Virtual Law Practice

Tag: client-attorney relationship

  • New ABA Ethics Opinion on Electronic Communication

    The ABA Standing Committee on Ethics and Prof. Responsibility has published a new ethics opinion, Formal Opinion 11-459 “Duty to Protect the Confidentiality  of E-mail Communications with One’s Client”. I didn’t see this one coming, but I think it’s a move in the right direction.

    The situation described in the opinion relates to when an attorney has reason to believe that his or her client  is sending the attorney or anyone else confidential information via email and the client’s employer has keystroke logging on their system or some other way of monitoring the employee’s activities where there is a risk that the employer  could access that confidential information.

    However, the opinion is worded broadly and might expand to more than just email and to more than just these workplace situations. Check out the last paragraph of the opinion: (more…)

  • No New Restrictions On Use of Tech & Client Development

    The ABA Commission on Ethics 20/20 has published for comment its draft proposals on Lawyer’s Use of Technology and Client Development.   Proposed changes relate to Model Rules 1.18 (duty to prospective clients), 7.2 (advertising) and 7.3 (direct contact with prospective clients).

    Overall, the Commission concludes that no new restrictions need to be added to a lawyer’s use of technology for client development.  The proposed changes adequately reflect two major impacts of the Internet on our profession: 1) public accessibility to lawyers online, and 2) the immediacy of communication with prospective and future clients over the Internet.  Below is a brief look at each rule’s proposed changes.

    “Communicating” with Prospective Clients Online

    Proposed changes to this rule include switching out the word “discusses” with “communicates.”  “Communicate” is a much broader term and is probably something we do online with prospective clients far more than actually “discussing” a potential attorney/client relationship.  Communicating could be anything from having them fill out a “contact us” form to sending you a tweet asking if your firm handles their specific legal need.  Something as simple as “Liking” your law firm’s Facebook page is a bit of a stretch because it’s not specifically “about the possibility of forming a client-lawyer relationship.”

    This would be a dangerous rewording if not for other new lines added to clarify the definition of a prospective client: “A person who discusses communicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter is a prospective client.” [proposed additions in italics] (more…)

  • Adapt or Get out of the Way: Standards to Protect Client Property/Confidentiality Change

    Last week during a guest lecture on virtual law practice at the University of Dayton School of Law, the subject of protecting client property and confidentiality of client data in electronic communications came up again.   My prediction (perhaps overly optimistic) is that in the next few years the state bars will recognize that unencrypted email communication between attorney and client is not the highest standard.  The state bars will look at the newer data privacy laws in Nevada and Massachusetts and  reconsider why attorneys should be using unencrypted email in our profession while other business professionals are required to encrypt personal client data. 

    The standard that the ABA Model Rules of Professional Conduct and most state bars take is encapsulated in Rule 1.6 (a) of the ABA’s Model Rules of Professional Conduct.  This rule states “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation.…”  Specifically comment 17 to this rule provides that lawyers must take “reasonable precautions” to safeguard confidential information and prevent it from going to unintended recipients during the transmission.   The ABA Formal Opinion No. 99-413 added in March 10, 1999 specifically allows for the use of unencrypted email. 

    “Reasonable precautions.”  What qualifies as “reasonable” should change as technology to communicate with our clients and other professionals develops and security risks in those electronic methods are exposed.  (more…)

  • “In the Meantime…” — Temporary Operation of a Virtual Law Office

    Over the past year I’ve spoken with attorneys who have been laid off from Biglaw firms and are seeking new positions or attorneys who have just passed the bar and are having trouble finding a position to launch their legal careers.  Both groups of individuals are working hard to establish or reinvent themselves within the legal profession and are seeking my advice about using a virtual law practice as a way to do this. They want to operate a solo virtual law practice “in the meantime.”

    Solo virtual law practice is not for everyone, and while I love the independence that it provides me, I recognize that other attorneys have different goals for their legal careers. Therefore, I try to give useful advice that would apply to the attorney’s individual goals and circumstances.

