Part I of this post on the unauthorized practice of law in other jurisdictions addressed the following questions: How does a virtual law practice avoid UPL in other jurisdictions? and 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?
How is it clear with a Virtual Law Office (VLO) when the attorney/client relationship is established?
An online client receives adequate notice through his or her individual homepage in the VLO as to the different statuses of the case. Notice is provided to the online client when the attorney has reviewed the client’s question and posted a response, when the attorney has accepted or declined representation, when the attorney provides details of the scope of representation, and when the attorney has completed legal representation and is formally closing the online case file.
The attorney/client relationship begins when the online client has registered on the VLO and requested legal services from the attorney. The client is notified when the attorney has reviewed and responded to his or her legal question. Then the client is asked follow-up questions by the attorney or is presented with the price quote or terms of representation for the online client to accept or decline.
Through the VLO, the attorney has several options to define the scope of representation, including providing clients with a traditional written retainer letter uploaded to the system, writing out personalized messages to each client and requiring that the client accept a customized clickwrap agreement solidifying the terms of the attorney/client relationship, or using both traditional and online clickwrap methods. Basically, the same procedures for establishing attorney/client relationship and defining the scope of representation that are used in a traditional law practice can be integrated into a VLO.
I would argue that using the technology actually provides clearer notice to the clients of the establishment of the attorney/client relationship and the scope of representation. It may also do a better job of keeping the clients informed of their case status than occurs with a traditional law practice. One of the biggest malpractice complaints from clients is that their attorney does not communicate effectively with them regarding their case. The VLO handles so much of the process for the attorney automatically. It also gives clients the ability to check for themselves the status of their file and to review their previous discussions with the attorney.
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?
It is my understanding that it would constitute the unauthorized practice of law in another jurisdiction if an attorney used his or her VLO to draft a legal document that pertained to the laws of another state where the online client was a resident but where the attorney did not have a license to practice law.
However, if the attorney operating the VLO were partnering with attorneys or legal assistants on his or her VLO who were licensed in other jurisdictions, then this would be different. For example, a virtual paralegal could work on the VLO to draft a Will or other estate planning document for a client a jurisdiction where the virtual paralegal was familiar with that state’s estate planning laws. The virtual paralegal would then flag the document for review by the attorney on the VLO who was licensed in that online client’s state.
My understanding is that the review and approval of that legal document by the attorney licensed to handle that state’s laws would permit the virtual paralegal to complete the transaction for the online client without it constituting UPL in another jurisdiction. You can see through this example how a solo law practice taken online with a VLO could grow very quickly across multiple jurisdictions if well planned out.
How does the issue of UPL in other jurisdictions relate to legal document automation software?
Some attorneys are choosing to provide legal services online by using document automation software, similar to the way that LegalZoom and similar companies provide legal documents across jurisdictions. There is a separate issue here which pertains to assisting a nonlawyer (the software vendor or legal form provider) in the practice of law. If this form of providing legal services interests readers, I recommend that they check out Richard Granat’s recent blog post regarding the automated delivery of online legal services, or online document assembly, as it relates to UPL.
VLOTech is preparing a feature for the first of next year that allows attorneys to create forms for clients on the VLO to fill out and send to the attorney securely on the system in addition to the existing VLO forms of communicating online with the client. The forms could be anything from estate planning and family law questionnaires to customized client intake forms based on the attorney’s virtual law practice areas. Since the forms would be generated by the attorney individually for the VLO and not pre-packaged from a vendor, then it should avoid the UPL issue completely. It will be interesting to see how attorneys practicing law online will choose to integrate this additional feature in their virtual law practice.
Online Resources Regarding UPL
ABA Model Code, Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law
State by state comparative analysis of UPL – Cornell University Law School, American Legal Ethics Library
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!
I don’t think that having a VLO necessarily means that one will operate outside of the geographic borders of one’s law license and, therefore, have to worry about MJP / UPL. The problem is that when someone is tech savvy and practicing law in the cloud, it is just so tempting to try to increase business by trolling for clients in who live in other states but have legal matters in your jurisdiction.
I agree that MJP rules, even with the recent changes to Rule 5.5, are terribly antiquated. I also agree that, at least in theory, there should be no problem with someone from another state finding a lawyer on line and hiring that lawyer to do work in the lawyer’s own state. However, at an ethics conference last August, I heard an attorney from the Connecticut discipline office say that someone who uses a website to troll for clients in Conn. would be considered to be “practicing law” in Conn and that they would try to prosecute that lawyer! Bar authorities are freaked out by the impending loss of their geographic borders and they will do some bizarre things, even when there is no harm to a client.
We are desperately in need of “MJP II,” headed by the ABA or some other body, that will get us beyond thinking that it’s a problem if a lawyer licensed in State A but who lives across the border in State B decides to practice law out of his or her house.
I enjoyed your article. However I would quibble with one thought. I practice here in the District of Columbia, and it is not uncommon to have a contract with a choice of law clause for another jurisdiction, although the performance of the contract is in DC and the jurisdiction is here in DC. That would not be practicing law in Idaho.
Further, I have a Federal practice on foreclosure defense that is robust, although many clients come from neighboring Maryland, where I am licensed to practice in the Federal courts. I hope I wouldn’t need a special ethics opinion for that.