It is hard to believe that the COVID-19 pandemic began more than 18 months ago. This global pandemic forced people, businesses, and government branches alike to hit the proverbial “pause” button on operations. During The Great Pause, the legal profession had to reexamine best practices and determine how to adapt to diminished in-person proceedings, meetings, and working in general. Gone were the days of litigators filling the gallery of a courtroom, waiting for hours to have their case called on a busy Court calendar. Gone were the days of two-hour plus commutes for attorneys bustling into New York City or the like.
For many firms, this Great Pause promoted a significant pivot in law firms’ way of life – including the introduction of flexible remote work arrangements and the adaptation of technology as a friend of the firm, rather than a foe to “the way things are always done.”
Laura and I (Amy) have been practicing together in a remote work arrangement for nearly a year now. While we are certainly proponents of the remote work arrangement, we know that there are some in-person aspects of lawyering that we miss – like running into colleagues in the courtroom, attending in-person proceedings, etc. However, we knew that changing and adapting to the “new normal” means that we had to address the ethical, practical, and social factors to remote lawyering as business owners and lawyers alike.
The top 3 tips for legal employers when implementing remote practices are:
- Consider the ethics of remote lawyering
- Provide a secure infrastructure needed to protect the firm and its files
- Adapt to the trend of flexible hybrid and/or fully remote work arrangements
Consider the Ethics of Remote Lawyering
In New York, the Rules of Professional Conduct guide the legal practitioner in their practice of the law. When a wrinkle such as remote lawyering presents itself, certain of these Rules are absolutely implicated – the duty of competence, the duty of confidentiality, and the supervisory obligations. Earlier this year, NYSBA released an article detailing how these rules are implicated in remote lawyering, and it is worth repeating here. For the duty of competence, lawyers engaging in a remote work environment need to acquire the necessary knowledge and skill to provide their services to clients by present and potential technological means. A lawyer is well-advised to address their file storage (both hard copy and electronic) to ensure that they are safeguarding their clients’ files. For the duty of confidentiality, this line can be blurred (although it should not be) when a lawyer is speaking to their client in their home office, which just so happens to be located within earshot of their living room. Safeguards could include ensuring that the attorney is finding a quiet, secure location in their home to conduct telephone calls of sensitive nature. Lastly, as to supervisory obligations of partners, managers, etc., while remote work arrangements place a geographical separation between attorneys, a manager or partner must ensure that their attorneys are not violating the Rules. Consistent check ins with your department or team are crucial to maintain connectivity, communication, and oversight.
Provide a Secure Infrastructure
Because so much of an attorney’s work is now done by remote or virtual means, it is more important than ever to ensure that your firm’s infrastructure (server, computer equipment, cloud-based storage, etc.) are safeguarded. One practical tip that I previously picked up (pre-COVID) was to be wary of using public access WiFi when conducting any business relating to the firm. While it would be great to sip on a latte at a local coffee shop and churn out motion papers, the public internet could be a breeding ground for hackers or malware. To this point, make sure that your email servers are protected by the proper cybersecurity software. Also, encourage your team members to update their passwords as frequently as necessary with strong password combinations.
Adapt to the Growing Trend of Remote Lawyering – However that Looks!
The NYSBA’s task force on the future of the legal profession was recently created to study how the practice of law has changed and to suggest new best practices that would benefit the entire legal community. Conversations are being held with younger lawyers about their perspectives on the future of the legal industry – and it is not hard to believe that a flexible, hybrid work arrangement is important to them. The reasons for this range from autonomy over their schedules to a potential increase in productivity due to the availability of virtual appearances, depositions, etc., to an emphasis on the well-being and “work-life balance” of the legal profession, which suffers from staggering mental health and addiction issues. While I am not suggesting that a firm must adopt a remote work arrangement without reservations tomorrow, I do suggest that a firm who wants to see continued growth and remain an attractive employer should listen to the perspectives of future lawyers, as their careers will be the future of the law as we know it. Indeed, the fact that a task force was created to this point is worth noting.
Disclaimer: The information contained in this post is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and communications. Contacting us, however, does not create an attorney-client relationship.
