Legal Ethics and Remote Work | Lucian Pera

Transcript

Lucian Pera 00:00

You really do have to be cognizant, have to be aware of – situationally aware – of the fact that you’re at home and what your tech situation is to be safer.

Candice Reed 00:18

This is Leveraging Latitude: Cultivating a Full Life in the Law. And we are your hosts, Candice Reed…

Tim Haley 00:25

…And Tim Haley.

Candice Reed 00:26

Please join us on our journey as we discover how to leverage the hard work of becoming a lawyer to achieving success and leading a rich and fulfilling life in the law.

Candice Reed 00:42

Hi, Tim.

Tim Haley 00:43

Hi, Candice. I am so excited today.

Candice Reed 00:46

Why is that?

Tim Haley 00:47

Well, I’m excited about our show today. So to quote the – I’m going to not quote, I’m going to paraphrase a ’90s cultural icon, Billy Madison. We’re going to choose, I choose legal ethics today. That’s what we’re going to talk about. What do you think?

Candice Reed 01:06

Oh no, my lack of Adam Sandler trivia knowledge is going to…may handicap me somewhat today. Was that a line out of the movie or something?

Tim Haley 01:15

Well, sort of, yes. Honestly, this just proves that I’m less mature than you because I think that movie’s hilarious. I mean, it’s one of those movies that I’ve probably seen, well, I don’t want to say how many times. I don’t want you to think less than me. How about that?

Candice Reed 01:27

Before I got married, there were a few movies that my husband insisted that I watch, despite the fact that I otherwise could care less about these particular movies. Billy Madison was not one of them, but I do remember the one. It’s something similar with the Will Ferrell and he goes back to college, what is it? Oh, I’m floundering.

Tim Haley 01:52

Will Ferrell?

Candice Reed 01:53

Yeah, he goes back to college and he joins a fraternity.

Tim Haley 01:57

Oh, Old School. Yeah, it’s Old School. No, no, no, no. That was a fraternity for people who lived on a campus. They weren’t in school. That’s why it was funny. That’s why I got confused.

Candice Reed 02:08

Okay. Well, clearly I’m out of my league.

Tim Haley 02:11

No, no, no. I was saying, I was thinking Candice, you are describing Back to School, which is not Will Ferrell. That’s Rodney Dangerfield.

Candice Reed 02:19

I did see that when I was younger.

Tim Haley 02:23

The wires are crossed. Well, anyway, it’s good. We’re going to talk –

Candice Reed 02:26

What are we talking about?

Tim Haley 02:26

Legal ethics. Actually, what created this conversation is everyone’s now-obsession with remote work. And, people were working remotely before – lawyers especially were working remotely all the time before the pandemic. Go to conferences or whatever, go to depositions…And now we’re just working remotely from home.

Candice Reed 02:50

And I do think that for many attorneys who thought that remote work wouldn’t work for them, they’ve even come around to it. Right? So I know a number of attorneys, particularly litigators, it seemed, who felt this close attachment to their files and didn’t routinely work away from the office because they wanted to be close to the files and had heavy reliance upon their assistants and their paralegals and their associates. And what we have seen over the last year and a half is a number of attorneys adapting to the reality, but also recognizing that once they did adapt the work that they thought had to be done in the office doesn’t have to all be done together in an office.

Tim Haley 03:44

No, that’s right. And as firms are, well starting to come back, we’ll say, they started this summer and then a lot of places have reverted, I guess, or postponed their date to come back into the office. But as they’re starting to come back, I think there’s a collective realization that back in the office doesn’t mean back in the office five days a week required for everybody. So I think there’s just, we’re in the middle of a massive remote work revolution revelation, probably both. And – right?

Candice Reed 04:12

Right. I know we’re seeing it on the candidate side in the work that we’re doing with recruiting and placing attorneys in new positions, that is becoming the option of working remotely is now a critical benefit that attorneys are looking for when they’re considering new jobs. And that was always a nice-to-have. Or wouldn’t-that-be-nice-to-have with attorneys before the pandemic. But now for many of them, it’s a must-have. I mean, many people moved, right? I mean, they moved away from the city where their physical office was located because they were working entirely remotely. And so now they’re in a completely different state.

Tim Haley 04:57

There’s an article, I think in New York Times, or maybe the Washington Post or something a few weeks ago about how not just attorneys, other remote workers moved and then they were going to, when the orders came to get back into the office, they were just then going to tell their employers.

Candice Reed 05:13

Oh, they didn’t tell ’em on the front end?

Tim Haley 05:14

Nope, nope. So then it’s like, okay, what are you going to do about it now? So it’s not just a legal issue, but for us, for lawyers, we have professional responsibility considerations. And so that’s what I sat down and talked to Lucian about.

Candice Reed 05:27

Well, great. I’m looking forward to hearing the conversation.

