Virtual Law Practice

Category: Confidentiality

  • Update on Ethics Inquiry into Cloud Computing

    UPDATE:  I received an email from the ethics committee with the following information: If you would like to submit a comment on the proposed opinion regarding cloud computing, the deadline is July 9, 2010 and the comment should be directed in writing to Alice Mine at the N.C. State Bar. Further information on the ethics opinions is located on this site. 

    Here is a brief update from the NCBA LPM Council this morning regarding the status of the cloud computing inquiry. 

    Proposed 2010 Formal Ethics Opinion 7The NC Ethics Committee met on April 15th and discussed whether attorneys could use SaaS and still observe the duty of confidentiality owed to clients and the duty to preserve client data.  The Committee voted to publish the opinion for comment.  I’ve posted a copy of NC Bar Proposed 2010 FEO 7 online.

    To summarize, the proposed opinion states that an attorney may contract with a SaaS vendor provided the attorney takes responsible measures to ensure the risk of loss is minimized.  To note, the opinion does not require that the attorney employ “infallible methods” but makes the standard one of “reasonable methods” to reduce risk.  The proposed opinion also provides that the lawyer or law firm should be able to answer a set of questions to ensure that client file information is reasonably safe.  The proposed opinion provides a list of 23 questions some of which include inquiries into the financial information and stability of the vendor. 

    In general, Inquiry #1 of the proposed opinion is positive about the use of SaaS for law practice management.  Inquiry #2 discusses “best practices” for the use of SaaS, and the Committee will most likely refine this before formal publication by sending it to a subcommittee.  After publishing the proposed opinion in the next issue of The State Bar Journal, the Ethics Committee will re-examine the proposed opinion at its July 22nd meeting.

  • Recent AZ Bar Ethics Opinion Discusses eLawyering Methods

    The Arizona State Bar has published Ethics Opinion 09-04 “Confidentiality; Maintaining Client Files; Electronic Storage; Internet” in December 2009.  This opinion will apply to attorneys operating virtual law practices within the AZ Bar jurisdiction and is similar to the NC Bar 2008 Formal Ethics Opinion 5, Web-based Management of Client Records published July 2008.  In fact the NC Formal Ethics Opinion 5 is cited in this new AZ opinion.

    AZ Opinion 09-04 addresses the ability of an attorney to work with clients and deliver legal services online.  The question presented in the opinion lays out the method that the inquiring attorney would use to securely deliver the documents to his or her clients online.  In this case, the documents would be converted to “password-protected PDF format,” and the client would access those files for review over a secure site which uses “encryption and three layers of unique randomly generated alpha-numeric folder names and passwords.”

    The AZ Bar pointed to the two related, existing rules of professional conduct which are the same rules that we have seen applied in other opinions related to virtual law practice: Competence and Confidentiality of Information.  A previous AZ Bar ethics opinion has permitted electronic storage of law office data, including clients’ files (Az Ethics Op.05-04). 

    Here is what I love about this opinion.  They allow for the proposed method of delivering legal services online to the client, but they recognize that this is not where it ends. From the Opinion:

    However, the Committee also recognizes that technology advances may make certain protective measures obsolete over time.  Therefore, the Committee does not suggest that the protective measures at issue in Ethics Op. 05-04 or in this opinion necessarily satisfy ER 1.6’s requirements indefinitely.  Instead, whether a particular system provides reasonable protective measures must be “informed by the technology reasonably available at the time to secure data against unintentional disclosure.” N.J. Ethics Op. 701.  As technology advances occur, lawyers should periodically review security measures in place to ensure that they still reasonably protect the security and confidentiality of the clients’ documents and information. (emphasis added)

    This is clearly the best way that the state bars can address virtual law practice without preventing or discouraging innovation.   The attorney practicing law online has the responsibility to stay current on the security issues involved in using the technology. If they are not able to do so for themselves, then they need to trust an IT professional or their SaaS provider to keep their system up to date and protected.

  • 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.

  • State Bar Regulation of Online Lawyer Communication

    I have been fielding questions lately about the recent lawsuit filed in Louisiana regarding the Louisiana State Bar’s new proposed Rules of Professional Conduct and how they may affect blogging and other online social networking.  Attorneys operating virtual law practices tend to use blogging and other online communities in their daily law practice for the purpose of client development as well as to network and collaborate with other attorneys. 

    As I’ve worked with other attorneys nationwide to set up virtual law offices, I’ve been reading through different state’s bars rules of professional conduct and ethics decisions related to electronic communication and advertising.  Every state seems to have a different understanding of how attorneys are using the Internet in their law practices.  Sometimes it’s an archaic understanding and at other times it’s just not informed enough from a technology perspective to provide the guidance to attorneys as it was intended to do. 

    The new proposed Louisiana rules regulate lawyer advertising on blogs and other social networks and will go into effect in April of next year.  The lawsuit, brought by a Louisiana Construction Law Firm,  challenges the constitutionality of Louisiana’s new rules claiming that they will restrict free speech.  The full text of the Complaint is here.

