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Due to lockdowns from the COVID-19 pandemic and associated disruptions, many in-house lawyers find themselves working from home – or at least not working from their offices. But it’s important to remember that the American Bar Association’s Rules of Professional Conduct apply no matter where you are physically located. Here are five tips for maintaining your professional ethical obligations in this unprecedented time.

Rule 1.1 Competence

Things are moving very quickly and changing daily. It is imperative as a professional lawyer to stay updated on where the law stands. The very first rule of professional conduct doesn’t stop applying because there is a global emergency.
The key word in the rule is “reasonably” – it states: “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 

What does “reasonably” mean when there’s a global pandemic? While it may have been reasonable to not have the latest software for remote communication a week into working from home, but after months of working from home, it may be viewed as unreasonable not to have the appropriate technology in place.

Tip: Reevaluate your tech needs on a regular basis to ensure you are following best practices.

Rule 1.4 Communication

Working remotely has changed the way in-house counsel communicate with clients. Reach out to colleagues to communicate how the legal department will continue to function as things change. Has the department implemented new policies since the spring? How have those changes been communicated?

As with being competent, a lot of the ethical responsibilities concerning communication center on keeping the client updated on the latest news and changes. Don’t let the remote environment impact the frequency of how often you communicate. If anything, lawyers should be communicating more with their clients. 

Tip: Regular reoccurring meetings are a great way to meet this ethical obligation. A quick 15-minute check-in with clients will help making sure everyone is on the same page.

Rule 1.6 Confidentiality of Information

A lawyer needs to protect the client’s information. Fortunately, most in-house counsel work on virtual private networks and have the appropriate technology safeguards. But because many in-house lawyers are working from the comfort of home, simple security measures that enhance confidentiality can fall through the cracks.

Not only does this mean finding a quiet room where family members or roommates cannot overhear conversations, but it also means making sure that smart devices, such as Alexa or Echo, Bose SoundLink, or Google Home, are unplugged when discussing confidential information.

Tip: Take a look around your office and note where your smart devices are located and if other family members or roommates use your office.

Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer 

In-house counsel who supervise other in-house counsel have an added ethical responsibility to ensure that those lawyers are fulfilling their professional obligations. This can be more difficult when your colleagues are no longer right down the hall. 

Tip: Take stock of how your legal department functions, identify where gaps could appear, and plan accordingly.

Rule 5.3 Responsibilities Regarding Nonlawyer Assistance

Closely related to being responsible for the work of other lawyers, in-house counsel are also likely to supervise nonlawyer assistance, such as paralegals or contract managers. While it can be difficult to remotely supervise colleagues, especially third-party contractors, confirming the appropriate technology is in place and having regular check-ins will provide a chance to underscore the ethical obligations and how to meet them while out of the office.

Tip: Have backup plans in case a contractor or subordinate can no longer work due to illness or some other reason. 

Remember, ethical obligations don’t cease, even in emergency situations like COVID-19. 

Additional Resources

Region: Global
Interest Area: Compliance and Ethics
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.

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