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| vol 18, num 3 | July 2020 |
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| Special COVID-19 Edition |
| Lawyers are essential during crises, and the COVID-19 pandemic has created a crisis unlike any in recent history. The current public health emergency has presented unique challenges to attorneys serving clients. With courts and offices closed, lawyers have shifted to working remotely. Although lawyers have not been appearing at the office or in the courtroom, ethical and professional rules of conduct have remained in effect. For example, even in a crisis, a lawyer has a fundamental obligation to represent a client competently and diligently. Technology can provide a variety of ways to work and connect remotely through
videoconferencing, shared files and email, but an attorney must be mindful of ethical obligations to keep information secure while using such services.
In this special edition of our newsletter, the authors address several important issues relevant in the new environment. Sarah Primrose and Nadia Saleem discuss how lawyers can protect client confidences while using videoconferencing technology, as well as best practices for using the technology, while Alexandra CC Schnapp considers how lawyers can maintain their ethical obligation to be technologically competent.
We hope you will find these articles informative and helpful as you continue your practice — in an ethical and professional manner — in new and innovative ways.
You can always keep up with COVID-related issues on ABI's COVID19/Coronoavirus Resources for Bankruptcy Professionals webpage. Updated daily. |
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| Videoconference-Bombing, Alexa, and Other Teleworking Traps in the Time of COVID-19 |
| The coronavirus pandemic has forced millions of workers to work remotely — resulting in a drastic increase in videoconferencing. In December 2019, the maximum number of daily meeting participants, both free and paid, conducted on Zoom was approximately 10 million, but by early April the company had reported 200 million daily participants. The number of users has continued to skyrocket, and an April 22, 2020, statement revealed that there are 300 million Zoom participants per day. Other videoconference providers such as Skype, Microsoft Teams and Webex are seeing a similar surge. As we adjust to the new daily reality of working remotely, the
legal profession is becoming more and more reliant on technology.
With the transition to video hearings, video mediations and video depositions, it is vital that attorneys understand the technology that they need to utilize. Lawyers are required to provide diligent and competent representation and communicate with clients pursuant to the American Bar Association’s (ABA’s) Model Rules of Professional Conduct (“Model Rules”) 1.1, 1.3 and 1.4. Comment 8 to Rule 1.1 of the Model Rules provides that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….” Accordingly, attorneys may need to integrate certain new technologies into their practice. Nevertheless, attorneys need to be aware that the use of new technologies may create ethical and professional issues.
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| The Ethical Duty of Technology Competence During the COVID-19 Global Health Crisis |
| COVID-19 has catapulted us into a world in which virtually all legal services are conducted online. Ethics rules require lawyers to maintain competence, and many states require lawyers to stay abreast of relevant technology. Rules of ethics and professional conduct generally do not impose greater or different duties upon practitioners operating online than those attorneys practicing in a traditional office environment, but the rules may have different implications in a virtual environment. How can lawyers maintain these obligations while utilizing technology during the current global health crisis?
Cybersecurity is important for everyone, but especially for attorneys tasked with securely communicating and keeping client information. When sharing a communication that contains confidential and/or privileged information relating to the representation of a client, the lawyer should take reasonable measures and act competently so that the confidential and/or privileged client information will not be revealed to unintended third parties.
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