Virtual Law Practice

Tag: Practice Management

  • 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…)

  • Another State Bar Proposes to Allow Online “Daily Deals”

    I wrote a couple weeks ago about South Carolina’s new Formal Ethics Opinion 11-05 regarding an attorney’s use of services, such as Groupon, to offer discounts and deals on their legal services.  North Carolina also has a proposed ethics opinion, 2011 Formal Ethics Opinion 10 entitled “Lawyer Advertising on Deal of the Day or Group Coupon Website.”

    The proposed NC ethics opinion states:

    [A] lawyer may advertise on a website that offers daily discounts to consumers where the website company’s compensation is a percentage of the amount paid to the lawyer if certain disclosures are made and certain conditions are satisfied.

    The primary concern with this opinion and the one that was published in South Carolina is that it does not violate Rule 5.4(a) which prohibits sharing of legal fees with nonlawyers. In the case of the website providing the daily deals service to the lawyer for his or her practice, the fees are directly paid by the lawyer for the cost of advertising and does not include any fees paid by the lawyer’s clients obtained through the daily deals service.

    Ensuring that this method does not equate to fee-splitting and that the method falls under the normal costs of advertising, the opinion goes on to caution that a few other rules and regulations related to lawyer advertising may arise depending on the website service used and how the attorney uses it to market their services.

    To simplify the basic rules laid out in this opinion:

    1) Don’t mislead your prospective clients (it has to actually be a discount from your regular fees offered);

    2) Disclose the method and remind prospective clients not to act hastily in making decisions about their legal representation (um, isn’t that actually the marketing benefit of a coupon – to create immediacy and prompt the consumer to spend? anyway….) ;

    3) Remind them that there may be some reason why you can’t go through with the discount because of conflict of interest, jurisdiction conflict, etc.;

    4) Still follow trust accounting rules even if the funds go to the website service first as prepaid fees;

    5) If you put a time limit on the discount and the client lets it expire, you can’t go back and charge your regular fee for the same service. You have to return any advance payment on the service or if the client agrees to the higher price, add that advance payment to the revised cost;

    6) The legal work provided must still be competent. So if the services exceed what the discount included, you still have the obligation to provide full, competent services to complete the matter for them.

    Both this proposed opinion and the one in South Carolina will be interesting to watch to see how attorneys implement them into their marketing strategies for their firms. It would seem like unbundled legal services at fixed fees would work best with these types of daily deal offers. Following best practices for delivering unbundled services, in terms of educating the client about the scope of services and signing a limited scope engagement agreement would protect both the attorney and the client in this situation.

    UPDATE: It looks like the New York State Bar Association published an ethics opinion on daily deal sites in December 2011: NYSBA Committee on Professional Ethics Opinion 897 (12/13/11). (HT to NY Attorney Paul Jeff Perez.)

     

  • Speaking about Virtual Lawyering at SC Solo & Small Firm CLE

    If you will happen to be in or near Columbia, South Carolina on September 23rd, please consider joining me for the SC Bar’s 2011 Solo & Small Firm CLE and Annual Meeting entitled “Exploring the Business Side of Law Firms.”

    There will simultaneous tracks on law office technology and practice management, with sessions ranging from cloud computing and paperless law offices to handling court appointments. Two plenary sessions will bookend the day: “How Not to Commit Malpractice with Your Computer” and “60 Tips for Small Firm Lawyers in 60 Minutes.”

    There will be six ABA TECHSHOW speakers on the faculty, including three from South Carolina. Other faculty include lawyers from across South Carolina. Just like TECHSHOW, there will be social events and exhibits. 15 vendors in law office technology and related products will fill the exhibit space.

    I will be speaking at two sessions entitled “Take to the Cloud: Virtual Law Offices and Cloud Computing” and “Marketing Tips: From Analog to Digital.” If you are interested in joining us, you can register and get the full schedule here.

  • How Does Google’s Investment in Online Legal Services Impact Virtual Lawyers?

    By now most of you have read the news that Google Ventures invested $18.5 million into Rocket Lawyer. Back in 2008, we read that Rocket Lawyer had partnered with Lexis Nexis and their Lawyers.com service. Should we really be surprised at this next stage of evolution?

    Many of us in the legal industry are trying to figure out what the impact of this development might be in the long and short term for the delivery of legal services. Those of us who make our livings delivering legal services to our clients online and who focus on unbundling services are naturally more than a little on edge thinking about what this might mean to our law practices (and the ability to continue paying off those law school loans).

