Category: Ethics

  • 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.

  • Revising Ethics Rules to Facilitate Virtual Law Practice

    I’m on a panel discussion this morning at the ABA Annual Meeting about the impact of technology and globalization on ethics for the 21st century lawyer.  One of the questions that I expect will come up will be about the need for ethics rules to be revised to reflect the changes in practice management that involve virtual law practice and cloud computing.  Which rules do I think need to be revised?

    Based on my research, not many state bar ethics rules or advisory opinions actually address the use of cloud computing or the delivery of legal services online.  The North Carolina State Bar’s proposed opinion related to SaaS in law practice managment that was published this summer is one of the first to my knowledge.  There are opinions out there that are related to the hosting of law office data by third-party providers, but none that really discuss the actual delivery of legal services online to clients. 

    My main concern with the development of any future ethics opinions is that they should not attempt to define the technology too narrowly.  This is a problem that attorneys have now in trying to interpret the existing rules and regulations based on way that they were drafted years ago.  Try figuring out how to apply rules related to email, fax and cell phone usage to the cloud computing apps you currently use in practice management.  There is a lot of uncertainty in trying to comply with the rules when the rules weren’t really written to take the rapid growth of technology into consideration.  (more…)

  • Following the Virtual Lawyer Mindset

    Jay Fleischman has a thought-provoking post up on his blog entitled “Being a Virtual Lawyer is all Mindset, Not Technology.”  You can read my comment below the post.

    Jay writes that regardless of the form of technology you use to operate a virtual law office, the key is having the right attitude to go with it.  He’s right.  To take advantage of the benefits that the technology gives us to make our professional lives more flexible, we have to be able to change our work habits and know when to unplug. 

    However, I would add that the choice of technology is a factor in coming to this mindset and is going to differ depending on the comfort level of the attorney.  Some attorneys are more tech-savvy and experienced working online than others.  What is easy for one attorney to set up and work with clients is not going to be easy for another attorney with less experience.  That will affect their ability to enjoy the benefits of operating a virtual law practice. (more…)

  • Pop-Up Disclaimers on Florida Attorney Websites?

    Take a look at the new Florida State Bar rule on attorney online advertising, 4-7.6 “Computer Accessed Communications.”  In particular take a look at page 10 of the PDF. The ABA Journal also ran an article this week on the rule.

    Fortunately, the State Bar is holding off on the rule enactment until August 16th in order to hear additional comments after groups from the FTC to the ACLU claimed it violates First Amendment rights. If you are an attorney licensed in Florida, where were you when this was going through the comment stage?  Now is the time to chime in.

    Here’s a snip-it. Try to keep your mouth from dropping open when you get to the last line: (more…)

  • Delivering Unbundled Legal Services in Michigan – New Ethics Opinion

    A new ethics opinion has been published by the State Bar of Michigan on the topic of unbundling legal services.  This is another example of a State Bar recognizing the need for unbundled legal services as a means of access to justice for the public.  The conclusion from the opinion (entitled RI-347):

    So long as he or she complies with the Michigan Rules of Professional Conduct and other law, a lawyer may, without appearing in a proceeding or otherwise disclosing or ensuring the disclosure of the lawyer’s assistance to the court or to other counsel and other parties, assist a pro se litigant by giving advice on the content and format of documents to be filed with the court, including pleadings, by drafting those documents for the litigant, by giving advice about what to do in court or any combination of these.

    The opinion further states that the attorney is not obligated to announce the limited legal representation to the court as long as there is no misrepresetnation by the pro se litigant that he or she has not been provided with the assistance of an attorney.   So for those attorneys licensed to practice law in the State of Michigan who may have been considering operating a virtual law practice to deliver unbundled services online, this opinion is supportive of limited scope services pertaining to that state’s laws.  Footnotes in the opinion provide citations to other state bar and ABA opinions and resources related to the unbundling of legal services.

