What Constitutes Virtual Presence?

The ABA Commission on Ethics 20/20 has released a new issues paper entitled “Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits of Virtual Presence in a Jurisdiction.”

The Commission’s previous issues paper regarding systemic and continuous presence under 5.5 came out last September and raised some of the same questions. I posted my summary of that here.  The Commission’s newest request for feedback on the issue of presence has a deadline of July 31st and they specifically request to hear from virtual practitioners who would be affected by any changes to Model Rule 5.5, in particular Comment [4] to Rule 5.5(b). The proposed change to this would state:

For example, a lawyer may direct electronic or other forms of communications to potential clients in this jurisdiction and consequently establish a substantial practice representing clients in this jurisdiction, but without a physical presence here. At some point, such a virtual presence in this jurisdiction may be come systematic and continuous within the meaning of Rule 5.5(b)(1).

Check out the hypothetical of a virtual law practice posted by Andy Perlman on the Legal Ethics Forum blog. I’m attending a LSC Tech Summit this week so a longer response from me to this new call for comments will have to wait. There are so many potential and emerging business models that incorporate virtual practice. I hope the Commission receives a variety of comments from practitioners.