New York Publishes New Ethics Opinion – Had a Pow-Wow with NJ?

NYThe NY State Bar Association Committee on Professional Ethics has published a new ethics Opinion 964 on April 4, 2013 that affects virtual law offices. (HT to Niki Black for bringing it to my attention.)

The opinion is more related to lawyer advertising than virtual law offices, but it affects advertising for virtual, traditional and hybrid delivery models. The opinion was prompted by an inquiry from a lawyer who delivers immigration law services primarily online. Like many lawyers with virtual law offices, the lawyer rarely meets with clients in person and communicates using video conferencing and other digital methods of communication. Working from home, the opinion explains that the lawyer did not want to have clients coming to her home office. Accordingly, she preferred to use a PO Box or other mailbox service than providing her home address.

We have seen this question in other states. NC’s proposed ethics opinion on the use of leased time-shared office addresses ran through a similar scenario and inquiry. Virginia’s recent disciplinary case with a lawyer who claimed to have a state-wide virtual law firm in his misleading advertising also raised the issue. So how did NY decide to respond? Hint: I think they had a BYOB pow-wow with the NJ ethics folks.

Here are the two questions posed in this opinion:

- May a lawyer use a commercial mailbox service address as the only office address listed in advertisements, omitting the address of her physical office?

- May a lawyer use a commercial mailbox service address as the only office address listed on business cards and letterhead, omitting the address of her physical office?

The conclusions in the opinion to each are as follows:

1. The street address of a principal law office is required in any advertising. In 2002 the Committee had stated in another opinion (N.Y. State 756) that lawyer advertising  “may not list a website or email address as the sole address, but must also include the street address of the lawyer’s office.”  They seem to think a law office is “where the lawyers were present and available for contact, and where personal service or delivery of legal papers could be effected.”

Wow. Must have been quite the pow-wow. “How do you effect your legal papers, Jim?” “Well, Bob, my secretary types them up on her shiny Corona. That contact paper sure is swell. Then I have my intern file it away in the cabinets. The clients love visiting my office to pick the original effected papers!”

Question I have: Does this mean a principal law office in NY can include a temporary office address? So a lawyer could work from home but pay a company to use their physical street address? I don’t think the opinion permits this because it says you would have to be present and available for contact at that temporary space. But….

2. “A lawyer’s business or professional cards and letterhead may use a mail drop as the sole address, provided they are not being used as advertising and use of the mail address is not misleading.” O.k. I doubt the lawyer in this situation is buying boxes of business or professional cards (is there a distinction between these two things?) in the first place if she has a virtual law office because why would she spend money on that? Her primary methods of advertising should be online: her website and then an online marketing strategy. But we’ll pretend she’s into paper advertising methods and go with it.

So I clearly have some thoughts on this and rather than just write “SERIOUSLY???” and give up in frustration, I’ll attempt to explain why I feel like I’m missing something here.

Let’s take what should be this opinion’s guidance and apply it to the future generation of law practices: be clear and transparent in your lawyer advertising. Don’t lie and mislead in what you put on your website. Be clear that you are BY APPOINTMENT ONLY and provide ONLINE legal services so no one gets the wrong idea. That is what the NC and Virginia opinions basically came down to. That makes perfectly good sense and it’s advice that does get OUTDATED.

So why does NY appear to mimic NJ’s bona fide office opinion and hearken back to this need for a principal office address? I get providing a street address to the state bar and to local courts if you handle matters in person there. (Remember a significant portion of legal needs do not require a courthouse and there is that whole nifty unbundling services concept!). But I don’t get this as it applies to lawyer advertising.

I’ll not address the assumption here that consumers who are and have been for years now empowered by the Internet can’t figure out where you are really located or how you deliver legal services on their own. A virtual lawyer’s clients tend to be ones who can Google proficiently and find numerous online legal service options. They are smart enough to figure out that this is how you operate. And even if they aren’t, won’t that information be in your engagement agreement before any relationship is entered into? I can’t imagine a client who searches for me online, finds my website that says “virtual law office,” but then after seeing that really wants to drive to my house to meet me in person. That doesn’t happen. They want a virtual law office because they don’t have to go to an office. They have OTHER WAYS, modern methods, secure methods, of communicating with the lawyer. They don’t need a physical office address to get legal assistance. My legal papers may be effected in other ways.

But my biggest gripe is that this issue, even outside of this opinion, is presented as an issue of consumer protection and I don’t think that’s the case at all. I think that opinions like this could have a negative effect of restricting alternative methods of legal service delivery and alternative forms of law practice. If you look at the legal marketplace right now you can see where the public is turning for assistance. Why would we want to discourage licensed professionals from jumping in there and serving the public where it makes sense to do so? Do these alternative online methods of delivery apply for all client needs and all practice areas? No. But they do for a significant segment of the public. (I’m not talking criminal defense cases or complex litigation here. There’s tons of other legal effecting to be done out there.)

Additionally, you have large number of new lawyers who are being forced to jump into solo or small firm practices because they cannot find jobs at traditional law firms. The amount of their law school debt does not allow them to own or even lease traditional law office space. Being able to work from a home office and provide basic legal services through online delivery provides them with a way to get started in the legal profession. There are obvious security reasons for not wanting to give out your home address. My clients have 21st Century access to me, and frankly, that’s way more prompt and personal than your traditional 9-5pm street address and snailmail.

Lawyers, especially young lawyers in NY, are going to read this opinion and wonder how to apply this to forms of online advertising. For example, when the lawyer joins a branded network and creates a profile, this is advertising. Does that mean the lawyer has to provide a physical office street address or will a link to their website where an address is listed suffice? What about a website that just indicates “online legal services and by appointment only?”

What happens when we keep having these states come up with different lawyer advertising rules regarding this office address issue? It restricts the growth of multijurisdictional virtual law firms. It reeks of protectionism, but unfortunately not for the public we are supposed to be serving.

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UPDATE: After reading a couple comments about this post on Twitter, it seems to me a valid concern here is enforcement. How does the state bar monitor and enforce these rules. Yes, they have access to licensed lawyer’s contact information and some states do random auditing. Maybe the better discussion we should be having that hangs over all of these different tech-related ethics opinions is “How do we help the states to enforce the rules in an age where it’s easier for unethical lawyers (and those not even licensed to practice) to use the tech to hide and cover up the evidence?”  Part of this may be providing education to the state agencies handling enforcement about how the technology works and how to use it to handle online auditing and to track down folks who aren’t following the rules. This would be a worthwhile conversation.

 

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  • I agree Steph. Here’s my similar take from an article that I just submitted that will be published on Monday:

    I believe the Committee’s conclusion in this case is misguided and fails to acknowledge the realities of a 21st century law practice. In fact, I criticized the requirement that a lawyer include the address of a home office in advertisements back in 2007 when the new advertising rules were enacted. As I explained in 2007, one way to avoid the risk of misleading the legal consumer regarding an attorney’s location while maintaining the privacy and safety of a lawyer with a home office is to require that attorney advertising list the county or city in which the attorney practices along with a mail drop address, but not the exact address of the home office.

    This opinion surprised me since more often than not, the New York State Bar is ahead of the curve when it comes to addressing the ethical issues triggered by new technologies. But in this case, the Committee’s decision is surprisingly short sighted and penalizes innovative lawyers seeking to serve legal clients more efficiently and cost effectively. This is an unfortunate decision that I don’t think will withstand the test of time.”

  • If enforcement is the issue, why not (just) require lawyers to include their license number on advertisements (lawyers already have an obligation to keep address information up-to-date with the state bar, right?)

  • That sounds like a good idea to me.

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