Tim Haley 05:30

Well, here we go.

Tim Haley 05:39

Well, hi, welcome back. Leveraging Latitude. We’re here. Today’s guest is Lucian Pera. Lucian is a partner at Adams and Reese in Memphis, Tennessee. His practice focuses on three things, including commercial litigation and media rights litigation, and also, and what we’re going to talk to him today about is ethics and professional responsibility. Lucian, welcome.

Lucian Pera 05:59

Good to be here. Nice to see you.

Tim Haley 06:01

Thanks so much for joining us. One of the questions that I always start out with, with all our guests and our listeners are ready for this, but is just generally what’s been your path in the law? How did you get to where you are today?

Lucian Pera 06:12

Well, that’s a broad question. Let me –

Tim Haley 06:14

It is, isn’t it? It’s fun.

Lucian Pera 06:16

Yeah. Let me do the short version. Well, actually, the first part is that when I was in college decided that I wanted to be back in Memphis, home in Memphis. And given the career options I had ahead of me between journalism and law, actually decided law was the way to go, in part because there were many more opportunities to be at a high level in a location. Of course, these were vastly pre-internet days.

Tim Haley 06:40

Yeah. Where’d you go to college?

Lucian Pera 06:41

Princeton.

Tim Haley 06:42

Okay. Yeah. Moved back to Memphis.

Lucian Pera 06:44

And so I got here and really particularly the ethics part of my practice – I was with a big firm – and particularly the ethics part of my practice started with a bar project, interestingly enough. And again, pre-internet days, I pulled together all of the Tennessee formal ethics opinions into a book. We published it in a book printed on paper. I don’t know if you remember this.

Tim Haley 07:06

I remember paper, yes.

Lucian Pera 07:08

I remember paper, but books are becoming less of a –

Tim Haley 07:12

I used to love the books. The books were great.

Lucian Pera 07:14

Oh, I still, I’m a book person. But in any event, we published that it had all the ethics opinion in one place. Previously they were in a big ring binder, one copy in each of three law libraries across Tennessee. Not a good distribution method. So I published that, started getting asked questions by other lawyers. I also became my firm’s in-house lawyer. So it’s just grown from there.

Tim Haley 07:37

Well, that’s great. Today in your practice, and obviously you’re not going to reveal anything confidential, but what kinds of clients do you have in this space?

Lucian Pera 07:45

Yeah, my ethics practice is really way more – many people, many lawyers even, have no idea what that means. And really, I represent lawyers and law firms and clients and people who do business with lawyers and law firms in anything that touches on regulation. And so that runs from actually defend lawyers, mostly in Tennessee, in disciplinary matters. Sometimes I file complaints for clients in disciplinary matters, but in addition to that, I am called on as a litigation matter for all kinds of things like motions for sanctions, motions to disqualify, and some other weirder stuff. I also do barred mission work, a little bit of that. I do a little malpractice work, both well as a lawyer for rarely for the plaintiffs, but sometimes for lawyers and law firms. Then I do a lot of expert work all over, and that’s again on anything related to lawyer conduct. And then finally, advice work, not litigation, everything running from loss prevention. There’s a lawyer census, he’s got a conflict. What does he do about it? How does he protect himself and his client? All the way up to the more sort of new wavy kind of stuff about business. So law firm wants to start a new practice model. How does it do that? Lawyer needs a million dollars in investment to start up a new line of work. How can that investor, he is hooked up with get that money at work in the law firm? And that’s quite difficult actually, but it can be done. So all kinds of new wavy, new law sort of things going on there. So it’s a really wide-ranging practice, which is cool as far as I’m concerned.

Tim Haley 09:22

That sounds like a lot of fun. And listeners here know that I like to geek out on things like statistics and other oddball things, but ethics is one of them too. So this is why you and I are talking. Today, we’re going to talk about one of those – I don’t want to call it new wavy things, but it’s sort of new wavy in that the pandemic has really forced us to work differently. So we’re going to talk about remote lawyering and some of the ethical issues that come up with that. I understand that this is a broken down into two kind of big sort of subtopics. One is the ever entertaining unauthorized practice of law, and the other is the ever confusing cybersecurity issues, I guess for lawyers anyway, who aren’t necessarily techie. Let’s start with unauthorized practice, I guess. What are you seeing nationally, locally in terms of remote lawyer issues that lawyers need to consider?

Lucian Pera 10:14

Well, I mean, the first thing obviously that’s going on as a result of the pandemic is people working from home or working remotely. It’s not always home. Sometimes it’s mama’s house or sometimes it’s the lake house or whatever. But there’s a lot of that going on and the existence of the need for that because many of us got sent home with lockdown orders and all. In addition to that, there’s also the fact that as the pandemic has gone forward, the lawyers have already bought their employers have sometimes gotten less enamored of being at the office all the time. And so it’s more of an option than a requirement. But I’ll say in addition to that, and in my practice I had seen this before the pandemic and I’m seeing it way more now, the option to work remotely has also factored dramatically into career choices.

