Entitled “Ethical Obligations on Maintaining a Virtual Office for the Practice of Law in Pennsylvania”, the PA Bar Association Committee on Legal Ethics and Professional Responsibility published its FEO 2010-200 this month. The opinion is in stark contrast to the out-dated thinking in the ethics opinion discussing virtual law offices published this past spring by its neighboring state of New Jersey.
FEO 2010-200 defines virtual law office (VLO) as
“a law office that exists without a traditional physical counterpart, in which attorneys primarily or exclusively access client and other information online, and where most client communications are conducted electronically, e.g., by email, etc.”
The opinion recognizes that there are different forms of virtual law practice and specifically states that it is not addressing issues related to “client portals” or cloud computing because both traditional and virtual offices may use these.
There are several questions that the 14 page opinion addresses including the following: 1) whether an attorney may operate a VLO in the state, 2) using a VLO to work from home or or in locations outside PA, 3) listing a physical address in ads for the VLO or letterhead, 4) using a PO box as the address, 5) if a geographic location must be given to the client letting them know where the attorney will handle the services or meet with them, 6) for a multiple attorney firm, if it is necessary to disclose all of the cities and states from which those attorneys are performing their services, 7) if the firm or attorney with a VLO can claim that fees are lower than a traditional law office, 8 ) compliance with the duty of confidentiality, 9) if the attorney does not meet face to face with clients, if there are other steps required to confirm client identity and handle issues such as diminished capacity. In clear format, the opinion then lists the direct answers to each of these issues before jumping into its analysis of the PA rules of professional conduct as applied to VLOs.
To summarize the key points of the opinion, virtual law offices are allowed in PA and may be operated from a home office, even if it is located outside the State of PA. Recognizing that attorneys with home offices may want to protect their privacy, they do not require that the VLO list a physical address in any advertisements or letterheads. A post office box address will suffice as long as the attorney does not claim that the legal services themselves are being performed at the PO box. Basically the rule advocates for transparency between the attorney and client with respects to how the legal services will be provided. The attorney must disclose all of the information required by the PA Rules of Professional Conduct but is not required to meet with clients at any address or geographic location they advertise. As long as the client understands this upfront, there should not be an issue.
Under the opinion, attorneys with a VLO cannot make the statement that their fees are less than those of a traditional law firm but can explain how the use of the technology to deliver legal services results in lower overhead for the firm and that this may reduce fees. Let the prospective clients draw their own conclusions when they do their own comparative shopping for legal services.
The opinion found that there were “no additional precautions necessary for an attorney practicing in a VLO to comply with his or her duty of confidentiality beyond those required of all attorneys….”
The one part of the opinion that requires considerable work for the virtual lawyer is the section regarding the attorney’s duty to take safeguards to confirm identity of clients that he or she does not meet face to face and address the possibility of diminished capacity in certain situations. Regarding a client’s potential diminished capacity, the opinion only states that the attorney with a VLO “may need to take special precautions” to recognize diminished capacity as “efficiently” as traditional lawyers. Fortunately the opinion does not make any suggestions for how either confirming client identity or capacity should be accomplished, leaving it up to the attorney to select the technology with which he or she is most comfortable communicating with clients.
For the many attorneys who have been asking their state bars about virtual law practice, this opinion does a nice job of addressing their basic concerns while making the point that the high standards of professionalism expected are no different in a digital environment.
Many thanks to PA VLO owner, Judy Young, for tracking down a copy of this opinion for me to review.