Law Society of British Columbia Comments on Virtual Law Practice

The fall issue of the Law Society of British Columbia’s Benchers’ Bulletin published an article entitled “The real world of virtual law firms.”   Quotes from practice management advisers from the Law Society of British Columbia (LSBC) contain misleading assumptions about elawyering and virtual law firms.  A lack of education about how virtual law firms are operating seems to be replaced with fear tactics. Unfortunately, this leads to misunderstanding and confusion for the practitioner attempting to deliver legal services online.

Nicole Garton-Jones, owner of Heritage Law BC, a virtual law firm in Canada, wrote a blog post on slaw.ca last week taking note of the most egregious misstatements from the article.  From her post:

…a Practice Advisor at the Law Society of BC is quoted as follows:

Some lawyers are so keen on the technology and reducing overhead by having a ‘virtual law firm’ that they are not putting their minds to the professional responsibility issues regarding confidentiality, conflicts, client identification and verification, determining mental capacity of the client to instruct, undue influence over the client and so on.

There are currently very few law firms that I am aware of in BC that are in fact “virtual.” The virtual firms that I am aware of in BC are actively involved in professional responsibility issues, have been in proactive communications with the Law Society of BC in this regard and ascribe to the American Bar Association Law Practice Management eLawyering Task Force Best Practices. I wonder what virtual law firms are being referred to that are not putting their minds to serious professional responsibility issues?

I agree with Nicole.  Most of the professionals I know operating a virtual law firm are very cautious in choosing the cloud computing technology and software provider.  In fact, I’d have to say that the attorneys delivering legal services online are more careful in their planning and best practices than most attorneys in traditional firms who use cloud computing applications with law office data on a daily basis and do not go through the process of educating themselves about the software provider or reading through and understanding the service level agreement (SLA) for the product. 

Read the comments at the end of Nicole’s post to see responses from the LSBC and several other attorneys from Canada and the US as well as Jack Newton from Clio, who provide comments supporting Nicole’s defense of the virtual law firm.

The article from the LSBC also discusses the risks of the server hosting law office data being located outside of Canada and how the US Patriot Act might come into play for any data hosted in the States.  Of the arguments presented, this one may be the most valid even if the risk of this happening is extremely rare as Nicole points out.  Even if the provider’s SLA states that the company will contact you first in the event it is served with a subpoena to turn over your law office data, the law itself does not require that the company do so.  For all the work that the legal SaaS vendors are doing to maintain high standards and quell the concerns of practitioners, the laws themselves must change.   For fear of being stuck on a no-fly list as I have heard can happen, I will refrain from making comments about the US Patriot Act and the chill on innovation that comes from certain provisions within it.  

On a technical level, can you really restrict the flow of data in transmission from one point to another over the Internet and make it stay within a geographic boundary? 

What the LSBC article fails to take into consideration when weighing the risks and benefits of virtual law practice is that it is not cost-effective for the solo or small firm practitioner to have an in-house server and full time IT consultant to handle the maintenance of that server.  Cloud computing is a cost-effective way for solos and small firms to provide legal services whether it’s full online delivery of unbundled services or just using cloud computing applications for administrative tasks to cut the cost of overhead and reduce client fees.  

As one commenter to the post reminds us, there are already many companies without licensed attorneys providing online legal services to clients in ways that may not be secure.  Client are seeking them out because of the convenience and lower costs.  So let’s prevent the licensed, responsible attorneys from providing online legal services?   This benefits the public how?

The legal needs of the lower and middle class folks in our country are primarily handled by solos or small firm attorneys.  Keeping this segment of the population from using technology to increase delivery of access to justice is not worth the remote risk that there will be an instance where there might be a breach of the confidentiality of the law office data.  Yes, there will be an instance in the future where this happens to a firm or maybe more than one firm hosted on a single server.  Yes, there will be a bad seed attorney or firm that will not do their research on the provider and will host law office data with a cloud computing service that puts their clients at risk.  

But this will not be the majority of virtual law firms.  The benefits that the delivery of legal services through cloud computing provides to the public has to be taken into consideration. Without the use of cloud computing and innovative new technologies that rely upon it for distribution to the practitioners, we cannot expect our growing access to justice problem to improve.  The virtual law firm featured in the LSBC article, Valkyrie Law Group, does a great job of describing the benefits of their practice that spans from a better work/life balance for associates to their appreciative clients.   The firm partners are quoted several times in the article that this form of law practice is not for everyone. 

In the comments to Nicole’s blog post, Barbara Buchanan, Practice Advisor for the LSBC states that “[t]he Society is determining what further rules and policies may be required in the evolution of law practice.”  Let us hope that during this process, the LSBC takes a balanced approach in educating Canadian practitioners.  Provide caveats about security, privacy, confidentiality.  Provide education on how  the technology works and how to safely use it.   Just don’t take a blanket approach in regulation and end up throwing the baby out with the bath water.  In this global economy with law firms pushing the geographic boundaries, the stance that one country takes on virtual law practice may have an influence on its growth elsewhere.