As lawyers rush to claim a stake in the Metaverse, it’s vital to consider how the Rules of Professional Conduct will apply. Is it a virtual Wild West, with little or no jurisprudence to guide its players? Or is it the next iteration of the internet where competing avatars understand the legal and ethical norms of a thriving commercial wonderland?

This two-part article addresses fundamental ethical norms lawyers must consider when practicing in the Metaverse, primarily through the lens of the Model Rules of Professional Conduct, and suggests areas of possible change for this new environment. In Part I, we focus on the lawyer-client relationship. Part II will concern itself with the ethical rules that apply to law firms and associations as well as the advertising of legal services.

Ethics, Technology and the Metaverse

The legal industry—historically traditional, conservative and risk-averse—has been slow to adopt new technologies. Email and even computers were resisted at first by lawyers due to our paramount obligation to protect confidential information. But these conservative tendencies run counter to the parallel duties of lawyers to zealously and competently represent clients. Fortunately, the profession has experience in confronting a variety of ethical dilemmas stemming from emerging technologies.

In 2012, the American Bar Association amended the commentary of several key model rules to account for the increased role of technology in the profession. Over the past decade, virtual interactions have become an increasingly important part of life for consumers and businesses. This trend accelerated during the COVID-19 pandemic, which suddenly forced everyone into a virtual world. As a result, the ABA’s Committee on Ethics and Professional Responsibility (and many state and local committees as well) provided ethical guidance to reconcile the rules of professional conduct governing lawyers with the virtual practice of law.

Interest in virtual interactions has recently centered on the Metaverse, with major companies and brands like Nike and Gucci announcing metaverse initiatives. While still in its nascent stage, the Metaverse is conceived as a 3D digital world that is multifaceted, decentralized and interactive. It allows users to immerse versions of themselves as avatars in its environment, usually through augmented reality (AR) or virtual reality (VR). Thus, it has the potential to revolutionize the way users interact with each other and with digital content in an immersive virtual environment. Despite reference to the Metaverse, there is no singular Metaverse experience. The term instead refers to an idea likely to be embodied in multiple virtual worlds, where technology can bring content in ways never imagined before.

A growing number of law firms have already put down stakes and bought property in the Metaverse, including ArentFox Schiff, Benesch, the Rose Law Group, and Pond Lehocky Giordano. But as law firms enter this virtual environment, there is scant guidance on what rules of professional conduct would apply in the Metaverse, nor has the ABA’s Committee on Ethics and Professional Responsibility directly addressed the issue yet.

Professional ethics are central to ensuring an independent, competent, effective and accountable legal profession. This article explores how rules of professional conduct would apply in the Metaverse and whether they need to be amended to accommodate this new set of interconnected 3D environments.

Competence, Diligence and Communication (Rules 1.1, 1.3 and 1.4)

The core ethical duties of competence, diligence and communication of lawyers with their clients are addressed in Model Rules of Professional Conduct 1.1, 1.3 and 1.4 respectively. These responsibilities lie at the heart of a lawyer’s professional obligations and remain unchanged irrespective of a lawyer’s physical location.

Competent representation implies the legal knowledge, skill and preparation reasonably necessary to represent a client. Comment 8 to Rule 1.1 explains that to maintain this requisite knowledge and skill, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” Lawyers should also act diligently, which implies promptness in representing a client, a commitment and dedication to the interests of the client, and zealous advocacy on the client’s behalf. Rule 1.3. Thus, a lawyer should not accept work that cannot be carried out in a competent and timely manner.

Communication between lawyer and client is necessary for the client to effectively participate in the representation. Whether interacting face-to-face or through technology, lawyers must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished; keep the client reasonably informed about the status of the matter; and promptly comply with reasonable requests for information.” Thus, lawyers must ensure that their responsibilities regarding competence, diligence and communication are fulfilled when practicing in the Metaverse. Since the contours of the Metaverse are not yet defined, special training may be necessary before acceptance of a representation in the Metaverse. Additional commentary should be added to Rule 1.1 for this purpose. If, for any reason, a lawyer cannot fulfill the lawyer’s duties of competence, diligence and other ethical duties to a client, the lawyer must withdraw from the matter.