Lucian Pera 11:04

And I think that’s the right term. I had a call yesterday with a law firm in New York that has a partner who wants to move. Actually, I cannot remember now the reason. Usually there’s a nice little backstory associated with it – sometimes nice, sometimes sad. A lawyer wants to move to a certain city outside of their state because their mom is very ill. Or maybe it’s because they’re having kids and they want to be near their parents for childcare or whatever. That’s increasingly common, and firms are coming to grips with whether they’re okay with that or not. And then on top of that, of course we have a trend that some firms are adopting that technique for all of their lawyers or for substantial portion of their lawyers. So that’s where I see it come up.

Tim Haley 11:50

The virtual law firm.

Lucian Pera 11:52

Yeah, or the virtual office. And, by the way, one of the things going on here is that – and we can talk about this – but I do think there’s been some development in the regulation of lawyers to accommodate. I think there is a trend in that direction.

Tim Haley 12:05

So looking at it from a regulation perspective, what are the professional responsibility risks associated with remote work?

Lucian Pera 12:14

Well, setting cybersecurity aside, the risk is you might be guilty of the unauthorized practice law or UPL, you may be practicing where you’re not licensed. And that’s a bad thing for a lawyer that generally would be treated as if you were accused of that as a disciplinary violation. You could be censured or sanctioned, you could be suspended, you could be whatever. There are – in seminars sometimes I like to scare people a little more than that – because there are, in most states actually, criminal laws, unauthorized practice. I can only think of one instance, which was a crazy situation. I can’t even remember the details of over in North Carolina, I think where some lawyers who came in from South Carolina to do something or other were in fact criminally charged. And it was like, yes, that’s a complete overreaction, complete.

Tim Haley 13:00

I think the movie, Oh Brother, Where Art Thou?, I don’t know if you’ve seen that, the George Clooney character. I think the reason he was in jail was unauthorized practice of law.

Lucian Pera 13:07

Was it really? Oh, my god.

Tim Haley 13:08

I could be wrong on that, but –

Lucian Pera 13:11

Okay, boy, I’ll have to look that up. That’s great seminar fodder.

Tim Haley 13:16

I just remember it being a really silly reason to be in jail, but it was, I mean, a silly movie. So it worked. But okay, so unauthorized practice. Let me ask you this. So lawyers work all the time, and sometimes their job takes them to other states where they may not have a license. I know in my own practice there’d be times where I was speaking at a conference or meeting with a client and you’d be in pick a city, right? New York, Philadelphia, Los Angeles, Denver, wherever. And your in-person obligations were part of the day, but you spent the rest of the day working. Is that technically unauthorized practice?

Lucian Pera 15:51

Well, I think we’ve now gotten past the point where we think that’s true. But let me go back into the dim darkness of time for just a moment, if you don’t mind.

Tim Haley 14:00

Sure. No, that’s great.

Lucian Pera 14:01

Well, the UPL laws really date from a time, certainly back from 1900 to 1930 or whatever. But at any event, before a time, really almost before telephones, but certainly before – it was a time when lawyers practices were local and frankly, they were local in the sense that they weren’t even statewide in most jurisdictions. You may not know statewide licensure didn’t even come into being until the very last part of the 19th century, a hundred years ago, give or take. So in that kind of world, you didn’t think about lawyer mobility. But now from all the advances, even just from travel, it’s become an issue. And yes, when we started at a place where clients became more mobile and more national and more regional, we followed them. All of our activities follow our clients, not surprisingly.

Lucian Pera 14:54

And so, long about 1998, there was a decision in California from their Supreme Court called Birbrower, and it sort of broke open the whole issue. Lawyers from New York, they’re called in because they’re experts in the field. They’re called into California into dispute, I think between two software companies as I remember. And I think what happened is they camped out there to prepare for an arbitration and do some negotiating as well. They were not licensed in California, so they’re in a bunch of hotel rooms doing all this work. And then later, time comes to get their fee paid and their client doesn’t want to pay, and they wind up through various means in front of the court system. And the allegation is, well, you’re engaged in authorized practice. You’re not licensed to practice in California, you’re in California practicing, so you can’t get a fee for that. And the Supreme Court basically said, yeah, that’s a problem. And so that said, the law as it was written a hundred years ago, was not tuned up to permit those New York lawyers to do what they were doing in California.

