Virtual Law Practice

Category: Ethics

  • CA Ethics Opinion: Duty of Confidentiality & Use of Wireless

    The California State Bar has published its newest ethics opinion, FEO 2010-179, related to the use of technology in law practice, specifically addressing the attorney’s duty of confidentiality to clients when using technology that may be accessed by a third-party.  Given the wording of the opinion, this could include everything from an attorney using wireless to connect to the Internet to any cloud computing application used to store or transmit law office data. 

    The specific scenario that the opinion poses will be familiar to those of us engaging in virtual law practice and who deliver legal services online:  The attorney takes his or her firm-provided laptop to a cafe and accesses the public wireless to transmit information to the client and to conduct legal research on a case. The attorney in the scenario also takes his or her work laptop home and conducts work using a personal home wireless connections.  What does the attorney have to do to ensure that he or she is upholding the duty of confidentiality and competence to the client? 

    The opinion was published in December 2010 after an extended period of review and specifically phrases the issue as:

    Does an attorney violate the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be susceptible to unauthorized access by third parties?

    (more…)

  • Law Firms Providing Unbundled Services Online to Meet Public Demand

    Gary Munneke, Chair of the Law Practice Management Committee, at the New York State Bar Association has written a thought-provoking article entitled “Dueling Sanctions . . .  And More” in a recent NYSBA publication.  He refers to an incident reported by the ABA Journal  about a law firm that came under heat from another firm for providing unbundled, self-help legal documents to individuals through the firm’s website. 

    By now our profession should be able to admit that we know consumers are going online in large numbers seeking out online legal services.  Typically they end up at an online legal service company that provides state-specific legal forms without attorney review.  In the worst cases, they are attempting to Google their legal needs and cut and paste together documents that they can’t afford an attorney to help them with. 

    Wouldn’t it be better if the public knew they had an alternative to these options and could actually obtain unbundled legal services from a licensed professional?

    Realizing that self-help legal forms and other free, educational legal content can be used both for the benefit of the public and as a marketing tool for the law firm, some attorneys are beginning to offer self-help services and resources through their website.  This gives them a competitive advantage over law firms that do not offer this online. 

    In many cases, the pro se individuals discover after downloading the forms that they could really use an attorney’s help in proceeding.  They end up going back to the firm that was willing to provide them with the DIY method first without charging them a $200 hour consultation first.  The attorneys posting these self-help documents on their websites realize the current availability of legal forms online and have identified the public’s interest in DIY legal assistance. 

    While firms some offer these forms for free, the attorney in the case discussed by Munneke charged $19.95 for the unbundled legal forms.  That has the potential to pull in a little extra revenue for the firm in addition to some potential prospective clients.  Not a bad marketing strategy that keeps that firm in the running with the online legal service companies.  Law firms that do not offer unbundled legal services, online or off, should reconsider how their firm is adapting to changes in the legal marketplace. 

    As Mr. Munneke writes in his review of this trend:

    Many services, some run by lawyers and law firms, and some not, make available a cornucopia of information, forms, and interactive advice. Although many law firms have eschewed online legal services delivery systems, and use their websites as online billboards, the trend in practice is for more firms to provide more services online. These online services will siphon legal work from pure bricks and mortar law firms in coming years.

    There are two trends here that should be closely watched in 2011:

    1)  The delivery of unbundled legal services is gaining renewed popularity, and

    2)  Elawyering methods, such as the use of a virtual law office and client portals, are growing as lawyers recognize their ability to use the technology to meet a consumer need and create a more efficient and cost-effective delivery of services.

  • Legal Cloud Computing Association Forms, Responds to ABA 20/20 Ethics Commission

    I’m excited to announce the formation of the Legal Cloud Computing Association (LCCA).  See the formal press release below my comments. 

    About two years ago when I was owner of VLOTech, Larry Port of Rocket Matter reached out to me, Jack Newton (Clio) and Richard Granat (DirectLaw) about forming a group to address the concerns that legal professionals had surrounding cloud computing.  At the time, we were noticing the many questions about cloud computing and security that would pop up on different practice management listservs.  We were concerned with the fact that so many attorneys didn’t seem to know much about cloud computing basics or where to go to get the answers.  The group loosely communicated back and forth on a Google group and over the phone about the best ways to educate the legal profession about the risks and benefits, but did not take any action until this fall when the ABA 20/20 Ethics Commission published its issues paper related to cloud computing.  

    I think it’s remarkable that these competing companies were able to organize an association and collaborate to draft a comment to submit to the Ethics Commission in response to the issues papers.   Since VLOTech was acquired by Total Attorneys last fall, David Dahl, the CTO of Total Attorneys, has taken over my role in the LCCA.  However, I was able to join in where I could and offered suggestions as a practicing attorney who uses cloud computing on a daily basis.  I expect that other cloud computing providers will get involved in the group as well adding to its knowledge base and expanding its ability to provide educational content to the profession.   I look forward to the LCCA continuing to take a role in helping to provide balanced technology education to the profession. 