    Can a virtual law practice be used effectively in between phases in an attorney’s career — from firm to firm?  Will the attorney be able to take the virtual law practice with him or her when that dream legal job comes along?  Will it pay the bills if the attorney is only going to be delivering legal services online on a temporary basis?  If the attorney is a newly graduated attorney can he or she work online and learn an entirely new practice area of law without having worked in an actual law office? 

    These are difficult, but critical questions for attorneys in such situations to ask before embarking on a virtual law practice. I’ve combined some of my responses to these questions below. (more…)

  • Social Networking Policies for a Virtual Law Practice

    Last week I gave a brief presentation for the Legal Services National Technology Assistance Project (LSNTAP) about developing policies for online social networking. While researching for the presentation and round table discussion, it occurred to me that having a policy in place for social networking is a wise idea for a virtual law practice. Considering that a great deal of the marketing and professional networking for a virtual law practice is going to be handled online using social networking tools, it makes good sense to establish a policy for your practice whether you are a solo practitioner or a medium-sized online law practice with virtual assistants.

    If you haven’t already, please check out Carolyn Elefant’s ebook Social Networking for Lawyers: The What, Why and How.  This is a good resource regarding the use of social networking for legal professionals and could be useful for developing your own social networking policies for a virtual law practice.

    Here are some social networking policy suggestions from my presentation that can be applied to a virtual law practice: (more…)

  • Interest in Virtual Law Practice Spreading Across the States

    Over the past month, I’ve heard from several attorneys who will be opening their own web-based virtual law practices.  The following states are on board now: SC, IL, VA, AK, GA, TX, MD, TN and KY.  Some attorneys are still in the process of speaking with their state bars about providing unbundled legal services.  One solo practitioner is working with a law professor to write a manuscript that addresses the benefits and potential ethics issues that may arise in operating a VLO.

    I’m excited about the growing number of VLOs, not only because I run a company that provides the web-based technology, but because most of the attorneys that I have spoken really see the value to the public of offering online unbundled legal services.  While many in the public can turn to Nololaw and Legalzoom for legal document drafting, these options do not provide the public with direct and personal communication with a licensed attorney.  A web-based VLO can provide this service and still keep the costs affordable for individuals who otherwise may not have been able to seek out an attorney. 

    Aside from generating additional online client revenue, the one thing I hear over and over again about why an attorney wants to open a VLO is because they are tired of spending more time working than living.  Sometimes the comment is coming from a law partner who is fed up after putting in years at one firm and missing out on his or her children growing up.  Or it’s from a newly graduated law student who does not want to end up like their overworked parents and wants to start out with flexibility from day one.  There are different stories, but the underlying tone is that these professionals love practicing law and want to find a way to stay in the legal profession without sacrificing their personal lives. 

    I’ve said before that I don’t think virtual law practice is for everyone, and the risk is no different than hanging your own shingle as a solo on a brick & mortar law office.  But if you really commit to the concept and the work that it takes to market it and to set up good practice standards for VLO management, then I believe virtual law practice can provide wonderful work/life balance for an attorney. 

    As for my own virtual law practice, this summer I am busy enjoying the benefits of running my own solo practice from home.  The third year of solo VLO practice has brought more referrals and returning small business clients my way.  It’s a sign that I must be doing something right.  I’ve also honed down the advertising and marketing techniques that work best with my VLO which I hope to share with VLOTech clients when they hang their virtual shingles. 

    I will be co-presenting another CLE session for the NC Bar Association at the end of September.  The session will be similar to the ABA TechShow’s popular “60 Websites in 60 Minutes.”  Some of the websites I am presenting would be useful to the virtual law practitioner so I will be sure to post those links and info. after the CLE presentation. 

    As always, this blog is for discussing virtual law practice, especially ethics and a technology issues in operating a VLO.  I welcome any questions or stories about virtual law practice that anyone wants to ask or share.

