Virtual Law Practice

Category: Ethics

  • Assisting a Pro Se Litigant Online – Proposed NC State Bar 2008 Formal Ethics Op. 3

    The winter issue of the North Carolina State Bar’s Journal came out this week.  Of interest to attorneys practicing online with a virtual law practice, the Journal published the Proposed 2008 Formal Ethics Opinion 3, Assisting a Pro Se Litigant.  The proposed opinion had come out earlier this year but was only recently printed in the state bar’s publication.

    The Bar’s summarized its ethics decision:

    Proposed opinion rules a lawyer may assist a pro se litigant by drafting pleadings and giving advice without making an appearance in the proceeding and without disclosing or ensuring the disclosure of his assistance to the court unless required to do so by law or court order.

    How does this relate to a virtual law practice?

    Several virtual law office owners that I have worked with are planning on providing pro se litigants with unbundled legal services.  This would help to lessen the burden on the court systems in their state that are swamped with pro se litigants and at the same time allow the attorneys to tap into a different client base with a large need for legal services. 

    The technology of a web-based virtual law office would allow these attorneys to efficiently assist a large number of pro set litigants in any number of areas of law.  They could charge fees for legal services that are perhaps less than their traditional billable hour rates, but which make economic sense because the client is doing all of the footwork and the technology streamlines the process. 

    Of interest in this NC ethics opinion, the state bar specifically recognizes the public’s need for legal services to be delivered in less traditional ways. The ethics opinion references the NC 2005 Formal Ethics Opinion 10 which permits an internet based law practice to offer to work with and provide clients with online legal services, including providing services to pro se litigants. 

    The key to this new proposed ethics opinion is similar to the NC 2005 FEO Opinion 10 because it requires that the online client provide “informed consent” to the limited online representation.  Through a VLO, the client is given adequate notice of the terms and scope of the online representation multiple times and is asked to accept these terms through two separate clickwrap agreements. 

    The ethics opinion also requires that the attorney make the independent judgment as to whether the services he or she offers can be competently provided to the client based on that client’s unique legal needs.  This is similar to the process any attorney should go through in a traditional law practice and is not different with a virtual law office.

    To summarize, this opinion is another nod from another state bar that a virtual law practice may provide services to pro se litigants, provided that the virtual law practice is handled properly by the attorney practicing law online.

  • Avoiding the Unauthorized Practice of Law (UPL) in other Jurisdictions with a Virtual Law Office (Part One)

    Frequently I am asked about the unauthorized practice of law in other jurisdictions and how a virtual law practice can avoid this malpractice risk.  In a two-part post, I’ll address some of these ethics questions.  As more VLOs open and collaboration among attorneys creates VLOs operated by attorneys licensed in multiple states, the issue grows more complex.  For the most part, I’m addressing UPL in other jurisdictions as it pertains to a solo or small firm operating a virtual law practice.

    How does a virtual law practice avoid UPL in other jurisdictions?

    First, the attorney practicing law on a web-based VLO needs to state in their VLO website or blog that he or she is only registered to practice law in whatever state or states he or she is licensed to practice law in.  If the VLO handles federal law, such as patent applications or immigration law, then this is less of an issue because the attorney can work with online clients across state jurisdictions as long as the work pertains to federal law.

    Second, the VLO software should have a jurisdiction check built into it to protect both the client and the attorney from UPL in other jurisdictions.  Before a prospective client may register for a secure homepage on the VLO and even pose his or her legal question, he or she must provide a valid address.  The system will then run a check on the prospective client’s zip code with the jurisdiction(s) in which the attorney is licensed to practice law.  If the client is located in a state where the attorney is not licensed, a notice will appear to the client to remind them that the attorney only handles X state’s law.  The attorney will also receive a red flag notice that tells him or her that the client is located in X state and the legal matter may not be within the attorney’s ability to handle without risking malpractice.  

