Avoiding the Unauthorized Practice of Law (UPL) in other Jurisdictions with a Virtual Law Office (Part One)
Frequently I am asked about the unauthorized practice of law in other jurisdictions and how a virtual law practice can avoid this malpractice risk. In a two-part post, I’ll address some of these ethics questions. As more VLOs open and collaboration among attorneys creates VLOs operated by attorneys licensed in multiple states, the issue grows more complex. For the most part, I’m addressing UPL in other jurisdictions as it pertains to a solo or small firm operating a virtual law practice.
How does a virtual law practice avoid UPL in other jurisdictions?
First, the attorney practicing law on a web-based VLO needs to state in their VLO website or blog that he or she is only registered to practice law in whatever state or states he or she is licensed to practice law in. If the VLO handles federal law, such as patent applications or immigration law, then this is less of an issue because the attorney can work with online clients across state jurisdictions as long as the work pertains to federal law.
Second, the VLO software should have a jurisdiction check built into it to protect both the client and the attorney from UPL in other jurisdictions. Before a prospective client may register for a secure homepage on the VLO and even pose his or her legal question, he or she must provide a valid address. The system will then run a check on the prospective client’s zip code with the jurisdiction(s) in which the attorney is licensed to practice law. If the client is located in a state where the attorney is not licensed, a notice will appear to the client to remind them that the attorney only handles X state’s law. The attorney will also receive a red flag notice that tells him or her that the client is located in X state and the legal matter may not be within the attorney’s ability to handle without risking malpractice.
This jurisdiction check in the technology does not prevent the attorney from taking the case. For example, if the prospective client lives in Ohio and his or her legal needs pertain to real estate law for property owned in the state in which the attorney is licensed, then the attorney may accept that case because it pertains to law that he is licensed to practice. The attorney on the VLO must determine on a case by case basis with the assistance of the jurisdiction check and based on the client’s request for legal services whether accepting the legal case would be UPL in another jurisdiction.
If a website is accessible internationally, then how can a VLO be limited to provide legal services only in the state(s) in which the attorney is licensed? Doesn’t the nature of a website itself make the VLO in violation of advertising for legal services in multiple jurisdictions?
Here are the basics:
ABA Model Code Rule 5.5(b) states that
A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
You can review a state by state comparative analysis of the code here.
This issue is going to relate to any law firm website, not just a virtual law practice. However, because clients will be able to work with and purchase legal services from the web-based VLO, the virtual law office website or blog needs to be even clearer to the public about the services that are provided and the nature of unbundled legal services in general.
In order to comply with the ABA Model Rule and the rules of most state bars, the attorney setting up a virtual law office needs pay close attention to the website content and advertising rules established by the state bar(s) in which he or she is licensed. The ABA’s Law Practice Management Section also has a Best Practice Guidelines for Legal Information Web Site Providers which is an excellent resource to follow when setting up a VLO website or blog.
With a VLO, these terms and conditions will be presented to the online client who registers not only on the main VLO website but also in the form of a clickwrap agreement ensuring that the prospective client understands the nature of the services to be provided. Once the online client has proceeded with opening a case on the VLO and the attorney has agreed to take the case, the online client will for a second time be presented with the terms and conditions for the delivery of legal services through the VLO and be asked to accept the VLO’s terms and conditions for use along with the specific terms and scope of representation from the attorney for that individual case.
With multiple opportunities for the client to review this information along with the ability of the attorney to provide additional explanation to the client online through discussion, it seems unlikely that the client could be deemed to have inadequate notice of the nature of the online legal services to be delivered.
Again, it will be the responsibility of the attorney practicing law online to make the determination, even with the jurisdiction check in the software, that he or she is able to handle the requested legal services without committing UPL in another jurisdiction. In many respects, this does not differ greatly from the process that an attorney in a traditional law office would have to go through to prevent UPL. The primary difference is that the notification to the prospective client is handled online rather than in person or through a mailed letter.
Part II will address the following questions: How is the attorney/client relationship established on a VLO as to avoid UPL? Is it UPL in another jurisdiction to draft a legal document, such as a Will, for an online client who is a resident in another state? How does the issue of UPL in other jurisdictions relate to legal document automation software?
BTW: By no means do I claim to be a legal ethics expert. I practice law online from my VLO and work with other attorneys nationwide to set up VLOs. These issues interest me and I love hearing and learning from other’s experiences. If anyone has specific ethics decisions from their state bar pertaining to UPL in other jurisdictions and online law practice, I’d love to hear about it. Please share!