Communication between lawyers and clients, including discussion of sensitive facts or secrets, is critical to effective and ethical lawyering. If the communication will be conducted primarily or entirely virtually, the lawyer may need to take extra precautions to ensure that communication is adequate and is received and understood by the client. The transformative role that the Metaverse may play in legal representation makes communication between the lawyer and the client all the more essential to ensure a productive, ethical representation. The Metaverse may bolster client communication as a new way to interact with them and could be better for clients who are unable to get to brick-and-mortar law offices because of time constraints, safety concerns or disabilities. It could also reinforce client privacy for prospective clients who may be more comfortable talking freely behind an avatar about sensitive topics. But communicating with clients in the Metaverse may also be difficult considering how little people know about the it thus far. Because the Metaverse entails gathering, “datafying,” formatting and using sensitive client information in new ways, Rule 1.4’s requirements regarding communicating with clients about the means by which their objectives will be accomplished will be of paramount importance. Not only will lawyers need to discuss with clients the potential risks to their information, but also the fundamental nature of the Metaverse as a means of assisting with the representation or being the sole platform of representation.

Confidentiality (Rule 1.6)

Under Rule 1.6, lawyers have a duty of confidentiality to all clients and “shall not reveal information relating to the representation of a client,” absent a specific exception, informed consent, or implied authorization. Rule 1.6.

A corollary of this duty is that lawyers must make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Thus, lawyers must take affirmative steps to ensure certain client information remains confidential. The following nonexhaustive list of factors may guide the lawyer’s determination: “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).” As ABA Formal Opinion 477R notes, lawyers must employ a “fact-based analysis” to these “nonexclusive factors to guide lawyers in making a ‘reasonable efforts’ determination.”

Similarly, lawyers must take reasonable precautions when communications contain information related to a client’s representation. At all times, but especially when practicing virtually in the Metaverse, lawyers must implement reasonable measures to safeguard confidential information and take reasonable precautions when transmitting such information. This responsibility “does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy.” However, depending on the circumstances, lawyers may need to take special precautions. Factors to consider in determining the reasonableness of the “expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.” As ABA Formal Opinion 477R summarizes, “a lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access.”

Rule 1.6 focuses mostly on security. The emergence of the Metaverse, and its use of cloud services, will certainly magnify security challenges and will change the way client information is gathered, datafied, formatted and used, such that keeping unwanted eyes off of a stored document will no longer be sufficient to ensure that a client’s confidential information is protected in the ways that they would expect.

As such, privacy risks within the Metaverse are particularly relevant, given the new information it will collect on its immersive platforms, and the ways such information is collected. These platforms currently track a user’s head movement and could be configured to track eye movement. As VR devices get more sophisticated, they will likely come with peripherals that gather biometric data such as a user’s heart rate and hand movements. With such technological developments, companies will be able to track a user’s every move. Every movement will be susceptible to being stored forever.

Metaverse users each get a unique avatar—which may or may not resemble them in looks, gender, age or other identifiers—offering a degree of anonymity and the possibility of seeking counsel anonymously. This may allay a prospective client’s concerns about discrimination or encourage the client to speak more freely about sensitive issues, thereby accomplishing Rule 1.6’s goal of promoting a candid and complete communication between the client and the lawyer.

That an increasing quantum of sensitive information will not only be collected but stored in perpetuity could threaten this comfort and trust that fosters critical openness. Therefore, protecting confidentiality in the Metaverse must go beyond merely ensuring security and must encompass a thorough understanding of how the Metaverse works, communicating with former, prospective and current clients to understand their expectations and preferences, and ensuring that designers and managers of the Metaverse, including third parties, appreciate the importance of confidentiality in the lawyer-client relationship.

Avoiding a Conflict of Interest (Rule 1.7)

Whether practicing in the real world or the Metaverse, acting in the best interest of the client requires that lawyers avoid a conflict of interest. In determining whether a conflict of interest exists, one must determine whether external interests—the lawyer’s or those of other clients or third persons—are likely to impact the exercise of the lawyer’s independent professional judgment. Conflicts of interest may also arise as a result of current or past representations. When concerns of a possible conflict do arise, lawyers are guided by the standards of conduct set forth by the Restatement of the Law Governing Lawyers and the Model Rules of Professional Conduct.

