Silicon Flatirons Event Explores Pandemic’s Privacy, Security and Ethical Challenges
Experts say you still have to follow the rules of professional conduct and wear a shirt

by Tony Flesor

The Silicon Flatirons Center at the University of Colorado Law School on May 27 hosted a virtual panel titled “Privacy, Security and Legal Ethics in a Remote Work Environment.” The hour-long event was the second in a four-part series on “Legal Perspectives on Physical Distancing and its Impact.”

Panelist Melanie Kay, director of the Daniels Fund Ethics Initiative Collegiate Program at CU Law, kicked off the panel with a summary of attorneys’ ethical obligations during the pandemic and in remote work environments.

“The short story, just to cut to the chase … is really your ethical obligations do not change one bit during times like these,” she said.

“That means that if you are working remotely, if your court appearances have been delayed, if your filings have been delayed, if you have children running all over the house and a million other distractions, you are still held accountable to comply with the rules of professional conduct in your state,” Kay added.

Those ethical and professional obligations include competence — having the legal knowledge, skill, thoroughness and preparation necessary for the representation being provided. Kay added that competence for attorneys also means staying on top of technological developments in the legal field, as noted in a comment to the American Bar Association’s Model Rule 1.1.

“You cannot hide in the sand and say you hate technology and that you can avoid having to learn about these new platforms and methods of communication,” she said.

Attorneys should also review their ethical obligations in communicating with clients, Kay said, and make sure they’re letting clients know about changes in cases and deadlines. Lawyers and clients should also talk about succession plans in case either side ends up sick or unable to work, she said.

Senior attorneys who are managing firms or mentoring associates should remember that their supervising obligations don’t disappear just because everyone’s at home, according to Kay. Junior attorneys are often intimidated to ask questions, she added, “so if you are a manager, it is really helpful if you are the one proactively checking in.”

TECH FIXES, REMOTE RISKS

Working remotely creates lots of extra challenges when it comes to client confidentiality and safeguarding sensitive information, especially as lawyers adopt tech tools like videoconferencing to bridge the distance.

Marc Zwillinger, founder and managing member of tech-focused Washington, D.C., firm ZwillGen, highlighted two questions attorneys should ask themselves when adopting new technology.

“The first question is: Am I putting client information at risk in a different way than I was yesterday or before the pandemic?” he said, adding there is always some level of risk, so attorneys should focus on what’s new or different about the risk of a given technology and what they’re doing to mitigate it.

“Question two is: Do I have the client’s permission — expressed or implied — to accept that risk?” he said. “And where did that permission come from? Where can I point to that I got that permission?”

Some new risks might be simple problems with low-tech solutions, like making sure family members can’t access confidential information or eavesdrop on client calls. But dangers like phishing scams, “Zoom-bombing” and data breaches require more sophisticated fixes like multi-factor authentication and use of a password manager, Zwillinger said. His firm is also taking measures like registering domain names that are similar to the firm’s own web address to prevent phishers from taking advantage of typos.

When it comes to getting client consent to take on new risks, Zwillinger recommended including permissions to use a certain technology — a preferred cloud service, for example — in retention letters for new clients. Even if a client has given implied consent for a technology by using the platform or service for legal communications or pointing outside counsel toward a preferred vendor, it never hurts to spell those expectations out in writing when onboarding clients, he added.

Panelist John Verdi, vice president of policy at the Washington, D.C.-based Future of Privacy Forum, echoed Zwillinger’s advice about using a password manager to generate and store very long, secure passwords that aren’t being used anywhere else. Some password managers are cloud-based while others store passwords locally, but Verdi said it doesn’t matter much which type you use, as long as it creates “non-reused, high-entropy” passwords.

Verdi also urged attorneys and firms to have systems in place for backing up data and testing the validity of the backups. “Because when hard drives fail — not if hard drives fail, but when they fail — they take data with them,” he said. “If that data is routinely and logically backed up and secured, you can get back up and running very, very quickly. If it is not, there’s no time machine to go back and enable those backups.”

PROFESSIONALISM AND PAJAMAS

All three panelists touched on how the pandemic has shaken up notions of professional dress and surroundings when working from home.

“It is still important to dress professionally and use a professional backdrop, particularly when you’re appearing in court,” said Kay, citing recent headlines out of Broward County, Florida, where a circuit judge had to remind lawyers not to appear in video hearings shirtless or in bed.

Verdi said he, too, has had a male colleague appear shirtless and poolside during a Zoom call. Another showed up on screen in pajamas — “That seemed fine,” Verdi said.

“I chatted with a colleague who was in bed wearing pajamas. That was weird,” he said. “I also chatted with a colleague seated in their dining room in a tuxedo—full black tie. Also weird. But formal, right?”

We’re living in a new world when it comes to professionalism and how to present oneself, Verdi said, but it’s still important to convey seriousness when talking with clients and colleagues. The panelists demonstrated how Zoom backgrounds can be used to create different moods for those without a home office or professional-looking backdrop at home. Zoom backgrounds can also be used as a branding opportunity by displaying firm logos or messaging, Verdi added.

Finally, professionalism isn’t just about appearances. Kay said it’s important to think about how to mitigate noise and avoid interruptions, especially for attorneys living in noisy apartments or urban neighborhoods. Children, pets and partners can also create awkward audio distractions during important calls.

“A lot of you may have heard of the now infamous ‘Supreme Court flush’ that occurred in the background of one of the first U.S. Supreme Court cases to be heard live,” Kay said. “There’s much speculation about the origin of said flush.”

This article appears in the June 1 issue of Law Week. To read other articles from that issue, purchase a copy online.