A couple good ethics questions came out of my CLE presentation at the GP/Solo and Small Firm Symposium this past week concerning the competency and contractual capacity of a virtual attorney’s clients. I thought I would share those questions and my thoughts.
How can you determine the competency and contractual capacity of a client before providing online legal services through a VLO?
This ethics concern came from an elder law attorney in the CLE audience specifically regarding the drafting a power of attorney online without meeting the client in person. The topic has also come up multiple times on the ABA’s Solosez listserv. It seems to be an issue that attorneys cannot easily agree on.
Many states, including North Carolina, have older professional rules of conduct or ethics opinions that require that the attorney meet with a client in person before drafting a power of attorney for that client. However, in most cases these rules were created without consideration of how web-based technologies in combination with other best practices may be used to provide online legal services.
I hope that this question will be revisited by the attorneys who consider these issues and their bar associations because two key factors have changed dramatically in the past couple years: 1) current technology offers additional methods beyond email communication that may establish an online relationship with clients, and 2) there are several online resources available for members of the lay public to acquire legal documents without an attorney ever reviewing them.
To address the power of attorney, this document creates such broad authority for the named attorney-in-fact that the attorney drafting the document needs to make sure that the client understands what they will be signing and is not being unduly influenced into gifting this power. However, is it the responsibility of an attorney to judge the competence of a client?
In my opinion, I am not a psychologist or a medical doctor who may rule professionally on the mental competency of my client. If from our communications, my client makes it clear to me that he or she understands the nature of the document and the powers that it provides to the named attorney-in-fact, then in my opinion my client is competent to execute that legal document.
In all reality, if an individual wants to coerce their relative into signing a power of attorney naming them as attorney-in-fact all that person has to do is go to the Office Depot and spend $60 on a software kit or if they are really cheap, google “sample power of attorney” and cut, paste and edit their way to creating a Power of Attorney that may appear enforceable. Legalzoom offers a Power of Attorney online for under $50, and it is only reviewed by a paralegal prior to being sent to the client for execution.
I find it unlikely that with the easy availability of the public to acquire legal forms someone wanting to use a power of attorney for malicious purposes would go to the trouble to pay an attorney to draft the document for them. There is the risk that the attorney would speak with their relative and realize the undue influence before the document was executed. Even if these malicious parties go through a VLO, there are practice methods the virtual attorney may follow to avoid malpractice and ethics risks which I discuss below.
Can a virtual attorney properly ascertain the contractual capacity of a client through a VLO?
One audience member at the CLE presentation said he would worry about 13 year olds going online to a VLO and purchasing legal documents. How would the virtual attorney know the prospective client was not 18 years or older?
While anyone may accept the multiple clickwrap agreements on a VLO and lie about their age, again, I find it unlikely that many individuals under the age of 18 would want to purchase legal services online through a VLO. However, it is the attorney’s responsibility to ascertain that the client has the contractual capacity to execute the document. There are various methods of handling this online which I have discussed in a previous blog post here and will mention again briefly below. In addition, with many of the legal documents, the witnesses signing in front of the notary public would be signing a statement that they attest that the person signing the documents is 18 year of age or older, of sound mind, and under no constraint or undue influence. The notary would also verify the client’s identity and hopefully notice if they were dealing with a teenager.
The virtual attorney should be able identify that the client is underage through the online discussion, request for the client to scan in and upload their driver’s license, and payment by valid credit card. If the virtual attorney has any additional hesitations, they may speak with the client by telephone or arrange for a web conference. In the event that the virtual attorney continues to have any doubt regarding the capacity or competency of his or her client, the attorney has the option of referring that client to a full-service law office and declining the representation.
In my personal elawyering experience, I have not encountered a situation where there was a question in my mind after communicating with the client as to the capacity or competence of that individual. In cases where the client was an older citizen and they were not just having me update their original documents, i.e. they sent me the originals and I updated them to NC law without the named parties changing, then I would call them on the phone before drafting the documents and again to follow up after they received them. It is clear to me that these clients clearly understand what they are asking me to draft and understand the power it conveys to the named parties. (You might be surprised how many 70+ people register on the VLO. Many people expect that my clientele would be strictly in the under 40 range. Happily this is not the case.)
Perhaps the virtual law practitioner could offer power of attorneys but only after requiring that the client go through additional procedures not required of other clients. For example, the attorney could require that they receive a scanned copy of the client’s driver’s license and photo id and speak with the client on the telephone before returning to communicating through the VLO. There are a number of ways the drafting of legal documents may be handled online.
Virtual attorneys should not be deterred from finding innovative ways to use technology to provide the public with legal services online just because there is the potential for fraud or undue influence. The bottom line is that the individual virtual law practitioner will have to make the decision regarding what legal services they feel comfortable providing online within their state bar’s rules of professional conduct.