    Below is the formal press release which links to the comment they submitted to the ABA 20/20 Ethics Commission addressing the following points:  1)  Desired form of the Committee’s Recommendations, 2) Minimal Set of Technology Standards for Cloud Computing Providers, 3) Model Terms of Service for Cloud Computing Providers, 4) Is Cloud Computing Outsourcing?, and 5) Cloud Computing Security vis-à-vis E-mail Security. 

    Legal Cloud Computing Association Press Release

  • Update: Alabama Ethics Opinion Permits Use of Cloud Computing For Client Data

    Alabama State Bar Ethics Opinion 2010-02, “Retention, Storage, Ownership, Production and Destruction of Client Files”

    This opinion addresses the following issues: 1) file retention policies; 2) how long a file should be retained; 3) what constitutes a client’s file; 4) what parts of the file can be destroyed; 5) the ethical considerations related to electronic data; 6) in what format and how the client’s file should be delivered; and 7) if the client can be charged for the cost associated with copying the file.

    Specifically addressing the use of cloud computing in practice management, the Ethics Opinion uses the “reasonable care” standard and covers the benefits as well as the potential risk.  The opinion refers to the Nevada State Bar Formal Opinion No. 33 and Arizona State Bar Opinion 09‐04 approving of third-party storage of law office data.    

    From the opinion: (more…)

  • Potential New Regulation of Online Advertising Will Negatively Impact Solo and Small Firm Virtual Law Offices

    There are two weeks left to submit comments to the ABA Ethics Commission 20/20 regarding its two issues papers related to cloud computing and online marketing.  I wrote about the cloud computing issues paper here, but as several fellow virtual law practitioners have pointed out to me, it is the second issues paper on the use of Internet-based client development tools that we need to be more concerned with. 

    I use most of the web-based “tools” that the paper addresses, including blogging, websites, and social and professional networking services.  I do not use pay-per-click advertising for my virtual law office.  I tried Google AdWords early on and found that I did not have the advertising budget to make it work effectively for my practice.  But without these other methods, I’m sure I would not have a virtual law office today.  At this point in my practice development, I use most of these methods to network with other legal professionals more than as a client development tool, but at what point does building a reputation for your practice turn into client development? 

    How could the virtual law practitioner possibly compete without using online marketing methods?  It would not be possible.  BigLaw firms setting up a virtual law office would have the financial resources to accomplish this, but certainly not a solo, small or even mid-sized firm.   LegalZoom, USLegal Forms and other online legal service companies are allowed to drop millions on aggressive, direct online advertising to the public.  Yet, online networking by attorneys is the big public threat?

    As a small business owner it seems absolutely ridiculous to me that I would be not be able to use the most current and effect methods of marketing my services.  I have been and always will be aware of and in compliance with my state bar’s rules and regulations regarding attorney advertising.  They are necessary, and I’m glad there are there because these rules set a high standard for advertising for professionals by ensuring that unscrupulous attorneys do not mislead or take advantage of the public.  It’s part of what sets us apart as a profession with a responsibility to the public we serve.  (more…)

  • Adapt or Get out of the Way: Standards to Protect Client Property/Confidentiality Change

    Last week during a guest lecture on virtual law practice at the University of Dayton School of Law, the subject of protecting client property and confidentiality of client data in electronic communications came up again.   My prediction (perhaps overly optimistic) is that in the next few years the state bars will recognize that unencrypted email communication between attorney and client is not the highest standard.  The state bars will look at the newer data privacy laws in Nevada and Massachusetts and  reconsider why attorneys should be using unencrypted email in our profession while other business professionals are required to encrypt personal client data. 

    The standard that the ABA Model Rules of Professional Conduct and most state bars take is encapsulated in Rule 1.6 (a) of the ABA’s Model Rules of Professional Conduct.  This rule states “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation.…”  Specifically comment 17 to this rule provides that lawyers must take “reasonable precautions” to safeguard confidential information and prevent it from going to unintended recipients during the transmission.   The ABA Formal Opinion No. 99-413 added in March 10, 1999 specifically allows for the use of unencrypted email. 

    “Reasonable precautions.”  What qualifies as “reasonable” should change as technology to communicate with our clients and other professionals develops and security risks in those electronic methods are exposed.  (more…)

  • Avvo Webinar Posted: How to Operate a Virtual Law Office

    Here is the recording from the webinar I presented on November 9th for the Avvo blog.  It provides an introduction to virtual law practice, looks at some case studies of how attorneys are setting up virtual law offices and then dives into researching the technology, ethics issues and ends with marketing a virtual law office.  This webinar had great interaction from the attendees who broke up the presentation with thoughtful questions. 

