Virtual Law Practice

Category: Ethics

Response to “Ethical Pitfalls of Virtual Law Practice”

This past week an article came out in Lawyers USA Online entitled, “Ethical pitfalls of virtual law practice.” The article discusses some of the ethics risks that exist in this form of law practice. However, there are a number of safeguards and smart practices that an attorney may engage in to avoid these “ethical pitfalls.” While the article quotes a handful of solutions, it does not cover all of the different options and resources that are available to attorneys who are concerned about these risks. (more…)

November 10, 2009
Susskind Predicts: “Disaster Ahead for Lawyers Unwilling to Change”

Richard Susskind, author of The End of Lawyers? Rethinking the Nature of Legal Services, has written a guest post for the Legal Rebels blog entitled “Disaster Ahead for Lawyers Unwilling to Change.”

Susskind looks at changes in the profession as well as the impact that the economic recession has had on our clients. He mentions disruptive technologies as another factor that will force legal professionals to find more innovative ways to provide legal services or face the consequences of losing their practices to the competition who will find ways to embrace the circumstances.

In my opinion, his arguments are supportive of virtual law practices. A virtual law practice is a practical way for attorneys to meet the demands of the public for the online delivery of legal services while finding creative ways to collaborate with other attorneys, pool resources and streamline the delivery of legal services online.

Here is the comment that I posted to the article: The changes are going to be consumer-driven. As the owner of a web-based virtual law office for going on almost four years, I have gotten significant feedback from the public indicating that they expect more affordable and accessible legal services from attorneys. The technology is available to allow legal professionals to step up and meet this consumer demand in a way that is ethical, avoids malpractice risks and provides quality legal services similar to what has been provided in a traditional brick & mortar practice.

I agree that in order to remain competitive attorneys will need to find ways to provide services to the public that acknowledges that most clients now have access to a wealth of legal information online. We have to find responsible methods of educating the public that our services are important and that cutting and pasting sample online legal forms or going with cheap online forms without attorney review is not in their best interest.

Attorneys should seize these changes as a great opportunity to revive the respect for the profession through innovation and entrepreneurship that serves the public as well as the legal professional.

If you are considering virtual law practice, whether as a solo or working with other attorneys to form a virtual law firm, you should read this article. It’s definitely motivational.

October 19, 2009
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.

September 30, 2009
NC State Bar Journal Covers the Online Legal Professional

Attorneys practicing law online and licensed in North Carolina may be interested in checking out the fall issue of the North Carolina State Bar Journal. Several of the articles in the issue cover topics related to attorneys creating online presences, including avoiding ethical risks for law firm websites and using social networking, such as Facebook, Twitter and blogging.

As with most state bar publications covering topics related to technology, at least one of the articles comes with a stern reminder to follow the Rules of Professional Conduct and advises attorneys to consult with the ethics counsel at the State Bar before attempting to use any social networking as a marketing tool. Wise advice. I’ll freely admit that I took advantage of the ability to call the ethics hotline a few times both while working at a small firm and when I first went out as a solo with a virtual law practice. The service is anonymous and a great way to get the reassurance and confidence you might need before taking any action. There are more formal methods of getting written ethics advisory opinions, but being able to make a quick phone call for small matters, many of which may just be affirmation of good common sense, is a valuable service from the Bar.

With the lines between the personal and professional being so thin with many popular forms of online social networking, it’s good to know you can check with someone from the Bar who handles ethics issues on a daily basis. It’s a “measure twice, cut once” philosophy and serves well for any professional placed in a position of trust by members of the general public.

September 1, 2009
Metadata – NC Bar Proposed Ethics Opinion

A proposed ethics opinion by the NC State Bar covers the review and use of metadata. The proposed opinion dated January 22, 2009 states the following conclusion,

…a lawyer must use reasonable care to prevent the disclosure of confidential client information hidden in metadata when transmitting an electronic communication and a lawyer who receives an electronic communication from another party or another party’s lawyer must refrain from searching for and using confidential information found in the metadata embedded in the document.

