The global pandemic introduced several ethical challenges for legal professionals, prompting the issuance of numerous ethics opinions to address these novel issues. Although the immediate crisis has subsided, many legal practitioners continue to maintain virtual operations. As a partial or fully virtual practice model is likely to endure, it is beneficial to compile and review the formal ethics opinions released during this period. The following is a compendium of selected ethics opinions, organized by issuance date, that address the impact of the pandemic on legal practice and client representation.
📜 Selected Ethics Opinions Addressing Pandemic-Related Practice
District of Columbia Court of Appeals, Committee on Unauthorized Practice of Law, Opinion 24-20 (March 23, 2020)
- Issues Addressed: Working out of state.
- Synopsis: An attorney who is not a member of the District of Columbia Bar may practice law from their residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13) if four conditions are met: (1) the attorney is practicing from home due to the COVID-19 pandemic; (2) the attorney maintains a law office in a jurisdiction where they are admitted to practice; (3) the attorney refrains from using a District of Columbia address in business documents or otherwise holding out as authorized to practice law in the District of Columbia; and (4) the attorney 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)
- Issues Addressed: Working remotely.
- Synopsis: The necessary transition to a remote workforce mandates that attorneys be especially mindful of ethical obligations concerning remote work, data access, and cybersecurity. Lawyers working remotely must ensure the security and confidentiality of their procedures and systems, which includes protecting computer systems and physical files, and maintaining the confidentiality of client communications.
New York County Lawyers Association Formal Opinion 754-2020 (Aug. 11, 2020)
- Issues Addressed: Working remotely.
- Synopsis: This opinion outlines a law firm’s ethical duties when a majority of its lawyer and nonlawyer staff operate remotely. A primarily remote firm has significant implications for lawyers’ discharge of their duties in confidentiality (New York’s Rules of Professional Conduct, Rule 1.6), competence (Rule 1.1), and supervision (Rules 5.1 and 5.3). The opinion highlights distinct characteristics of remote practice that require additional consideration beyond prior technological guidance.
New York State Bar Association Opinion 1203 (Oct. 8, 2020)
- Issues Addressed: Withdrawing from representation due to fear of COVID-19.
- Synopsis: An attorney may withdraw from representation, contingent upon the Immigration Court’s permission, if fear of contracting COVID-19 from required in person appearances makes it difficult to carry out the representation effectively.
The Association of the Bar of the City of New York Formal Opinion 2020-5 (Dec. 2, 2020)
- Issues Addressed: Health concerns over appearing in court.
- Synopsis: A lawyer required to return to court in person during a public health crisis may face serious health and safety concerns, potentially creating a conflict of interest in continuing the representation. The existence of such a conflict is a fact specific inquiry, dependent on the lawyer’s personal health concerns and available alternatives for proceeding. If the lawyer determines that their health concerns and lack of alternatives create a nonwaivable conflict of interest, they must take appropriate steps to withdraw from the representation. Furthermore, a supervisory lawyer must ensure subordinate lawyers comply with relevant ethics rules, including those relating to conflicts of interest and competence.
ABA Formal Opinion 495 (Dec. 16, 2020)
- Issues Addressed: Working remotely; Working out of state.
- Synopsis: Lawyers are permitted to remotely practice the law of their licensed jurisdictions while physically located in a jurisdiction where they are not admitted, provided the local jurisdiction has not deemed the conduct the unlicensed or unauthorized practice of law. The lawyer must not hold themselves out as licensed in the local jurisdiction, advertise or otherwise indicate an office in the local jurisdiction, or offer or provide legal services in the local jurisdiction. This allowance includes practicing the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), such as temporary practice involving other states’ or federal laws. Using local contact information on websites or business materials would improperly establish a local office or presence under the ABA Model Rules.
Wisconsin Ethics Opinion EF-21-02 (Jan. 29, 2021)
- Issues Addressed: Working remotely.
- Synopsis: The COVID-19 pandemic significantly altered legal practice, accelerating a reliance on technology. As remote work becomes prevalent, lawyers must acquire new skills and knowledge to meet their core professional responsibilities.
Pennsylvania Bar Association and Philadelphia Bar Association, Joint Formal Opinion 2021-100 (March 2, 2021)
- Issues Addressed: Working remotely; Working out of state.
- Synopsis: This joint opinion concluded that a lawyer licensed in Pennsylvania may work remotely from another jurisdiction, even if not licensed there, provided the lawyer takes appropriate steps. This opinion adopts the reasoning and conclusions of ABA Formal Opinion 495.
ABA Formal Opinion 498 (March 10, 2021)
- Issues Addressed: Virtual practice; Working remotely.
- Synopsis: The ABA Model Rules of Professional Conduct allow for virtual practice, which is technologically enabled law practice extending beyond the traditional office. In virtual practice, lawyers must particularly address ethical duties related to competence, diligence, and communication, especially when using technology. To comply with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosure of information and take reasonable precautions during transmission. The duty of supervision requires lawyers to make reasonable efforts to ensure subordinate lawyers and nonlawyer assistants comply with the Rules of Professional Conduct, particularly regarding virtual practice policies.
Florida Advisory Opinion FAO #2019-4 (May 20, 2021)
- Issues Addressed: Working out of state.
- Synopsis: The Standing Committee determined it would not constitute the unlicensed practice of law for the Petitioner, a Florida domiciliary employed by a New Jersey law firm with no Florida office, to work remotely from their Florida home. This is permissible so long as the work is solely on matters concerning federal intellectual property rights, does not involve Florida law, and the Petitioner does not create or maintain a public presence or profile as an attorney in Florida.
Additional Guidance
Beyond these formal opinions, several state bars or ethics officials have issued helpful guidance on legal ethics during the pandemic. For further reading, Human&Legal suggests consulting the following resources:
- Legal Ethics During the COVID-19 Pandemic, Massachusetts Board of Bar Overseers.
- Ethics in the COVID-19 Pandemic, State Bar of Michigan.
- Coronavirus Response: Legal Ethics FAQ, Oregon State Bar.
- Meeting Your Ethical Responsibilities During the COVID-19 Global Pandemic, James M. McCauley, Ethics Counsel, Virginia State Bar.