Lucian Pera 15:58

The ABA stepped in, and by 2002, what was called the MJP Commission – the Multi-Jurisdictional Practice Commission – wrote a rule that’s now in place in 40 states, give or take, called Rule 5.5. It’s Rule of Professional Conduct 5.5. It permits in a sort of structured way, temporary practice. And so that was a huge advance, alright? And then it permits other things like broader practice for in-house counsel, generally broader practice for federal law practitioners of some types, and also includes though a ban on engaging in UPL somewhere else other than the state that adopts it or here for that matter. If you engage in UPL, you have violated that rule. It also bans having an office in the adopting jurisdiction unless you are licensed there. And it also, of course, bans holding out as a lawyer if you’re not a licensed there. So that’s where you are now. And so, okay, you’re at a conference in, you’re licensed in Indiana, I think, right?

Tim Haley 16: 53

That’s right, that’s right.

Lucian Pera 16:55

So, you go to California – well, I shouldn’t pick on California for a couple reasons – but, you go to Tennessee for example, because here we’ve got a pretty straightforward Rule 5.5. That rule says you can temporarily do a bunch of stuff here. And so you are getting on your laptop in Nashville at a conference down here and doing your work for your clients where your practice is based in Indianapolis. Not a problem, that’s covered. But that took some work. That took a lot of work.

Lucian Pera 17:20

Now we’re at a next sort of point in the evolution of all this because lawyers are even more mobile. And, by the way just one more thing, I hope I’m not going on too long. Part of the background of all this going back, I started practicing in ’86 – certainly then, but certainly going back years and years, nobody really thought that if I’m a lawyer in Memphis and I am in my office pulling a book from the shelf and advising a lawyer somewhere else like a labor lawyer, nobody really thought seriously of that as UPL. But when we started thinking about all this with Birbrower and other things, suddenly people said, well, because Birbrower had a footnote that said, well, you could practice in another state by means of phones and electronic communications and faxes and all that. And that of course wigged a lot of people out because it ran contrary to the notion that you could sit in Memphis and do your work. Anyway, I’ve gone on too long, but –

Tim Haley 18:22

No, I think that’s great. It’s new to me. My practice, I started in ’06, and so a lot of that groundwork was in place, but a lot of it wasn’t. So it was evolving even while I was practicing. So that’s really helpful background. What did the pandemic do for, I want to pick on Florida. I think they were a state that changed some of their ethics rules in particular related to unauthorized practice. What impact did the pandemic have on the evolution that you’re talking about?

Lucian Pera 18:50

Well, it freaked everybody out, just generally. I mean, and I’m not being completely facetious, it did freak us out in all manner of respects. And by the way, footnote: the states that seem generally most problematic about foreign lawyers coming in are the ones with beaches.

Tim Haley 19:06

Oh yeah?

Lucian Pera 19:07

Florida is a classic state where all of us ethics lawyers thought, oh my god, yeah, you don’t want to be caught engaging in UPL in Florida. Okay, so that said…it sent people home. It turned their practice almost entirely virtual. And many of those changes, many of those movements were across state lines. And lawyers took about two weeks to figure out that they could just as easily be at their favorite beach or whatever. It didn’t matter – nobody knew, nobody cared where they were. And so, before the pandemic, this scenario that I’m about to tell you is one that really bothered us ethics lawyers, and in retrospect, it turns out we shouldn’t have been as worried as we were. Here’s the scenario: I’m a lawyer with a practice in Indianapolis. Well then Indianapolis may not be the best place because it’s not really that close, I guess, to other states, right? It’s right in the middle of the state?

Tim Haley 20:05

We’re pretty close. Well, it’s right in the middle of the state, but we’re an hour from – two hours from almost everywhere.

Lucian Pera 20:11

What’s the nearest city that people would have a lake home at?

Tim Haley 20:14

There’s, there’s a lot of lakes, beach houses up in west coast of Michigan for people around here.

Lucian Pera 20:19

Okay, fine. There you alright, so you decide, okay, I don’t want to be parked in Indianapolis through the pandemic. So I’m going to Michigan. Mama’s got a great house up there. She doesn’t need it right now. I’m going to go park up there. Okay, so before the pandemic even, we saw that scenario and we worried that Michigan might say, well, you’re practicing law in Michigan, so therefore you’re engaged in unauthorized practice law because you have no Michigan license. The concern among ethics lawyers was relatively unfocused, but we kind of snidely or whatever snarkily called that the butt-in-seat-problem. Now, because your butt’s in a seat in Michigan, so Michigan is going to say you’re engaged in the practice of law here.

Lucian Pera 21:03

Well, what we saw during the pandemic was a series of opinions really starting – I don’t know who it started with, but the ABA issued one – but then Florida issued one and that was again, because they have a beach. The fact that they issued one sort of rocked all of our ethics lawyers conceptions here because they said that essentially if you are continuing your practice – and they didn’t use these words – but, you’re continuing your practice from somewhere else where it’s licensed somewhere else and you are in Florida physically, but that’s not a problem as long as certain things are true. And I’m paraphrasing the Florida opinion. So if Florida people listen to this, don’t hold me to every detail. But generally speaking, you’ve got to be licensed somewhere, you’ve got to be practicing under that license. Whatever the reach of that license is, you got to be consistent with that. Alright? You can’t be doing Florida work. Now what does Florida work mean? I’m not sure entirely, but in that situation, I believe it was a patent lawyer, so it was a little easier because the patent lawyer was authorized to do patent work everywhere. But continuing, you don’t want to be doing Florida work. You don’t want to have a Florida office. You don’t want to represent Florida clients. And by the way, I should also say that’s outside of patent law.