The concern with metadata is that it may reveal privileged or confidential client information. With even basic computer skills, if you know how to look for metadata, it’s easy to obtain information about who wrote a document and when and to find detailed notes and information embedded in the document.  Attorneys must observe “reasonable care” to protect and preserve confidential information when they are using forms of electronic communication.

Likewise, when receiving an electronic communication, the opinion states that the attorney should not actively seek out metadata. This is in line with ethics opinions issued in recent years by the NY State Bar followed by other state bars and backed up by the ABA Standing Committee on Ethics and Professional Responsibility.  Visit the ABA’s Legal Tech Resource Center for a complete list of Metadata Ethics Opinions in each state.

How does metadata relate to a virtual law practice?

With a web-based virtual law practice, the attorney may be transmitting documents to clients and other attorneys in digital format by uploading documents for review or in allowing uploads to the virtual law office from another attorney or client. Depending on the file format being transferred online and the circumstances, metadata may be embedded in those files.

Accordingly, the virtual law practitioner should use metadata removal programs on their applications immediately before uploading them to the VLO.  Microsoft and even Open Office have metadata removal programs and techniques available for their software suites. Another option is to convert the files, such as Word, Excel, OpenOffice, and PowerPoint, to PDF before uploading them to the VLO. However, some online clients may not be able to edit the application on their computers as a PDF. So if the purpose of the transfer is to allow your clients to add anything to the document, then conversion to PDF may not be the best method of avoiding metadata. Another free option would be to convert the document to Rich Text Format (RTF) but this would most likely create layout and formatting problems and not be worth it.

There are metadata removal applications from a number of companies, including Workshare, Payne Consulting Group, Esquire Innovations, Inc. or iScrub. Depending on the virtual practice, an attorney may want to invest in an annual license for these programs just to avoid any malpractice risks.  Given the availability of these programs and methods, it is clearly the responsibility of the attorney to ensure that he or she has removed any metadata from a file before uploading it to the VLO and sharing it with clients and other attorneys.

How a virtual law practice may help prevent malpractice risks from metadata

If an attorney is required to use reasonable care to protect their client’s confidential, then should attorneys be using unencrypted email to communicate with clients and to transfer documents as attachments? The risks involved in using email are well-known and the attachments sent through email may contain metadata if not carefully cleaned.

Even more of a security risk are the use of public email accounts, such as those provided by gmail, hotmail and yahoo.  If there is a safer option that is easily available to transfer information securely, then doesn’t this proposed NC State Bar ethics opinion and others like it require that the attorney use “reasonable care” to seek out a safer method?

With a virtual law practice, the attorney can tell their client that the attorney is acting in the best interest of the client by refusing to communicate and transfer legal documents via email. The attorney can explain that using the web-based VLO is the safer way for the client to interact with the attorney and that even more communication tools are available to the parties through this method.

I have done this with my online clients and once they understand that the technology is no more complicated than email, and safer to protect their confidential legal matters, they are excited to have 24/7 access to their own homepage and legal case files. Rather than emailing me their private legal issues on unsecure email or attaching documents for me to review, they are able to post on the discussion thread to me their legal issues and all of it is contained in their case file for future reference. Likewise, if I’m working with another attorney on a case file, he or she may send me a private note using the same method which will show up on the case file rather than being sent through unencrypted email.

The risks of malpractice from metadata embedded in documents may be limited by the use the secure online communication inside a VLO. The attorney and client may conduct all of their legal work securely online. Rather than having multiple folders containing draft documents in email attachments, the client’s online case file after drafts have been completed may be limited to the single legal document controlled by the attorney who may then use a method of removing metadata when transferring it back and forth to the client or another attorney for review.

While a VLO may not remove all of the malpractice risks associated with metadata, it can help legal professionals comply with ethics opinions requiring “reasonable care” and to help them protect their client’s confidential information when using electronic communication.

