The ABA’s Commission on Ethics 20/20 held a public hearing at the ABA’s Mid-year conference in Orlando, Florida to discuss topics related to their Preliminary Issues Outline.  On Friday, I was honored to be invited to speak to the commission about virtual law practice.   The ABA Now wrote up an article about the hearing and presentations here.  

Below are slides from my presentation at the hearing.  The text of the hearing should be available on the ABA’s website at some point in the near future.  I am happy to report that the Commission is making a great effort to educate itself on the subject of virtual law practice from the benefits to the concerns related to this form of law practice.  I hope to have the opportunity in the future to share additional information on the topic with its members. 

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.

1. Out of state cases.  Check the statute of limitations with each incoming case immediately because the statute of limitations may be different in another state.   Out of state cases may also bring up issues of UPL in other jurisdictions.  Solution: have a method of flagging these out of state cases immediately so that these may be checked before the attorney responds.  Most virtual law offices have this form of red flag and jurisdiction check built into the system.

2. Docket control systems to avoid missing deadlines.  Have a calendaring and/or ticker system in place to remind the attorney about these deadlines.  Mark recommended a double entry system that is monitored.  I wondered how a solo practitioner could achieve that without a virtual assistant or paralegal to do the monitoring.  However, the technology itself might serve that purpose and adequately remind the attorney just as well as a live assistant would.

3. Conflict of interest checking.  Virtual law offices have to be careful about not only running a thorough check on the online parties, but also on the in-person clients.  As more information is gathered online from the prospective client through online forms or worksheets, this check should be able to be run multiple times to ensure that there are no conflicts.  Another issue with conflict of interest checking involves determining how far removed the relationships need to be in order for the attorney to take the representation.  The virtual law office software that I use has a  conflict of interest checking system that rates the relevancy of the entries so that I can see which cases have names of parties that are similar to the current prospective client and then choose the more relevant ones to review further to make this case by case decision. 

4.  Client selection.  Carefully choose your clients and know when to reject a prospective client.  The issue here for the virtual law practice is that on a case by case basis the attorneys needs to determine whether the client’s matter is something that may be competently handled online or if a full-service firm is necessary.  Having an online referral database on the virtual law office is very handy for quickly referring out clients that have a matter not related to the services provided online or which require a full-service representation.

5. Retainer or engagement agreements are a must.   The key is to make it very clear, especially with unbundling legal services online with a virtual law office, what services the attorney will provide and what services he or she will not provide.  The agreement must set out what the responsibilities are of the client as well as the attorney.  Clearly define the scope of the representation and even lay out for the clients what the risks might be or that you cannot guarantee the results depending on what the case entails.  Make sure that you have some form of acceptance of this agreement.  With a virtual law practice, this may be achieved with a clickwrap agreement and through the processes set up in the technology to ensure that the client has adequate notice and acceptance of the terms.

6.  Maintain good client relations.  Communicate with your client.  O.k. no problem here with the virtual law office.  In fact, this may be one of the areas where the virtual law practice has a real strong edge on a traditional law office.  Clients have 24/7 access to their case files, the statuses of their matters, and they can drop you a note whenever they need to feel more at ease with the relationship.  There are autoresponders to let the clients know when the attorney has viewed their message.  Communication is less of an issue with a virtual law office and clients also feel like they have more control over their legal matters. 

7. Document any changes in the case file.  The case file should be well documented to show the progress of the case and its status.  Again, the virtual law office automates much of this work for the attorney and it is all kept in the client’s case file with time and date stamped on each transactions for the attorney and client to view for the record.

8.  Don’t go out of your comfort zone.  Don’t dabble in areas of law practice in which you have no experience.  This is a competency issue and again, I think having a good online referral database helps the virtual law office attorney to easily refer cases out to another attorney’s virtual law office that does handle that practice area that he or she may not have enough experience in.  The virtual law office also makes online collaboration easier to achieve if the attorney wants to seek out co-counsel to learn how to handle a new practice area. 

