After a decade of practice, I hung my own shingle in 2019, and one of my first priorities was to make sure that I could work remotely. No, it wasn’t an instance of clairvoyance. My husband and I had fallen in love with a small fishing town on the Kenai Peninsula in Alaska, called Homer, and we wanted to spend as much time there as possible. Anchorage, a 4-hour drive away, was the business hub and the location of our jobs (for me, my practice). I had to figure out a way to work remotely, so I could go fishing when I wasn’t working. What started for me as a desire to spend as much time fishing as possible turned into a mainstream idea once the pandemic hit. Today, I work both at my office in Anchorage and at our cabin in Homer. I’ve worked out of a cabin, camper, boat and even a yurt. Here are 10 issues I considered to successfully work remotely.
Professional Responsibility
Remote work is a balancing act. We must be cognizant of our professional responsibility obligations, run our practice effectively and keep clients happy, all while trying to enjoy whatever it is that prompted us to work remotely in the first place. Likely due to the significant increase in remote working, the American Bar Association (ABA) published Formal Opinion 498, “Virtual Practice,” on March 10, 2021. The opinion outlines the various Model Rules of Professional Conduct implicated by working remotely and highlights best practices. It makes it clear that virtual practice is a viable option for attorneys. Various states likely have their own opinions.
Paperless Practice
With our primary method of transportation to and from our cabin being a small four-seat airplane, lugging around magnitudes of paper files is impractical. In addition, having client files laying around at home likely wouldn’t give comfort to my clients, who entrust their confidential information to me. A paperless practice is the solution to this problem. While the notion of a paperless practice may seem like an oxymoron for an estate-planning attorney, it’s very possible. My clients keep their original documents. I do have a will safe in the office for the occasional storage of original documents. For the majority of our purposes, however, all documents are scanned and saved to the client file, which is purely digital.
The first question I faced when deciding to create a paperless practice was whether to have my own server or use a web-based document management system. My first instinct was to use a server that I could access remotely; however, I knew absolutely nothing about servers. After a little bit of research, I quickly became overwhelmed with terminology that rivaled tax acronyms. I was out of my league. The web-based document management systems seemed more geared to lawyers who just wanted to be lawyers and have all of the issues laid out in simple English. I traveled down the web-based road and found success.
Numerous case and document management software exist for law firms. I’m not advocating for one software over another. I use Firm Central by Thomson Reuters. Clio seems to be very popular. iManage is another platform that I’ve used when working at a large national firm. There are too many options to list here, and every lawyer and law firm must choose carefully after due diligence. The following are some of the primary considerations when choosing a web-based document management system:
- Has the company ever had a data breach? What’s its protocol for managing such a breach? Do they inform the attorneys?
- How is the data backed up? How often?
- Where are their data centers located? It was important to me to use a system with data centers in the United States, so that if there was an issue with security, data, etc., jurisdiction was squarely in the United States.
- How does the system integrate with Microsoft Office? Can word processing documents be saved directly to the client file? Can emails be saved directly? How easy is it to move documents in and out of files and to and from the desktop?
- What else does the program offer besides document retention? Timekeeping? Accounting? Billing?
Network and Computer Security
Data security may be the most critical factor to remote working, as attorneys are charged with safeguarding clients’ confidential information. ABA Model Rule 1.6(c) requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Remote working by using the free WiFi at the local coffee shop is too risky and inadvisable. Working from a private mobile hotspot is an option if a private network isn’t available. If working on a network, it should be at a minimum secured with a password. If working regularly at the remote location from the same network, consider hiring an IT team to monitor the network for potential security breaches.
Each computer used for remote working should be protected with antivirus software. I use Panda Security, which involves monthly monitoring, and I receive emails from my IT group whenever there’s even a shadow of some kind of malware or virus coming close to the computer. There are many different options available, and again, I’m not advocating for one software over the other.
Hiring an IT group to assist with security is a worthwhile investment. I retain an IT group to monitor my network, computer and my team’s computers. They know far more than I do about Internet security, and by having them as part of the team, I can spend more time lawyering and less time worrying.
Physical Environment
The physical setup for working remotely is important for various reasons, including protecting client confidentiality, ergonomics and being able to work in peace. In our cabin I have a small, six-by-eight foot enclosed office with a large window and sound-proofing in the walls. I call it my “Zoom Room” because I designed it with Zoom meetings in mind. Not everyone has the availability of a sound-proofed private office, however, and when I work from other locations (such as a hotel room in a warmer climate), I don’t have the advantages of the cabin.