March 16, 2009
Three Years into My Virtual Law Practice

I’ve been preparing materials to teach a course on virtual law practice for Solo Practice University (SPU). Lawyers USA just published an article about SPU here. I hope some of my blog readers will join me for the virtual law practice course.

One of the topics I’m covering at the beginning of the course has to do with taking the leap from a traditional law practice management method into a virtual law practice.   In helping others make the decision to go completely web-based with their solo or small firm or to add some virtual component to their law practice, I’ve been thinking about why I left my position as an associate in a small, traditional law firm to go solo with a VLO.

It’s been three years since I opened my web-based virtual law office, Kimbro Legal Services.   In 2006, I hung my virtual shingle using the beta release of the VLOTech virtual law office software. As with any business, after a couple years you realize that your goals and expectations have changed from when you launched, but I’ve been pleasantly surprised by the support I’ve had from other attorneys and from the great public response over the past three years.

Reasons why I initially formed my virtual law practice:

1. The birth of my first child. I wanted to work from home and spend as much time with her and my family as I could. Childhood is a short time and I didn’t want to miss it.

2. From my experience in the small firm, I noticed that there was a clear market need for individuals of middle income and moderate means to be able to conveniently access and afford legal services. Yet many of them were going to their office supply store and buying legal kits or purchasing LegalZoom documents online. They weren’t consulting an attorney for the guidance they needed because they were 1) afraid they couldn’t afford it, or 2) were just too intimidated to sign a traditional engagement letter with an attorney and put up a sizeable retainer.

Those were my main reasons for opening my VLO. Three years later my reasons for practicing with a virtual law practice are the same, but I have some added observations and experiences that reinforce my decision.

1. Clients want this. The general public response to the VLO in the past three years has been amazing. My clients appreciate the convenience and accessibility to legal services. They have their own homepages on my secure VLO where they can drop me a note at any time, upload and download documents, fill out online forms, pay their invoices, review their invoices, etc. I think the ability for them to access their own case files and review our work together helps them to feel more in charge of their legal needs and more connected with me as their legal representation.

2. Client revenue has come in from across the state. I have not had the collection problems that I was warned about by other attorneys when I first opened my solo practice. I expected it to be a big hassle and in three years I’ve been limited to two or three small collection issues that were not that difficult to resolve. Clients receive their invoices online. They pay me online. We set up recurring billing or payment plans. Maybe it’s the convenience of the invoice being online or maybe it’s being able to pay by credit card. Whatever the reason, ease of collections has been a pleasant surprise.

3. Attention to customer service results in client loyalty  They don’t really teach you this in law school, but running a law practice requires business skills. I stopped trying to act like an attorney and instead focused more on being a good business owner. This has made all the difference in the world. I relate to my clients on personal levels through our dialogue on the VLO. I take the time to address all of their concerns and questions with patience and it has resulted in a growing client base for my virtual law practice.

4. Virtual law practice in some form is the way our profession is headed.   If you haven’t already, read Richard Susskind”s End of Lawyers?: Rethinking the Nature of Legal Services. The traditional law office will not cease to exist, but it may find ways to incorporate a virutal law practice component to address the needs of its clients and to facilitate attorney online collaboration. In the past three years, I’ve been overwhelmed with the number of attorneys who support web-based virtual law practice and who see it’s benefits for the public as well as the legal profession. It’s a growing trend in our profession that would be foolish to ignore.

As I’m working more with other attorneys through VLOTech to set up other virtual law practices, I’m spending less time on my own VLO.   Fortunately, we just opened up a new VLO in North Carolina where I can refer some of my online clients and we are in the process of launching another VLO, a multi-attorney firm in NC, this week.

Three years may not seem like a long time to have been in business, but considering the novelty of the concept when I started and how popular virtual law practice is becoming now, I’ll give myself a birthday pat on the back for taking the leap.

