This is an edited excerpt from an article written by Kimberly E. Lomot, Sarah Scott, and Stacey C. Tyler in the Summer 2021 edition of the NJSBA Real Property Trust and Estate Law Section publication. Read the full article and issue here (login required).
While flexible work environments and co-working spaces like WeWork have been rapidly growing in popularity and availability over the last several years, most legal practitioners have stuck with a more traditional office space model, going to the same building every day, having our own reserved offices, and maintaining private conference rooms and common areas where we can receive clients. Then 2020 happened, and we collectively learned that we can work from home (or live at work, depending on how you look at it) with little to no need for the physical spaces of the past.
Now that we are looking forward at what our practices will look like in a post-COVID-19 world, many attorneys are seeing the value of a weekly model with a hybrid of in-person and remote work. As a result, firms are re-evaluating their office space needs and considering shorter and more flexible terms than a traditional office lease can provide. While co-working spaces can provide a solution, attorneys need to carefully consider how their use can impact ethical concerns our professional responsibilities.
At the forefront of potential ethical concerns for an attorney using a co-working space is whether the space offers an attorney the ability to comply with their confidentiality obligations under New Jersey’s Rule of Professional Conduct 1.6. All attorneys are bound by the duty of confidentiality to protect their clients’ and prospective clients’ information.
Using a co-working space as your main office leaves you potentially vulnerable to violations simply due to the nature of the set-up. Most co-working spaces function as large rooms with many desks, which may be a convenient and economical set up, but what happens when your client calls you with an emergent issue? Taking a call in the middle of a crowded room means anyone could overhear your call, which is especially likely if the room is noisy and you need to speak up in order to be heard by your client.
When you are sharing space, your duty of confidentiality does not go away simply because you trust the people who may be overhearing your conversations. Further, if the co-users in your shared space are not your firm colleagues, you are not at liberty to discuss theories, your clients’ case, their legal position, strategy, etc. Despite a collegial atmosphere, your clients are relying on you to maintain their confidentiality, and off-the-cuff questions and conversations can put this at risk. Questions to consider in order to mitigate such risks are:
- Are private office spaces available for confidential phone calls, meetings, etc.?
- How early do you need to reserve the spaces? Can you pop-in as needed?
Protection of electronic files
Attorneys are on notice that they must be vigilant in protecting their clients’ electronically stored information. Given that law firms have become victims of hackers in the very recent past, this is a legitimate and growing concern, especially for attorneys working in co-working offices. More alarmingly, the cybersecurity section of the 2019 American Bar Association Tech Report notes that while 26% of respondents had already been the victim of a hacker, an additional 19% were unsure and could not confirm one way or the other. Questions to consider are:
- Who is in control of the internet network? Can you individualize access; create your own VPN, etc.? Are there safeguards in place to protect against unauthorized access to the network?
- Do you have the ability to encrypt your emails and documents? How locked down is your document management system?
- Is the Licensor liable under the License Agreement for any data breaches? Does the License Agreement address these concerns?
- Does your computer/laptop/tablet have the capability to lock immediately, so that it is not unattended and accessible? Do you make sure to lock it every time you get up?
- Do you have a “cheat sheet” to help you keep track of your passwords, and if so, is it accessible by others in your workspace?