Lucian Pera 22:20

So the import of this thinking and the ABA went down this path too, in its Opinion 495 was that if you’re in Michigan with an Indiana license and you are essentially doing work that you could do under your Indiana license, but you’re just doing it for Michigan, you are fine. You probably cannot do work for Michigan clients in that setting. You cannot, without a Michigan license, you cannot open an office in Michigan. You probably cannot do Michigan matters or interpret Michigan law or apply Michigan law. But if you do that, you’re cool. And that whole scenario has basically been approved in a bunch of jurisdictions. I tried to tote ’em up this morning. I think there are probably Florida, Utah, Maine, Pennsylvania and Philadelphia both issued an Opinion D.C. a narrower Opinion, Arizona, Minnesota, I think New Hampshire, and North Carolina. And we even have private guidance from our disciplinary authority that says it’s okay. And I expect private guidance would be available in lots of other places. But let me, one more thing.

Tim Haley 23:30

Sure. No, go for it.

Lucian Pera 23:31

We ethics lawyers are really risk averse. And the Utah opinion, let’s see, I actually have it here – the Utah opinion has a footnote that basically says…it’s not even a footnote. They say, we can find no case where an attorney has been disciplined for practicing law out of a private residence or out-of-state clients located in the state where the attorney is licensed. And what they’re basically saying is, you people who are worried about the butt-in-seat rule, you are crazy. You do your research. And indeed we didn’t. So I think we sort of overreacted. And so that’s the new reigning paradigm.

Tim Haley 24:05

That’s fantastic. One thing I want to distinguish potentially, and maybe you know a little bit about this, is that unauthorized practice is different than maybe state and local income tax structures where maybe the butt-in-seat does matter. So just a note of caution, I’ll footnote on our ethics discussion to talk about taxes. How about that?

Lucian Pera 24:25

Well, I actually talked about that yesterday with a New York firm and I don’t do tax work, but here’s what I would say when you talk to your tax lawyer about that…The question was, this New York lawyer wanted to be in Tennessee. I said, well, we haven’t got an income tax in Tennessee, so you’re safe there. But I don’t know what the tax lawyer will say if you say to them, well, from a licensure point of view, the work of this Tennessee lawyer is not in Tennessee, it is in New York. Now that might not be the result you want if you wind up paying New York taxes for that. But bear in mind, as a legal matter, you’ve got a pretty good argument that the work, wherever it is, it ain’t in the host state, it’s in somewhere else. So for what it’s worth, you take that up with your tax lawyer, your next guest who’s a tax lawyer.

Tim Haley 25:07

I feel the branch beneath us getting thinner. So let’s bring it back. Let’s talk about cybersecurity and the impact of the ethics of – I mean, I talked to you before this, and I remember when I was a younger lawyer going to a CLE on email, just email, and the ethics of email and having my mind blown a little bit about just how email works really and where there are holes in that communication, the technology in that communication tool. Of course, that was 15 years ago. So where technology has just exploded, let’s talk about cybersecurity and the ethics, professional responsibility issues associated with remote work there.

Lucian Pera 25:48

Yeah, there’s been a lot of guidance from ethics opinions on this subject. The shortest possible version is that not much has changed in the ethics rules application or interpretation just because we all went home to work. There’s an Opinion – there are three Opinions actually that are the key to this from the ABA. They’re the best things to read, and they’re not too long. The one of those three that is the most important is called Opinion 477R, because they made a mistake and they fixed it so it’s revised. It provides an interpretation of fleshing out of the rules that are in place in, well more than 30 states today. And the bottom line on that is that you have an obligation to protect client confidential information, including any that’s stored electronically. And what your ethical obligation is, is that you have to make reasonable effort to prevent unauthorized or inadvertent disclosure of client confidential information. So “reasonable effort” is the catchphrase. It also means that for disciplinary purposes, you will not be disciplined. You will not lose your license if you make reasonable efforts and bad things still happen, the hackers still get in. The problem with that as the short ethics version is it really does you very little good on a daily basis in the sense that no lawyer I know wants to simply not get disciplined. And so you really do have to be cognizant. You have to aware of you’re – situationally aware – of the fact that you’re at home and what your tech situation is to be safer.

Tim Haley 27:27

Yeah, there’s reputational risk. I mean, lawyers trade in trust and cybersecurity lapses, whether they’re your fault or not, they’re chinks in that armor, I guess.

