By Jennifer Betts
It is no secret that the way lawyers practice law has, in many ways, dramatically changed during the coronavirus pandemic. One such change is the way in which lawyers collaborate and communicate. A critical element of the effective practice of law has always included collaboration and communication internally within law firms and externally with clients and courts. However, the pandemic, and the transition to remote work for most legal professionals, has presented new challenges and opportunities for re-envisioning how lawyers can and should collaborate and communicate. Advancements in technology provide solutions and some new quandaries in this space.
Collaboration and Communication Tool Adoption
Initial research during the pandemic suggests that internal legal departments are ahead of the curve in comparison to law firms in incorporating and embracing technology solutions to continue and enhance collaboration and communication. For example, Bloomberg Law recently released the results of a survey showing a marked increase in the use of law firm collaboration tools during the pandemic period (e.g., from March 2020 through present).
The survey looked at online collaboration and communication tools. A simplified definition of online collaboration tools is that they are web-based applications that allow groups to share documents and information through online portals. Online collaboration tools typically have a number of valuable uses—from the ability for multiple users to edit, review, and comment on a document simultaneously to the ability to synchronously share calendars and communications with a dedicated team. With respect to tech collaboration tools, the data from the Bloomberg survey showed that the use of technology to allow teams to share documents and manage projects remotely by in-house legal departments more than quadrupled during the pandemic period. For law firms, the use of collaboration tools nearly doubled. Somewhat surprisingly, however, the survey indicated that law firm adoption is approximately half that of internal legal departments (roughly 40 percent for law firms versus roughly 80 percent for in-house respondents).
With respect to communication tech tools, not surprisingly, the survey results indicated that nearly every law firm participant was using video meeting apps—at nearly 97 percent adoption—in order to perform their work remotely. Additionally, the survey showed that nearly half of law firm respondents are using team chat apps as part of their remote work environment. The survey indicated that the widespread law firm use of video meeting apps was almost directly a result of the pandemic, as 74 percent of the lawyers surveyed indicated that they used the apps only after the pandemic began.
Ethical Issues to Understand
One challenge with online collaboration and communication tools is that the platforms can sometimes breed informality. Quick chats with peers or clients over a messaging platform can, at times, lead attorneys to relax their normal practices designed to protect privileges and confidentiality. It is critical, however, that, when using these developing tools, both in-house and outside attorneys ensure that the method of use for all of their team members protects and ensures client confidentiality. While this is an evolving area and there is limited guidance on the steps that should be taken, there have been some recent opinions addressing this topic. For example, in April, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility addressed the ethical issues raised when lawyers and staff work remotely during the pandemic. The committee appropriately recognized that, during the pandemic, lawyers are increasingly using videoconferencing tools and other remote working technologies. The committee emphasized that lawyers must assess the sensitivity of confidential communications on a case-by-case basis and, for particularly sensitive matters, use encrypted communication methods, such as encrypted email, secure client portals, and secure videoconferencing tools.
Specifically, the committee opined that “[a]t a minimum, when working remotely, attorneys and their staff have an obligation under the Rules of Professional Conduct to take reasonable precautions to assure that: All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information.” This is an obligation all attorneys must either directly take steps to address or ensure that their firms or organizations have adequately considered and tackled.
Recommendations and Conclusion
To effectively embrace new communication and collaboration technologies, attorneys must carry forward good ethical hygiene practices into their use of new digital tools. For example, understanding and requiring encryption and other security measures on tools and platforms being used for privileged communications is imperative. Attorneys should not simply assume that a tool is secure – ask questions and investigate solutions. Similarly, attorneys should clearly and unequivocally document legal issues and advice on communications facilitated on tech communication and collaboration platforms by including a legend of “attorney-client privileged” or “attorney-client communication” just as attorneys would in an email or written formal memorandum. Similarly, attorneys must ensure that they understand who has access to the advice or communications—for example, if an attorney is using a collaboration tool with a client, the attorney must understand what non-legal staff at the client has access to the tool and, as needed, discuss with the client appropriate limitations to ensure the maintenance of privilege.
Ultimately, many clients, large and small, have a new sense of urgency during the pandemic and expect their attorneys to deliver services in new and innovative ways, as well as to provide services in ways that sync up with how clients are working (which often involves workgroups, team discussions, messaging platforms, etc.). As a result, collaboration and communication tools are likely here to stay. They offer many benefits and allow seamless integration across groups. Appropriate advance consideration of the ethical issues attached to using these new and evolving tools will allow attorneys to ensure that they are embracing this new technology in a safe and secure way.
Jenn Betts is a shareholder and co-chair of the technology practice group at Ogletree, Deakins, Nash, Smoak & Stewart, an international labor and employment law firm with offices in Pittsburgh and Philadelphia. She can be reached at firstname.lastname@example.org.
Reprinted with permission from the October 1 issue of The Legal Intelligencer. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.