The American Bar Association recently issued two Formal Opinions to address two fast growing situations impacting the legal profession. Links- aba-formal-opinion-495.pdf
First, in recognition of the recent necessity for remote working, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495, entitled “Lawyers Working Remotely,” relating to ABA Model Rule 5.5, which stated purpose is “to protect the public from unlicensed and unqualified practitioners of law.” The Formal Opinion concluded "[t]hat purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed,”
The Opinion highlights that an attorney should first confirm that the local jurisdiction has not determined that a remote working situation is unlicensed or unauthorized practice of law. In addition, the Opinion defines being “invisible” while physically present in the non-licensed local jurisdiction to include not holding themselves out as being licensed to practice or having an office in the local jurisdiction, not advertising in the local jurisdiction, and not providing or offering to provide legal services in the local jurisdiction.
The second opinion issued by the ABA’s Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 496, “Responding to Online Criticism,” relates to attorneys responding to negative on-line reviews or criticisms. The Opinion addresses best practices considering our obligations to maintain client confidentiality. ABA Model Rule 1.6. The Opinion offers the following guidance to those who find themselves in this unfortunate circumstance:
• Not responding, as a response could draw more attention to it;
• Asking the website host to remove the post;
• Responding by asking the client to have a private, offline conversation about the post;
• Posting that professional responsibilities do not allow the lawyer to respond.
This Opinion provides a great refresher on our confidentiality obligations.