February 2, 2009
Congrats to the Virtual Courthouse

Congratulations goes out to the Virtual Courthouse for receiving the 2009 ABA Louis M. Brown Award for Legal Access. Each year the ABA gives out the Brown Award to recognize projects or programs that have addressed the need for legal services to members of the public who are in the middle class or of moderate means. The project must not only have exhibited an innovative solution to delivering legal services to the public but also be replicable for others in the legal profession. Since this year’s winner provides an unique virtual solution to a specific area of law practice, I thought I’d share it with this blog’s readers.

The Virtual Courthouse provides an online method of dispute resolution. According to its website the Virtual Courthouse “enables parties to submit disputed claims, responses and supporting material in digital form for resolution by a neutral provider of Alternative Dispute Resolution (ADR) services. These ADR services can include arbitration, mediation, neutral case evaluation or a settlement conference by members of a panel of neutrals.” There are screenshots of the technology on the website, but not many details regarding data security or the actual technology behind the solution.

This company is a good example of how attorneys are finding ways to integrate different forms of virtual law practice into their traditional practice methods to provide the public with access to more affordable and convenient legal services. If your practice includes ADR and you have considered adding a virtual component to your practice, then you may want to check this out.

The ABA Standing Committee on the Delivery of Legal Services also recognized Heisler, Feldman, McCormick & Garrow, PC and Have Justice Will Travel for their law practice methods.

January 28, 2009
Update to Virtual Law Practice eBook

Please check out the latest, updated version of my free eBook, Practicing Law Online: Creating a Web-based Virtual Law Office. Because the technology behind virtual law practice is changing at a rapid rate and because new state bar advisory opinions on the topic are starting to emerge, I plan on updating the eBook at least every six months.

For this latest update, I conducted some additional research online through the Cornell University Law School’s American Legal Ethics Library which has a great state-by-state comparative analysis of the ABA’s Model Code. There were some new state bar advisory opinions that related to third-party service providers, online backup and retention of law office data, email, online advertising and other technology related topics. I included these in the different sections of the eBook relating to ethics and malpractice issues in virtual law practice. I’m sure there are more formal and informal opinions from state bars out there that I did not find.

Please share if you have any experience presenting technology-related law practice management questions or formal advisory opinions to your state bar. I’ll post them on the blog and add the information to the eBook — with a hat tip to the sharer, of course.

January 19, 2009
Setting Guidelines for Virtual Law Best Practices

A small group of companies providing software as a service (SaaS) products to legal professionals will begin meeting to discuss the use of SaaS technology in law practice management. The group also hopes to discuss among other things a set of minimum security requirements for SaaS products used by attorneys. As a co-owner of VLOTech, I am excited to be included in this group of innovators and entrepreneurs when they meet for the first time next week.

Last week, the ABA’s eLawyering Task Force held a conference call which I was able to join in on. Over the next several months the Task Force will be working to establish a set of malpractice standards or guidelines for attorneys using technology to deliver legal services. The Task Force plans to meet at least once a month to discuss these malpractice standards among other issues. The goal would be to establish a set of guidelines that could be approved by the ABA’s Law Practice Management Section and posted on the ABA’s website. Attorneys interested in establishing virtual law practices or in using technology to practice law in any form would be able to refer to these standards and present them to their state bars in support of their virtual practice methods.

Hopefully input from both the SaaS group and the Task Force will be combined in the final version of any guidelines, and that these guidelines will address both the needs of the legal professional as well as the general public’s need for more affordable and convenient legal services.

January 14, 2009
Avoiding the Unauthorized Practice of Law (UPL) in other Jurisdictions with a Virtual Law Office (Part Two)

Part I of this post on the unauthorized practice of law in other jurisdictions addressed the following questions: How does a virtual law practice avoid UPL in other jurisdictions? and If a website is accessible internationally, then how can a VLO be limited to provide legal services only in the state(s) in which the attorney is licensed?

How is it clear with a Virtual Law Office (VLO) when the attorney/client relationship is established?