Lucian Pera 27:41

Well, and the plus side on this – I mean actually the most frequent seminar I do these days is on cybersecurity and it’s the first, if I do it for an hour, it’s maybe the first 10 or 12 minutes, that’s what I just talked about in terms of the ethics rules. Most of it is about practical stuff, what you should practically do. But the upside I will tell you, is – and I was in charge of our tech at my old firm and at this firm, I’ve been on our tech committee for, I don’t know, since 2006. But the good news for today is that the development of the technology, and particularly security has progressed so far that lawyers, they don’t really need to be personally responsible as they would’ve had to be 10 or 15 years ago. They simply need to outsource it well. And in outsourcing it, there are lots of really good options. I mean, for example, there’s been this land rush to Office 365 or Microsoft 365 tuned up right and used right on the right equipment with some help from a tech person. And you need a tech person. You do that, you live around Office 365, you’re good. That is a good security neighborhood to be in my opinion. But one last thing on that tech guru, that’s what I call ’em, you need a tech person, got to have it. I don’t see anybody crack the law without a tech person. I just think it’s, that’s the one thing, if somebody said, what’s the one thing I can do to protect myself? Well, get a tech person who’s going to answer your routine questions and be available Saturday night at 9:30 when somebody steals your laptop. I’m really not joking.

Tim Haley 29:17

I know you’re not joking.

Lucian Pera 29:19

I’m really not. Because lawyers are not unlike anybody else. And actually the thing that’ll more freak you out is losing your phone, right? This goes away, I’m going to lose my mind. So when that happens, I need a number I can call then, and I don’t care if it’s 9:30 at night or 5:30 in the morning. You have to have somebody you can call who can say, “Okay, Lucian, come in off the ledge. Here are the three things we’re going to do.” So that’s my primary advice.

Tim Haley 29:47

Yeah, the phone one is…that one cuts a little deep. Everybody loses their phone from time to time. That’s pretty scary stuff. Well, what do you see going forward, actually, let’s talk about some practical tips, just real briefly, practical tips on cybersecurity. What would you recommend for remote practitioners?

Lucian Pera 30:04

My number one rule, I mean, I do a thing where I got about 20 things like that I talk about, but my number one rule is almost always about having your tech guru available and then having conversations with them. And they’re the ones who ought to tell. I mean, as an example, Microsoft 365, they’re not paying me. They probably should.

Tim Haley 30:24

I’ll call Bill Gates for you.

Lucian Pera 30:25

Yeah, let Bill know. But they have security features bundled together into what used to be called, was it Secure? Secure something, Secure Score or something like that. But they bring into one place their security features. So you can tick ’em on, tick ’em off, like two-factor authentication or whatever. Then they give you a score of how good your security is and tell you how you can improve it. It’s helpful, but like everything Microsoft, it has dozens and dozens of options. My advice is use Office 365, bring your tech person in to help you set it up. So that’s the use of the tech guru, I think is really number one with a bullet.

Lucian Pera 31:03

The other thing I would say, it’s usually the last thing I talk with about people in the seminar is I’m convinced that lawyers are never going to be able to do our own security. We need to outsource it somewhere. So we vet our cloud vendors and all that sort of thing. But I think we can be more savvy about security if we’re more competent with tech. And so we’ve all gotten more competent with what we’re on right now, and there are security risks to Zoom. But the more we use it, hopefully we can be more aware and learn more about that. We still see lawyers screwing up redaction to their clients’ embarrassment and their own embarrassment. Okay. So my advice is you should be in a sort of continuous improvement loop. You should try to learn something new on a basic tech competence level every month or so. And the simplest thing, I mean, I’m in an old style office in the sense that we have assistants and all this sort of thing, and my assistant knows way more than I do about tech. So yeah, talk to your assistant about how to do footnotes in Word. If you don’t know how to do that or how to do a table of contents in Word. Learn how to do that. If you do briefs or redaction, get her to tell you or your tech help desk or whoever it is, watch a YouTube video to learn how to redact appropriately. Because my view is the more you’re able to do more of that. I mean, e-filing is another one. A lot of lawyers do not do their own e-filing, which is fine, but I’m convinced that if a lawyer takes the time to learn how to do that, even if they’re not going to do it all for themselves, they will be more sensitive to the tech security issues that come across their path. So those are the two big things I would point to is tech guru and educate yourself more about confidence, learn new skills.

Tim Haley 32:46

That’s great. Yeah, e-filing especially. I did my own e-filing, but that’s because it was usually my signature on it, and I felt weird about having somebody else do that. But anyway, I’ve had three more questions for you. Let’s talk about the future of remote work. I mean, the pandemic was hopefully, I mean it’s bad right now, but hopefully it’s a temporary condition in the history of mankind. But for our economy, the way that at least in the U.S. and globally, lawyers practice law, what’s the future of remote work?

