A recent disciplinary case out of Virginia addresses the issue of a lawyer’s use of misleading online advertising and references “virtual” law offices. In fact, the objectionable actions taken by the lawyer are those that could apply to any lawyer or law firm that has a website or any online presence. It is not in fact related to the online delivery of legal services, but to lawyer advertising in general.
The practitioner’s website and other forms of advertising stated that the firm included multiple attorneys, one devoted to each practice area. These attorneys were actually independent contractors of the firm and each listed that they covered multiple practice areas. At the request of the Bar, the lawyer made changes to his agreements with the lawyers to make them full employees of the firm and amended the lawyer’s profiles on his website to correctly state all of the areas of law that they handled. Other advertisements stated that the firm had six offices in Virginia as well as in other states. Five of those offices were temporary, leased office space.
The case does not go into detail about the firm’s practice management system, but states that the lawyer claims the client files are “secured electronically” which indicates they are using a cloud-based system to coordinate work among the lawyers in the firm. The lawyer also amended his website to explain the nature of the temporary, leased office space as “client meeting location” rather than permanent offices.
Of all of the above grievances that were noted and responded to by the lawyer, the court in this case found that the lawyer was in violation of Virginia Rule of Professional Conduct 7.4 regarding communication of the fields of practice and certification, which requires compliance with 7.1 (related to misleading advertising). He was given public reprimand without terms for the violation.
This disciplinary action raises interesting questions about law firms that outsource legal work to temporary lawyers for hire. Axiom is an example of a practice that leases lawyers to other firms to handle specific work. May these temporary, virtual practitioners be used by the firm for advertising purposes to hold out to the public that the firm provides legal assistance covering more practice areas than their permanent employees may cover? Or that the firm covers jurisdictions where those temporary lawyers are licensed but the primary law firm members are not?
The Commission on Ethics 20/20 has asked for feedback regarding changes to Model Rule 5.5 and whether any are needed to address the concept of “virtual presence” under the UPL rule. How does the use of temporary virtual lawyers factor into this analysis?
I am currently writing a book for the ABA/LPM on the topic of online marketing tools for lawyers and am researching the topic of how lawyers must comply with Model Rule 7.1 when using online forms of advertising. My opinion is that if you are going to be using temporary, outsourced lawyers and leased office space in multiple states, that it would be a violation of the Rules to misstate the nature of this law firm structure to the public in any advertising, online or traditional.
But “misleading” is one thing and “giving them more info than they need to know” is another. Where do we draw the line in notifying the public about our business decisions and the business structures of our law firms? How do we measure the potential harm to a public that is empowered to search online for alternative sources for legal assistance? [For the record, I am not disagreeing with the Virginia decision referenced above. I am merely posing a general question about the nuances of the term “misleading” in MR 7.1.]
I think the core question is what is misleading to the public under Rule 7.1? It sounds like such a simple question, but lawyers love to complicate things so this won’t be the last time we will hear about these issues. (In fact, North Carolina recently published a draft ethics opinion discussing some of the these same issues related to false advertising of a lawyer’s law firm location and size.)
Again, while virtual law firms obviously need to be hyper aware of online lawyer advertising restrictions, these new trends in law firm staffing, remote workers, and the use of cloud computing to connect practitioners across jurisdictions is applicable to all law firms, not just those that are delivering their legal services online to clients.
[Thanks to Brock Rutter for sharing the Legal Profession Blog post about this with the elawyering task force listserv. Also, check out Bob Ambrogi’s post on this case on his LawSites blog.]
While the questions you discuss present themselves in a new context, they’ve been addressed many times before. The ABA has issued opinions on affiliated relationships and of counsel arrangements and prohibits use of those terms to describe a relationship unless there is a continuous and ongoing relationship between an attorney and the of counsel. The same test of continuous and ongoing relationship should apply equally to firms that might list several lawyers on their website as associates or counsel to lure clients but who don’t have any routine contact with them.
To me, what is more deceptive is those firms that advertise themselves as having energy regulatory or some other very specific expertise when they don’t have a single lawyer on their website who could handle these matters. Essentially, these firms are advertising on “spec” – and if they can get a client, they’ll pull in a contract lawyer with the required expertise.
Although the Virginia case involved a small firm with a consumer practice, some of the biggest offenders in the phony practice area or fake of counsel relationships are the large “new age” genre of virtual law firms like Virtual Law Partners (an example of the genre, not an offender) that have garnered quite a bit of publicity. Yet I doubt that anyone will ever take them on.