[vc_row type=”vc_default”][vc_column][vc_column_text]A virtual law office (VLO) can be defined a number of different ways. For some, it may be a traditional legal delivery model, but performed primarily out of a home or shared office space. For others, it may be non-traditional legal model that services clients solely through the internet. Or perhaps it is some combination of both.
As technology continues to develop, VLOs are becoming more and more common. The overhead associated with traditional brick-and-mortar law firms has become increasingly unnecessary and any awkwardness of working out of a home, coffee shop, or office-sharing space has dissipated in recent years.
Today, many brick-and-mortar firms have aspects that match VLOs. For example, cloud-based storage and software services are ubiquitous, some employees often work virtually even though their firms have actual offices, and brick-and-mortar lawyers have some clients that they never meet face-to-face and instead communicate exclusively over the phone, internet, and video-conferencing.
Some jurisdictions have caught up with modern realty and explicitly allow virtual law offices. But others still linger in the Stone Age, and through their current ethics rules, either prohibit or effectively bar VLOs. Those jurisdictions still have a bona fide office requirement, which generally requires lawyers practicing in a jurisdiction to maintain a physical office in that jurisdiction for advertising or other purposes. (e.g., Delaware lawyer using VLO suspended).
Below is a discussion (in chronological order of decisions) of some, but not all, of the jurisdictions that have addressed VLOs in some form or fashion:
North Carolina was early in its explicit approval of lawyers’ use of VLOs. In 2006, the North Carolina Bar published a formal ethics opinion approving VLOs, while expressing some “key concerns for cyberlawyers who use the internet as the foundation of their law practice.” Those concerns include:
- engaging in unauthorized practice (UPL) in other jurisdictions,
- violating advertising rules in other jurisdictions,
- providing competent representation given the limited client contact,
- creating a client-lawyer relationship with a person the lawyer does not intend to represent, and
- protecting client confidences.
Advertising and Unauthorized Practice of Law
Because cyberlawyers, as the N.C. opinion calls them, have no control over their target audience or where their marketing information will be viewed, they must be careful not to engage in the unauthorized practice of law and to adhere to advertising rules of N.C. and any jurisdiction in which they practice. VLOs should include the name or names of lawyers primarily responsible for the website and the jurisdictional limitations of the practice.
Competence and Communication
Because cyberlawyers tend to have more limited contact with both prospective and current clients, they must determine whether the limited contact will affect the quality of the information exchanged or the ability of the cyberlawyer to spot issues, such as conflicts of interest, or to provide competent representation.
Cyberlawyers are still required to deliver competent representation. So they should “make every effort to make the same inquiries, to engage in the same level of communication, and to take the same precautions as a competent lawyer does in a law office setting.”
Unintended Attorney-Client Relationships
Cyberlawyers must “be mindful that unintended client-lawyer relationships may arise, even in the exchange of email, when specific legal advice is sought and given.” Cyberlawyers “should not provide specific legal advice to a prospective client, thereby initiating a client-lawyer relationship, without first determining what jurisdiction’s law applies (to avoid UPL).”
Lastly, cyberlawyers, like all lawyers, must take reasonable steps protect confidential information transmitted to and from the client over the internet.
Lawyers are allowed to operate VLOs in Pennsylvania. Some of the rules regarding VLOs in Pennsylvania include:
- Lawyers may maintain VLOs in which the lawyers work from home, and associates work from their homes in various locations, including locations outside of Pennsylvania;
- Lawyers practicing in VLOs are not required to list a physical address in advertisements and on letterheads;
- Lawyers with VLOs are not required to meet with clients at the address listed in any advertisements and/or in the geographic location where the lawyers will perform the services advertised, but must disclose to clients all of the information required under the Rules of Professional Conduct;
- Lawyers using VLOs may use a post office address in advertisements and letterheads, but may not state that services are performed at the address where the post office box is located;
- A VLO must disclose information specifying where the services advertised will be performed, but need not disclose the specific address where each lawyer is located;
- Lawyers practicing in VLOs may not state that their fees are lower than those of traditional brick and mortar law offices, but may state, if accurate, that the firm’s overhead may be lower than traditional brick and mortar offices, thereby possibly reducing the fees the firm charges clients;
- There are no additional precautions necessary for lawyers practicing in VLOs to comply with their duty of confidentiality beyond those required of all attorneys;
- Lawyers practicing in VLOs at which attorneys and clients do not generally meet face to face must take appropriate safeguards to: (1) confirm the identity of clients and others; and (2) address those circumstances in which a client may have diminished capacity;
- Supervisory lawyers in VLOs must make reasonable efforts to ensure that subordinate lawyers conform to the Rules of Professional Conduct.
New Jersey used to have bona fide office rule and did not allow VLOs. But in 2013, New Jersey amended the bona fide office rule to allow VLOs, if
- the practice is structured to assure “prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice”;
- the lawyer has designated one or more fixed physical locations where client files and the lawyer’s business and financial records may be inspected on short notice by duly authorized regulatory authoritie;
- hand-deliveries may be made and promptly received; and
- process “may be served on the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto.”
Washington State has also issued an ethics opinion approving VLOs. Some of the issues discussed:
Lawyers who work from home (or a coffee shop) are not required to include their home address on advertising. As long as it is not deceptive or misleading, lawyers may use a post office box, private mail box, or a business service center as an office address in advertisements.
Lawyers operating remotely may need to take additional measures to adequately supervise staff and other lawyers in their employ.
Lawyers who communicate with their clients online and use cloud-based data storage systems to store and back up client confidential information must take reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.
Duty to Avoid Misrepresentation
Lawyers may not mislead others through communications that imply the existence of a physical office where none exists. Similarly, lawyers with VLOs “cannot state or imply on websites, social media, or elsewhere that they are part of a firm if they are not.”
Conflicts of Interest
Lawyers in a VLO, “who most likely do not have the advantage of physical proximity, must ensure that the conflicts checking system is equally accessible to all members of the practice, lawyers and staff, and that such access is reliably maintained.”[/vc_column_text][/vc_column][/vc_row]