When the country first began to shelter in place due to the pandemic, I wrote a post urging lawyers to use the unexpected change to explore technology and its many benefits, both during and after the pandemic. And lo and behold, lawyers have done just that!
Over the past few months, I’ve witnessed an unprecedented change in mindset by lawyers when it comes to technology. For starters, lawyers in my community have begun to accept certain types of technologies — such as videoconferencing, e-signature, virtual notaries, and cloud computing remote working tools — with open arms. Courts have likewise rapidly adapted and encouraged the use of videoconferencing and increased e-filing.
Similarly, there have been indications that regulatory bodies are becoming increasingly open to allowing lawyers to use technology in all aspects of their practices. Certainly the tide was turning prior to the pandemic, but ethics opinions and rule changes seem to have been expedited in order to address the ethical issues that lawyers are now regularly encountering due to the influences of COVID-19 on their regular business practices.
For example, in April the Pennsylvania Bar Association issued a much-needed opinion addressing the ethics of practicing law virtually. In Formal Opinion 2020-300, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility provided guidance on how lawyers and their staffs can ethically provide legal services while working remotely.
The Committee confirmed that it was ethical for lawyers to use cloud computing software in their practices. And, notably, the Committee was also the first to adopt the analysis set forth in ABA Formal Opinion 477R, concluding that because of improved technology, unencrypted email is insufficient for discussing particularly sensitive information, and in those cases more secure communication methods such as encrypted email or secure online client portals will be required, a consideration of particular import during the pandemic, when face-to-face meetings are a rarity.
More recently, the New York State Bar Association green lighted a recommendation that would require New York lawyers to take one cybersecurity CLE credit every two years. Personally, I think a broader “technology” category would have been more appropriate, but it’s a step in the right direction and one more indication that the legal profession is increasingly accepting of the importance of technology to the practice of law.