  • Another Opinion Related to Residency Requirements

    If you are keeping up with developments in the bona fide office rules or residency requirements of state bars that govern the practice of law, you might want to read through this recent opinion: In the Matter of the APPLICATION OF CARLTON, No. 10-mc-160 U.S. District Court D. Maryland (April 26, 2010).  I’ve only got the Westlaw citation for it: 2010 WL 1707722 (D.Md.).  I’ll link to it if it ever makes its way online into the zone of free research. 

    The attorney in this case worked from home in Massachusetts for a law firm based in the District of Columbia. She is licensed in the District of Columbia, but not in Massachusetts. The opinion held that her law practice is in D.C. even though she lives in MA and that she was not in violation of a Maryland local rule regarding “principal law office” location.  The opinion discusses the attorney’s use of technology to provide legal services online and collaborate with her firm in D.C. 

    This is another example of where elawyering is called into question because of outdated rules and regulations that do not take into consideration the methods now available to attorneys to ethically and responsibility provide services online.  At least the outcome is a positive one.  It’s worth a read if you keeping up with new development on this topic.

  • Does the Internet Make You Feel Risky?

    Oh, yet another excuse to not take responsibility for individual action and blame it on the technology instead.  *sigh* 

    Seriously, this article just annoyed me to no end.  The National Law Journal published an article entitled “Lawyers’ Ethical Stumbles Increase Online” and then proceeded to give the most outrageous example of an incredibly irresponsible attorney using email to share pictures of a deceased individual from a case along with lewd commentary of his own in the email. 

    First of all, this guy is not using social media; he’s using email.  Email use in the law office at all for any communication regarding a case is not secure because it’s typically not encrypted.  Second, given the immaturity of the action, this is probably the same type of individual who goes out to the bar on the weekend with his buddies and discloses confidential information from cases with them while having a few beers.  I don’t think it’s anything related to a new “method” of communicating that caused this breach, just a question of education on the part of the attorney.  The article then goes on to give several other outrageous examples of attorneys misusing everything from email, to Twitter to blogging in isolated incidents.

    Don’t get me wrong. I think it is great that there are so many organizations out there concerned with the use of social media by attorneys.  Surprisingly, there are many attorneys out there that do need guidance on how to use something as simple as email or Twitter to communicate — or refrain from communicating — as the case may be.  I know that the ease of which we chat online through different Internet-based technologies makes it seem like the risk is higher.  But I would disagree and say that it depends on the individual and their knowledge and use of the technology. 

    For me, I’m way better off communicating by writing.  I can edit, re-edit, delete, be absolutely sure what I am saying or sending before it goes out.  Get me on the phone, put me on the spot in front of a group of people and it’s a completely different situation. My tongue ties, I end up saying more than I should or am too shy to speak when I need to, and usually regret my speech or omissions later.   This preference  just depends on your personality and skills.  Not everyone communicates the same way.  

    However, we all learn ways to cope with other methods.  As I practice public speaking more I’m learning to think longer before I speak or to ask if the audience understands me clearly before jumping onto another topic.  Similarly, attorneys who are new to social media and perhaps not as educated about technology and security issues need basic guidance for the best ways to use those methods and they need to practice them – not jump from using a fax machine and phone into marketing their firm on Facebook and Twitter. 

    Just because everyone is using social media doesn’t mean that all attorneys should use it unless they know how to draw the necessary lines that it requires.  That’s one of the downsides to being an attorney – no matter where we go or what we do, we are legal professionals and can’t escape that by going online.  It’s a huge responsibility, almost a burden sometimes when you just want to hop on Facebook and chat with your college buddies about things that you would prefer your clients and colleagues didn’t know about.  But as professionals in this new media, I think we have to be careful about those lines that we draw and remember that even when we are not working on our clients’ case, they are still our clients and we carry that burden of protecting their information. 