I thought all of these tips were really useful reminders for all of us in the profession.  And I felt reassured when I checked them with the practices of my own virtual law office that I was doing everything I could using the technology to avoid these more common malpractice risks.  Thanks again to Mark Scruggs for the mini-CLE!

I’m happy to announce that I will be a contributor to the Lawyerist.com blog.  Here’s my intro post.  An article on unbundling legal services with a virtual law practice should post sometime next week.  If anyone has requests for topics related to virtual law practice that they would like for me to cover on this blog or as a contributor to Lawyerist, please drop me a line.

Defining virtual law practice and the delivery of legal services online by licensed professionals is becoming ever more important as the market continues to fill with companies offering various forms of online legal services.  Two of the biggest concerns that surround these companies include the unauthorized practice of law (UPL) and misleading the public.  Many of these entities do not provide attorney review of the legal documents that they sale online and are coming up against strong criticism for this aspect as well some of their marketing techniques.  For example, the Connecticut Bar Association has formed a task force to review the websites that provide unbundled online legal services.  According to the task force, their primary concern is for the consumer’s safety.  Last year the North Carolina State Bar’s Authorized Practice Committee also investigated the services provided by LegalZoom  claiming they constituted UPL by non-licensed professionals.

Let’s be clear: the Internet-based legal services companies facing criticism do not provide the same level of quality or security of a virtual law office.

Rice Law, LLC, a North Carolina Virtual Law Office, recently posted an educational article on their virtual law office website advising prospective online clients about the difference between the companies offering legal forms for sale online and the services of a licensed attorney provided through a virtual law practice.  Virtual law practice allows a client to connect personally with their attorney online and use the technology in a cost-effective and efficient manner to handle legal matters.  A virtual law office may be used in conjunction with a traditional law office or may be completely web-based providing unbundled legal services, depending on what the prospective online client needs and whether it may be competently handled online or should require full-service, in-person representation.

My point: Don’t throw the baby out with the bath water.  These Internet-based legal services companies may provide unbundled legal services, but it’s their methods of doing so that are at question, not the practice of unbundling itself.  Access to justice is a huge problem in our country and unbundling legal service by licensed legal professionals provides an enormous opportunity for us to provide one solution to help with this growing problem.

Recent publications as well as state bar opinions support the unbundling of legal services which is essentially what a virtual law office provides for their clients online.   Take a look at the New York Times article “A Nation of Do-It-Yourself Lawyers” by Chief Justices John T. Broderick Jr.  of New Hampshire and Ronald M. George of California.  Richard Granat over at the eLawyering Blog has a great post discussing this article as does Susan Cartier-Liebel on her blog.   Likewise, Chuck Newton of the Third Wave blog recently wrote a positive post pointing out many of the benefits of unbundling legal services.

As someone who practices law from a virtual law office and works with other attorneys to set up virtual law practices, I will be a tad defensive on this topic because I know the close relationships that I have with my online clients.  I am proud that I am able to provide them with a quality service that many of them have flat out told me would not be affordable or accessible to them if it were not handled online.  I also have the ability to provide pro bono services through my virtual law office and know of other virtual law office practitioners who are working with their local legal aid and other entities to use the technology to provide increased access to justice as well as built their own successful and consumer-conscious law practices.

Accordingly, when you read criticisms of web-based legal service companies, please remember to draw the line between a virtual law office operated by a licensed legal professional and a company selling legal forms online.   There may be a lot of unscrupulous practices going on out there, but it doesn’t serve the general public or the legal profession to make broad generalizations that may inhibit future innovation in the delivery of legal services using technology and thus, increased access to justice opportunities.

