California Formal Opinion Interim No. 20-0004 on Remote Work
Yesterday, the the State Bar of California Standing Committee on Professional Responsibility and Conduct posted Formal Opinion No. 20-0004 on remote work for comment. The opinion acknowledges the increase of attorneys remotely working driven both by technology and external circumstances that include Covid-19 and natural disasters such as the California fires.
The opinion is based on a hypothetical law firm’s inquiry as to best practices for allowing flexibility for its attorneys and staff to continue working remotely as it establishes a hybrid practice that includes a smaller physical office with some employees working remotely. The opinion notes that the fact pattern is becoming more common, and although the California Rules of Professional Conduct (“Rules”) do not directly address remote work, the Rules nonetheless apply to a remote work environment.
The opinion then addresses the primary Rules that are implicated in the remote work environment. The Rules on competence, confidentiality, and communication are highlighted with suggestions as to how to implement these rules in a home office or hybrid office environment. Competence and confidentiality go hand and hand when employing technology to work online and store client information. Lawyers need to understand the security aspects of the technology programs that they use or consult with someone who can properly advise them. Law firms also have the responsibility to ensure that lawyers can remotely access files in a secure manner.
Interestingly, the opinion notes that competence is also tied to mental and physical well-being. It advises:
“In addition, a lawyer’s duty of competence includes the “mental, emotional, and physical ability reasonably necessary for the performance” of legal services. The health, personal (e.g., school closures, childcare, or other family responsibilities), or financial impacts of pandemics and other disasters may interfere with a lawyer’s physical, mental, or emotional ability to competently perform legal services. The duty to render competent legal services is not generally excused under these circumstances. Lawyers should plan in advance to ensure that competent representation may still be rendered to clients in the event that a disaster impacts a lawyer’s ability to render competent and diligent legal services.“(footnotes excluded)
As for communication, the opinion advises that lawyers need to ensure that they can appropriately communicate with clients through whatever means available. Lawyers should make sure that clients are receiving communications about their cases and also remind clients about confidentiality on their end.
The opinion also focuses on the duty of supervision for the law firm and advises that it is incumbent upon the law firm to provide fully vetted technological tools to its lawyers and staff and maintain contact with lawyers and staff who are working remotely. The opinion suggests that a law firm develop practices and policies for remote work and reminds law firms to have an established disaster plan. The opinion also notes that firms must check their clients’ policies to align with any cybersecurity protocols and guidelines required by clients.
Finally, the opinion mentions that multi-jurisdictional and unauthorized practice of law issues are implicated when a lawyer is working from a state in which the lawyer is not barred on matters that involve the law of the state in which the lawyer is licensed to practice. Although the issue is noted, the opinion cautions lawyers lawyers to consult the multi-jurisdictional and unauthorized practice of law rules and laws as the Committee does not opine on these issues. Footnotes 32 and 33 of the opinion provide cites to relevant opinions in D.C., Florida and Utah and to case law in California. See our prior coverage on the topic here, here, and here.
Bottom line: Remote work is here to stay as are the Rules of Professional Conduct so proceed accordingly.