Privacy is one of the most significant concerns with a home office. Client information shouldn’t be strewn about the house and visible or accessible by others. The computer should be off limits to other family members. The attorney should be able to conduct video conferences and phone calls in private.
Ergonomic comfort at home is easy to overlook but just as necessary as a true office environment. I have the same desk chair and computer monitor in my Anchorage office as my cabin “Zoom Room.” I use a phone system that allows my office phone to ring on both my Anchorage office and my cell phone at the same time, so clients don’t need my cell phone number.
Lastly, being able to work in peace is a must. Unless a lawyer lives alone without pets, there’s potential for disruptions. For some lawyers, young children present a challenge to being able to work remotely. My issue is an exuberant golden retriever who alerts me to every moose that strolls by the cabin. There’s no easy answer to this particular dilemma due to the expectations of a lawyer’s family members. Telling my dog not to worry about the moose breaking in is a fruitless endeavor, despite our many conversations on the topic.
Client Expectations
Pre-pandemic client expectations were different than today. I found that there was a general expectation that a lawyer would sit in their office. I scheduled most of my client meetings for when I physically was present in my Anchorage office. Those meetings that I couldn’t schedule in person usually were by phone.
Most of my Alaskan clients understood the idea of me spending time in a cabin and working remotely. Other clients, some from Alaska and some from elsewhere, found my remote work interesting but somewhat peculiar. The peculiarity now is a moot point due to the pandemic and the overall migration to remote work. Still, when choosing to work remotely, a lawyer should consider the impact on client expectations.
Remote Meetings
In my humble opinion, there truly is no more effective way to communicate with clients than to meet with them in person. Being in person allows the attorney to gauge facial expressions and body language, understand context and know who’s in the room with the client. Remote work doesn’t allow for in-person meetings unless the client happens to be local to the remote location (and indeed I do make house calls to my clients in Homer).
Video conference is the next best thing to in-person meetings. There are numerous options for video conferencing with clients. Zoom, Microsoft Teams and WebEx perhaps are some of the more popular options. The important factors for me are ease of use for my clients, security and the ability to share screens.
Again, security is a critical issue. Passcode protection is a good practice for video conferencing, meaning that each participant must use a passcode to enter the conference. Another good practice is to have a “waiting room,” and the attorney has to “admit” each individual participant.
A potential concern with remote meetings is the physical environment for the client and the impact on the client’s ability to freely share confidential information. For example, if the client is sitting in their kitchen, with their daughter-in-law and neighbor nearby chatting, the confidentiality of the communication may be called into question. In addition, the client may be more susceptible to undue influence by others who may be in the room with the client, whether on or off camera. The attorney should try to identify all individuals in the room with the client, if possible, and consider postponing the meeting if there appears to be a concern.
Perhaps the most significant challenge for estate-planning lawyers at the start of the pandemic was the signing of a will or trust. Remote notarization was a new concept, adopted in some jurisdictions, but not used for estate-planning documents. We had to find creative workarounds. In Alaska, we had roof-of-the-car signings (meeting the client in the parking lot of the office), one client came and signed her will in my driveway and I made creative use of holographic pour over wills (allowed under Alaska law) to revocable trusts. Some jurisdictions now have enacted legislation for the electronic signing of wills, and others are considering the idea.1 If working remotely full time, this is a consideration.
Overseeing the Team
When I began working remotely in 2019, I was a one-woman show. I had no staff or team. Today, my little firm includes not only me but also an associate attorney, assistant and part-time paralegal. As trail boss, I’m responsible for overseeing all work done for my firm. ABA Model Rule 5.1 requires me, as the lawyer with “managerial authority” in my firm, to “ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.”
Overseeing the team while working remotely means that I’m engaged on a daily and ongoing basis with my group. We can video conference, talk by phone and email. They need to know, and I need to demonstrate, that I’m indeed working and not lounging about in the sun (unlikely in remote Alaska, due to the interference of snow, ice, moose and bears). One of the challenges of leading a team from afar is staying engaged with each other. Everyone on my team has access to my calendar, and we schedule regular meetings in addition to as-needed phone and video communication.
With a paperless practice, it’s relatively easy to review my team’s work. We don’t need to email documents back and forth because we all have access to the web-based document management system. I can review and edit files remotely, which again eliminates the need for lugging around draft documents. Still, overseeing the team from afar requires consideration on my part.
Email presents security and confidentiality issues that exist regardless of whether a lawyer works remotely or from a brick-and-mortar office. As stated above, ABA Model Rule 1.6(c) requires a lawyer to make reasonable efforts to avoid inadvertent disclosure of client information.
