Virtual Law Practice

Category: UPL

  • NJ Supreme Court Adopts Amendments to Bona Fide Office Rule 1:21-1

    New JerseyAdopted Amendments to NJ Supreme Court Rule 1:21-1 will be effective February 1 of this year. This is the “bona fide office” rule that I’ve written about on here before. Thanks to Ekaterina Schoenefeld for sharing a copy of the Notice and Amendments.

    Here is a quick rundown of the amendments. The bona fide office rule now states that a lawyer does not need a physical location, but does have to make sure the practice is conducted in a way to ensure “prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals”.

    To comply, the lawyer may designate “one or more fixed physical locations where the client files and attorney’s business and financial records may be inspected on short notice…where mail or hand-deliveries may be made and promptly received, and where process may be served…including disciplinary actions….” [I still wonder: What could be more accessible and done “on short notice” than giving access to your cloud-based practice?] (more…)

  • Choice of Law in Cross-Border Practice

    Below is the comment I submitted this morning to the ABA Ethics 20/20 Commission Working Group on Uniformity, Choice of Law, and Conflicts of Interest in response to their request for feedback on the issues paper on Choice of Law in Cross-Border Practice.  One of the fact patterns in the issues paper specifically referrred to a virtual law office and several of the other fact patterns might also apply to a multijurisdictional virtual law firm.

    Virtual Law Practice and Choice of Law in Cross-Border Practice

  • Practicing Law Without An Office Address: Law Review Article Published

    Below is a law review article I wrote recently for the University of Dayton Law Review, Volume 36:1, entitled “Practicing Law Without an Office Address: How the Bona Fide Office Requirement Affects Virtual Law Practice.” 


    PRACTICING LAW WITHOUT AN OFFICE - From the law review article (see citations in full version above):

    This Article will examine virtual law practice as a necessary and inevitable solution to the globalization of law firms and the lack of access to justice in our country, and it will consider how bona fide office requirements in some states may work against this practice management method. Recent changes to the legal profession due to the globalization of law firms, trends in outsourcing of legal services, and the public demand for online legal services all indicate the need for a wider variety of law practice management structures with continued accountability and connection between the legal practitioner and the state bar. (more…)

  • WebJD: Online Self-Diagnosis of Legal Ailments?

    I’ll confess that I use WebMD’s symptom checker way more than I should.  Sometime it’s to reassure myself that the situation does not warrant a trip to the doctor’s office.  I like the user interface – the fact that I don’t have to come up with a multitude of keywords for symptoms, but can just scroll over the photo of the adult or child and pinpoint the source of my worries. I like that from that point I can use a process of elimination and in a few steps have a list of possible ailments with descriptions of them and suggestions for proceeding with care.

    When the alternative is spending half a day in a doctor’s waiting room, I will take the online self-diagnosis any day.  Sometimes the answers I get just lead to more questions and I actually do end up making that appointment.  But, for the most part, this web advisor answers my question, eases my worry, and I wait and see what happens. 

    Could the legal profession provide something similar for the public?  A “WebJD” webadvisor that helps you figure out what area of law your need is in and what the different types of solutions you might need for that issue?   There are a ton of legal referral sites and directories, but if I were the client I’d want to run a self-diagnosis before I started shopping online for an attorney. 

    I’m familiar with the AJ2 Author and how it walks the client through a process of answering questions until the end where the final legal document is completed with instructions.  There is a similar concept that Foundrs.com has perfected which has virtual incorporation for business ideas and startups to handle the business planning and create unbundled legal documents with online assistance before taking them in to an attorney’s office.  See TechCrunch’s article on FairSoftware.  I’m thinking of something different though; a web advisor that’s even simpler and for lower-level legal guidance without even the document assembly component.  (more…)

  • Review of PA Ethics Opinion on Virtual Law Offices

    Entitled “Ethical Obligations on Maintaining a Virtual Office for the Practice of Law in Pennsylvania”, the PA Bar Association Committee on Legal Ethics and Professional Responsibility published its FEO 2010-200 this month.  The opinion is in stark contrast to the out-dated thinking in the ethics opinion discussing virtual law offices published this past spring by its neighboring state of New Jersey.

    FEO 2010-200 defines virtual law office (VLO) as

    “a law office that exists without a traditional physical counterpart, in which attorneys primarily or exclusively access client and other information online, and where most client communications are conducted electronically, e.g., by email, etc.”  

    The opinion recognizes that there are different forms of virtual law practice and specifically states that it is not addressing issues related to “client portals” or cloud computing because both traditional and virtual offices may use these. 