    I’m going to make an effort here to brainstorm both ways that this news might be beneficial and detrimental to the profession.  It would be great to hear from Charley Moore, the founder of Rocket Lawyer, if he has any predictions or suggestions for how those of us engaging in virtual law practice should be taking this news.

    Pros

    – The public becomes more aware that there are alternatives to traditional, in-person legal services available to them. This is probably a benefit that no one can argue is a bad thing. (more…)

  • Using the iPad with My Virtual Law Office

    After co-presenting a cloud computing session at ABA TECHSHOW with Tom Mighell, author of iPad for Lawyers, I was finally convinced to integrate a tablet into my virtual law practice.

    Most of my hardware is mobile except for a larger monitor in my home office which I hook up to my laptop when I work at night. (Dual monitors are awesome for multitasking.) I have a little 4G Verizon hotspot that I carry around to keep me online wherever I go and for backup Internet when the DSL is down.

    I still type faster on a traditional, solid keyboard so I’m not at the point where I can generate a lot of written content using my iPad and the touch screen. Most of the keyboards I’ve seen that work with it are too flimsy for what I would put them through daily. So I’m using the iPad primarily for the portability and the applications.

    Security on mobile devices is still a concern of mine. I’m probably more conservative in my use of the iPad than most, but then again, the majority of my communications with my clients online are handled through a system with end-to-end encryption of the data. I’m striving here to find the
    responsible balance between security and cost and time savings. It’s that risk/benefit analysis that constantly changes as the technology and software evolves.

    After several months of working the iPad into my daily grind, here are the apps I’m currently using:

    SignMyPad Pro (by Autriv Software Development) –  I was really impressed with this app. It allows me to sign any document from my iPad.  For example, if someone emails me a form, I save it as a PDF and open it up in SignMyPad.  I can then add text, signatures, fill in a check box, add radio buttons or add the date.  The Pro version of the app tags the GPS location and date/time stamp in the metadata of the PDF when it’s saved. So if I need to collect someone’s signature, I will also have where he or she signed it and at what time and date. When you add a signature you can use either a stylus or your finger to sign in black, blue or red. The signed and locked document can then be uploaded to the virtual law office or otherwise sent where it needs to go.

    QuickOffice – This has turned out to be a necessity for getting any work done with an iPad.  A lot of my work involving writing so I need to be able to jot down ideas or notes and I prefer to do that in this app.  Then I can email it to myself or send to DropBox (if it does not contain confidential information). (more…)

  • LSBC Cloud Computing Working Group Recommendations

    Last week The Law Society of British Columbia’s Cloud Computing Working Group published online a report with recommendations regarding the use of cloud computing by legal professionals.

    Recommendations included in the report include:

    1)      Guidelines to help lawyers conduct due diligence in researching a technology providers and cloud-based solution.  (The report refers to “third party service providers” which includes cloud computing but is much broader in scope.)

    2)       Review of potential changes in the Law Society Rules to ensure that its regulatory functions are kept up to date with the changes in technology.  (Canadian legal professionals are subject to audits of law office records by their governing body whereas most state bars in the United States do not have this investigatory function.)

    3)      Methods that lawyers and law students might be educated to improve understanding of their responsibilities when using technology.

    The report advocates that clear guidelines are needed to assist lawyers in making the decision about what type of technology to use and which providers to trust.  Here is a brief overview of what the Report recommends. Even if you are not practicing law in Canada, these are good recommendations to consider as you conduct your “due diligence” in researching any tech-related practice management decision. (more…)

  • Proposed NC Ethics Opinion on Cloud Computing Returned to Subcommittee

    The Ethics Committee at the North Carolina State Bar voted to send the proposed formal ethics opinion 6 (FEO 6), entitled “Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property” back to the subcommittee to reconsider responses they received to inquiries #1 and #2.

    Both of these inquiries contained worrisome minimum requirements for the use of cloud computing that many of the technology providers and attorneys using cloud computing are not certain can be practically implemented without resulting in severe restrictions on the use of a wide number of cloud-based applications.

    The Ethics Committee received responses from groups such as ILTSO and the LCCA as well as from individual attorneys both licensed in NC and across the country.  You may read the LCCA’s detailed response on their website. Some of the responses from individuals included:

    – Nicole Black, author of the soon-to-be published by the ABA/LPM Cloud Computing for Lawyers, provided this response;

    – Erik Mazzone, Director of the Center for Practice Management at the North Carolina Bar Association, wrote about the opinion on his Law Practice Matters blog;

    – Richard Granat, co-chair of the ABA eLawyering Task Force, wrote critically of the proposed opinion on his elawyering blog; and

    – I posted the comments that I submitted to the Committee on this blog a few months ago.

