I recently wrote about a new Washington State Bar ethics opinion at the Daily Record. At issue in the opinion was whether it was ethical for Washington lawyers to practice law from a virtual law office. In Opinion 201601, the Committee on Professional ethics offered a well-reasoned opinion in favor of allowing lawyers the mobility and convenience of practicing law from a virtual law firm.
The Committee noted at the outset that mobile lawyers with virtual law practices were a sign of the changing times: “Increasing costs of doing business, including the costs associated with physical office space, have motivated lawyers to rethink how they deliver legal services. Many lawyers are choosing to do some or all of their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, and email services have allowed the development of the virtual law office, in which the lawyer does not maintain a physical office at all. Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same.”
The Committee also outlined the steps that lawyers planning to store confidential client data online in software such as legal practice management software must take in order to properly vet their software provider. As I explained in the article, factors to be considered include the fact that:
- Lawyers have a duty of general technology competence
- Lawyers must thoroughly vet cloud computing vendors to ensure data is stored securely
- Lawyers must ensure that there are sufficient data backup procedures in place
- The agreement with the vendor should ensure that lawyers area able to retrieve law firm data in a readable format and that it includes breach notification clauses
- Because technology can change quickly, lawyers have a continuing duty to monitor and review the adequacy of the vendor’s security procedures.
And last, but certainly not least, the Committee addressed the importance of confidentiality when communicating with clients via electronic means. As I discussed in the article, email is beginning to fall out of favor due to the rapid pace of technological change:
Importantly, the Committee acknowledged that in 2017, due to technology advancements, including secure online client portals, email is not necessarily the best way for lawyers to communicate with clients, regardless of whether the law firm has a virtual office or a brick and mortar office. Like the American Bar Association (in Formal Opinion 11-459) and the Texas Bar (in Ethics Opinion 648), the Committee warned against using email in some cases: “Lawyers in virtual practices may be more likely to communicate with clients by email. As discussed in WSBA Advisory Opinion 2175 (2008), lawyers may communicate with clients by email. However, if the lawyer believes there is a significant risk that a third party will access the communications, such as when the client is using an employer-provided email account, the lawyer has an obligation to advise the clients of the risks of such communication.”
In other words, regardless of whether your law firm’s practice is a virtual one or not, if you’re still communicating with clients using unencrypted email, you may want to re-think that choice. Instead, consider implementing a more secure and ethical alternative by using a client portal (which is often built-in to law practice management software) for confidential communications. Doing so will ensure that your law firm is ethically compliant and that confidential client information remains secure.