Pennsylvania Issues First Ethics Opinion on Remote Lawyering in the Pandemic

This article was originally published April 16, 2020.

On April 10, 2020, the Pennsylvania Bar Association’s Ethics Committee issued Formal Opinion 2020-300, which provides guidance to lawyers who have suddenly been forced to work remotely due to the state’s shelter-in-place order.

The Opinion touches on some of the issues we addressed in our blog post “Practicing Law in a Pandemic” as well as in our Ethics CLE webinars on the same topic.

Briefly, Pennsylvania Opinion 2020-300 addresses the duty of lawyers to provide competent representation to clients, (RPC 1.1) including competence in the use of technologies (Comment 8 to RPC 1.1), the duty to take reasonable steps to protect confidential client information (RPC 1.6), and the duty to supervise other lawyers and non-lawyers (RPC 5.1 and 5.3).

The Opinion contains a number of suggestions for lawyers working remotely, including:

Using encryption, two-factor authentication, and other similar data security safeguards;
Implementing firm-wide, written work-from-home protocols specifying how to safeguard confidential information;
Avoiding confidential conversations in the presence of smart devices, such as Amazon Alexa and Google voice assistants;
Avoiding the use of public or unsecured Wi-Fi;
Using strong passwords to protect data and devices;
Assuring that video conferences are secure by requiring passwords and other safeguards; and
Backing up remotely-stored data.

In addition to discussing competence, confidentiality and supervision, the Opinion discusses the importance of lawyer civility in these unusual times, and reminds lawyers to treat adversaries and the courts with courtesy and respect.