By David Hricik, Mercer Law School
The American Bar Association committee on professional ethics issues opinions on issues which, while not binding on any jurisdiction, often have sway over courts and bar associations in malpractice or disciplinary matters. If you follow their guidance, you, in a sense, start off in safe harbor. Most state rules are similar to the Model Rules, and the USPTO’s disciplinary rules are similar, but not identical, and the USPTO did not adopt the comments to the model rules. Thus, the OED is not bound by ABA ethics opinions but they hold sway.
In ABA Formal Ethics Opinion 498 (March 10, 2021) (here), the ABA provided guidance on the ethical issues that we all have done a lot of the last year, and which I am guessing we will continue to do for a while: practice law outside the confines of a typical brick-and-mortar, or steel-and-glass, law office. The abstract of the opinion states:
The ABA Model Rules of Professional Conduct permit virtual practice, which is technologically enabled law practice beyond the traditional brick-and-mortar law firm.1 When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology. In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Additionally, the duty of supervision requires that lawyers make reasonable efforts to ensure compliance by subordinate lawyers and nonlawyer assistants with the Rules of Professional Conduct, specifically regarding virtual practice policies.
I have probably given six or so CLEs this past year on ethical issues in law practice, and the need for technological competence is a critical factor, as is the related need to ensure good document retention: lawyers should use reasonable care and memorialize a client’s important decision in something other than a text or phone call. Also, in-house counsel who are employed by a company in a state where they are not licensed — and so who practice under a state “registration” rule or statute — need to very carefully read the likely applicable rule or statute to avoid, among other things, the unauthorized practice of law. I would also add that, based upon the traffic on listservs I’m on, being careful to ensure things get filed timely with the USPTO is important (PAIR seems to be having a lot of issues lately!).