Lucian Pera 33:16

I wish I knew. Clearly we are collectively going to be doing more remote work as a part of everybody’s work, I think. Also more people are going to be doing almost exclusively remote work. That said, I think it’s like every other communications tool we have – different ones are good for different purposes, and remote work is less effective for some purposes and less effective for some work environments, even some law firms. So for example, our firm, we have 260 something lawyers in I think it’s 15 offices. And we have for a long – since I joined the firm in ’06, so since before then, we pride ourselves on, I think accurately, doing team collaboration across our offices. So we’ll have pick your thing, I mean, it’s forestry lawyers or contract or other M&A-type lawyers or even trial lawyers. We’ll put together a team across all our offices.

Lucian Pera 34:14

And so in ’06, one of the cool things was we said, we have video conference rooms in all our offices, and they’re not for the outside world. They’re for us, which was kind of a big deal. And we have phone, we have 5-digit phone numbers for everybody. Everybody, everyone. So, for a firm like ours, the current thinking is that, yeah, we pivoted to remote work quickly because we had the tech and we knew, I mean, I would work every day with a lawyer in New Orleans or Nashville or whatever. I’m in Memphis. At the same time, our management has clearly decided that they think our collaborative approach needs physical presence. So we’re not going to go, we’re just not going to adopt to be a virtual law firm. On the other hand, we’ve hired I think two lawyers in the last few months where they’re going to be remote permanently. So it’s going to be a mix for a lot of firms. But we talked about before we got going, this notion of the virtual law firm. There are a number of those who, that’s their thing. Their thing is they don’t have offices. You go to their website, they got no offices shown by lawyers names.

Tim Haley 35:17

So professional responsibility that question that comes up in my mind, hearing about remote lawyers is the conflicts question. Are these remote lawyers associated with the law firm for imputed conflicts purposes?

Lucian Pera 35:31

Yes, in many cases, but 20 years ago, or I guess longer when I started doing this work, you’d think if somebody were working remotely, your gut reaction would be, well, they’re not really part of the firm or whatever. Well, no, we do have some learning on that in the contract or temporary lawyer area. And if they know about contractor temporary lawyers, what most lawyers would know as well, we can bring in somebody to work on a project and we don’t inherit each other’s conflicts, et cetera. Okay, that’s accurate. This is all based on the rule of imputation, of how conflicts get imputed back and forth between lawyers. In my firm, all of my conflicts are my partner’s conflicts. But I bring a contract lawyer in to work on a big case or project, the learning that’s been out there since the ’80s is that if you keep that person confined to only work on that one or two or whatever projects, and you don’t share confidential information with them, and you put essentially something like what we used to call a Chinese wall in to protect them from getting other information. So you kind of wall ’em off, whether they’re physically there or not, then they do not share conflicts. And that’s all a riff on the language in Rule 110 about being associated in a firm. If you’re associated in a firm, you share conflicts. And the notion was that if you do prevent the contract lawyer from having confidential information be shared and such, then they’re not associated with the firm, so the fact is with a remote lawyer, it depends. I mean, for me, I don’t care where I’m working. I’m associated in a firm with my partners. On the other hand, a contract lawyer we hire would not be, so I don’t think the remoteness of the work matters. And frankly, it’s one place where the rules – you didn’t have to think about revising the rules when the pandemic hit because they were already tuned up for this.

Tim Haley 37:24

No, that’s great. I think in some lawyers’ minds, remote and contractor/temporary are synonymous. And I think it’s a fair point that that doesn’t have to be true.

Lucian Pera 37:33

Well, and further, there are firms that, because I know this from much of my work, that there’s some firms that prefer or insist even on having the contract lawyers they hire…Let’s assume they’re doing due diligence, and this was at least before the pandemic, but let’s assume they’re bringing in five lawyers to do due diligence on a big deal. They insist they’d be on premises, they got a room for them. And that was for various supervision reasons and all that. I don’t know really if that’s true anymore. I frankly might be surprised. But I’ve dealt with some big firms addressing issues like that, and they have very particular ideas about what they want. So no location really doesn’t matter in that sense, on sharing conflicts.

Tim Haley 38:12

Fantastic. Last question for you and Lucian, I want to thank you for your time. I have heard through the grapevine, and I don’t know if my source is accurate or not, but I heard you share a birthday with a very famous luminary Memphis figure, maybe outside of Memphis, maybe Graceland area. What’s your connection with Elvis?

