Virtual Law Practice

Category: Clickwrap Agreements

  • Choice of Law in Cross-Border Practice

    Below is the comment I submitted this morning to the ABA Ethics 20/20 Commission Working Group on Uniformity, Choice of Law, and Conflicts of Interest in response to their request for feedback on the issues paper on Choice of Law in Cross-Border Practice.  One of the fact patterns in the issues paper specifically referrred to a virtual law office and several of the other fact patterns might also apply to a multijurisdictional virtual law firm.

    Virtual Law Practice and Choice of Law in Cross-Border Practice

  • Ethics Considerations: Guest Post on Mass. LOMAP Blog

    The final guest post in my three-part series for the Massachusett’s Law Office Management Assistance Program (LOMAP) has posted on the blog.  This final post covers ethics considerations in virtual law practice including both the attorney’s responsibility to thoroughly research their software provider as well as best practices for the ethical management of a virtual law office.  

    Below is the introduction to the post.  Many thanks to Jared Correia for the opportunity to share my research and writing with the readers of the LOMAP blog.

    From the guest post:

    The delivery of legal services online carries with it a number of ethical concerns; however, these ethical concerns are not all that unlike those that have traditionally been addressed by offline law firms. The online lawyer is able to mitigate risks associated with virtual law practice just as a traditionally-practicing attorney would with an offline practice when, for example, installing and using software for law practice management. There are two separate categories of ethics matters to address in connection with the virtual practice of law. The first pertains to the attorney’s duty in selecting the service provider that will be setting up, hosting and maintaining the virtual law practice. With any cloud computing service, there are precautions that must be observed in researching and choosing a software provider. The second category of potential ethics concerns relates to the attorney’s daily operation of the virtual law office; and, the focus there is on ways to mitigate potential malpractice risks when working with clients online. Further issues related to each category are discussed in greater detail below; and, in addition, suggestions are made and additional resources are pointed to, for further guidance.

    You can read the rest of the guest post on the LOMAP blog.

  • Online Document Signing for Your Virtual Law Practice

    One of the questions I hear regularly about virtual law practice is related to the execution of legal documents and how that process can be handled through a virtual law office.  I’ve written before on this blog about the establishment of the attorney/client relationship online and how an attorney may rely on a clickwrap agreement to ensure that the client has read and accepted all of the terms and conditions and the scope of the legal representation that will be conducted online. 

    I use a clickwrap to serve as the engagement letter for my virtual law office.  Other attorneys will use the clickwrap in addition to uploading a traditional engagement letter for the online client to sign, scan and upload back to the virtual law office.  There are many other examples of when an attorney may need to have his or her client sign a document.  Having the client give the attorney a Power of Attorney to act on the client’s behalf is one of those situations. 

    Enter Right Signature.  This application provides a way to obtain a legally enforceable digital signature on a document without your online client having to own a scanner or having to go to the trouble of printing it, signing it and uploading it back to you on your virtual law office.  (Many thanks to Lee Rosen of the Rosen Law Firm for pointing this product out during our recent CLE presentation). 

    You can try Right Signature for free to see if it would work for your virtual law practice.  It has authentication and security technology that make the digital signatures binding and legally enforceable.  The product is a SaaS hosted application so the documents and the digital signatures are stored on a secure server.  The process is really simple for your clients to execute so it may actually be faster to get them to sign digitally online than requiring them to upload a traditional, scanned-in signature on a document.  As a useful tool for your virtual law practice, I’d say this one is worth the monthly $14 fee if you need your clients’ signatures on a regular basis or don’t want to rely on the clickwrap agreement alone.

  • Elawyering Ethics: Determining Competency and Contractual Capacity Through a VLO

    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.

  • Clickwrap Agreements in a Virtual Law Practice

    I’ve been doing more blogging for the VLOTech website. A lot of my material is coming from the CLE manuscript that I’m drafting for a presentation this summer on security/ethics issues with virtual law practices. The legality and enforceability of clickwrap agreements in a vlo is a question I’ve gotten from other attorneys.

    In my virtual practice, I don’t soley rely on the clickwrap agreement that my clients are required to accept before registering for their own homepage. I more specifically define the scope of legal representation (or non-representation as the case may be) with each individual client that registers. That is handled on each client’s secure homepage and depends on the legal work they are seeking. As more attorneys go online with their law practices, the use of the clickwrap agreement will probably be standard on the vlo, but I suspect each individual solo or small firm practitioner will want to use an additional retainer agreement or other contracting method with clients after registration.

    Here’s my post from the VLOTech website on this subject:

    Solo and small firm practitioners operating a VLO require that their online clients accept a clickwrap agreement before registering for a homepage on the virtual law office. This agreement contains the terms and conditions of the attorney’s representation to the client, explains the nature of unbundled legal services, defines the scope of representation and may contain other provisions tailored to the attorney’s virtual law practice.

    While retainer fees, payment arrangements and further definition of the scope of legal representation is communicated with the client through the client’s secure homepage on a case by case basis, the standard clickwrap agreement for the VLO serves as the legal contract between the attorney and his or her online client. Some attorneys may chose to require that their clients download and sign a separate written agreement following registration similar to a traditional retainer agreement. The business method depends on the individual virtual law practice. However, an online agreement during client registration with the terms and conditions for use of the VLO is standard.

    The ABA Committee on Cyberspace Law during a panel discussion at the ABA’s Annual Meeting last year provided a practical reminder of the steps to follow when creating an online agreement. Blogger, Jason Haislmaier, in his blog ThinkingOpen, provides a great blog post regarding the drafting of enforceable online agreements and the Cyberspace Law Committee’s recommendations.

    Haislmaier writes,

    “In particular, the panel indicated that the working group had identified four “bottom line” steps for forming legally binding online agreements:

    1. The user must have adequate notice that the proposed terms exist;

    2. The user must have a meaningful opportunity to review the terms;

    3. The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and

    4. The user must, in fact, take that action.

    Among these four steps, adequate notice of the existence of the proposed terms is among the most important.”

    VLOTech attorneys draft their own terms and conditions for use with their virtual law offices. The ABA Cyberspace Law website has a searchable archive for members which contains many good resources to assist attorneys in researching this topic and drafting their VLO online agreements.

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