Virtual Law Practice

Tag: scope of representation

  • Avoiding the Unauthorized Practice of Law (UPL) in other Jurisdictions with a Virtual Law Office (Part Two)

    Part I of this post on the unauthorized practice of law in other jurisdictions addressed the following questions:  How does a virtual law practice avoid UPL in other jurisdictions? and 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?

    How is it clear with a Virtual Law Office (VLO) when the attorney/client relationship is established?

    An online client receives adequate notice through his or her individual homepage in the VLO as to the different statuses of the case.  Notice is provided to the online client when the attorney has reviewed the client’s question and posted a response, when the attorney has accepted or declined representation, when the attorney provides details of the scope of representation, and when the attorney has completed legal representation and is formally closing the online case file.

    The attorney/client relationship begins when the online client has registered on the VLO and requested legal services from the attorney.  The client is notified when the attorney has reviewed and responded to his or her legal question.  Then the client is asked follow-up questions by the attorney or is presented with the price quote or terms of representation for the online client to accept or decline.

    Through the VLO, the attorney has several options to define the scope of representation, including providing clients with a traditional written retainer letter uploaded to the system, writing out personalized messages to each client and requiring that the client accept a customized clickwrap agreement solidifying the terms of the attorney/client relationship, or using both traditional and online clickwrap methods.  Basically, the same procedures for establishing attorney/client relationship and defining the scope of representation that are used in a traditional law practice can be integrated into a VLO.

    I would argue that using the technology actually provides clearer notice to the clients of the establishment of the attorney/client relationship and the scope of representation. It may also do a better job of keeping the clients informed of their case status than occurs with a traditional law practice.  One of the biggest malpractice complaints from clients is that their attorney does not communicate effectively with them regarding their case.  The VLO handles so much of the process for the attorney automatically. It also gives clients the ability to check for themselves the status of their file and to review their previous discussions with the attorney.

    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?

    It is my understanding that it would constitute the unauthorized practice of law in another jurisdiction if an attorney used his or her VLO to draft a legal document that pertained to the laws of another state where the online client was a resident but where the attorney did not have a license to practice law.

    However, if the attorney operating the VLO were partnering with attorneys or legal assistants on his or her VLO who were licensed in other jurisdictions, then this would be different.  For example, a virtual paralegal could work on the VLO to draft a Will or other estate planning document for a client a jurisdiction where the virtual paralegal was familiar with that state’s estate planning laws.  The virtual paralegal would then flag the document for review by the attorney on the VLO who was licensed in that online client’s state.

    My understanding is that the review and approval of that legal document by the attorney licensed to handle that state’s laws would permit the virtual paralegal to complete the transaction for the online client without it constituting UPL in another jurisdiction.  You can see through this example how a solo law practice taken online with a VLO could grow very quickly across multiple jurisdictions if well planned out.

    How does the issue of UPL in other jurisdictions relate to legal document automation software?

    Some attorneys are choosing to provide legal services online by using document automation software, similar to the way that LegalZoom and similar companies provide legal documents across jurisdictions.  There is a separate issue here which pertains to assisting a nonlawyer (the software vendor or legal form provider) in the practice of law.  If this form of providing legal services interests readers, I recommend that they check out Richard Granat’s recent blog post regarding the automated delivery of online legal services, or online document assembly, as it relates to UPL.

    VLOTech is preparing a feature for the first of next year that allows attorneys to create forms for clients on the VLO to fill out and send to the attorney securely on the system in addition to the existing VLO forms of communicating online with the client.  The forms could be anything from estate planning and family law questionnaires to customized client intake forms based on the attorney’s virtual law practice areas.  Since the forms would be generated by the attorney individually for the VLO and not pre-packaged from a vendor, then it should avoid the UPL issue completely.  It will be interesting to see how attorneys practicing law online will choose to integrate this additional feature in their virtual law practice.

    Online Resources Regarding UPL

    ABA Model Code, Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

    State by state comparative analysis of UPL – Cornell University Law School, American Legal Ethics Library

    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!

  • 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!

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