The Arizona State Bar has published Ethics Opinion 09-04 “Confidentiality; Maintaining Client Files; Electronic Storage; Internet” in December 2009.  This opinion will apply to attorneys operating virtual law practices within the AZ Bar jurisdiction and is similar to the NC Bar 2008 Formal Ethics Opinion 5, Web-based Management of Client Records published July 2008.  In fact the NC Formal Ethics Opinion 5 is cited in this new AZ opinion.

AZ Opinion 09-04 addresses the ability of an attorney to work with clients and deliver legal services online.   The question presented in the opinion lays out the method that the inquiring attorney would use to securely deliver the documents to his or her clients online.  In this case, the documents would be converted to “password-protected PDF format,” and the client would access those files for review over a secure site which uses “encryption and three layers of unique randomly generated alpha-numeric folder names and passwords.”

The AZ Bar pointed to the two related, existing rules of professional conduct which are the same rules that we have seen applied in other opinions related to virtual law practice: Competence and Confidentiality of Information.  A previous AZ Bar ethics opinion has permitted electronic storage of law office data, including clients’ files (Az Ethics Op.05-04). 

Here is what I love about this opinion.  They allow for the proposed method of delivering legal services online to the client, but they recognize that this is not where it ends. From the Opinion:

However, the Committee also recognizes that technology advances may make certain protective measures obsolete over time.  Therefore, the Committee does not suggest that the protective measures at issue in Ethics Op. 05-04 or in this opinion necessarily satisfy ER 1.6’s requirements indefinitely.  Instead, whether a particular system provides reasonable protective measures must be “informed by the technology reasonably available at the time to secure data against unintentional disclosure.” N.J. Ethics Op. 701.  As technology advances occur, lawyers should periodically review security measures in place to ensure that they still reasonably protect the security and confidentiality of the clients’ documents and information. (emphasis added)

This is clearly the best way that the state bars can address virtual law practice without preventing or discouraging innovation.   The attorney practicing law online has the responsibility to stay current on the security issues involved in using the technology. If they are not able to do so for themselves, then they need to trust an IT professional or their SaaS provider to keep their system up to date and protected.

Happy New Year!   I reviewed many of the virtual law practice news from 2009 in my last post.  In this post I want to look forward to the year ahead by providing some news about my own virtual law office and upcoming speaking/sharing engagements.

2010 will mark year four of owning my own solo, virtual law practice.  I opened Kimbro Legal Services in the winter of 2006 right around the time that I welcomed my daughter to the world.  I remember being so excited about taking the leap into my own solo practice but also trying to ignore the negative comments that other attorneys had shared with me regarding the idea of making the practice completely web-based.  And four years later, virtual law practice is something that is being embraced by the legal profession and expanding in innovation and technology way beyond what I had imagined back in ‘06.  I’m so grateful to be able to share my experiences with other attorneys and to assist them in setting up their own virtual law offices.

Looking forward to 2010, there will be several opportunities to share information about virtual law practices with others in the legal community.  Up until this year I’ve done almost all of my communicating, educating and networking completely online.  But this year, I’m coming out of the computer.  I’m actually a little nervous about finally meeting all of my online mentors.  I may be a bit “star-struck” until I get used to communicating without hitting the enter key first.

This year I plan on making it to the ABA TECHSHOW in Chicago around March 25-27 where there will be several panels and sessions devoted to cloud computing, SaaS and other forms of technology used to accomplish virtual law practice.  The ABA eLawyering Task Force may meet informally at the TECHSHOW and then at the LPM Spring Meeting in Las Vegas at the end of April.   

I am also really looking forward to the Get a Life Conference that will be held in Chicago starting on May 26th.  I will be on a panel with Richard Granat of Directlaw discussing virtual law practice as well as on a panel with Niki Black discussing cloud computing.    Later at the end of summer, I will be on an educational panel discussing virtual law practice at the ABA and LPM Annual Meeting in San Francisco.