    This jurisdiction check in the technology does not prevent the attorney from taking the case.  For example, if the prospective client lives in Ohio and his or her legal needs pertain to real estate law for property owned in the state in which the attorney is licensed, then the attorney may accept that case because it pertains to law that he is licensed to practice.  The attorney on the VLO must determine on a case by case basis with the assistance of the jurisdiction check and based on the client’s request for legal services whether accepting the legal case would be UPL in another jurisdiction. 

    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?  Doesn’t the nature of a website itself make the VLO in violation of advertising for legal services in multiple jurisdictions?

    Here are the basics:

    ABA Model Code Rule 5.5(b) states that

    A lawyer who is not admitted to practice in this jurisdiction shall not:

    (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

    (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

    You can review a state by state comparative analysis of the code here.

    This issue is going to relate to any law firm website, not just a virtual law practice.  However, because clients will be able to work with and purchase legal services from the web-based VLO, the virtual law office website or blog needs to be even clearer to the public about the services that are provided and the nature of unbundled legal services in general. 

    In order to comply with the ABA Model Rule and the rules of most state bars, the attorney setting up a virtual law office needs pay close attention to the website content and advertising rules established by the state bar(s) in which he or she is licensed.  The ABA’s Law Practice Management Section also has a Best Practice Guidelines for Legal Information Web Site Providers which is an excellent resource to follow when setting up a VLO website or blog. 

    The key is to provide the prospective online client with adequate notice that the attorney is only able to provide legal services pertaining to a certain state’s laws.  Updated contact information for the attorney should be posted on the site as well as terms and conditions for website use and a privacy policy. 

    With a VLO, these terms and conditions will be presented to the online client who registers not only on the main VLO website but also in the form of a clickwrap agreement ensuring that the prospective client understands the nature of the services to be provided.  Once the online client has proceeded with opening a case on the VLO and the attorney has agreed to take the case, the online client will for a second time be presented with the terms and conditions for the delivery of legal services through the VLO and be asked to accept the VLO’s terms and conditions for use along with the specific terms and scope of representation from the attorney for that individual case. 

    With multiple opportunities for the client to review this information along with the ability of the attorney to provide additional explanation to the client online through discussion, it seems unlikely that the client could be deemed to have inadequate notice of the nature of the online legal services to be delivered.

    Again, it will be the responsibility of the attorney practicing law online to make the determination, even with the jurisdiction check in the software, that he or she is able to handle the requested legal services without committing UPL in another jurisdiction.  In many respects, this does not differ greatly from the process that an attorney in a traditional law office would have to go through to prevent UPL.  The primary difference is that the notification to the prospective client is handled online rather than in person or through a mailed letter.

    Part II will address the following questions:  How is the attorney/client relationship established on a VLO as to avoid UPL?  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?  How does the issue of UPL in other jurisdictions relate to legal document automation software?

    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!

  • 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.

  • Unbundling Legal Services in a Virtual Law Practice Benefits the Public

    More middle income Americans are choosing to handle their legal matters themselves because they cannot afford to hire a traditional attorney.  The International Herald Tribune reported this growing trend in an article last week.  The downturn of the economy has made the cost of traditional full-service law firms unavailable for many Americans.  In order to resolve their legal matters, many middle income individuals are turning to self representation.  

    What does this mean for the justice system?

    The increase in numbers of pro se litigants has begun to burden court administrations on different levels.  While court clerks and other assistants are not permitted to provide legal advice to pro se litigants who come to the courthouse seeking free legal guidance, these administrators are obligated to provide pro se litigants with the necessary legal forms and procedures that they will need to proceed with their case.  When the instructions on these legal forms are not followed, court administrators must then go through additional work contacting the pro se litigants to rework the legal forms or assist them with scheduling court dates. 

    Once inside the courtroom, judges are burdened by the increased number of unassisted pro se litigants when they are obliged to provide basic directions to the pro se litigants regarding standard courtroom procedures.  Attorneys who find themselves standing opposite a pro se litigant when presenting a matter to the court must exercise patience.  They may find themselves rewording their statements so that the pro se litigant will understand the issues.  Overall, the case may take more time and become more expensive than it would have been if handled by legal professionals. 

