As the situation surrounding COVID-19 evolves, and thereafter as we start to settle on the new normal of the legal profession, hosting a full or partial practice out of a virtual law office is an apparent reality. In the past, operating a virtual law office (also known as a VLO) meant less overhead, more flexibility, and new marketability to target audiences and geographical regions (e.g., see the Disappearing Rural Lawyer). Nowadays, frankly, it may be less about convenience and more about necessity.
With modern technology, lawyers can draft, share, review, and file documents as well as communicate with clients in an online environment, all while ensuring data are kept secure and confidential. But, before you dismantle your brick-and-mortar office completely, let’s review four ethical considerations for lawyers when going virtual.
- May I work from a location outside my licensed jurisdiction as long as my clients are in my licensed jurisdiction?
- What technological safeguards must (should) I employ to protect client information and our communication?
- Will I be able to ethically and adequately supervise other lawyers and staff?
- Must I have some form of a physical office address?
1. Crossing Jurisdictional Boundaries
With your driver’s license in hand, you’re pretty free to travel across the U.S. while remaining a valid, licensed driver. State laws may differ as to how you drive (e.g., speed, turning, etc.) and what you drive (e.g., vehicle equipment regulations), but reciprocity for that piece of plastic with a wicked photo keeps you legal as you cruise. Not so for the practice of law.
Lawyers must be mindful of the geographical reach of not only their practice but of their marketing. A recent case of one Colorado lawyer found to have engaged in the unauthorized practice of law (“UPL”) in Minnesota demonstrates this concern.
The experienced Colorado lawyer contacted a Minnesota lawyer via email to help his in-laws resolve a debt collection dispute in Minnesota. He hoped to settle the matter out of court and, nevertheless, told opposing counsel that should it come to a lawsuit, he would retain local counsel, i.e., a Minnesota licensed attorney.
Several months later, the opposing counsel reported him for UPL. The grievance panel agreed, finding his actions didn’t fall into any of the exceptions under Minn. R. Prof. Conduct 5.5, and issued a formal admonition. The Minnesota Supreme Court sided with the panel:
“We hold that engaging in email communications with people in Minnesota may constitute the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), even if the lawyer is not physically present in Minnesota. The Panel’s finding that appellant engaged in the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), was not clearly erroneous. Appellant represented a Minnesota couple with respect to a Minnesota judgment and attempted to negotiate, via email, the satisfaction of that judgment with a Minnesota lawyer, and was not authorized to practice law in Minnesota temporarily. We further conclude that the appropriate disposition for this misconduct is an admonition.”
The majority of the Minnesota Supreme Court found that UPL occurred even though the Colorado lawyer:
- did not physically appear in Minnesota when dealing with opposing counsel,
- did not attempt to solicit Minnesota clients,
- did not hold himself out as practicing in the jurisdiction, and
- did not assist his family members with a legal issue beyond his licensed practice area.
In the opinion’s dissent, three justices found his actions to fall within the UPL exceptions:
“In sum, this case involves clients contacting an attorney, their son-in-law, in his home state of Colorado, to request his assistance regarding a small collection matter—an area that reasonably relates to appellant’s expertise and experience in his Colorado litigation practice. Based on the relationship and contacts between the clients, appellant, and appellant’s practice of law in Colorado, there is a sufficient “reasonable relationship” here to satisfy the broad, catch-all exception under Rule 5.5(c)(4). For the above reasons, I conclude that appellant did not engage in professional misconduct because the exception in Rule 5.5(c)(4) applies.”
While states have varying opinions on defining and enforcing UPL, it’s clear you must always engage new clients and deliver your services with caution (see Rule 5.5). In the virtual world, the risk of crossing jurisdictional lines will likely be higher coming from the client-side, as they could end up at your virtual law office’s doorstep from anywhere.
Thus, you must be diligent in your initial client interaction. Consider a very structured intake process to help lessen malpractice risks. One recommended tool is clickwrap (or clickthrough) agreements. These online, self-guided forms require users to actively click “I agree” or digitally initial specific terms of your engagement agreement before they can proceed with their requested services. If they don’t meet your requirements and consent to them, the virtual intake process cannot continue.
This meeting of the minds better outlines the scope of representation (which may be subject to change after initial consultations with the client), including the ever-important jurisdiction of the client and the matter to be addressed (which may be two different places!).
2. Client Engagement
Going virtual demands a new learning curve for lawyers and legal professionals, some more than others. But remember that’s only half of the equation. The client’s experience in finding, engaging, and communicating with your virtual law office will drive your success. From their perspective, think about what you would want to find when virtually stepping into your online office.
Compare two lawyers’ strategies:
- Lawyer A has a basic website that he recently updated to have an “AI Bot” (as it was marketed to him) respond to simple client questions and requests. The bot directs clients to fill out an online form, which generates an email to Lawyer A. From there, he opens an email dialogue, back and forth, to establish the client intake agreement and start discussing the case.
- Lawyer B has a dynamic website centered around a cloud-based client-portal to automate the client intake process with clickwrap forms. She communicates and shares documents with the new client all on a secure, online platform integrated with the firm’s practice management and billing software. After representation, she welcomes feedback and review of her firm’s services and the client’s experience.