    An attorney in the firm filing the lawsuit is active in online communities and forums.  He is a member of LinkedIn, Twitter, Facebook and other popular social networking sites.  He operates an educational blog about the construction industry and construction law.  As a blogger, he posts comments on other blogs and writes guest posts.
     
    The most interesting claim made in the complaint is that each incidence of “speech,” each blog post, each tweet, would have to be run by the Louisiana Bar prior to posting and would cost $175 per review.  Wow.  That might be doable for BigLaw, but would certainly not be cost-effective for a solo practitioner.  How could you make timely blog posts if you had to run it by a review team before posting?  I will be interested to read the response to this particular claim.   

    I’ve read Kevin O’Keefe’s opinion about the new proposed Louisiana rules and the lawsuit on his blog.  He seems to think the whole issue is being blown out of proportion and the rules will not be any threat to blogging.  O’Keefe is probably right. 

    What interests me more about this lawsuit and the proposed rule is the way that state bars are trying to draft rules that regulate their attorneys’ use of technology to communicate, not just to advertise their law practice, but to provide the delivery of legal services.

    Most of the rules and regulations that exist for each state bar related to electronic communication are out of touch with the technology that their attorneys are using.  Many ethics opinions and rules of professional conduct restricting attorney advertising through electronic methods were written when email was still new.  Most haven’t been updated since the mid-1990s.  

    In addition, the rules and ethics opinions that I have read seem to be out of touch with the general public they are intended to protect.  Maybe I’m off base here, but I think it’s past time that the legal profession reevaluates the experience and ability of the general consumer to find and retain legal services.  Yes, there will always be unscrupulous attorneys out there who will use online advertising to mislead the public.  However, there could be a better balance of 1) education on the part of the state bar regulators regarding the technology used by attorneys in daily practice and 2) addressing the public’s demand for affordable and convenient access to legal services through electronic methods.   

    I’ll be watching to see what happens in Louisiana.  In the meantime, I’m still compiling a state by state list of rules of professional conduct and ethics opinions that relate to an attorney’s use of technology in daily practice.  I’d like to provide this as a resource for attorneys wanting to practice with a virtual law office to see how their state bar as well as neighboring state bars have addressed the delivery of legal services online.

  • State Bars Address Virtual Law Practice

    Over the past month, I have spoken with several attorneys who want to open virtual law practices.  They are approaching their state bars to get the go-ahead before hanging the virtual shingle.  If you live in Texas, Maryland or Georgia, you may want to keep an eye out for opinions from your state bar authorities regarding virtual law practice.

    The summer issue of the NC State Bar Journal published a new proposed formal ethics opinion regarding web-based management of client records.  You can read the proposed opinion #5 on the NC State Bar website here. 

    The proposed ethics opinion examines two separate scenarios where the attorney’s clients are able to access confidential client records through a web-based system.  The proposed opinion expands beyond the NC Bar’s previous 2006 ethics opinion regarding virtual law offices which focused more on non-secure email communication rather than web-based VLOs. 

    This new proposed opinion concludes that “client files may be stored on a website accessible by clients via the internet provided the confidentiality of all client information on the website is protected.”  It also specifies that “[i]f the law firm will be contracting with a third party to maintain the web based management system, the law firm must ensure that the third party also employs measures which effectively minimize the risk that confidential information might be lost or disclosed.”

    I have been forwarding the NC Bar’s opinion on VLOs and this new proposed opinion to attorneys in different states who are in the process of approaching their own state bars.  If anyone would like to share the virtual law practice opinions of their state bars, I would love to post them on this blog as resources for other attorneys researching virtual law practice.

  • Unsecure Law Office Emails – Not the Only Way to Talk to Clients Online

    Ross Kodner of Ross Ipsa Loquitur posted sections of an interview with his state’s bar journal about the state of legal technology. Predictably, the question of security in legal technology came up here.

    As Kodner discusses, email communications are unsecure and to help with the potential ethics violations, he recommends that attorneys let their clients know from the beginning that email is unsecure. This is a good practice tip for attorneys no matter how much technology they use in their day to day practice.

    Even though I communicate with my clients through my secure website only, there occasionally are clients who will find my email address and email me rather than use the website interface. When this happens, I make a point of telling them that email is unencrypted and therefore not as secure as my website where, like online banking, they can have more options of communicating with me than in an unsecure email. Once they understand this, most clients will go to the virtual office.

    The trend with law office websites is still the “contact us” form that is sent by unencrypted email and gives the client a chance to disclose their legal issues to the attorney or whoever is answering the law office’s incoming email. The concern from my perspective is that this form of unsecure communication will be confused with my secure virtual website and the methods that the vlo technology uses to protect the client’s information.

    Not everyone in the legal profession can be computer experts or technology buffs in addition to successful attorneys. If legal professionals understood the basics, that there are forms of electronic communication that are more secure than email and that these methods were easy to use and required little money and energy, then they might have more confidence in integrating (or hiring someone to integrate) that form of communication into their practices for the benefit of their professional development.

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