Regulators Concerns with Virtual Law Practice – Review from ILEC

I had the pleasure of attending and speaking at the International Legal Ethics Conference (ILEC) in Banff, Alberta last week. I took part in a panel discussion with John Browning, Darrel Pink and Victoria Rees, entitled “The Challenges of Virtual Law Practice and Social Media.” As with any good panel, we collaborated ahead of time and in the process, learned a lot from each other.

I wanted to share some of the wonderful insights I gained from listening to Darrel Pink during his portion of our Virtual Law Practice panel presentation. He entitled his thoughts “The Regulator’s Dilemma,” and I think it provides a unique perspective on the concerns that states and other regulatory entities have as more of their members begin delivering legal services online.

Many of the ethics concerns are similar to what every lawyer has to think about whether delivering services online or off. But when the practice
is online, it raises interesting questions for the regulator as to how he or she can effectively monitor the practice, the client data, trust accounting
practices, etc. How does the regulator provide oversight of the lawyers’ practice if it is online? How does he or she handle enforcement of regulations or auditing practices if required?

Here are some ethics issues that Darrel brought up in his presentation with regards to the limitations on the regulator:

•How does the regulator address limited jurisdictional reach? For example, how can he or she access data that is located in another jurisdiction
or if it is in the cloud and the location is unknown?

•What are costs of access to that data? How would a regulator obtain it?

•He noted a concern with the ease of information being hidden online by an unscrupulous lawyer or deleted entirely before it could be accessed.

•If the practice must be taken over in custodianship or receivership by a regulator entity, how is this accomplished if it is an online practice?

•If the online law office data is requested by law enforcement agencies, such as by a search warrant or production order, how does the
regulator protect the clients’ privileges when the scope of the seizure is indeterminate? How would the regulator have notice of such a request for
data?What about the risk that the law office data is entangled with other data being sought?

•And finally, how does a regulator set standards and enforce rules that are relevant and continue to reflect and adapt to the changes that are occurring with virtual practice?

While I can think of a few suggestions that would help regulators work alongside lawyers to address these concerns, at the end of the day, there
will still be more questions than solutions with a quick fix. Darrel also covered many of the ethics concerns that a lawyer faces in virtual practice,
most of which I have addressed somewhere on this blog and in my other writings before. Approaching this from a regulator’s perspective was a new and useful exercise.

At the conference, I was also pleased to finally meet with some of the wonderful participants from this year’s Law Without Walls team,
including it’s founders, Michele DeStefano and Michael Bossone from the University of Miami School of Law, but also John Flood and Lisa Webley from the University of Westminster, Ray Campbell from Peking University School of Transnational Law, Renee Knake from Michigan State University, Laurel Terry from Penn State Law, Elizabeth Chambliss from New York Law School, Steve Mark and Tahlia Gordon from New South Wales and others. Several of us had worked together online with our teams of law students during this past spring so it was great to finally meet them in person and to hear about their experiences working with the law students.

My most important take-away from the ILEC and from this panel in particular was the need for increased collaboration and dialogue between regulators, ethics experts (many of whom were in attendance at the conference) and practitioners. The environment at the conference was one of sharing between countries, fields of expertise and law schools. At the end of the day, I got the sense that attendees were leaving energized by the ideas they had learned and looking forward to new working relationships. It is out of such collaborations that we might see the start of some form of global ethics standards.