  • Notice & Understanding: Setting the Scope of Representation for Online Clients

    While each state’s bar has different rules governing their attorneys, I suspect that many of the rules of professional conduct and ethics opinions are similar. The NC State Bar was one of the first to address virtual law practice. On January 20, 2006, the NC State Bar adopted the 2005 Formal Ethics Opinion 10 (Ethics Opinion 10) providing advice regarding virtual law practice and online unbundled legal services.

    The comments in the opinion focus more on email communication and do not envision a web-based application that provides for detailed attorney/client interaction. However, it is still nice to have a standard opinion to work with.

    The nature of unbundled legal services and the requirement that prospective clients understand the scope and nature of the legal representation being offered online was one of the topics addressed by the Ethics Opinion 10. The Bar stated that the virtual attorney must be careful to comply with Rule 1.2(c) of the N.C. Rules of Professional Conduct. This rule states “[a] lawyer may limit the scope of representation if the limitation is reasonable under the circumstances.”

    Accordingly, the attorney must continue to provide competent and thorough representation to the client regardless of the limited nature of the legal services being conducted. Rule 1.2(c) allows for the limited legal services to be provided to the public as long as the attorney complies with Rule 1.1 regarding competence of legal services provided.

    A well-designed VLO provides notice to prospective clients as well as assurances that these notices have been read and accepted by the client. (See my Clickwrap Agreement post) Additionally, the scope of representation may be again communicated through a secure online message from attorney to the client and a traditional limited scope of representation agreement may be uploaded for the client to sign and return to the attorney, either by scanning and uploading to the VLO or by traditional mail or fax methods.

    Before offering unbundled legal services, the virtual attorney has the responsibility to explain exactly what services will be provided at what cost to the client. A well-designed VLO operates with this specific process as the foundation for the transactions by requiring multiple steps where the client must read and acknowledge the terms and/or provide information to the attorney which lets the attorney know that the client has moved forward with accepting the scope of representation.

    With each VLO, an attorney has the ability to tailor his or her virtual practice to encompass a variety of limited legal services, including the combination of using the VLO in conjunction with a full-service law office. Because each practice will differ in the areas of law practiced by the attorney(s) and by the chosen design and use of the VLOTech application, the responsibility to ensure compliance with Ethics Opinion 10 and Rule 1.2(c) of the N.C. Rules of Professional Conduct will remain with the individual practitioner or law firm.

    Here are a couple examples: An attorney whose practice centers on litigation may use a VLO to generate additional client revenue on the side by answering basic traffic ticket questions while maintaining a full-service litigation practice. The same attorney might use the VLOTech application to provide homepages to existing clients that he or she meets with in person and allow those clients to pay bills online, communicate in a more secure method than through email and basically to use the VLO as an amenity to the full-service firm.

    As a different example, another attorney may decide to enter retirement from a full-service law firm by creating a VLO that handles only transactional legal services, such as drafting estate planning, contracts or setting up business entities for clients who do not want or need to meet with the attorney in-person. The VLO allows this attorney to work remotely or from home allowing him or her to ease into retirement or create a completely new online law practice that allows for greater work/life balance.

    There are a variety of different situations where a VLO may be used to provide unbundled legal services and with each it is possible to provide quality legal services and comply with Rules 1.2(c) and 1.1 of the N.C. Rules of Professional Conduct.

    Similar to a traditional law office, a virtual law attorney must use his or her judgment on a case by case basis when deciding whether he or she may competently and ethically handle a particular matter. If the client’s needs would be better suited if handled by a full-service attorney and the virtual law attorney does not provide this services, then it is his or her responsibility to refer the client out. This is no different from the responsibility of every attorney — whether practicing virtually or with a traditional, brick and mortar law office.

  • Ethics Question for the Virtual Attorney

    Practicing online I often receive this question as an ethics challenge to my virtual practice:

    How can you be sure that the person you are communicating with online is really person you are drafting the documents for?

    Because I handle estate planning, attorneys who operate more traditional practices express specific concern about the power of attorney and the broad authority that it provides to the attorney-in-fact. What if the person I am drafting the document for is really someone else who plans to use the power of attorney for nefarious purposes?