    There are several questions that the 14 page opinion addresses including the following: 1) whether an attorney may operate a VLO in the state, 2) using a VLO to work from home or or in locations outside PA, 3) listing a physical address in ads for the VLO or letterhead, 4) using a PO box as the address, 5) if a geographic location must be given to the client letting them know where the attorney will handle the services or meet with them, 6) for a multiple attorney firm, if it is necessary to disclose all of the cities and states from which those attorneys are performing their services, 7) if the firm or attorney with a VLO can claim that fees are lower than a traditional law office, 8 ) compliance with the duty of confidentiality, 9) if the attorney does not meet face to face with clients, if there are other steps required to confirm client identity and handle issues such as diminished capacity.   In clear format, the opinion then lists the direct answers to each of these issues before jumping into its analysis of the PA rules of professional conduct as applied to VLOs. (more…)

  • No Substitute for an Attorney

    During yesterday’s ABA ELawyering Task Force call, we discussed the recent settlement agreement entered into by LegalZoom and the Washington State Attorney General’s Office.

    In an Assurance of Discontinuation, the online legal services company must not state in advertising to the public that its services are less expensive than those of a law firm without also explaining that its services are not a substitute for an attorney.   With the far-reaching and well-funded advertising campaigns of the company, it is easy to see how the message may be misleading to members of the public, many of whom may have never retained the services of a licensed attorney and who may only have the price points and t.v. ads with which to make a judgement.

    One of the statements in Assurance of Discontinuation pertains to the unauthorized practice of law in the state of Washington – a claim we have seen issued against the company in N.C. and Missouri.  While LegalZoom does not admit to UPL in this document, it does agree not to engage in UPL with regards to providing personalized legal guidance that is state-specific within the legal self-help forms.  

    Other concerns that myself and others have brought up in the past related to the practices of online legal service companies are also covered in the agreement.  It will be interesting to see if other state attorney generals will take notice of this and implement similar actions. 

    Here is the  Assurance of Discontinuation:

    WA & LegalZoom Assurance of Discontinuation

  • Ethics Considerations: Guest Post on Mass. LOMAP Blog

    The final guest post in my three-part series for the Massachusett’s Law Office Management Assistance Program (LOMAP) has posted on the blog.  This final post covers ethics considerations in virtual law practice including both the attorney’s responsibility to thoroughly research their software provider as well as best practices for the ethical management of a virtual law office.  

    Below is the introduction to the post.  Many thanks to Jared Correia for the opportunity to share my research and writing with the readers of the LOMAP blog.

    From the guest post:

    The delivery of legal services online carries with it a number of ethical concerns; however, these ethical concerns are not all that unlike those that have traditionally been addressed by offline law firms. The online lawyer is able to mitigate risks associated with virtual law practice just as a traditionally-practicing attorney would with an offline practice when, for example, installing and using software for law practice management. There are two separate categories of ethics matters to address in connection with the virtual practice of law. The first pertains to the attorney’s duty in selecting the service provider that will be setting up, hosting and maintaining the virtual law practice. With any cloud computing service, there are precautions that must be observed in researching and choosing a software provider. The second category of potential ethics concerns relates to the attorney’s daily operation of the virtual law office; and, the focus there is on ways to mitigate potential malpractice risks when working with clients online. Further issues related to each category are discussed in greater detail below; and, in addition, suggestions are made and additional resources are pointed to, for further guidance.

    You can read the rest of the guest post on the LOMAP blog.

  • Reminders for Avoiding Malpractice in Virtual Law Practice

     

    This past Friday I attended a Law Practice Management Section Council meeting at the NCBA Bar Center.  This is the first meeting I’ve attended in person. Usually I am on conference call and booming my thoughts to the group via voice box.   Thanks to the Chair, Lee Rosen, these meetings are about the least boring I’ve ever been in and worth the two hour drive up to Raleigh. 

    At each session, we have an educational “mini-CLE” for the council members.  This past Friday’s mini-CLE was presented by Mark Scruggs of NC Lawyers Mutual which provides services to attorneys licensed to practice in North Carolina.   Mark engaged us in a great “refresher” session on the top malpractice issues and how to avoid them.  Many of these tips are ones that every attorney knows by heart, but it can’t hurt to occasionally review the basics. 

    For the attorney with a virtual law practice, it might good to review these rules and put them in the perspective of how they apply to the use of technology to deliver legal services online.  Here are some of the reminders for avoiding malpractice that Mark discussed.  He did not talk about virtual law practice, but I’ve added here below how I thought they related to an attorney practicing law online.  These tips were based on those issues for which his company sees the most malpractice claims filed. (more…)

  • 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!

  • 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!

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