    Unbundling Legal Services Provides A Practical Solution

    There is a high demand for affordable and accessible legal services to fill in the gap between full, traditional legal representation and unassisted, pro se representation.  Unbundled legal services may provide individuals with an affordable option.  By retaining an attorney for assistance in filling out legal forms and for basic guidance on the legal process, the individual who would otherwise be a pro se litigant is assisted to the level where he or she is not as much of a burden on the court administration and other legal professionals he or she encounters in the legal system. 

    Many Americans who are searching for an affordable solution to legal services are turning to online companies like LegalZoom for form-generated legal documents. However, these legal documents and kits for sale are not actually reviewed by an attorney nor is the individual legal situation of the online consumer evaluated by a legal professional before he or she purchases the legal product.  A worse trend is that many members of the public are finding samples of legal documents online and attempting to revise these documents on their own without any legal guidance. 

    Web-Based VLOs Provide a Higher Quality of Unbundled Legal Services

    Web-based virtual law practices can provide the public with unbundled legal services that include more personalized attention to individual legal matters.  Attorneys operating a VLO communicate directly with their clients securely online.  Because of the low overhead associated with running a VLO, the attorney may pass on his or her savings to provide unbundled legal services at a more affordable price than traditional legal services.  Clients may acquire the quality legal assistance they can afford so that they may perform the footwork at the courthouse themselves.  

    As with any prospective client that walks through a physical law office, it is the responsibility of the attorney running the VLO to evaluate each online client on a case by case basis.  If the prospective client’s unique situation requires full-service representation, then the attorney must either meet with the client in person for additional legal assistance or refer the client to another attorney. 

    Given the continuing rise of pro se litigants across the country, an attorney operating a VLO and offering unbundled legal services provides a much needed option in the delivery of legal services to the public.  He or she may provide unbundled legal services online through a VLO either as the sole form of legal services offered or as an addition to a full-service law firm.  In addition, an attorney launching a VLO taps into a vast and growing consumer market that can be served using secure technology that does not raise the attorney’s law practice overhead.

    As more state bars continue to revise their rules of professional conduct and ethics decisions to address the use of technology in the practice of law, legal professionals who understand the importance of using technology to deliver legal services online will need to step forward to educate and defend the critical need for this as an option to provide affordable and convenient legal services to lower and middle income Americans.  A VLO providing unbundled legal services is a practical solution that serves both the public and the legal profession.

  • ABA to Review the Delivery of Legal Services Through Technology

    Yesterday I received an email from a member of the ABA Division for Legal Services regarding the upcoming hearings to be held by the Standing Committee on The Delivery of Legal Services.  The Committee plans to examine the use of technology to deliver legal services online and will listen to presentations by technology providers and attorneys regarding the technologies used and any policies that governs its use. The Committee will then determine from the hearings whether the creation of policies is needed to assist practitioners in providing online legal services. 

    It’s during opportunities such as these when I sincerely wish I had a gift for public speaking and at least an ounce of charisma with which to transmit my ideas in front of a live group of people.  Unfortunately, I am a writer and more comfortable with a keyboard than a video camera and microphone.  I am going to submit to the committee my ebook which I have just finished entitled “Practicing Law Online: Creating a Web-Based Virtual Law Office.”  The ebook discusses the Web 2.0 technology used to practice law online and also looks at ethics considerations and malpractice risks while making best practice recommendations for operating a virtual law office.  

    I wish there were a way to share with the Committee the positive responses that I have received over the past two and half years from my online VLO clients and from the public in general to the delivery of legal services online.  I have formed close relationships with my clients and all of our communications were conducted through my VLO, never face to face. 