    While I will conceed that the Internet facilitates the potential for individuals to commit fraud regarding their true identities, I do not believe it is my responsibility as an attorney to ensure that the final use of the legal documents I have created never fall into the wrong hands. Superwoman, I am not. I can draft legal documents to the best of my abilities with the information the client provides to me, and after that, I cannot control my client’s actions or the actions of their families in enforcing or following through with the dictates of these documents. To claim that I could control this or should be reponsible for a client’s conduct would be ridiculous.

    I provide my clients with fixed fees through my VLO and the majority of my business comes from packages containing several different estate planning documents. My clients are required to accept two clickwrap agreements and a price quote for services which tells them upfront both the nature of unbundled online legal services and the exact legal fees which they will owe me for my services.

    Once I complete the documents, it is my client’s reponsibility to take them to a notary public in North Carolina to have them properly executed. I provide my clients with detailed instructions to provide the notary public and they know that they may contact me if they run into any questions during this process. It is the notary public’s responsibility to check the driver’s license of the individuals signing these documents to ensure that they are who they say they are. Additionally, most of the estate planning documents require two witnesses to also be present for the execution.

    How do I know my online clients are who they say they are if I never meet them face to face?

    Do most attorneys (or their paralegals) in a brick and mortar law office check the driver’s license and photo id of every client for whom they provide legal services? Nope. In fact, I recall hearing of a case at one of the firms I worked for before going solo where an attorney had filed an lawsuit on behalf of the client only to find out during discovery that the client had multiple identities in several states and was not who he claimed to be. Had that attorney met with the false client face to face in the brick & mortar law office? Yes, several times. Did that prevent the client from pulling the wool over the eyes of the law firm he retained? Nope.

    Professional standards of conduct require that I communicate with reasonable diligence and promptness when dealing with clients. Operating a virtual law practice does not mean that I mass generate legal forms in an impersonal manner. I communicate individually with each of my clients. I ask the questions that I need to know to handle their legal matters. Sometimes they upload documents for me to review and we often work on mulitple drafts. Rarely do I need to call a client on the phone discuss something in person, but if it’s necessary to provide the best legal services for them, then I do it.

    Many of us reconnect online with family and friends through Twitter, Facebook and other social networking sites. We create strong online business connections through networking websites, such as LinkedIn. Likewise, the virtual law practitioner uses the web-based technology to build personal and ongoing professional relationships with clients.

  • Work/Life Balance Reform and the Virtual Law Office

    The following is a post I wrote for MsJD about how a virtual law practice could be used as a way to provide attorneys with more flexible work/life balance. The essay was in response to an essay contest hosted by The Project for Attorney Retention and MsJD.

    Stephanie Kimbro, Kimbro Legal Services A small part of the work/life balance reform in the legal profession is taking place quietly through the use of secure, web-based technology. Virtual law offices provide an alternative method of practicing law that permit flexible work hours and can be used to create a better work/life balance for legal professionals. I chose this alternative and for the past two and a half years I have practiced law from home with a completely virtual law office powered by Virtual Law Office Technology, LLC (VLOTech).

    In the interest of full disclosure, VLOTech is a company that my husband and I founded based on the positive response we received from other legal professionals nationwide to the concept of a completely virtual law office and the flexibility it offers. The technology is a secure, web-based, software as a service (SaaS) hosted program that generates online client development and permits an attorney to practice law anywhere he or she may access the Internet. The technology assists legal professionals so that they may build a better work/life balance for themselves by modifying their practice to fit personal and family needs.

    Finding a better work/life balance was my motivation to start a completely virtual law practice. I chose to practice law from home so that I could spend my days caring for my young child but still continue to build my career as an attorney. To provide a brief description of my virtual office, my client files, data, billing, invoices, accounts receivable, other accounting and administrative tools, calendars and data management tools are located in the backend of the virtual office online. I have a central point in the virtual law office where all of my cases are organized and it shows me the status and priority for better time management.

