New Aba Guidance on the Ethics of Working Remotely

Abstract

On March 10, 2021, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 498, which contains timely guidance on ethical issues specific to working remotely, which many lawyers have found themselves doing during the Coronavirus Pandemic. ABA Ethics Opinion 498 outlines ethical issues specific to remote law practice, including lawyers’ ethical duties of competence, confidentiality and supervision, which are imposed by Rules 1.1, 1.6, 5.1 and 5.3 of the ABA Model Rules of Professional Responsibility. The new ethics opinion actually contains a relatively modest amount of new information, and synthesizes principles which have been articulated by both the ABA and state bar ethics committees over the past several years, including New York County Lawyers Association Formal Opinion 754-2020 and California State Bar Formal Opinion No. 2020-203, both of which provide helpful guidance for lawyers seeking to maintain traditional ethical values of confidentiality and competence in an era of rapid technological change. As will be seen, the concept of professional competence increasingly encompasses technological know-how. Twenty-First century technology is quite literally becoming mandatory training for lawyers