This past week an article came out in Lawyers USA Online entitled, “Ethical pitfalls of virtual law practice.” The article discusses some of the ethics risks that exist in this form of law practice. However, there are a number of safeguards and smart practices that an attorney may engage in to avoid these “ethical pitfalls.” While the article quotes a handful of solutions, it does not cover all of the different options and resources that are available to attorneys who are concerned about these risks. Additionally, some other important ethics risks, such as UPL in other jurisdictions and online advertising, were not even mentioned.
I’ve written about many of the ethics issues discussed in the article in this blog before, but I thought I would specifically respond to each topic in the article for attorneys who might be concerned with these aspects of virtual law practice.
Client Authentication (Verifying that your online client is who they say they are.)
First, ask how a traditional law office verifies that the client is in fact who they say they are. Does the secretary check the driver’s license of each prospective client that comes in the door? This process and more in-depth authentication may be handled online just as well or perhaps more efficiently than it is handled in-person.
It’s true; the Internet facilitates the potential for individuals to commit fraud regarding their true identities. An attorney practicing law online through a virtual law practice should conduct online verification to ensure that clients are who they claim to be. While an attorney cannot ensure that the final use of the legal documents he or she has created never fall into the wrong hands, the attorney may draft legal documents to the best of his or her abilities with the information provided by the online client.
Because the legal services purchased through a virtual law practice may be largely transactional or unbundled legal services, it is often left to the online clients to complete the final steps to execute legal work prepared by the attorney. Detailed instruction regarding proper execution of the documents as well as the assurance that the client may return to the attorney with any questions or concerns until the matter is completed is a good virtual practice rule.
In addition to the identity check conducted by the attorney, a notary public assisting the client in executing the legal document will be required to check the driver’s license of the individuals signing the documents. As mentioned in the Lawyers USA article, the attorney may choose to request that the online client upload a copy of his or her driver’s license to the virtual law office so that the attorney may check the client’s identification and contact information. There are also online services that may be purchased which can conduct more thorough authentification of client identity should the nature of the virtual practice require this.
Conflict of Interest
Because a virtual law practice has the potential to widen an attorney’s client base to the entire state(s) where he or she practices law, it is critical for the there to be a good system in place for running conflict of interest checks. The virtual law practice should allow for comprehensive searches of existing and previous clients, cross checked with prospective clients for any conflicts. This system needs to include offline and in-person clients as well as the online clients.
If the attorney is collaborating with other attorneys online or working with subcontracting attorneys, then the conflict check needs to run against the names of those attorneys and their potential conflicts. If you are using a system that allows for import of contacts by .csv format, this is easily accomplished.
The conflict check should be done at the beginning of the online client registration process before the attorney has the chance to respond to the prospective client. The system should then alert the attorney to any potential conflicts and allow him or her to make the call based on the information provided by the prospective client regarding the legal services requested. That check should also be able to be run again after the attorney has collected additional information about the parties involved in the legal matter.
Consider the conflicts checking systems of many traditional law practices. A virtual law practice using technology to run a conflict check may even have a safer system in place for avoiding malpractice.
Malpractice Insurance Coverage
Malpractice insurance for a virtual law practice should be obtained by an attorney in the same manner that it would be in a traditional law practice. If the attorneys is working with virtual paralegals or other attorneys on the virtual law office, coverage needs to be considered for these parties just as it would be in a traditional firm.
The malpractice and ethics checks built into the virtual law practice system should help the attorney to avoid malpractice risks. Attorneys should mention this to their insurance carriers and see if there is a discount available for the use of technology to prevent malpractice risks.
Security – Loss of Internet Connection
If you practice with a virtual law office, what do you do when the electricity goes out? When power is down, DSL and cellphones still work and laptops have batteries that make good use of limited power, especially netbooks. If it is a long enough power outage everything the attorney needs to practice law is online so if it is possible, the attorney may travel to an area where Internet is accessible. Brick and mortar law offices do not have this same luxury and many will remain at a standstill until power returns.
DSL and cell towers can cope with utility power outages so you can stay online. Some attorneys would be dead in the water on days when their offices lost power, especially if their office building was located in an older area where this occasionally occurs. Power can be out for days after a hurricane, earthquake, heavy snow, grid short circuit — all of these have happened in the last several years. Does anyone think every law firm in LA was ready for Katrina? The point is that every system — virtual or traditional — has weaknesses that need to be mitigated.
Is there much “downtime” with a virtual law practice? SaaS is open 24×7. If we were to calculate the downtime for a brick and mortar office it would be generous and assume 12 hours days 7 days a week. That is still 50% downtime when clients cannot pay bills, request legal services, receive updates from their attorney, etc. That is 84 hours a week of downtime.
The real issue here is access to law office data. Check the hosting company’s data return and retention policies. Make sure there are export features to be able to obtain your data on a regular basis and back it up on your own systems if you choose to. Some SaaS products for attorneys are even developing offline versions for some features of the software. From my own experience, I’ve practiced law online for the past four years and the question of Internet access has never been a problem.