The pandemic has raised a number of ethical issues for lawyers and resulted in the issuance of several ethics opinions addressing those issues.

While we once might have thought these issues were temporary, many legal professionals continue to operate virtually, and even when we are fully free of the pandemic, many of us are likely to continue to practice virtually, at least part of the time.

Given this, I thought it would be useful to round up the ethics opinions from the last 18 months that address issues relating to the pandemic’s impact on our practices and our clients.

Invariably, I will have missed some opinions. If you know of others, please send them to me at ambrogi-at-gmail.com.

(These are organized by opinion date.)

District of Columbia Court of Appeals, Committee on Unauthorized Practice of Law, Opinion 24-20 (March 23, 2020)

Full text.

Issues addressed:

  • Working out of state.

Synopsis:

An attorney who is not a member of the District of Columbia bar may practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13) if the attorney (1) is practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdiction where the attorney is admitted to practice; (3) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia, and (4) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.

Pennsylvania Bar Association Formal Opinion 2020-300 (April 10, 2020)

Full text.

Issues addressed:

  • Working remotely.

Synopsis:

Working from home has become the new normal, forcing law offices to transform themselves into a remote workforce overnight. As a result, attorneys must be particularly cognizant of how they and their staff work remotely, how they access data, and how they prevent computer viruses and other cybersecurity risks. In addition, lawyers working remotely must consider the security and confidentiality of their procedures and systems. This obligation includes protecting computer systems and physical files, and ensuring that the confidentiality of client telephone and other conversations and communications remain protected.

New York County Lawyers Association Formal Opinion 754-2020 (Aug. 11, 2020)

Full text.

Issues addressed:

  • Working remotely.

Synopsis:

This opinion addresses a law firm’s ethical obligations when most of its lawyer and nonlawyer staff work remotely. Maintaining a majority remote law firm has significant implications for the way in which lawyers discharge their duties in the areas of confidentiality (New York’s Rules of Professional Conduct (the “Rules”), Rule 1.6), competence (Rule 1.1), and supervision (Rules 5.1 and 5.3). This opinion does not reiterate guidance provided in prior New York State ethics opinions regarding technological competence and confidentiality, but rather highlights distinct characteristics of practicing remotely that require additional consideration.

New York State Bar Association Opinion 1203 (Oct. 8, 2020)

Full text.

Issues addressed:

  • Withdrawing from representation due to fear of COVID-19

Synopsis:

An attorney may withdraw from representation, with the permission of the Immigration Court, based on fear of contracting COVID-19 as a result of in-person appearances in the proceeding, where such fear renders it difficult for the attorney to carry out the representation effectively.

The Association of the Bar of the City of New York Formal Opinion 2020-5 (Dec. 2, 2020)

Full text.

Issues addressed:

  • Health concerns over appearing in court.

Synopsis:

A lawyer who is required to return to court in person during a public health crisis may have serious health and safety concerns which could create a conflict of interest for the lawyer continuing with the representation. Whether such a conflict exists is a fact-specific inquiry and will depend on the lawyer’s personal health concerns as well as the available alternatives for proceeding with the representation. If the lawyer concludes that his or her health concerns and the lack of available alternatives for appearing in court create a non-waivable conflict of interest, the lawyer must take steps to withdraw from the representation. In addition, a lawyer with supervisory responsibilities in a law firm or other organization must comply with his or her obligations to supervise subordinate lawyers and ensure that they are complying with the relevant ethics rules, including the rules relating to conflicts of interest and competence.

ABA Formal Opinion 495 (Dec. 16, 2020)

Full text.

Issues addressed:

  • Working remotely.
  • Working out of state.

Synopsis:

Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.

Wisconsin Ethics Opinion EF-21-02 (Jan. 29, 2021)

Full text.

Issues addressed:

  • Working remotely.

Synopsis:

The COVID-19 pandemic has dramatically changed how lawyers work and represent their clients. Some of these changes may be temporary but others are likely part of a movement towards increased reliance on technology in the practice of law. As working remotely has become the new normal, lawyers must develop new skills and knowledge to comply with their core responsibilities.

Pennsylvania Bar Association and Philadelphia Bar Association, Joint Formal Opinion 2021-100 (March 2, 2021)

Full text.

Issues addressed:

  • Working remotely.
  • Working out of state.

Synopsis:

Joint ethics opinion of the Pennsylvania Bar Association and the Philadelphia Bar Association concluded that a lawyer licensed in Pennsylvania may work remotely from another jurisdiction, even if the lawyer is not licensed in that jurisdiction, provided the lawyer takes appropriate steps. (Adopts ABA Formal Opinion 495.)

ABA Formal Opinion 498 (March 10, 2021)

Full text.

Issues addressed:

  • Virtual practice.
  • Working remotely.

Synopsis:

The ABA Model Rules of Professional Conduct permit virtual practice, which is technologically enabled law practice beyond the traditional brick-and mortar law firm. When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology. In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Additionally, the duty of supervision requires that lawyers make reasonable efforts to ensure compliance by subordinate lawyers and nonlawyer assistants with the Rules of Professional Conduct, specifically regarding virtual practice policies.

Florida Advisory Opinion FAO #2019-4 (May 20, 2021)

Full text.

Issues addressed:

  • Working out of state.

Synopsis:

It is the opinion of the Standing Committee that it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.

See Also

While not formal ethics opinions, several states’ bars or ethics officials have issued guidance on legal ethics during the pandemic.

Photo of Bob Ambrogi Bob Ambrogi

Bob is a lawyer, veteran legal journalist, and award-winning blogger and podcaster. In 2011, he was named to the inaugural Fastcase 50, honoring “the law’s smartest, most courageous innovators, techies, visionaries and leaders.” Earlier in his career, he was editor-in-chief of several legal publications, including The National Law Journal, and editorial director of ALM’s Litigation Services Division.