The Ethics of Working Virtual
Virtual law practices, and remote work is nothing new, but what is new is the incredible growth the industry is seeing. A 2016 ABA report indicates that while roughly 10% of firms consider themselves virtual, 73% of firms are using mobile devices, secure client portals, e-filing, practice management, and other cloud based technologies to serve their clients. At LegalWeek New York in January, a key panel discussed a Thomson Reuters report that the alternative legal service provider (ALSP) industry has had a 12.9% growth rate since 2015, and reflects a $10.7 billion (yes, billion) market niche, rendering it a a major player in the field of legal services.
A virtual practice is bound by the same practice rules and ethical standards as any other type of practice.
The main distinction between a traditional, even boutique, firm and a virtual law practice is not the remote work, but the fact that a virtual practice exists through the use of technology; technology is how they meet with clients, how they function, how they maximize efficiency and generate revenue, how they practice law, how they are staffed.
But is it ethical?
I am often asked “how can these practices be ethical?” The ABA and various state bar associations have weighed in, quite loudly. First and foremost, they agree that a virtual practice is bound by the same practice rules and ethical standards as any other type of practice. Meet those standards and the practice meets ethics requirements.
Those states that have specifically issued ethics opinions about virtual practices have also been fairly consistent in their interpretations. The important nuances which apply to a virtual practice all stem from the very fact that a virtual office is not a traditional office with the traditional array of staff, meeting rooms, offices, and filing cabinets. The opinions universally bring special consideration and attention to four areas of the Code of Professional Conduct: the physical address requirement of Model Rule 7.2 for advertising, technological competency in Model Rule 1.1, client confidentiality requirements of Model Rule 1.6, and unauthorized practice of law provisions of Model Rule 5.5.
Does your state require an office address?
While some states haven’t weighed in at all, many states have issued opinions allowing virtual practice and most of those also require a physical office address in order to practice law in the state. Essentially, the requirement tracks Professional Code of Conduct Model Rule 7.2 regarding advertising services. There are a few interesting nuances to note:
- In NY, it is only non-resident attorneys who are required to have an actual office address, but it can be any office space where the attorney can meet with clients or any agent authorized to receive service, as long as the address is consistently used on all materials and advertising.
- NC’s position on the VLO office rule includes a ‘community member’ requirement — the attorney may have a home office, for example, that they do not want to meet clients at so using a shared office space or post office box to meet the physical office requirement does not mislead potential clients as to their location because the attorney is a member of the community.
- SC has included advertising statements through the telephone or electronic means directed to SC residents among potential unauthorized practice of law violations, and specifically requires a bona fide office.
- In PA, fees cannot be advertised as lower than a traditional practice merely because they are virtual, it must be clear that it’s the reduced overhead that reduces overall costs
- VA makes a distinction for attorneys licensed via Motions practice vs those who took the exam in their office address requirement.
Do you meet and recent ABA rules on technological competence?
The technical competency portion of Model Rule 1.1, which I also addressed in my January 15 article on embracing technology, is a critical part of these ethics opinions. An attorney who is not technologically competent will face challenges in maintaining confidentiality in a virtual environment, insuring the client is who they say they are, and providing adequate (let alone exceptional) service to their clients in accordance with the Code of Professional Conduct. You MUST be technologically capable to work in the cloud in order to meet the VLO ethics requirements.
Technlogical competence is ongoing and you are responsible for insuring everyone who touches your systems maintains it.
The California Bar Association has taken this a step farther and placed an added layer of due diligence for its attorneys. Lawyers practicing in other states may want to make note of this layer because it represents a universal technological best practice. Specifically, attorneys practicing virtually in California must take measures to consult with technology experts if they lack adequate knowledge to insure that not only is their own technology protecting their client, but any vendors or contractors they work with on a case also meet the standard and that they revisit these credentials regularly; New York’s guidance is similar.
Have you established secure and confidential means of communication?
Client confidentiality requirements are no different for a virtual practice than for a standard brick and mortar. While you might think there are added complications, in an era where so many lawyers communicate via email, share documents with their clients electronically, and work from home on mobile devices such as laptops and tablets, the truth is that you are already familiar with most of the confidentiality needs related to technology. The Bar Associations have taken the steps to reinforce these requirements by reminding virtual practitioners to verifying client identity, insuring your client understands and consents to electronic information sharing, and taking steps to insure encryption and firewall security before sharing confidential information. The same requirement exists for supervising any non lawyers or subordinate lawyers on your case. You can see some great options for insuring cyber security in my Two Part Tech Segment.
Unauthorized Practice of Law
It is well known that lawyers cannot practice law in jurisdictions where they have not been licensed before the Bar. There are federal law exceptions to Model Rule 5.5, as well as in-house counsel and temporary practice exceptions, but ultimately, it is an attorney’s ethical and professional duty to adhere to licensing requirements even in a multijurisdictional practice.
But that’s the kicker isn’t it? The internet is everywhere — you may have developed a presence in a jurisdiction without actually being present in it depending on how a website is interpreted; companies and clients may have offices in multiple jurisdictions, you may live in an area where you live in one state and practice in another, the client may not understand your insistence on obtaining local counsel — or they may want the best counsel and assume you’ll do what needs to be done. Regardless, it is you who must practice due diligence in understanding cross jurisdictional rules. Modern technology far outpaces the rate at which the law updates and these factors definitely result in some very inconsistent, and confusing, differences from state to state.
The DC Bar cautions that most practices are not sufficiently narrow to meet the federal agency exception — and that those whose practice is exclusive to the United States Patent and Trademark Office or immigration are among the very very few who can meet the standard. The new National Conference of Bar Examiners (NCBE) standard for gaining entry in multiple jurisdictions is making it increasingly likely that anyone improperly representing themselves in multijurisdictional practice gets an unauthorized practice of law notice.
Meet those “added” requirements and you can be reasonably assured that you remain within Bar requirements. Take a step further and be able to demonstrate how you meet the requirements, such as utilizing a practice management system, and you will be far less likely to run afoul of ethics rules in your practice and prepared in the event of a question on the subject.
Ignorantia juris non excusat.
Alison Pacuska is the president of Pacuska Professional Services, a boutique consulting firm focused on top-tier paralegal, administrative, and legal assistant services with a focus on intellectual property and solo practitioners. Ask her how she can help you make order from chaos.