Since the start of the pandemic in early 2020, working from home has become mainstream and easier than ever. Here are 10 nuanced issues that estate planners should consider working successfully (ongoing) remotely.
- professional responsibility
Remote work is a balancing act. We must be aware of our professional responsibility obligations, run our practice effectively and keep customers happy, all while trying to enjoy everything that drives us to work remotely in the first place. . Due to the significant increase in remote working, the American Bar Association (ABA) published formal opinion 498, “Virtual Practice” on March 10, 2021. Opinion outlines the various model rules of business conduct inherent to working remotely and highlights best practice. This makes it clear that virtual practice is a viable option for lawyers. Different states are likely to have their own opinion.
- paperless exercise
While the notion of a paperless practice may sound like an oxymoron to an estate-planning attorney, it is very possible. My clients keep their original documents. I have a Will safe in the office for occasional storage of the original documents. However, for most of our purposes, all documents are scanned and saved in a client file, which is completely digital.
The first question I faced when deciding to create a paperless exercise 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 research, I was quickly overwhelmed by the terminology that clashed with tax acronyms. I was out of my league. Web-based document management systems seem more geared to lawyers who just want to be a lawyer and keep all issues in simple English. I took a web-based road trip and found success.
- Network and Computer Security
Data security may be the most important factor in remote work, as lawyers are charged with protecting clients’ confidential information. For example, remote working using free WiFi at a local coffee shop is very risky and unfair. If a private network is not available, working with a personal mobile hotspot is an option. If working over a network, it should at least be password protected. If working regularly in a remote location off the same network, consider hiring an IT team to monitor the network for potential security breaches. Every computer used for remote working must be protected with antivirus software.
- physical environment
The physical setup is important for working remotely for a variety of reasons, including protecting client privacy, ergonomics, and being able to work in peace. Privacy is one of the most important concerns with a home office. Customer information should not be scattered about the home and should not be visible or accessible by others. The computer should be out of range for other family members. The lawyer should be able to make video conferences and phone calls in private.
It is easy to overlook ergonomic comfort at home but it is just as important as it is in a true office environment.
- customer expectations
Pre-pandemic customer expectations were different than they are today. I found that there was a general expectation that a lawyer would sit in his office. The meetings I couldn’t schedule in person were usually by phone. That being said, even when choosing to work remotely, an attorney must consider the impact on the client’s expectations.
- remote meetings
In my humble opinion, there is no more effective way of communicating with customers than meeting them in person. Being in person allows the attorney to detect facial expressions and body language, understand the context, and know who is in the room with the client. Remote work does not allow in-person meetings unless the client is local to the remote location.
Video conferencing is the next best thing to in-person meetings. There are many options for video conferencing with customers. Zoom, Microsoft Teams and WebEx are probably some of the more popular options. The factors that matter to me are ease of use, security, and the ability to share screens for my customers.
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 attempt to identify all persons in the room with the client, if possible, and consider adjourning the meeting if any concerns appear.
Perhaps the most important challenge for estate-planning lawyers at the start of the pandemic was signing a will or trust. Remote notarization was a new concept, adopted in some jurisdictions, but not used for estate-planning documents. Some jurisdictions have now legislated for electronic signatures of wills, and others are considering the idea. If working remotely full time, this is a consideration.
- team supervision
Supervising a team while working remotely means I’m connected with my group on a daily and ongoing basis. We can video conference, talk over phone and email. They need to know, and I need to demonstrate, that I’m actually working and not walking around in the sun (unlikely in remote Alaska due to snow, ice, moose and bear interference). One of the challenges of leading a team remotely is staying connected with each other. Everyone on my team has access to my calendar, and we hold regular meetings in addition to phone and video communication as needed.
Email presents security and privacy issues that exist regardless of whether an attorney works remotely or from a brick-and-mortar office.
The ABA published its formal opinion August 11-459. 4, 2011, regarding the duty of an attorney to protect the confidentiality of emails with clients. In short, attorneys should take reasonable precautions to protect email and warn clients against using their work email address for legal advice.
Lawyers are not required to encrypt all email, or even any email, although sometimes encryption is prudent.
- state license
State licensing can be a concern when working remotely across state lines. ABA Model Rule 5.5 prohibits an attorney from the unauthorized practice of law. Rule 5.5(b) focuses on establishing an office in a jurisdiction, “an orderly and continuous presence” in the jurisdiction “for the practice of law” and conveying to the public that an attorney is admitted to that jurisdiction. Perhaps a 1-week stint in a sunny location is not an issue, as this kind of activity implies none of the above; However, having a home in another jurisdiction requires further investigation.
ABA formal opinion 495, “Lawyers working remotely,” December 16, 2020, analyzes the cross section between remote working and unauthorized practice of law. The opinion essentially leaves the determination up to the jurisdiction where the lawyer is physically located. That is, if an attorney is physically located in Florida while practicing law in Alaska, it is up to Florida whether the attorney must be licensed to practice law in Florida.
- state income tax
Working remotely across state lines can have state income tax implications if the attorney spends a lot of time or resides in the state where he is physically located. Since there are only nine states without individual state income tax, most states bring the concern of income tax. For lawyers working remotely for a week or other very short periods of time, there may not be a problem. If an attorney is spending regular time in another state, however, further investigation is necessary to determine whether there is an income tax issue as a part-time resident. A full analysis is beyond the scope of this article.
*Full version of this article, “working from the cabinAppeared in the February 2022 issue of Trust and Estate.