An online client receives adequate notice through his or her individual homepage in the VLO as to the different statuses of the case. Notice is provided to the online client when the attorney has reviewed the client’s question and posted a response, when the attorney has accepted or declined representation, when the attorney provides details of the scope of representation, and when the attorney has completed legal representation and is formally closing the online case file.

The attorney/client relationship begins when the online client has registered on the VLO and requested legal services from the attorney. The client is notified when the attorney has reviewed and responded to his or her legal question. Then the client is asked follow-up questions by the attorney or is presented with the price quote or terms of representation for the online client to accept or decline.

Through the VLO, the attorney has several options to define the scope of representation, including providing clients with a traditional written retainer letter uploaded to the system, writing out personalized messages to each client and requiring that the client accept a customized clickwrap agreement solidifying the terms of the attorney/client relationship, or using both traditional and online clickwrap methods. Basically, the same procedures for establishing attorney/client relationship and defining the scope of representation that are used in a traditional law practice can be integrated into a VLO.

I would argue that using the technology actually provides clearer notice to the clients of the establishment of the attorney/client relationship and the scope of representation. It may also do a better job of keeping the clients informed of their case status than occurs with a traditional law practice. One of the biggest malpractice complaints from clients is that their attorney does not communicate effectively with them regarding their case. The VLO handles so much of the process for the attorney automatically. It also gives clients the ability to check for themselves the status of their file and to review their previous discussions with the attorney.

Is it UPL in another jurisdiction to draft a legal document, such as a Will, for an online client who is a resident in another state?

It is my understanding that it would constitute the unauthorized practice of law in another jurisdiction if an attorney used his or her VLO to draft a legal document that pertained to the laws of another state where the online client was a resident but where the attorney did not have a license to practice law.

However, if the attorney operating the VLO were partnering with attorneys or legal assistants on his or her VLO who were licensed in other jurisdictions, then this would be different. For example, a virtual paralegal could work on the VLO to draft a Will or other estate planning document for a client a jurisdiction where the virtual paralegal was familiar with that state’s estate planning laws. The virtual paralegal would then flag the document for review by the attorney on the VLO who was licensed in that online client’s state.

My understanding is that the review and approval of that legal document by the attorney licensed to handle that state’s laws would permit the virtual paralegal to complete the transaction for the online client without it constituting UPL in another jurisdiction. You can see through this example how a solo law practice taken online with a VLO could grow very quickly across multiple jurisdictions if well planned out.

How does the issue of UPL in other jurisdictions relate to legal document automation software?

Some attorneys are choosing to provide legal services online by using document automation software, similar to the way that LegalZoom and similar companies provide legal documents across jurisdictions. There is a separate issue here which pertains to assisting a nonlawyer (the software vendor or legal form provider) in the practice of law. If this form of providing legal services interests readers, I recommend that they check out Richard Granat’s recent blog post regarding the automated delivery of online legal services, or online document assembly, as it relates to UPL.

VLOTech is preparing a feature for the first of next year that allows attorneys to create forms for clients on the VLO to fill out and send to the attorney securely on the system in addition to the existing VLO forms of communicating online with the client. The forms could be anything from estate planning and family law questionnaires to customized client intake forms based on the attorney’s virtual law practice areas. Since the forms would be generated by the attorney individually for the VLO and not pre-packaged from a vendor, then it should avoid the UPL issue completely. It will be interesting to see how attorneys practicing law online will choose to integrate this additional feature in their virtual law practice.

Online Resources Regarding UPL

ABA Model Code, Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

State by state comparative analysis of UPL – Cornell University Law School, American Legal Ethics Library

BTW: By no means do I claim to be a legal ethics expert. I practice law online from my VLO and work with other attorneys nationwide to set up VLOs. These issues interest me and I love hearing and learning from other’s experiences. If anyone has specific ethics decisions from their state bar pertaining to UPL in other jurisdictions and online law practice, I’d love to hear about it. Please share!

December 15, 2008

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