    [As a side note, I finally claimed my Avvo profile this month.  I was hesitant because I wasn’t sure how their rating system would handle a virtual law office.  Most referral databases are limited by geographic location and just don’t work well with a virtual law office that draws clients from across the attorney’s jurisdiction rather than their place of business or residence if they work from home.  I was pleased to find out that I could post my PO Box address rather than my home address in the profile.  The fact that I operate a virtual law practice did not seem to hurt my ratings at all. ]

  • Massachusetts Lawyers Journal Article on Virtual Law Offices

    Check out the latest issue of the Massachusetts Lawyers Journal for an article I wrote about operating a virtual law office.  It covers the basics, ethics issues and marketing and was compiled from three guest posts that I wrote for Mass LOMAP this past summer.  From the publication:

    Two influential forces are driving attorneys and law firms to consider delivering legal services online. The first is the increase in our clients’ expectations for more accessible and affordable legal services through the use of technology. The second is the changing landscape of the legal marketplace and the need for firms to find different means of obtaining a competitive advantage.

    Larger law firms continue to downsize and consider outsourcing, and more attorneys, many newly licensed, are opening solo and small firm practices across the country. Virtual law practice provides a way for the legal profession to meet the needs of the general public for greater access to justice, while also addressing the practice management needs of the professionals who serve the public….

  • Ethics Opinions Related to Virtual Law Practice: Updates to Book Appendix

    Below is the start of a list of ethics opinions proposed or published by different state bars that relate to virtual law practice.  This is meant to update the full list in the appendix to my book which contains state-by-state, topical references to ethics and advisory opinion that involve different aspects of operating a virtual law office.   I will make every effort to add to this resource as I become aware of new developments.  For future reference, the permanent link to this post will be on the Book tab of the blog.

    New Hampshire Bar Association Ethics Committee Advisory Opinion #2012-13/4, The Use of Cloud Computing in the Practice of Law, February 21, 2013

    Florida, Professional Ethics Committee of the Florida State Bar Proposed Advisory Opinion 12-3 2 January 25, 2013.

    Massachusetts Bar Association Ethics Opinion 12-03, regarding cloud computing, May 17, 2012.

    New York State Bar Association Committee on Professional Ethics Opinion 899 “Solicitation; answering legal questions on the Internet”, December 21, 2011.

    Oregon State Bar Formal Ethics Opinion No. 2011-188, “Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials” (December 2011).

    State Bar of California draft formal ethics opinion (No. 10-0003) (November 2011) regarding virtual law offices.

    Pennsylvania Bar Association’s Committee On Legal Ethics And Professional Responsibility Formal Opinion 2011-200, Ethical Obligations For Attorneys Using Cloud Computing/Software As A Service While Fulfilling The Duties Of Confidentiality And Preservation Of Client Property (November 2011).

    North Carolina Bar revised version of a proposed ethics opinion entitled “Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property”, 2011 FEO 6 (October, 2011).

    South Carolina State Bar Formal Ethics Opinion 11-05 (Summer 2011), regarding lawyers’ use of “daily deal” services to offer discounts online to prospective clients.

    California State Bar Ethics Op 2010-179 (December, 2010), Issue: “Does an attorney violate the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be susceptible to unauthorized access by third parties?”

    Alabama State Bar Ethics Op 2010-01 “The Unbundling of Legal Services and “Ghostwriting””

    Alabama State Bar Ethics Op 2010-02 “Retention, Storage, Ownership, Production and Destruction of Client Files”

    Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, FEO 2010-200, “Ethical Obligations on Maintaining a Virtual Office for the Practice of Law in Pennsylvania” (only published online for members of the PA Bar).

    New York State Bar Association, Opinion 842, September 10, 2010 regarding online storage providers storing confidential client information.

    State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion Interim No. 08-0002, regarding third party storage of confidential client information.

  • Review of PA Ethics Opinion on Virtual Law Offices

    Entitled “Ethical Obligations on Maintaining a Virtual Office for the Practice of Law in Pennsylvania”, the PA Bar Association Committee on Legal Ethics and Professional Responsibility published its FEO 2010-200 this month.  The opinion is in stark contrast to the out-dated thinking in the ethics opinion discussing virtual law offices published this past spring by its neighboring state of New Jersey.

    FEO 2010-200 defines virtual law office (VLO) as

    “a law office that exists without a traditional physical counterpart, in which attorneys primarily or exclusively access client and other information online, and where most client communications are conducted electronically, e.g., by email, etc.”  

    The opinion recognizes that there are different forms of virtual law practice and specifically states that it is not addressing issues related to “client portals” or cloud computing because both traditional and virtual offices may use these. 

    There are several questions that the 14 page opinion addresses including the following: 1) whether an attorney may operate a VLO in the state, 2) using a VLO to work from home or or in locations outside PA, 3) listing a physical address in ads for the VLO or letterhead, 4) using a PO box as the address, 5) if a geographic location must be given to the client letting them know where the attorney will handle the services or meet with them, 6) for a multiple attorney firm, if it is necessary to disclose all of the cities and states from which those attorneys are performing their services, 7) if the firm or attorney with a VLO can claim that fees are lower than a traditional law office, 8 ) compliance with the duty of confidentiality, 9) if the attorney does not meet face to face with clients, if there are other steps required to confirm client identity and handle issues such as diminished capacity.   In clear format, the opinion then lists the direct answers to each of these issues before jumping into its analysis of the PA rules of professional conduct as applied to VLOs. (more…)

MENU