I’m on a panel discussion this morning at the ABA Annual Meeting about the impact of technology and globalization on ethics for the 21st century lawyer. One of the questions that I expect will come up will be about the need for ethics rules to be revised to reflect the changes in practice management that involve virtual law practice and cloud computing. Which rules do I think need to be revised?
Based on my research, not many state bar ethics rules or advisory opinions actually address the use of cloud computing or the delivery of legal services online. The North Carolina State Bar’s proposed opinion related to SaaS in law practice managment that was published this summer is one of the first to my knowledge. There are opinions out there that are related to the hosting of law office data by third-party providers, but none that really discuss the actual delivery of legal services online to clients.
My main concern with the development of any future ethics opinions is that they should not attempt to define the technology too narrowly. This is a problem that attorneys have now in trying to interpret the existing rules and regulations based on way that they were drafted years ago. Try figuring out how to apply rules related to email, fax and cell phone usage to the cloud computing apps you currently use in practice management. There is a lot of uncertainty in trying to comply with the rules when the rules weren’t really written to take the rapid growth of technology into consideration.
I was impressed with the way that the NC State Bar wrote the proposed opinion related to SaaS because they wrote guidelines to help the attorney in their research but did not attempt to provide the attorneys with requirements knowing that those requirements could change in the next year. The risk with too closely regulating the use of cloud computing for practice management is that it could hinder the innovation of future technogy to deliver legal services online.
And future innovations in practice management depend on cloud computing. It’s the only cost-effective way to spread the cost of developing these apps over a wide number of users and getting it into the hands of attorneys for the use of delivering legal services online to the public.
The one ethics rule that exists as a hinderance to virtual law practice is the bona fide office rule or residency requirements that some state bars have over their members. These rules need to be more flexible and take into consideration the different forms of virtual law practice and the public demand for online legal services. I’ve written here before about the NJ State joint opinion that came out this spring related to the bona fide office rule. Given the trends in outsourcing and the globalization of law firms and the fact that so many of our clients are going online actively seeking out online legal services, these residency requirements must take into consideration the fact that sticking with geographic boundaries is not an effective way of handling their concerns about zealous representation and the clients not being able to contact their attorney.
For some practice areas, there is a need for in-person representation and a completely web-based virtual law office would not be responsible or ethical. However, the rules do not take into consideration other practice areas or the benefits to a variety of different clients with different legal needs. The concerns are legitmate; they just need to be reinterpreted to reflect the realities of how attorney are actually communicating with their clients using technology and how the public is expecting to receive legal services.
After researching state by state all of the ethics opinions related to technology and the unbundling of legal services, these were the two main concerns that I have with the way that ethics rules were handled. I’m very honored to have the opportunity to discuss these ideas at the annual meeting and look forward to the question and answer session that follows to hear what others have to say about this. Any thoughts? Drop me a line in the comments.