The ABA published Formal Opinion 11-459 on Aug. 4, 2011, regarding an attorney’s duty to protect the confidentiality of email with clients. In short, lawyers must take reasonable precautions to safeguard the email and should warn clients against using their work email addresses for legal advice.
Lawyers aren’t necessarily required to encrypt all email, or even any email, although sometimes encryption is prudent. ABA Formal Opinion No. 99-413, “Protecting the Confidentiality of Unencrypted E-Mail,” March 10, 1999, is an old but still relevant opinion on the use of unencrypted email. In short, the use of email still provides a reasonable expectation of privacy and, therefore, is a permissible form of communication.
Regardless of whether it’s required, email or document encryption is prudent in many situations for client communication. With the available resources today, there’s no reason not to encrypt financial information or anything else that should be confidential. Some attorneys use a standalone provider such as ShareFile. Another option is to send information using PDFs that can be encrypted with passwords. Some web-based document management systems allow for client portals.
State Licensure
State licensure may be a concern if working remotely across state lines.2 ABA Model Rule 5.5 prohibits a lawyer from the unauthorized practice of law. Rule 5.5(b) focuses on establishing an office in a jurisdiction, having “systematic and continuous presence” in the jurisdiction “for the practice of law” and holding out to the public that the lawyer is admitted in that jurisdiction. Perhaps a 1-week stint in a sunny locale isn’t an issue, because such activity implicates none of the above; however, having a home in another jurisdiction requires further inquiry.
ABA Formal Opinion 495, “Lawyers Working Remotely,” Dec. 16, 2020, analyzes the cross section between working remotely and the unauthorized practice of law. The opinion essentially leaves the determination up to the jurisdiction where the lawyer is physically located. That is, if a lawyer is physically located in Florida while practicing law in Alaska, then it’s up to Florida whether the lawyer must be licensed to practice law in Florida.
Some jurisdictions have published opinions on state licensure of lawyers who live or stay in the jurisdiction while practicing in another one. Maine Ethics Opinion 189 (2005) provides that a lawyer isn’t engaging in the unauthorized practice of law by being physically present in Maine and providing legal services to clients or a law firm in another state, with another state law, and the lawyer isn’t practicing in Maine or holding out to be admitted in Maine. Utah Ethics Opinion 19-03 (2019) provides a similar opinion.3 If crossing state lines, state licensure must be considered.
State Income Tax
Working remotely across state lines may have state income tax implications if the lawyer spends too much time or has a residence in the state where physically located. As there are only nine states without a personal state income tax,4 the majority of states bring the concern of income tax. For lawyers working remotely for a week or other very short time, there may be no issue. If a lawyer is spending regular time in another state, however, further inquiry is necessary to determine whether there’s an income tax issue as a part-time resident. A full analysis is beyond the scope of this article.5
An Easier Transition
Working remotely now is mainstream and easier than it used to be. Technology gives us the tools to effectively work, communicate with clients and communicate with our teams back in the office (or in their respective homes, as the case may be). A transition to remote work requires research, diligence and an ongoing effort to balance client expectations, quality of work, ethical responsibilities and business management.
Endnotes
1. States that have adopted electronic wills legislation include Arizona, Colorado, Florida, Indiana, Nevada, North Dakota, Utah and Washington.
2. A more detailed discussion can be found at Richard J. Rosensweigh, “Unauthorized Practice of Law: Rule 5.5 in the Age of Covid-19 and Beyond,” American Bar Association (ABA) (Aug. 12, 2020), www.americanbar.org/groups/litigation/committees/ethics-professionalism/articles/2020/unauthorized-practice-of-law-rule-55-in-the-age-of-covid-19-and-beyond/.
3. Cited in ABA Formal Opinion 495, “Lawyers Working Remotely” (Dec. 16, 2020).
4. Alaska, Florida, Nevada, South Dakota, Texas, Washington and Wyoming; and New Hampshire and Tennessee (as to wages).
5. For further discussion, see Mark Klein, Joseph Endres and Katherine Piazza, “Tax Implications of Covid-19 Telecommuting and Beyond,” The CPA Journal (July 2021), www.cpajournal.com/2021/07/16/tax-implications-of-covid-19-telecommuting-and-beyond/; see also Emma Kerr, “How Remote Work Could Affect Your 2021 Income Tax,” U.S. News (Oct. 26, 2021), https://money.usnews.com/money/personal-finance/taxes/articles/how-remote-work-could-affect-your-income-tax.