    We should have some idea by the end of October about the revisions, if any, that will be made to the proposed opinion by the subcommittee.

     

  • 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…)

  • Feedback on SaaS Ethics Opinion

    Below is the text from my letter to the NC Bar Ethics Committee regarding their proposed ethics opinion on the use of Software as a Service (SaaS) in law practice management.  The Committee has received only two comments so far.  This is an important issue that will have a big impact on attorneys in NC and potentially elsewhere if other state bars follow this example.

    If you are an attorney or IT consultant in NC or even outside the state who uses cloud-based applications, please consider providing the committee with your comments and feedback on the way this opinion should be worded. (more…)

  • Should a SaaS Vendor’s Data Center be an Agent of the Virtual Law Firm?

    Below is a short and to-the-point article that I drafted for the NC Bar Association’s Technical Advisory Committee after our last meeting discussing the proposed NC Ethics Opinion on SaaS.  I wasn’t critical of the opinion at first, until I spoke with a few SaaS vendors and others who explained their positions in greater detail to me.

    If you are licensed in NC and operate a virtual law office, you might want to read the below and consider providing your comments and feedback.  More than one legal SaaS vendor has already indicated that if the ethics opinion is published in its current version, that they will simply pull out of serving the NC legal marketplace.

    Harsh consequences for attorneys practicing here, but also potentially harmful for the public who receive assistance delivered online or from attorneys who use the cost benefits of cloud-computing to make their prices for legal services more affordable.

    _____________________________________________

    The North Carolina State Bar published the revised version of its proposed ethics opinion on the use of SaaS in law practice management on April 21st, entitled, “Formal Ethics Opinion 6: Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property”.

    Your firm will be in violation of this ethics opinion if it is published as written and your firm uses any of the following products:

    Google (any of their applications or services)

    Yahoo/Hotmail or any other email service attached to a internet service provider, such as Earthlink, Bellsouth, Roadrunner, etc

    Verizon, AT&T, Sprint, T-Mobile

    Lexis or Westlaw for online research and almost all of their other services

    Mozy

    DropBox

    Clio

    Total Attorneys

    Rocket Lawyer

    DirectLaw

    Any other practice management system with a cloud-based component

    Or if your firm engages in the following tasks:

    Email

    Voicemail (Per Erik Mazzone, Director for the Center for Practice Management at the NCBA, “Voicemail on a mobile phone is data hosted on servers owned or contracted by the mobile carrier. The software that enables us to call a number and listen to voicemail is SaaS.”)

    Digital phone’s voicemail services as well as original phone services many of which use voicemail accessible via SaaS.

    Text messaging or SMS

    Online backup or storage

    Online communication with other professionals or clients

    There are two requirements in proposed opinion which may result in the restriction of use by law firms of a majority of the technology software and services that they currently rely on. These provisions are:

    1) “An agreement on how confidential client information will be handled in keeping with the lawyer’s professional responsibilities must be included in the SaaS vendor’s Terms of Service or Service Level Agreement, or in a separate agreement that states that the employees at the vendor’s data center are agents of the law firm and have a fiduciary responsibility to protect confidential client information and client property.” [Emphasis added] ; and

    2) “The agreement with the vendor must specify that firm’s data will be hosted only within a specified geographic area. If by agreement the data is hosted outside of the United States, the law firm must determine that the hosting jurisdiction has privacy laws, data security laws, and protections against unlawful search and seizure that are as rigorous as those of the United States and the state of North Carolina.” [Emphasis added]

    Most software vendors will not sign an agreement assuming this level of liability and agency for client property. Most software vendors will also not restrict their server locations, many of which are georedundant to begin with, to hosting data centers located only in locations with laws as strict as the US and the state of North Carolina. The Legal Cloud Computing Association (LCCA), a group of vendors who provide services to lawyers, and the International Legal Technology Standards Organization (ILTSO) are in the process of writing comments to the NC Bar regarding the negative impact that this opinion will have on legal technology innovation as well as the negative impact that it will have on their customers who practice law in the state.

    There are more practical and realistic ways to address the confidentiality concerns raised in the use of software as a services. It is not practical to expect hundreds of NC practitioners to stop using cloud computing. It is not realistic to expect a technology provider or vendor to assume liability for client property. Minimum requirements should not be imposed on legal practitioners. Instead, this opinion should contain suggestions and guidance for performing due diligence in researching and implementing cloud-based solutions to comply with the rules of professional responsibility.

    There are hundreds of attorneys and law firms in North Carolina that rely on software as a service on a daily basis. If you are one of these firms, please consider writing to the NC Ethics Committee.

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