    If you can please allow a moment of bragging, recently, a first-time client of mine was so pleased with the online services I provided that she emailed a referral to her 100+ person mother’s group recommending my services and providing all of my online VLO information.  I have small business clients that come back repeatedly and refer their other small business friends.  They tell me that my online services are efficient, fairly priced and most important to them, convenient for the entrepreneur starting a new business who is often working a 9-5 job while getting off the ground.  They enjoy the ability to pay online, set up payment plans through the system and check on their legal matters 24/7 whenever it best suits them. 

    I hope that whatever policies the Committee comes up with will respect the fact that each individual virtual attorney may operate his or her VLO using different technologies and combinations of technology.  It should be the responsbility of the virtual attorney, as I have written in previous posts, to make sure that they understand the security and technology used by the VLO hosting company.  As with traditional law practices, I believe it is the resonsibility of the individual virtual attorney to create policies and standards for their virtual law practice that compy with his or her state bar’s rules and regulations for ethics and professional conduct. 

    My fear is that the delivery of legal services online may be restricted through any policies created by the Committee due to a lack of understanding regarding the security of the technology.  They may not be aware of the ability of features to be created within the VLO system that can provide safe and ethical communications between attorneys and the public, such as the conflict of interest checks, establishing the attorney/client relationship, jurisdiction checks, notice of unbundled services, etc. 

    VLOTech is a small, family-owned company.  We are growing quickly and forming new relationships with other attorneys interested in virtual law practice every day.  It’s an exciting time.  It’s clear to us from the responses we receive that a revolution is quietly happening in the area of the delivery of online legal services.  It’s driven primarily by the public’s desire for these services and secondarily by attorneys, largely solos and small firm practitioners, who want to use the flexibility of the technology to practice law for a variety of reasons.  There is no way VLOTech can pull together for a presentation in two weeks all of the research and positive feedback that we have assembled over the past three years and about which we are so excited to share with VLOTech attorneys and their clients. 

    Instead, I will be submitting my ebook which covers a lot of our research and hopefully this will be accepted for consideration by the Committee.   If you would like a free copy of my ebook, please feel free to contact me at skimbro@vlotech.net.  I will also write a post about the hearings following the presentations and let my readers know what happens as far as any statements or policies issued by the Committee that may affect virtual law practice.   If you would like to view the online hearing, details about the presenters and schedule will be posted on The Standing Committee on The Delivery of Legal Services’ website.

  • 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.

  • 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.

  • Avoiding the Unauthorized Practice of Law in Other Jurisdictions When Practicing Law Online

    Practicing law from a web-based virtual law office brings the risk of unwittingly establishing an attorney/client relationship regarding a legal matter that the virtual attorney is not licensed to handle. The unauthorized practice of law in other jurisdictions can be avoided by following some simple practice methods.

    First, the virtual law practitioner has the responsibility to provide clear notice throughout the VLO website that he or she is only licensed to practice law in the states in which the attorney holds an active bar license. This information should show up at every turn — from the terms and conditions for the website to the registration and clickwrap agreement allowing access to the online client’s homepage.

    Second, the virtual law office website should contain contact information and the name of the attorney running the VLO. For some state bar associations, such as North Carolina, the requirement extends to providing a physical mailing address for the prospective client. This information should be located in a section that is easily found by the online client, such as an “About Us” section or at the start of the website’s disclaimer. By providing adequate notice throughout the VLO, the attorney should not be found to be soliciting clients from a state where he or she is not able to practice law.

    In addition, a well-designed VLO should contain a jurisdiction check for the benefit of the client and the attorney. This safe-guard was built into the VLOTech software for this purpose.

    VLOTech jurisdiction check

    When the client registers on the attorney’s VLO website, a simple check for the zip code notifies the attorney that the client is a resident outside his or her jurisdiction. A note would appear to the client which states that the attorney may only be retained to answer legal questions and handle legal work related to the laws of the state for which the attorney has an active law license. The jurisdiction check should not prevent the client from continuing with the registration process, but serves the purpose of providing more than adequate notice of the attorney’s jurisdiction. Through this process, the attorney is provided with a red flag on the backend of the law office to let him or her know that the client resides in a different state and may not have a legal matter that the attorney is permitted to handle.

