Illinois State Bar Ethics Opinion Discussing Virtual Practice

I discovered another state bar ethics opinion related to virtual practice when researching ethics opinions for the online marketing tools book this weekend. The Illnois State Bar published Ethics Opinion No. 12-09 in March 2012 regarding multijurisdicitonal practice, choice of law issues, and unauthorized practice of law. Here is the text regarding the virtual office scenario:

The advent of the virtual law office, or online legal practice, has raised several ethical challenges, including concerns about the unauthorized practice of law. Such issues can and should be analyzed under the framework of the Rules of Professional Conduct. See, e.g., Ohio Sup. Ct., Bd. of Comm’rs on Grievances & Discipline, Op. 2011-2 (October 7, 2011).

In the context of a virtual law office involving lawyers from different states, each lawyer should take care that any out-of-state practice is not systematic and continuous.

The proposed practice involves a lawyer from State X who wishes to practice regularly in Illinois, whether through a physical presence or a virtual presence. “Presence may be systematic and continuous even if the lawyer is not physically present here.” RPC 5.5, Comment [4]. So even if the virtual office were not based in Illinois, the fact that the State X lawyer would do work for Illinois clients and would seek legal work in Illinois establishes a systematic and continuous presence. As noted in the Ohio ethics opinion cited above, concerning a law firm located outside of Ohio and advertising on the internet, “’Systematic and continuous’ presence includes both physical and virtual presence in Ohio.” Ohio Op. 2011-2, p. 8.

Because the State X lawyer wishes to practice regularly in Illinois, the Committee is of the opinion that Rule 5.5(b) bars the proposed practice, regardless of whether the lawyer’s presence in Illinois is physical or virtual. Additionally, because the Illinois lawyer would be part and parcel of the project, he or she would be subject to discipline under Rule 5.5(a) for assisting the State X lawyer.

O.k. so, for example, does this mean that a lawyer living in another state without an Illinois license who handles Intellectual Property law issues is not able to work with Illinois clients on federal law matters through a virtual law office? If that lawyer then asks a licensed Illinois lawyer to draft any state-based projects for the IP client online through the client portal, is that not permissible? From this opinion, it would appear not to be. What if you have a multijurisdictional virtual law firm with some firm members licensed in Illinois and others who are not, but the firm advertises in that state as well as others through online advertising methods and works with clients from multiple states online including IL?

I’m looking forward to reading any comments and feedback the ABA Commission on Ethics 20/20 receives on “virtual presence” from their issues paper that was published this summer. Maybe that process will shed some light even though the protectionist stance of certain state bars may not choose to take such studies into consideration.

So once again lack of clarity and nationwide standardization of UPL rules leaves me wondering who these rules were really designed to protect. Sometimes I doubt the public is the beneficiary of such restrictions and that access to justice actually suffers from the profession’s inability to coordinate and standardize our governing rules and restrictions. I’m trying to bite my tongue on this one. There must be something more complicated to this debate that I’m just not getting.

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