    On my client’s side, they have access to their own homepages through my virtual law office where they may view all of our online communications, pay me online, download and upload documents, and update client data, among other features. I have 24 hour policy of responding to my clients online. My clients are located across the state, most of them I’ve never met or spoken with in person. My flexible work hours include the time during my child’s nap, in the early morning and evenings or whenever else it is convenient for me and my clients to get work completed. My clients appreciate that I am available to them during non-business hours because that is often more convenient for them as well.

    Through the use of VLOTech, blogs and other web-based technologies, the legal professional today may create alternative working arrangements that can be adjusted and refined as circumstances in his or her personal life require. I have used these to fashion a work/life balance that meets my current needs as a parent, a wife, a daughter and an attorney. I have found wonderful mentors online through law blogs, the ABA’s Solosez and my state bar’s practice group listservs. In five years from now, my work and family life needs will be different, but an effective use of web-based technology will allow me to adjust the hours which I devote to my law practice and return to a more traditional attorney work schedule.

    Many baby boomer law partners will realize the importance of work/family life balance as they begin to care for their aging and elderly parents. At some point in our lives, most of us will be contributing to the care of a family member, either financially or with our time and either by chose or imposition. Legal professionals of both sexes are not immune to this fact of life. Recognizing this, rather than fighting against it, would benefit the legal profession with both higher retention rates among young attorneys and with peers who were less vulnerable to depression and alcohol abuse.

    Other attorneys who are adopting these technologies in their law practices have seen the potential for the virtual law office concept to reform the work/life balance in the legal profession. Its usefulness is not limited to young female attorneys who want to take the time out to raise a family and continue to have a career. The technology could be used by more experienced attorneys who need to take a couple months or a year off from a firm to care for an elderly parent or ill spouse. Apply the same concept to legal assistants and paralegals who could use the technology from their homes or other remote location in conjunction with a traditional law office and continue to be productive members to their employers while managing law office administrative tasks, client intake, accounting and other functions found in the virtual law office software. The web-based technology permits the attorney to control his or her law practice in a more flexible manner that maintains productivity and makes the management of clients and a law office more efficient.

    VLOTech and other web based, software as a service technologies that are available today should be put to work to help the legal profession reform the work/life balance. If the level of productivity remains high, quality legal work is produced and client development is strong, then there should be no reason why virtual law office technology should not be considered to implement a better work/life balance and improve attorney retention.

    The crux of the divide between baby boomer attorneys and fresh law school graduates is not about “putting in the time.” It’s about letting someone else other than your law firm control how you allocate your time and prioritize the people in your life. Technology is quietly allowing legal professionals to arrange their lives and their careers so that at different times in their lives they may adjust to meet a careful balance that changes a little for each of us, each year of our lives. I’m excited to be a part of this quiet reform and I hope that it continues to spread and provide more unique law practice alternatives for the members of our profession.

  • Update on progress

    I have been enjoying the personal contact with clients that I think only can really happen in a small law practice. My clients don’t have to wade through the secretary and paralegals to communicate with me. I’m available 24/7 through the website and I check it at all hours of the day and night which makes it more convenient for everyone. At some point, I would like to put testimonials up on the website from some of the clients. I think some people may still have the misperception that practicing online removes you from real interaction with the clients, but I’ve not found this to be the case. People communicate online today more than they do in person. I know I shop and bank online more than I visit a mall or stop in to chat with my local bank representative. I see my online law services as an extension of services available to the community in a more efficient and affordable manner through the Internet.

    There is a great article in the San Francisco magazine by Natasha Sarkisian about how younger generation lawyers are starting their own law firms as a way to escape the “biglaw” partnership track as the traditional, end-all-be-all of practicing law. It is definitely a trend that I’m thrilled to be a part of. The writer of MyShingle.com is another lawyer who started her own small firm and really supports the efforts of other attorneys in making that life change. My practice may be a new concept right now, but give it a couple more years and there will be more competition out there! The more the merrier!

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