Virtual Law Practice

Tag: avoiding unauthorized practice of law

  • 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!

  • Checklist for Opening a Virtual Law Office

    The following is a basic checklist for attorneys considering opening up a virtual law practice.

    ___ Choose a VLO hosting company and find out what it will require in order to set up your VLO. Of course, I’m biased, but I recommend Virtual Law Office Technology (VLOTech).

    ___ Register a domain.

    ___ Retain a website designer to create a VLO website. It can be as simple as a single homepage or a more complex site with legal resources and articles for the public and your clients. Consider having a VLO website with blog functionality. Blogging on your VLO can be a useful marketing tool and resource for your clients. VLOTech refers its clients to Grant Griffith’s company, G2WebMedia. Griffiths, of Home Office Lawyer blog fame, has experience working with solo and small firm practitioners and creates websites with blog functionality to improve VLO marketing.

    ___ Make sure that any part of your website that handles confidential information, the actual VLO, registration and login for clients, is protected by an SSL certificate (https and the browser lock symbol). Your web hosting company may help you with this or you may need to purchase an SSL certificate separately.

    ___ Establish an account with a credit card processing company to use for your online payments, such as PayPal or your bank. If you plan on taking retainers through the VLO, make sure that you have the approval of your state bar regarding transfer of the client’s funds to a credit card processing company before going into your trust account. There was some discussion about this on Solosez not long ago and I’ve posted about it here.

    ___ Draft the terms and conditions for use for your general website and the clickwrap agreement for your secure VLO website.

    ___ Establish a response time policy. For example, let clients know that you will respond to their online requests within 24 hours.

    ___ If you will be handling transactional matters, prepare any forms or worksheets for collection of client data. These may be uploaded to the clients through the VLO and downloaded for you to review once completed by the client.

    ___ If you will be using the VLO with existing clients or in a litigation practice, draft a letter or email to clients notifying them to register and use the VLO to keep track of their cases.

    ___ Decide how you plan on handling client engagement letters, either through the VLO case dialogue and clickwrap agreement or by traditional letter uploaded to the client, or a combination of both methods.

    ___ Decide which billing method or combination of methods you plan to use. Consider providing sample fixed fees, billable hour rates or a range of costs on your VLO website.

    ___ Discuss your planned VLO practices with your malpractice insurance carrier and ask about discounted rates due to the use of technology to reduce malpractice risks.

    ___ If you will be practicing remotely, review the security of your mobile devices.

    ___ If you plan on using the VLO in conjunction with other law office software, have a data backup policy in place.

    ___ Create a backup Internet access plan in the event that you only have one method of connecting to the Internet and it goes out.

    ___ Check with your state bar’s rules of professional conduct regarding advertising and website content before getting started on any marketing campaigns. (Hat tip to Aaron Johnston for reminding me to add this one!) I’ve written a little about this here .

  • Avoiding the Unauthorized Practice of Law in Other Jurisdictions When Practicing Law Online

    Practicing law from a web-based virtual law office brings the risk of unwittingly establishing an attorney/client relationship regarding a legal matter that the virtual attorney is not licensed to handle. The unauthorized practice of law in other jurisdictions can be avoided by following some simple practice methods.

    First, the virtual law practitioner has the responsibility to provide clear notice throughout the VLO website that he or she is only licensed to practice law in the states in which the attorney holds an active bar license. This information should show up at every turn — from the terms and conditions for the website to the registration and clickwrap agreement allowing access to the online client’s homepage.

    Second, the virtual law office website should contain contact information and the name of the attorney running the VLO. For some state bar associations, such as North Carolina, the requirement extends to providing a physical mailing address for the prospective client. This information should be located in a section that is easily found by the online client, such as an “About Us” section or at the start of the website’s disclaimer. By providing adequate notice throughout the VLO, the attorney should not be found to be soliciting clients from a state where he or she is not able to practice law.

    In addition, a well-designed VLO should contain a jurisdiction check for the benefit of the client and the attorney. This safe-guard was built into the VLOTech software for this purpose.

    VLOTech jurisdiction check

    When the client registers on the attorney’s VLO website, a simple check for the zip code notifies the attorney that the client is a resident outside his or her jurisdiction. A note would appear to the client which states that the attorney may only be retained to answer legal questions and handle legal work related to the laws of the state for which the attorney has an active law license. The jurisdiction check should not prevent the client from continuing with the registration process, but serves the purpose of providing more than adequate notice of the attorney’s jurisdiction. Through this process, the attorney is provided with a red flag on the backend of the law office to let him or her know that the client resides in a different state and may not have a legal matter that the attorney is permitted to handle.

    With the combination of adequate contact information and notice to any prospective clients regarding jurisdictional limitations, the virtual practitioner should be able to safely avoid crossing the line into unauthorized practice of law.

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