Virtual Law Practice

Category: Ethics

  • Ethics Question for the Virtual Attorney

    Practicing online I often receive this question as an ethics challenge to my virtual practice:

    How can you be sure that the person you are communicating with online is really person you are drafting the documents for?

    Because I handle estate planning, attorneys who operate more traditional practices express specific concern about the power of attorney and the broad authority that it provides to the attorney-in-fact. What if the person I am drafting the document for is really someone else who plans to use the power of attorney for nefarious purposes?

    While I will conceed that the Internet facilitates the potential for individuals to commit fraud regarding their true identities, I do not believe it is my responsibility as an attorney to ensure that the final use of the legal documents I have created never fall into the wrong hands. Superwoman, I am not. I can draft legal documents to the best of my abilities with the information the client provides to me, and after that, I cannot control my client’s actions or the actions of their families in enforcing or following through with the dictates of these documents. To claim that I could control this or should be reponsible for a client’s conduct would be ridiculous.

    I provide my clients with fixed fees through my VLO and the majority of my business comes from packages containing several different estate planning documents. My clients are required to accept two clickwrap agreements and a price quote for services which tells them upfront both the nature of unbundled online legal services and the exact legal fees which they will owe me for my services.

    Once I complete the documents, it is my client’s reponsibility to take them to a notary public in North Carolina to have them properly executed. I provide my clients with detailed instructions to provide the notary public and they know that they may contact me if they run into any questions during this process. It is the notary public’s responsibility to check the driver’s license of the individuals signing these documents to ensure that they are who they say they are. Additionally, most of the estate planning documents require two witnesses to also be present for the execution.

    How do I know my online clients are who they say they are if I never meet them face to face?

    Do most attorneys (or their paralegals) in a brick and mortar law office check the driver’s license and photo id of every client for whom they provide legal services? Nope. In fact, I recall hearing of a case at one of the firms I worked for before going solo where an attorney had filed an lawsuit on behalf of the client only to find out during discovery that the client had multiple identities in several states and was not who he claimed to be. Had that attorney met with the false client face to face in the brick & mortar law office? Yes, several times. Did that prevent the client from pulling the wool over the eyes of the law firm he retained? Nope.

    Professional standards of conduct require that I communicate with reasonable diligence and promptness when dealing with clients. Operating a virtual law practice does not mean that I mass generate legal forms in an impersonal manner. I communicate individually with each of my clients. I ask the questions that I need to know to handle their legal matters. Sometimes they upload documents for me to review and we often work on mulitple drafts. Rarely do I need to call a client on the phone discuss something in person, but if it’s necessary to provide the best legal services for them, then I do it.

    Many of us reconnect online with family and friends through Twitter, Facebook and other social networking sites. We create strong online business connections through networking websites, such as LinkedIn. Likewise, the virtual law practitioner uses the web-based technology to build personal and ongoing professional relationships with clients.

  • Clickwrap Agreements in a Virtual Law Practice

    I’ve been doing more blogging for the VLOTech website. A lot of my material is coming from the CLE manuscript that I’m drafting for a presentation this summer on security/ethics issues with virtual law practices. The legality and enforceability of clickwrap agreements in a vlo is a question I’ve gotten from other attorneys.

    In my virtual practice, I don’t soley rely on the clickwrap agreement that my clients are required to accept before registering for their own homepage. I more specifically define the scope of legal representation (or non-representation as the case may be) with each individual client that registers. That is handled on each client’s secure homepage and depends on the legal work they are seeking. As more attorneys go online with their law practices, the use of the clickwrap agreement will probably be standard on the vlo, but I suspect each individual solo or small firm practitioner will want to use an additional retainer agreement or other contracting method with clients after registration.

    Here’s my post from the VLOTech website on this subject:

    Solo and small firm practitioners operating a VLO require that their online clients accept a clickwrap agreement before registering for a homepage on the virtual law office. This agreement contains the terms and conditions of the attorney’s representation to the client, explains the nature of unbundled legal services, defines the scope of representation and may contain other provisions tailored to the attorney’s virtual law practice.