The first draft of my book for the ABA’s LPM section is due this spring so if all goes well, it should have a summer publication date.  I’ve been spending most of my writing and researching energy on the book.  My goal is for it to be a practical, easy to read “how-to” book on the topic but that it will also contain appendices with my research regarding state-specific ethics or advisory opinions, and go more in detail into the technology topics. 

As for my own VLO, I’m staying pretty busy with the online client base that I’ve built up around providing estate planning services.  I had considered seeking a mentor to help me expand my services to providing some family law legal guidance.  Maybe leave that for the future.  There are several other NC Family Law VLOs and for now I have been referring those online clients their way. 

I’ve enjoyed a growing number of members in my virtual law practice course on Solo Practice University and look forward to continuing to teach webinars and communicate directly with those students.  It provides an excellent opportunity to learn more about other’s questions and thoughts about the ethics and technology issues in virtual law practice as it evolves.

I also look forward to getting more involved in my role as Consultant and Technology Evangelist for Total Attorneys.  They have a great resource in TotalPMA, and I’ve already started joining in on the discussions and connecting with other attorneys through that legal community. 

There will be more exciting news to share with everyone as the year develops and I’ll do so on the blog, on Twitter (@StephKimbro) and on whatever new online social networking tools are bound to crop up and become popular next year.

Happy New Year to everyone as we look forward to a productive 2010!

This year has brought the legal profession closer to the acceptance of virtual law practice as a method of delivering legal services through the use of technology.  Virtual law practices are improving access to and affordability of legal services to the general public.  For legal professionals, practicing law online provides the flexibility to create innovative and unique law practices that provide improved work/life balance in addition to professional success. 

In this post I wanted to review some of the online articles related to virtual law practice that came out in 2009.  As more virtual law firms launch in 2010, expect to see the tone of these articles change to include more detailed discussions about technology and ethics issues involved in the delivery of legal services online as well as discussions about different structures of virtual law practices that are now in the planning stages.  This might include multi-jurisdictional virtual law firms with interesting fee and management structures, using a virtual law office as a non-profit to provide pro bono legal services, “cost-co” type firms with registration fees, and other unique ways that legal professionals are envisioning the use of the technology to collaborate with attorneys and clients online.   

I work mostly with other solos and small firms who are opening virtual law practices, but I have spoken with many other attorneys who envision collaboration with others to expand their practices beyond the solo or small firm realm.  More legal SaaS products are also entering the market, each with a different focus and concept about what virtual law practice can be.   It will be interesting to see what develops in 2010 not only in terms of what structures individual attorneys come up with, but what new features and functionalities the technology will bring.  There are also major changes in the legal profession happening in the UK and abroad that may serve as an influence here in the States.

Along with many others, I see great potential for virtual law practice to even the playing field for access to justice in our country.   Of all of the benefits, I think this may be the most important goal for the profession to keep in mind as it moves forward in defining and supporting the use of technology to deliver legal services. 

That said, here is a list of virtual law practice in the news in 2009.  I’m going to limit myself to mostly North American news here to keep the list manageable, but be aware that similar articles are popping up within other countries’ legal professions.  I’m also posting both the negative and the positive articles on the topic and they are in no particular order. 

Know of any more?  Feel free to pass them along.

Mid-Year Review of Virtual Law Practice in the News - a round-up post from January 2009 – July 2009 with links to articles

ABA eLawyering Task Force publishes Draft Minimum Guidelines for Virtual Law Practice

The Firms of the Future, Jordan Furlong, Law21

An Office Can be Virtual, but Client Service Can’t, Edward Poll, Canadian Bar Association, National Magazine

Virtually Legal:  Bricks and borders place no restrictions on the growing wave of virtual lawyers, Alison Arnot, Canadian Bar Association, National Magazine

The Virtual Paralegal Podcast, The Paralegal Voice, Lynne DeVenny and Vicki Voisin

4 Steps to Starting a Virtual Law Office, Jay Fleischman, The Untethered Lawyer

Legal Implications of Cloud Computing — Part One, David Navetta, Information Law Group (not so much related to attorneys practicing law online, but a good explanation of “cloud computing”)

