California Publishes New Ethics Opinion on Virtual Law Offices
UPDATE: The State Bar of California has published its formal ethics opinion on virtual law offices, No. 2012-184. I wrote a post on the proposed draft of this opinion that came out this past spring.
The summary reads:
As it pertains to the use of technology, the Business and Professions Code and the Rules of Professional Conduct do not impose greater or different duties upon a VLO practitioner operating in the cloud than they do upon an attorney practicing in a traditional law office. While an attorney may maintain a VLO in the cloud where communications with the client, and storage of and access to all information about the client’s matter, are conducted solely via the internet using a third-party’s secure servers, Attorney may be required to take additional steps to confirm that she is fulfilling her ethical obligations due to distinct issues raised by the hypothetical VLO and its operation. Failure of Attorney to comply with all ethical obligations relevant to these issues will preclude the operation of a VLO in the cloud as described herein. (emphasis added)
The opinion requires that the lawyer conduct due diligence in selecting the technology but also that he or she “conduct periodic reassessments of all of these factors to confirm that the VLO vendor’s services and systems remain at the level for which she initially contracted, and that changes in the vendor’s business environment or management have not negatively affected its adequacy”. The opinion also states that the lawyer consider whether or not to provide disclosure of the use of the technology and receive consent from the client. Cal. State Bar Formal Opn. No. 2010-179 regarding data security is cited as a resource along with several other ABA opinions and resources related to technology and third-party storage of law office data.
This ethics opinion is unique because it focuses a significant amount of text on the issues of competency in online delivery and authentication of online client identity. Without mentioning unbundling, many of the steps that the opinion recommends to determine if the services may be delivered through a virtual law office are really ethical best practices for handling limited scope representation, including the thorough client intake process, ensuring that the client understands the nature of the delivery, ensuring the client is comfortable with the delivery method, declining representation when not appropriate under the circumstances, etc. Other requirements that are listed are no different than they are for a traditional law firm, such as supervision of subordinate attorneys and nonlawyer assistance, just in an online environment.