    While retainer fees, payment arrangements and further definition of the scope of legal representation is communicated with the client through the client’s secure homepage on a case by case basis, the standard clickwrap agreement for the VLO serves as the legal contract between the attorney and his or her online client. Some attorneys may chose to require that their clients download and sign a separate written agreement following registration similar to a traditional retainer agreement. The business method depends on the individual virtual law practice. However, an online agreement during client registration with the terms and conditions for use of the VLO is standard.

    The ABA Committee on Cyberspace Law during a panel discussion at the ABA’s Annual Meeting last year provided a practical reminder of the steps to follow when creating an online agreement. Blogger, Jason Haislmaier, in his blog ThinkingOpen, provides a great blog post regarding the drafting of enforceable online agreements and the Cyberspace Law Committee’s recommendations.

    Haislmaier writes,

    “In particular, the panel indicated that the working group had identified four “bottom line” steps for forming legally binding online agreements:

    1. The user must have adequate notice that the proposed terms exist;

    2. The user must have a meaningful opportunity to review the terms;

    3. The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and

    4. The user must, in fact, take that action.

    Among these four steps, adequate notice of the existence of the proposed terms is among the most important.”

    VLOTech attorneys draft their own terms and conditions for use with their virtual law offices. The ABA Cyberspace Law website has a searchable archive for members which contains many good resources to assist attorneys in researching this topic and drafting their VLO online agreements.

  • Legal Directories and a Virtual Law Office – What’s Your Address?

    taking a look at online legal directoriesThis week I’m considering giving online legal directories another chance. As more and more attorneys are dropping out of Martindale Hubbell, I recently turned to Findlaw’s online directory options.

    I formerly had a listing with Lawyers.com and was unhappy with the unprofessional splash page that they insisted on setting up for me. Why they would not link directly to my vlo, I am not sure. Because my vlo is a secure web application and clients can come to me directly through the online office, I did not have a need for Lawyers.com’s unsecure “email me” contact form that I was paying for each month. The one benefit was that the listing boosted my ranking in google which initially may have been worth the pricey fee. On to other options as I continue to grow my vlo and learn more law management practice tips along the way.

    A basic Findlaw listing that links to my vlo would be great. Except they are not too familiar with a vlo and virtual law is not a separate category of law practice. Even though I work with clients online throughout the entire state, I would have to purchase a listing in each individual cities in the state. The expense here is mindboggling.

    What is my address? Well….it’s a website address. The online directories have trouble categorizing you outside of the traditional law office setup. As more solos and law firms go online with Virtual Law Office Technology (VLOTech) and use a vlo to practice law, the usual law directory companies will have to come up with a different pricing structure that provides services that fit with a vlo’s marketing needs.

    One option might be to leave out the physical address requirement and let the vlo link to their vlo for the same price and if they want to add both a physical and a vlo link, then charge for both. I’m not an expert on how online directories operate. The customer reps at Findlaw have been efficient at giving me the information I need as far as pricing and services. However, I think if these companies want to stay on the cutting edge of legal technology trends they should start considering how their services can be useful and affordable for a virtual law practice.

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

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

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

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

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

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

  • Starting a Debate

    In marketing my virtual law practice, I’m considering throwing a little fuel on the fire. It’s well known that the law is a very traditional profession. The basic staples of a traditional law practice are proudly guarded as sacred by the old guard; business rules proven time and time again to work so why change them.

    While the N.C. Bar Association has made many wonderful efforts to push the legal profession in N.C. into wider usage of technology, there remains a large percentage of practicing attorneys who have the mind-set that nothing beats face-to-face legal counseling. On the other hand, there are a handful of younger attorneys coming into the profession who grew up attached to their laptops, took the bar exam on their laptop even, and can’t imagine work or life without the methods of communication afforded by the Internet and other technological devices. I’m of the latter group which is why I chose to practice online.

    I think both the traditional way of practicing law and my way have something different to provide the public. Provided that the rules of ethics are closely followed, I don’t think that either way of practicing is going to shame or ruin the reputations of attorneys (which has not been in good shape in the past twenty years anyway). In fact, I think both practices can compliment each other and attend to different markets in the legal field. So, in marketing my business, I am planning on presenting this debate between the traditional method of practicing and the virtual way as an article for the local paper and see if they recognize it as a topic that affects and would interest their readers. It would be great to have a dialogue with local attorneys about the pros and cons of a more technological law practice. Can’t wait for the feedback!

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