The Virtual Law Office – Not Your Father’s Cloud, Donna Seyle, Freelance Law Firm

Virtual Law Firm Rimon Law Group Welcomes Four New Partners, Dec., 2009

Does the Future Belong to Virtual Law Firms?, Francesca Heintz, EDD Blog Online

Unbundled Legal Services Or Self-Represented Consumers? You Decide., Jay Fleischman, The Untethered Lawyer

Setting up a Web-based Virtual Law Office, Stephanie Kimbro, ABA GP/Solo & Small Firm Division Technology eReport

SaaS Security: Can you Trust your Data in the Cloud, Jack Newton, ABA GP/Solo & Small Firm Division Technology eReport

Disaster Ahead for Lawyers Unwilling to Change, Richard Susskind, ABA Journal Legal Rebels Blog

lawtechTalk Episode #5-Cloud Computing and Your Law Practice, Nicole Black, lawtechTalk

Adding a Virtual Law Office to your Practice, Stephanie Kimbro, Lawyerist

The Virtual Law Firm: Benefits, Costs and Ethical Pitfalls to Avoid, ABA Teleconference and Webcast

My guest post for the Lawyerist, Adding a Virtual Law Office to your Practice, went up today.   From the post:

Delivering legal services online is a growing method of law practice management as both attorneys and clients find ways to benefit from the use of the technology. However, a virtual law office (VLO) is not only for attorneys wanting to operate a completely web-based practice; it can integrated into a traditional, brick-and-mortar law practice, too.

Read the rest here.

This upcoming Thursday, December 17 at 1pm EST, Richard Granat, Marc Lauritsen and myself will be co-presenting a CLE teleconference and live audio webcast entitled “The Virtual Law Firm: Benefits, Costs and Ethical Pitfalls to Avoid.”   It is sponsored by the American Bar Association LPM Section and the ABA Center for Continuing Legal Education.

From the program description, the topics that will be covered include:

What is a “virtual law firm”

The benefits of delivering legal services online

The web architecture for a virtual law firm

Online applications, such as web-enabled document automation

Ethical issues in the delivery of online legal services, including confidentiality, security, unauthorized practice of law, client identification, conflict of interest checking and client authentication procedures

Criteria of vendor selection

The costs associated with setting up a virtual law practice

Marketing your brand and virtual law practice online

If  you are interested in virtual law practice or are operating a virtual law firm, please consider joining us for this session.  In addition to some really practical advice on this form of delivering legal services using technology, the session will also provide 1.5 hours of CLE credit in most states.  Have any specific questions you would like answered during the conference?  Please drop a line in the comments section below or email me.

UPDATE:  The teleconference had a really nice turnout and we received great questions from the audience both on the phone and online.   I believe the recording of the CLE and materials will now be available for purchase from the ABA at some point.

Check out my article in the November issue of the ABA GP/Solo & Small Firm Technology eReport: Setting Up a Web-based Virtual Law Office.  From the article:

Consumers are actively seeking more affordable and convenient access to legal services over the Internet. Due to the cost of traditional legal services, they are turning to cutting and pasting together sample online legal documents or purchasing cheap legal forms online without the benefit of attorney review. The economic recession has further hastened this trend. To address consumer demand, more attorneys are opening web-based virtual law offices (VLOs) or adding a VLO to an existing traditional law firm structure to deliver legal services to clients online.

There are different ways to define and structure a virtual law practice. Simply put, a virtual law practice is a professional law practice where an attorney is able to work with clients over the Internet through a secure portal from the establishment of the attorney/client relationship through to the payment of and final rendering of legal services. The technology used to create and maintain a VLO is a software as a service (SaaS) hosted system, often referred to as practicing law “in the cloud.” To set up a virtual law practice, an attorney should be aware of a number of practical and ethical considerations discussed below.