friendly (such as the ability to locate and lock down portable devices in the event of loss or theft), that failure to implement them could be deemed unreasonable.

Many lawyers are already trained with technology best practices, which can be implemented at home. Lawyers can make sure computers are locked and password protected, that they use secure internet connections, and that they avoid personal email and text messages with clients wherever possible. Even when at home, lawyers should lock up documents containing client secrets and shred documents.

In April, the North Carolina State Bar offered some further common-sense guidance for lawyers here in California: “Lawyers should set up a reasonably confidential private workspace while working from home. When taking a call with a client, close the door or step into another room if sensitive information is discussed.” Because lawyer-client communication almost always involves confidential information, lawyers should have a solitary pandemic workspace (free from interruption by a spouse, child or other family member who should not be privy to any such attorney-client communications).

Lawyers who take steps to effectively communicate with clients despite the myriad challenges of working from home will earn goodwill and respect that will outlast the pandemic. On the other hand, lawyers have no worse adversary than former clients who believe their lawyer failed to prioritize their case or too freely allowed private information to be made public (this may lead to a State Bar complaint or a malpractice claim). The time spent researching methods to ensure effective communication and to ensure that clients’ secrets are protected is an invaluable investment. In the same way that lawyers transitioned from library to online legal research and from mailing letters to sending emails, lawyers must strive to wear new hats during the pandemic while keeping ethical duties in the forefront of their minds. 