Lucian Pera 38:30

Well, that’s actually, it’s not quite fake news, but there I have to tweak it a little bit. I don’t share a birthday with, but actually my mother shared a birthday with Elvis. But the reason that the person, you heard this from who I think I know who that would be, but that you’ve got that kind of connection from her is that every year on the anniversary of The King’s birth, I do a greeting card. I do a greeting card that on its cover has a classic Elvis photo. That photo is borrowed from, with the permission of The Commercial Appeal, the newspaper in Memphis that I represented and have represented forever. So on the front, the front is picture Elvis, the early ones are the favorites. People love those. You open it up. And then on the inside left, there’s a little bit of backstory about the photo and what it’s related to what was going on. And then on the other, it is a birthday greeting card. It’s celebration of the birth of the king of rock and roll. And I usually include a footnote that says, my mama shares the same birthday. She died this year, but before it always said, so if you want to give her a call or drop her a note wishing her happy birthday, please do so. But that’s the connection I send that out to, well, more than a few close friends all around the country.

Tim Haley 39:43

Well, my contact and connection is going to hear from me on this. But another fun Elvis connection. Do you know where his last show was? His last opening?

Lucian Pera 39:52

Indianapolis.

Tim Haley 39:52

That’s right. That’s right. Right down the street.

Lucian Pera 39:54

I am not the world’s best expert on Elvis by any stretch, but actually, we had a Bar meeting years ago where we had that person who was a young lawyer at the time at our meeting, and we did a trivia contest, and we said, we have to have one in here he won’t know. And so we asked, “what was his army dog tag number?” He missed it by one digit.

Tim Haley 40:14

Oh my gosh, I couldn’t answer that. I have no idea.

Lucian Pera 40:18

We all pretty much freaked out in any event, but visit Graceland for the Memphis Convention and Visitors Bureau and Graceland Enterprises. I would tell you, everyone out there, everyone listening, should make it a lifetime goal to visit Graceland. Even if you’re not an Elvis fan. I’ve never spoken to anyone who’s gone to Graceland, even non-Elvis fans, who hasn’t come out and said, “that was really interesting.” So, I’m just saying.

Tim Haley 40:43

Well, Lucian. I think that’s all that I have. Do you have anything else you want to say? Parting words?

Lucian Pera 40:48

No, not really. But as the king would say, thank you. Thank you very much.

Tim Haley 40:52

Thanks, Lucian.

Tim Haley 41:02

Alright. Candice, you’re going to have to confess. I caught you in a lie.

Candice Reed 41:10

Ooh, what? Which one?

Tim Haley 41:12

There you go. No, the little birdie who told me that Lucian’s birthday was the same day as Elvis. That was wrong.

Candice Reed 41:20

Is that his mom?

Tim Haley 41:23

Not in the text you sent me.

Candice Reed 41:26

I did! Go back. Nope. I have my phone right here.

Tim Haley 41:28

Go back ahead and read it.

Candice Reed 41:30

Continue with whatever else you were about to say.

Tim Haley 41:35

I don’t want to call you out. I just called you out. I’m sorry. It was okay. It worked out well. Elvis is a good guy.

Candice Reed 41:41

Yes. Let me read you my text. “When you interview Lucian for the podcast, you may want to ask him about Elvis. He shares a birthday with Elvis (or perhaps his mom does). Instead of Christmas cards, he sends clients cards on Elvis’s birthday every year to commemorate the holiday.” Boom.

Tim Haley 42:01

I had to pick one. I went with your first one. I went with the first one.

Candice Reed 42:05

You ignored the parenthetical. Don’t ever ignore the parenthetical.

Tim Haley 42:10

It’s like – it’s not like an interview. It is an interview.

Candice Reed 42:17

Well, I have had the pleasure of knowing Lucian for many years. As many attorneys will recognize, he is the preeminent source on all things legal ethics in the country, and we’re lucky to be able to partner with him at Latitude and just rely on his sage counsel. But he also is very funny and witty and just a really nice person, and I look forward to those cards every year. So hopefully, even though I wasn’t –

Tim Haley 42:52

Totally correct.

Candice Reed 42:53

Totally sure of whether it was his or his mother’s birthday, I hope he’ll keep me on the list to receive those cards.

Tim Haley 43:01

I just hope he’ll take my call again.

Candice Reed 43:03

You better hope I take your call again.

Tim Haley 43:08

Fair enough. Fair enough. Well, I guess that’s all we’ve got today.

Candice Reed 43:13

Yeah. Thank you so much for the interview. That was really informative and just about as much fun as we could have talking about legal ethics. So good for both of you for making that topic interesting and entertaining. So, thank you.

Tim Haley 43:27

It’s my mission to make everything entertaining. So there we go.

Candice Reed 43:32

You do a good job.

Tim Haley 43:34

We’ll see you guys all next time.

Candice Reed 43:35

Goodbye.

Tim Haley 43:39

Thank you for joining us today. If you found this content valuable, please tell a friend or colleague about us. Also, if you can, please give us a rating and a short review on your podcast listening platform. The more ratings and reviews we have, the more people will find us. If you have a question, reach out to us at latitudelegal.com.