I’ll be teaching a CLE about how to deliver legal services online this Thursday, August 16th from 1-2:30pm EST for ALI-CLE and co-sponsored by the ABA Law Practice Management Section. A copy of my Virtual Law Practice book in ebook format comes with the program. We’ll cover the following topics: Introduction to virtual law practice; Options for setting up your virtual law office including: case studies, document assembly and automation, and multijurisdictional law firms; technology and understanding security issues of virtual law practice; and Ethical concerns and best practices in online legal services.
Category: Ethics
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California Publishes New Ethics Opinion on Virtual Law Offices
UPDATE: The State Bar of California has published its formal ethics opinion on virtual law offices, No. 2012-184. I wrote a post on the proposed draft of this opinion that came out this past spring.
The summary reads:
As it pertains to the use of technology, the Business and Professions Code and the Rules of Professional Conduct do not impose greater or different duties upon a VLO practitioner operating in the cloud than they do upon an attorney practicing in a traditional law office. While an attorney may maintain a VLO in the cloud where communications with the client, and storage of and access to all information about the client’s matter, are conducted solely via the internet using a third-party’s secure servers, Attorney may be required to take additional steps to confirm that she is fulfilling her ethical obligations due to distinct issues raised by the hypothetical VLO and its operation. Failure of Attorney to comply with all ethical obligations relevant to these issues will preclude the operation of a VLO in the cloud as described herein. (emphasis added) (more…)
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ABA Annual: Delivering “Unbundled Legal Services” Over the Internet
If you are attending ABA Annual in Chicago in a few weeks, please join myself, Richard Granat and Will Hornsby, for our CLE panel discussion about delivering unbundled legal services online. The program is sponsored by the ABA Standing Committee on the Delivery of Legal Services and will be held on Friday, August 3rd from 3-4:30pm. Additional educational materials will be provided to attendees. Here is the program description:
The concept of delivering “unbundled” or “limited legal services” is not a new idea, but the idea becomes much more powerful when these legal services are delivered over the Internet as an online legal service. This program will help all law firms, but especially solos and small law firms, learn how to design an “online limited legal service”. Issues discussed include: designing and pricing the legal service; Internet applications that support online delivery; marketing “unbundled legal services online” ; ethical issues that need to be considered, including the creation and termination of the attorney/client relationship, the limited legal service retainer agreement, and confidentiality of client data. Existing models for delivering “unbundled legal services” online will also be discussed as well as the economics of this approach to online legal service delivery.
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Regulators Concerns with Virtual Law Practice – Review from ILEC
I had the pleasure of attending and speaking at the International Legal Ethics Conference (ILEC) in Banff, Alberta last week. I took part in a panel discussion with John Browning, Darrel Pink and Victoria Rees, entitled “The Challenges of Virtual Law Practice and Social Media.” As with any good panel, we collaborated ahead of time and in the process, learned a lot from each other.
I wanted to share some of the wonderful insights I gained from listening to Darrel Pink during his portion of our Virtual Law Practice panel presentation. He entitled his thoughts “The Regulator’s Dilemma,” and I think it provides a unique perspective on the concerns that states and other regulatory entities have as more of their members begin delivering legal services online.
Many of the ethics concerns are similar to what every lawyer has to think about whether delivering services online or off. But when the practice
is online, it raises interesting questions for the regulator as to how he or she can effectively monitor the practice, the client data, trust accounting
practices, etc. How does the regulator provide oversight of the lawyers’ practice if it is online? How does he or she handle enforcement of regulations or auditing practices if required?Here are some ethics issues that Darrel brought up in his presentation with regards to the limitations on the regulator:
•How does the regulator address limited jurisdictional reach? For example, how can he or she access data that is located in another jurisdiction
or if it is in the cloud and the location is unknown?•What are costs of access to that data? How would a regulator obtain it?
•He noted a concern with the ease of information being hidden online by an unscrupulous lawyer or deleted entirely before it could be accessed.
•If the practice must be taken over in custodianship or receivership by a regulator entity, how is this accomplished if it is an online practice?
•If the online law office data is requested by law enforcement agencies, such as by a search warrant or production order, how does the
regulator protect the clients’ privileges when the scope of the seizure is indeterminate? How would the regulator have notice of such a request for
data?What about the risk that the law office data is entangled with other data being sought?•And finally, how does a regulator set standards and enforce rules that are relevant and continue to reflect and adapt to the changes that are occurring with virtual practice? (more…)
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Speaking at the International Legal Ethics Conference
This week I will be attending the International Legal Ethics Conference (ILEC) in Banff, Alberta. I am taking part in a panel discussion with John Browning, Darrel Pink and Victoria Rees, entitled “The Challenges of Virtual Law Practice and Social Media.”Several tracks run throughout the two-day conference: Culture, Ethics & Society; Empirical Approaches to Legal Ethics; Regulation of the Profession/Ethics and Education; and Philosophy and Legal Ethics. My session falls under the Regulation of the Profession track. This will include discussion about changing regulatory models, regulation of lawyers and other legal service providers, and ethics education for lawyers and in law schools. I’ve submitted my paper on regulatory barriers to multijurisdictional virtual law practice for this session and will talk about some of the newer ethics opinions that have come out which are related to virtual law practice.
I am most excited about meeting some of the individuals I have worked online with over the past year on different projects. Several individuals from the Law Without Walls team will be attending as well as more than a few of the speakers who participated in this month’s successful LawTechCamp London. I’m a huge fan of some of the legal technologists and educators who will be speaking in Banff so I will have to restrain myself from acting like a giddy teenager at a Justin Bieber sighting.