    With the combination of adequate contact information and notice to any prospective clients regarding jurisdictional limitations, the virtual practitioner should be able to safely avoid crossing the line into unauthorized practice of law.

  • Notice & Understanding: Setting the Scope of Representation for Online Clients

    While each state’s bar has different rules governing their attorneys, I suspect that many of the rules of professional conduct and ethics opinions are similar. The NC State Bar was one of the first to address virtual law practice. On January 20, 2006, the NC State Bar adopted the 2005 Formal Ethics Opinion 10 (Ethics Opinion 10) providing advice regarding virtual law practice and online unbundled legal services.

    The comments in the opinion focus more on email communication and do not envision a web-based application that provides for detailed attorney/client interaction. However, it is still nice to have a standard opinion to work with.

    The nature of unbundled legal services and the requirement that prospective clients understand the scope and nature of the legal representation being offered online was one of the topics addressed by the Ethics Opinion 10. The Bar stated that the virtual attorney must be careful to comply with Rule 1.2(c) of the N.C. Rules of Professional Conduct. This rule states “[a] lawyer may limit the scope of representation if the limitation is reasonable under the circumstances.”

    Accordingly, the attorney must continue to provide competent and thorough representation to the client regardless of the limited nature of the legal services being conducted. Rule 1.2(c) allows for the limited legal services to be provided to the public as long as the attorney complies with Rule 1.1 regarding competence of legal services provided.

    A well-designed VLO provides notice to prospective clients as well as assurances that these notices have been read and accepted by the client. (See my Clickwrap Agreement post) Additionally, the scope of representation may be again communicated through a secure online message from attorney to the client and a traditional limited scope of representation agreement may be uploaded for the client to sign and return to the attorney, either by scanning and uploading to the VLO or by traditional mail or fax methods.

    Before offering unbundled legal services, the virtual attorney has the responsibility to explain exactly what services will be provided at what cost to the client. A well-designed VLO operates with this specific process as the foundation for the transactions by requiring multiple steps where the client must read and acknowledge the terms and/or provide information to the attorney which lets the attorney know that the client has moved forward with accepting the scope of representation.

    With each VLO, an attorney has the ability to tailor his or her virtual practice to encompass a variety of limited legal services, including the combination of using the VLO in conjunction with a full-service law office. Because each practice will differ in the areas of law practiced by the attorney(s) and by the chosen design and use of the VLOTech application, the responsibility to ensure compliance with Ethics Opinion 10 and Rule 1.2(c) of the N.C. Rules of Professional Conduct will remain with the individual practitioner or law firm.

    Here are a couple examples: An attorney whose practice centers on litigation may use a VLO to generate additional client revenue on the side by answering basic traffic ticket questions while maintaining a full-service litigation practice. The same attorney might use the VLOTech application to provide homepages to existing clients that he or she meets with in person and allow those clients to pay bills online, communicate in a more secure method than through email and basically to use the VLO as an amenity to the full-service firm.

    As a different example, another attorney may decide to enter retirement from a full-service law firm by creating a VLO that handles only transactional legal services, such as drafting estate planning, contracts or setting up business entities for clients who do not want or need to meet with the attorney in-person. The VLO allows this attorney to work remotely or from home allowing him or her to ease into retirement or create a completely new online law practice that allows for greater work/life balance.

    There are a variety of different situations where a VLO may be used to provide unbundled legal services and with each it is possible to provide quality legal services and comply with Rules 1.2(c) and 1.1 of the N.C. Rules of Professional Conduct.

    Similar to a traditional law office, a virtual law attorney must use his or her judgment on a case by case basis when deciding whether he or she may competently and ethically handle a particular matter. If the client’s needs would be better suited if handled by a full-service attorney and the virtual law attorney does not provide this services, then it is his or her responsibility to refer the client out. This is no different from the responsibility of every attorney — whether practicing virtually or with a traditional, brick and mortar law office.

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