Ever since the onset of the pandemic in early 2020, working from home has turned mainstream and is easier than it used to be. Here are 10 nuanced issues estate planners should consider to successfully (continue to) work remotely.
- Professional Responsibility
Remote work is a balancing act. We must be cognizant of our professional responsibility obligations, run our practice effectively and keep clients happy, all while trying to enjoy whatever it is that prompted us to work remotely in the first place. Likely due to the significant increase in remote working, the American Bar Association (ABA) published Formal Opinion 498, “Virtual Practice,” on March 10, 2021. The opinion outlines the various Model Rules of Professional Conduct implicated by working remotely and highlights best practices. It makes it clear that virtual practice is a viable option for attorneys. Various states likely have their own opinions.
- Paperless Practice
While the notion of a paperless practice may seem like an oxymoron for an estate-planning attorney, it’s very possible. My clients keep their original documents. I do have a will safe in the office for the occasional storage of original documents. For the majority of our purposes, however, all documents are scanned and saved to the client file, which is purely digital.
The first question I faced when deciding to create a paperless practice was whether to have my own server or use a web-based document management system. My first instinct was to use a server that I could access remotely; however, I knew absolutely nothing about servers. After a little bit of research, I quickly became overwhelmed with terminology that rivaled tax acronyms. I was out of my league. The web-based document management systems seemed more geared to lawyers who just wanted to be lawyers and have all of the issues laid out in simple English. I traveled down the web-based road and found success.
- Network and Computer Security
Data security may be the most critical factor to remote working, as attorneys are charged with safeguarding clients’ confidential information. For example, remote working by using the free Wi-Fi at the local coffee shop is too risky and inadvisable. Working from a private mobile hot spot is an option if a private network isn’t available. If working on a network, it should be at a minimum secured with a password. If working regularly at the remote location from the same network, consider hiring an IT team to monitor the network for potential security breaches. Each computer used for remote working should be protected with antivirus software.
- Physical Environment
The physical setup for working remotely is important for various reasons, including protecting client confidentiality, ergonomics and being able to work in peace. Privacy is one of the most significant concerns with a home office. Client information shouldn’t be strewn about the house and visible or accessible by others. The computer should be off-limits to other family members. The attorney should be able to conduct videoconferences and phone calls in private.
Ergonomic comfort at home is easy to overlook but just as necessary as in a true office environment.
- Client Expectations
Pre-pandemic client expectations were different from today. I found that there was a general expectation that a lawyer would sit in their office. Those meetings that I couldn’t schedule in person usually were by phone. That being said, when choosing to work remotely, a lawyer should still consider the impact on client expectations.
- Remote Meetings
In my humble opinion, there truly is no more effective way to communicate with clients than to meet with them in person. Being in person allows the attorney to gauge facial expressions and body language, understand context and know who’s in the room with the client. Remote work doesn’t allow for in-person meetings unless the client happens to be local to the remote location.
Videoconference is the next best thing to in-person meetings. There are numerous options for videoconferencing with clients. Zoom, Microsoft Teams and Webex perhaps are some of the more popular options. The important factors for me are ease of use for my clients, security and the ability to share screens.
A potential concern with remote meetings is the physical environment for the client and the impact on the client’s ability to freely share confidential information. The attorney should try to identify all individuals in the room with the client, if possible, and consider postponing the meeting if there appears to be a concern.
Perhaps the most significant challenge for estate-planning lawyers at the start of the pandemic was the signing of a will or trust. Remote notarization was a new concept, adopted in some jurisdictions but not used for estate-planning documents. Some jurisdictions now have enacted legislation for the electronic signing of wills, and others are considering the idea. If working remotely full time, this is a consideration.
- Overseeing the Team
Overseeing the team while working remotely means that I’m engaged on a daily and ongoing basis with my group. We can videoconference, talk by phone and email. They need to know, and I need to demonstrate, that I’m indeed working and not lounging about in the sun (unlikely in remote Alaska, due to the interference of snow, ice, moose and bears). One of the challenges of leading a team from afar is staying engaged with each other. Everyone on my team has access to my calendar, and we schedule regular meetings in addition to as-needed phone and video communication.
Email presents security and confidentiality issues that exist regardless of whether a lawyer works remotely or from a brick-and-mortar office.
The ABA published Formal Opinion 11-459 on Aug. 4, 2011, regarding an attorney’s duty to protect the confidentiality of email with clients. In short, lawyers must take reasonable precautions to safeguard the email and should warn clients against using their work email addresses for legal advice.
Lawyers aren’t necessarily required to encrypt all email, or even any email, although sometimes encryption is prudent.
- State Licensure
State licensure may be a concern if working remotely across state lines. ABA Model Rule 5.5 prohibits a lawyer from the unauthorized practice of law. Rule 5.5(b) focuses on establishing an office in a jurisdiction, having “systematic and continuous presence” in the jurisdiction “for the practice of law” and holding out to the public that the lawyer is admitted in that jurisdiction. Perhaps a one-week stint in a sunny locale isn’t an issue, because such activity implicates none of the above; however, having a home in another jurisdiction requires further inquiry.
ABA Formal Opinion 495, “Lawyers Working Remotely,” Dec. 16, 2020, analyzes the cross section between working remotely and the unauthorized practice of law. The opinion essentially leaves the determination up to the jurisdiction where the lawyer is physically located. That is, if a lawyer is physically located in Florida while practicing law in Alaska, then it’s up to Florida whether the lawyer must be licensed to practice law in Florida.
- State Income Tax
Working remotely across state lines may have state income tax implications if the lawyer spends too much time or has a residence in the state where physically located. As there are only nine states without a personal state income tax, the majority of states bring the concern of income tax. For lawyers working remotely for a week or other very short time, there may be no issue. If a lawyer is spending regular time in another state, however, further inquiry is necessary to determine whether there’s an income tax issue as a part-time resident. A full analysis is beyond the scope of this article.
*The full version of this article, “Working From the Cabin,” appeared in the February 2022 issue of Trusts & Estates.