Rule 1.7 deals with the avoidance of conflicts of interest between or among current clients. In part, the rule provides that “the representation of one client that is directly adverse to another client” will present a conflict of interest. Additionally, Rule 1.7 states that a conflict exists where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.” The rules following Rule 1.7 cover instances of prohibited conflicts, describe the lawyer’s duty to avoid conflicts of interest to former clients in specified circumstances, and explore conflicts of interest in the context of governmental lawyers and judges. See generally Rules 1.8-1.12. When looking at the rules and their comments more closely, they are intended to promote attorney loyalty to clients. For example, Comment 1 to Rule 1.7 states: “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”

In a time of increasing globalization, firms have expanded on an international level. To achieve this growth and this global reach, several of the world’s largest law firms have organized themselves under the verein structure. A verein is a Swiss legal structure, recognized under Swiss law, that allows global law firms to combine and promote a unified brand across borders, while still affording the individual firms within the verein separate corporate or partnership status with discrete legal liability and financial independence.

Organizing a law firm under the verein structure affords the member law firms flexibility for future expansion, with an ability to easily add new members to the group. However, critics of the verein structure raise ethical concerns and particularly, suggest they pose a greater risk of conflict of interests for the attorneys associated with these law firms. Although verein structured law firms have provided a simpler path to globalized legal services and have provided a firm’s offices a way to maintain their financial independence while still marketing themselves under one brand, this structure has clearly altered the traditional law firm model. A traditional law firm has shared values, goals, and standards. Law firm partners, and employees in general, know each other and work with one another to provide a seamless legal service nationally and internationally. This matters because the legal profession and these firms exist to serve others—clients. Lack of this integrated culture, brings to question the client loyalty that the verein structure potentially jeopardizes. Verein law firms, by endorsing independence over integration, create the appearance of a global law firm with different ingredients. One of the shared values within law firms is financial integration since it supplies a system of incentives and disincentives. But, a verein sees the geographic reach of its brand as an end in itself with less emphasis on financial integration.

Within the Metaverse, the concept of establishing a verein structure may appear to be a foreign one as there are no national boundaries in the Metaverse. Whether such a structure will apply to the Metaverse turns on whether such global initiatives in the modern era of globalization will continue to center on the contours of borders as we know it. The four major platforms in the Metaverse are: Decentraland, the Sandbox, Cryptovoxels and Somnium Space.

While the Metaverse as envisioned will be an interconnected system that transcends national borders, a verein structure could be adapted to such an environment by either allowing a law firm to offer legal services in multiple virtual environments within the Metaverse or by recreating the real-world environment of well-defined countries and allowing those law firms to offer their services in those recreated real-world environments.

Whether and how avatars will “travel” in the Metaverse is still to be determined. Nonetheless, if verein firms are established in the Metaverse, they will need to address conflicts and determine who are deemed current or former clients. This poses an additional concern given that it is unknown whether a user could have multiple avatars, thereby posing as a different client or whether a user is limited to one avatar that is an extension of their “personhood.”

Duties to Prospective Clients (Rule 1.18)

Under Rule 1.18, prospective clients are entitled to receive some, but not all of the protections afforded to clients. A person becomes a prospective client by consulting with the lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether such a communication constitutes a consultation depends on the circumstances. Most notably, the consultation must be more than a unilateral outreach and instead should reflect both the lawyer’s and the client’s reasonable expectations of whether they intend to form such a relationship.

Like other industries, the legal industry struggled with how to adapt during the COVID-19 pandemic with the challenges of meeting clients and networking without in-person experiences. The Metaverse could offer a new way to reach potential clients and interact with them, thereby giving lawyers a chance to increase exposure and retain new clients in a more interactive space than simply through an eligibility questionnaire on a website or by talking to a chatbot.

Nonetheless, while the Metaverse engages people represented by avatars, thereby giving the impression that users are meeting “in person,” lawyers should be mindful and must beware of forming inadvertent client-lawyer relationship. This concern is exacerbated in the Metaverse given the limited knowledge of how avatars will be interacting with one another in this immersive environment. This relationship may be formed if legal advice is given, even if the lawyer has neither met with, nor signed a representation agreement with the client. Thus, a lawyer should not provide specific legal advice to a prospective client in the Metaverse that can lead to an unintended client-lawyer relationship.

Reprinted with permission from the October 20, 2022 issue of The Legal Intelligencer© 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.