The Bona Fide Office Rule has reappeared in the news again. This time it’s an Opinion from the Delaware Supreme Court.
I’ve written about the Bona Fide Office rule here several times, mostly with regard to New Jersey’s joint ethics opinion on the subject. Other states have been revisiting surrounding issues in terms of the lawyer’s requirements to provide certain contact information on his or her website or other advertising and in that requirement calling for some physical office address.
Bona Fide Office rules discourage lawyers from finding alternative and often more affordable methods of delivering legal services to clients. Requiring that a member of the bar provide contact information to the regulatory body is obviously necessary. Requiring that a lawyer provide his or her clients with a reliable method of contacting the lawyer is also necessary.
However, a lawyer does not need to maintain a traditional, physical law office seven days a week during 9-5 business hours in order to accomplish either of these. He or she does not have to retain the services of an employee to work at that law office in order to answer the phone when the lawyer is not present to accomplish adequate and reliable communication with his or her clients.
The Supreme Court of Delaware recently issued an Opinion that suspended a lawyer who worked from his home office in Pennsylvania while practicing Delaware law. The lawyer’s violation of their Bona Fide Office Rule 12 was not the only item at issue in this opinion which is why I will not go into it in detail except for their discussion of the Bona Fide Office Rule. Why? Because that part of the Opinion will mostly like be read by other lawyers in Delaware and potentially discourage them from considering virtual law practice and delivering legal services online to clients.
According to the Court:
“[t]he Rule requires that the office “be a place where the attorney or a responsible person acting on the attorney’s behalf can be reached in person or by telephone,” and have “the customary facilities for engaging in the practice of law.”
Delaware Supreme Court Rule 12(d) (the Bona Fide Office Rule) states:
“(d) Office for the practice of law. As used in these rules, an “office for the practice of law” means a bona fide office maintained in this State for the practice of law in which the attorney practices by being there a substantial and scheduled portion of time during ordinary business hours in the traditional work week. An attorney is deemed to be in an office even if temporarily absent from it if the duties of the law practice are actively conducted by the attorney from that office. An office must be a place where the attorney or a responsible person acting on the attorney’s behalf can be reached in person or by telephone during normal business hours and which has the customary facilities for engaging in the practice of law. A bona fide office is more than a mail drop, a summer home which is unattended during a substantial portion of the year or an answering, telephone forwarding, secretarial or similar service.”
There is no mention of the possibility of the lawyer working from home and delivering legal services in unbundled fashion to his or her clients online. There is no mention of the use of temporary/as needed renting of office space so that the lawyer can meet with the clients for full service representation, but continue to conduct the majority of their work with clients online. This is an outdated rule.
There is technology available to securely work with clients online. This technology decreases the cost of overhead of a traditional law office which in turn decreases the cost of legal fees. There is NO EXCUSE why States should not consider alternative forms of legal service delivery. People need more access to lawyers, not less!
The lawyer that was suspended in this case was only using the phone to call his clients. There was no mention of any secure client portal or other virtual law office technology. But it’s the way that the Court addressed this Rule in their Opinion that disturbs me. They must start thinking outside of the Bona Fide Office Rule. It does not make sense anymore on so many levels to restrict how lawyers communicate with clients to in-person visits. Supporting an outdated Bona Fide Office Rule is a barrier that is going to continue to discourage lawyers from finding innovative and cost-effective ways to serve the public and increase access.
See these other posts about the Delaware Opinion from Niki Black and in the ABA Journal.
The ABA Journal published an article entitled “Lawyers’ definitions of virtual practice vary, but not when it comes to finding success“. The article runs through the different definitions of virtual law practice and the wide variety of ways that lawyers are choosing to deliver legal services online. The debate over the definition of the term (which the online legal community hashed out in multiple debates over the past eight years) does not matter as much as the use of the technology to serve clients, increase access to legal services, and provide lawyers with flexibility in their business models.