I expect to return home with a new perspective on how other countries are addressing ethics and regulatory issues in the legal profession and hopefully will come away inspired to continue my own education on these issues as they pertain to unbundling and the online delivery of legal services. I will make an effort to tweet while at the event or at least follow up with a blog post in the near future.
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Massachusetts Bar Association Publishes Cloud Computing Ethics Opinion
The Massachusetts Bar Association published Ethics Opinion 12-03 regarding the use of cloud computing in law practice, specifically referring to lawyers’ use of Google docs. The scenario posed in the opinion is this: “A lawyer wishes to store and synchronize the electronic work files that he creates in the course of his law practice across multiple computers and devices (e.g., smartphones, iPads, etc.) so that he can access them remotely.”The question posed is “whether it [the use of cloud computing] would violate Lawyer’s obligations under the Massachusetts Rules of Professional Conduct to store confidential client information using Google docs or some other Internet based storage solution, and to synchronize his computers and other devices that contain or access such information over the Internet.”
This opinion mirrors several that we have seen in the past year that focus on compliance with Rule 1.6 and protection of the client’s confidentiality. (more…)
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What Constitutes Virtual Presence?
The ABA Commission on Ethics 20/20 has released a new issues paper entitled “Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits of Virtual Presence in a Jurisdiction.”
The Commission’s previous issues paper regarding systemic and continuous presence under 5.5 came out last September and raised some of the same questions. I posted my summary of that here. The Commission’s newest request for feedback on the issue of presence has a deadline of July 31st and they specifically request to hear from virtual practitioners who would be affected by any changes to Model Rule 5.5, in particular Comment [4] to Rule 5.5(b). The proposed change to this would state:
For example, a lawyer may direct electronic or other forms of communications to potential clients in this jurisdiction and consequently establish a substantial practice representing clients in this jurisdiction, but without a physical presence here. At some point, such a virtual presence in this jurisdiction may be come systematic and continuous within the meaning of Rule 5.5(b)(1).
Check out the hypothetical of a virtual law practice posted by Andy Perlman on the Legal Ethics Forum blog. I’m attending a LSC Tech Summit this week so a longer response from me to this new call for comments will have to wait. There are so many potential and emerging business models that incorporate virtual practice. I hope the Commission receives a variety of comments from practitioners.
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Paper on Regulatory Barriers to Multijurisdictional Virtual Law Firms
Most of my earlier writing on this blog was geared towards the solo practitioner or small firm finding ways to deliver legal services online. But I would also get questions from practitioners in larger law firms and from practitioners who were licensed in multiple states and wanted to understand how they could use innovations in technology to work with clients across the country and internationally. Some lawyers were living overseas and were licensed in several states in the U.S. or they lived in one State here but were licensed in multiple jurisdictions and wanted to make sure they were in compliance with the rules of professional responsibility.
So I wrote this paper “Regulatory Barriers to the Growth of Multijurisdictional Virtual Law Firms and Potential First Steps to their Removal” which the North Caroline Journal of Law and Technology at UNC-Chapel Hill Law School was kind enough to publish in their recent issue. As it turned out, I could have written a short book on this topic so I had to exclude almost everything related to international regulatory barriers and just focus on the U.S. Saving my international research for another project I guess.
If you have time to read nothing else, I’d recommend the first half with the background on virtual firms which provides several case studies and models of multijurisdictional virtual practices and what technology and methods of online delivery or collaboration that they are using. I’ve mentioned the following firms:
Fair warning, most of the model rules I discuss in this paper will probably be at least a little modified by the ABA Annual Meeting in August. But hopefully some of my proposals at the end will strike a cord with someone out there. Comments always welcome.
Abstract:
The spread of disruptive technologies to the legal profession is changing the dynamic of how law firms are structured as well as the value propositions associated with the delivery of legal services. The number of law firms with a national presence has grown due to the cost benefits and efficiency of using cloud computing. New models for expansion across jurisdictional
boundaries are increasing. However, the regulatory barriers to create these new firm structures are numerous and costly. This
paper reviews the evolution of technology in multijurisdictional firms and examines the primary regulatory barriers to their further development. A starting point for standardization of regulations is proposed as well as potential first-steps to removing barriers to the growth of multijurisdictional virtual law firms.The rest is here.
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Stanford CodeX Speaker Presentation Video
Last week I gave a presentation at Stanford Law School entitled “Unbundling and the Future of Legal Service Delivery.” There was a good turnout and we had some great questions from the attendees at the end of the talk which I enjoyed.
Thanks again to Stanford CodeX and the Stanford Center on the Legal Profession for inviting me out there to share my thoughts on these topics. I am introduced by Tony Lai, one of the founders of LawGives, a legal tech startup working with CodeX and StartX, that I also had the pleasure of spending time with while in Palo Alto. Below is the video from my talk.
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CodeX Speaker Series Discussion at Stanford Law
I’ll be giving a presentation at Stanford Law School on May 2nd as a speaker sponored by CodeX: Stanford Center for Computers and the Stanford Program in Law, Science and Technology, and the Stanford Center on the Legal Profession. The title of my presentation will be “Unbundling and the Future of Legal Service Delivery”. You can read more about it here. The event is free and open to the public. I’m looking forward to some challenging and productive discussion.