    But adding ethics rules restricting the use of social media is not the answer because many of us do use these methods to communicate effectively and efficiently with our clients and other attorneys and we do respect the technology and use it responsibly.  The few bad seeds should not ruin this for the rest of us.  Remember, the methods that we attorneys find to cut costs and more efficiently work with our clients trickles down to the clients in reduced legal fees and more accessible legal services. 

    Legal ethics expert Michael Downey said lawyers’ tendency to be risk-averse seems to fade away on the internet. “They’re disclosing confidences, talking about pending matters, they take potshots … like everyone else,” said Downey, immediate past chairman of the American Bar Association’s Ethics and Technology Committee and a member of the ABA Center for Professional Responsibility.

    Social media must be like a shiny new toy for some attorneys that they are eager to try out and show off.  Maybe that is what makes their actions online seem more “risky.”  Maybe it’s because some of these communication methods so closely connect our personal lives and personalities with our professional that some attorneys have trouble holding their tongues.  I’m not sure, but even Mr.  Downey, cited above, “suspects the current rules ‘are probably adequate.’”  

    My personal opinion is that this is yet another learning phase for our profession that we are smack in the middle of.  The high-profile examples of stupidity cited in this article are the lessons learned by others. These stories will teach other attorneys who are not using the technology responsibly about the risks. 

    For those attorneys who prefer to educate themselves about technology, security and social media BEFORE jumping in (& I highly suspect this is still the MAJORITY of our risk-averse profession), the ABA LPM and state bar associations can provide that education and guidance.  Rules and regulations that will stay in place for years and cover all of us  should not be written as a reaction to a minority of irresponsible attorneys who fail to educate themselves before acting.   There are already outdated rules on the books that hinder the use of technology to deliver legal services online, for example, the bona fide office rule.  

    There are some great books written by and for attorneys on how to deal with social media that have recently come out.  Niki Black and Carolyn Elefant’s book published by the ABA LPM is one example that comes to mind.  I just wish this article had ended by citing one of those books, recommending a resource for attorneys or at least reminding the reader that while there are these bad seeds out there, there are many other attorneys using the Internet ethically and responsibly to serve the public.

  • Ethics Reminder for Unbundling Legal Services Online

    If you are providing unbundled legal services online — whether you are providing pro bono unbundled assistance or charging a fee for your services, you might want to read through this opinion (Thigpen v. Banas) that was issued in the Northern District of Illinios in February.

    The case is related to ghostwriting/unbundling of legal services.  Mr. Thigpen, a pro se litigant, filed a proposed second amended complaint which appeared to be drafted by an attorney and upon inquiry the plaintiff admitted that it was.  However, the attorney had not signed his or her name to the document or made an appearance before the court.  The opinion discusses the dangers of ghostwriting to both parties in the case and discusses the rules of professional responsibility that the attorney who drafted the document breached by not making an appearance before the court. 

    This opinion provides a good reminder for those of us unbundling legal services online that we need to 1) determine from the beginning of our contact with the prospective client if the matter may be unbundled or needs full-service representation and 2) that we are clear when we intiate any online representation what services we will provide for the client and which services we will not provide.  In the above opinion, the attorney who drafted this proposed second amended complaint should not have jumped into the middle of a matter where full-service, in-person representation was required without making appearance before the court.  (more…)

  • 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.

  • NC Bar Ethics Committee Reviews Cloud Computing Inquiry

    For some reason, a firm here in my home state decided it was in their best interest to ask permission of the NC State Bar before using a SaaS product.  *really big sigh*  So now those of us who have been using SaaS applications for years for everything from email, tasks and calendaring to delivering legal services online now have about one week to step forward to provide comments related to the inquiry. 

    The question posed was:  

     Is it within the RPC for an attorney/law firm to use online (“cloud computing”) practice management programs (e.g., the Clio program) as part of the practice of law?  These are instances where the software program is accessed online with a password and is not software installed on a computer within the firm’s office.

    (more…)

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