All other factors being equal, Lawyer B is more likely to not only have a happier client, but also a far easier time communicating and delivering legal services. She provided informed and competent client representation due to adopting innovative technology. Additionally, she has employed the latest in online security to protect her client communication and information (see Rules 1.6(e), 1.15(a)). Her means of user-friendly communication tools better permit her clients to make informed decisions (see Rule 1.4(b)).
Nevertheless, all attorneys, whether working from a virtual law office, a Main Street front window, or a downtown skyscraper, should be familiar with the ethical considerations inherent in the use of email, e-filing, cloud computing, and other technology. See Rule 1.1, Comment 8; adopted in 38 states as of this post.
3. Supervising Subordinate Lawyers and Legal Professionals
Rules 5.1 to 5.3 govern the supervision by law firms and lawyers of subordinate lawyers and other legal professionals, and ongoing compliance with the Rules of Professional Conduct. While the differences in the physical locations of lawyers and other employees can create an inherent challenge, a virtual law office should utilize communication and process protocols to ensure that they’re fulfilling their supervisory obligations.
The workflow and service to the clients in a virtual law office compared to a traditional law firm shouldn’t be compromised due to a lack of physical presence. In fact, the established coordination of work review and feedback using online and practice management tools may improve the ability and quality of supervision while meeting any ethical concerns.
4. The “Office Address” Requirement
The office address requirement for lawyers and law offices can be bifurcated into two main issues: (1) a bona fide office requirement and (2) an advertising office requirement.
Attorneys should check the requirements in each of their practicing jurisdictions to determine if a physical office address is needed. For example, Illinois requires an “address, email address, and telephone number” in every attorney’s annual registration (Rule 756(g)(1)) with a duty to update the registration information within 30 days of any change (Rule 756(c)(5)).
As states may allow or even require service by email (e.g., Illinois attorneys must provide an email address for service on all pleadings, Ill. S. Ct. Rule 11(b)), physical addresses seem less important for mailings, let alone hand delivery. Nevertheless, most states have some version of Model Rule 7.2(d) requiring legal marketing materials to include the “name and contact information of at least one lawyer or law firm responsible for its content.”
Comment 12 to Model Rule 7.2 provides an alternative means to listing a physical office location: “This Rule requires that any communication about a lawyer or law firm’s services include the name of, and contact information for, the lawyer or law firm. Contact information includes a website address, a telephone number, an email address or a physical office location.” In Illinois, the name of at least one lawyer or the law firm along with an office address must appear on any advertising communication (Rule 7.2(c)), which may direct the consumer to a certain website or email address for the lawyer or law firm (Rule 7.2, Comment 2).
So, check your jurisdiction to determine your compliance with attorney regulations, business regulations, and your advertising rules. It could be that a mailing address is required, whereas a physical address is not. As typical with virtual law office practitioners, you can meet in person with clients “by appointment only” on an as-needed basis.
The 2019 American Bar Association Legal Technology Survey Report determined traditional office space to be the primary workplace for all lawyers (roughly 70-90% across all firm sizes except for solos). The ABA’s 2020 Survey will presumably reveal a measurable shift as to where, and more importantly, how attorneys work.
Whether you’re ready to embrace a completely virtual law office model or just want to expand your online presence, evaluate how you’re delivering value to your clients and how you might offer that value in different ways. Attorneys who elect to use virtual law offices to transform their practice must be mindful of these ethical challenges, but shouldn’t be dissuaded from employing them.
Related Bar Opinions:
- ABA Formal Opinion 495 (2020): Lawyers Working Remotely
- ABA Formal Opinion 498 (2021): Virtual Practice
- CA – State Bar of California Formal Opinion 2012-184
- DC – D.C. Opinion No. 24-20: Teleworking from Home and the COVID-19 Pandemic
- FL – Florida Bar Advisory Opinion #2019-4: Out-of-State Attorney Working From Florida Home
- IL – Illinois State Bar Association Advisory Opinion 12-09 – Unauthorized Practice of Law; Multijurisdictional Practice
- NC – North Carolina State Bar Formal Ethics Opinion 2005-10: Virtual Law Practice and Unbundled Legal Services
- NY – New York City Bar Formal Opinion 2019-2: Use of a Virtual Law Office by New York Attorneys (replaces 2014 opinion)
- NY – New York County Lawyers Association Ethics Formal Opinion 754-2020: Ethical Obligations when Lawyers Work Remotely
- OH – Ohio Board of Professional Conduct Opinion 2017-05: Virtual Law Office
- PA – Pennsylvania Bar Association Formal Opinion 2010-200: Ethical Obligations on Maintaining a Virtual Office for the Practice of Law in Pennsylvania
- PA – Pennsylvania Bar Association Formal Opinion 2020-300: Ethical Obligations for Lawyers Working Remotely
- PA – Pennsylvania Bar Association & Philadelphia Bar Association Joint Formal Opinion 2021-100: Ethical Considerations for Lawyers Practicing Law from Physical Locations Where They Are Not Licensed
- UT – Utah Opinion No. 19-03
- WA – Washington State Bar Association Advisory Opinion 2016-01: Ethical Practices of the Virtual Law Office
- WI – Wisconsin State Bar Association Formal Ethics Opinion EF-21-02: Working remotely
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