Virtual Law Practice

Month: December 2008

  • ABA eLawyering Task Force Conference Call

    The ABA’s eLawyering Task Force will hold a conference call next week on January 9th at 10:00am Eastern time.  The website has an incorrect date on it as the meeting had to be rescheduled for the first of the new year.  If anyone is interested in discussing the delivery of legal services using technology, you might want to consider joining the group’s listserv and taking part in the conference call.  Participants must also be a member of the ABA’s Law Practice Management Section in order to join the Task Force.

    One of the eLawyering Task Force’s goals will be to discuss setting standards for the use of technology to deliver legal services.  This will be my first conference call with the group so I’m looking forward to speaking with some of the individuals I’ve been reading about and emailing over the past year or so.  Anyone operating a virtual law office or considering hanging a virtual shingle should take an interest in this group’s activities. 

    If you are reading Richard Susskind’s new book, The End of Lawyers?, you will know why I think this group is going to have growing relevance for the ABA and the legal profession in general.  For anyone who can’t join in on the conference call, I’ll try to post a summary of the meeting in the near future.

  • Attorneys Discuss Virtual Law Practice

    Check out two blog posts discussing virtual law practice from Chuck Newton and Jay Fleischman, both attorneys who use technology to practice law outside a traditional law office.  Newton’s post Is Virtual Virtually Impossible? prompted Fleischman’s post An Open Response to ‘Is Virtual Virtually Impossible?’

    As I commented on Newton’s blog, I believe there is room in our profession for many different law practice methods, including virtual law offices, whether they are completely web-based or integrated into a traditional law office setting.

    Fleischman’s post discusses the definition of the word “virtual” and whether it is the appropriate term to use.  When I was considering what to call my own web-based law office and we were evaluating the name for VLOTech, we looked at all of the existing terms that came close to describing the method of practicing law securely over the Internet, such as elawyering, online law practice, online legal services, web-based law office, online unbundled legal services, etc.

    The term “virtual” and the connotations it brings may depend on an attorney’s concept of how the Internet can be used to recreate real world environments.  Virtual can also mean a software representation of something physical. A virtual reality world is a software representation of the 3D physics of the real world.  Virtual machines, such as VMWare or Virtual PC, are software representations of physical hardware.  Virtual law offices are software representations of a physical law office, including front office, backend office and even secretary.

    What we intended to convey by the term VLO or virtual law practice was that this method was a way of recreating an entire law office environment on the Internet.  Second Life, for example, is a virtual reality world; a digital world accessed completely online.  Likewise, my VLO is a complete virtual law office accessed online.  My waiting room, my conference room, my filing cabinets, my copy machine, my law library, etc. are all in one place online.

    Since I started my own web-based practice I’ve worked with other attorneys who are using technology to run both a traditional law practice and a web-based law office.   As long as the technology used to practice law over the Internet protects the general public that we serve, it should not matter what method or combination of law practice methods legal professionals use to get their work done.  There will always be clients and attorneys who prefer certain methods over others.  It doesn’t make one type of attorney more or less of a professional.

    My prediction is that in the next ten years attorneys will continue to run into more clients who expect them to use web-based methods of communication to provide legal services.  Look even further down the road and expect to see attorney avatars having online conferences with their clients’ avatars.  While some attorneys already have law offices in virtual reality worlds, the security is not there yet for attorney/client confidentiality and the general public is not quite at that level of comfort with the concept.

    I certainly don’t think traditional face-to-face lawyering will ever disappear.  However, attorneys operating VLOs and those practicing law online are at the forefront of an increasingly useful and popular law practice method.

  • How Does a Virtual Law Office Close Shop for the Holidays?

    For the past couple of years, I have kept my VLO open through the holidays.  I can log in remotely and check the case queue while traveling or on vacation so it’s not a problem to keep up with my self-imposed response policy.  The VLO sends a notice to let me know when there is any activity from a client or a new prospective client has registered.  That’s how I know when to log back in and check the queue or a client’s case file. 

    My VLO is open 24/7.  When I started my online practice almost three years ago, I decided that I would respond to each request for legal services within 24 hours of the request being posted on my VLO case queue.  That doesn’t mean I complete the legal services requested in 24 hours, just that I respond to the online prospective or existing client in some way to let them know that I am paying attention.  The VLO sends out a notice to the client if they want email updates to let them know that I have received their message, but I prefer to respond in a more personal manner to each client.

    But this year I need a couple days off.  How do attorneys practicing law with a web-based VLO close up the virtual office door to take a break? Well, I won’t need to prohibit clients or prospective clients from contacting me on the VLO.  What I do need is to provide them with notice that I will not be reading or responding to their requests for a couple days.

    There is the typical auto-responder that most law offices use that will tell each person who logs into my VLO that I am out of the virtual law office and when I will return.  I could also post a sign on the front of my VLO login and register page that tells any online clients and prospective clients that they may request legal services but that I will be unable to respond for a few days.

    For attorneys with completely virtual law practices or for those attorneys whose clients are used to contacting them outside of typical business hours, how do you let your clients know when you need or want to take a few days off?

  • 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!

  • 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.

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