eLawyering in an Age of Accelerating Technology

Vol. 2, No. 6

 

The concept and viability of eLawyering or a virtual law practice has been around now for about 10 years, more or less. For developers, of course, it has existed much longer than for users. But I think 2003 is a good year to target the time when lawyers began noticing movement to the cloud and the rise of cloud products, aided by the development of the iPad and tablets, smartphones getting smarter, and a general progression toward a device-driven world, wirelessly connected.

Needless to say, the development of methods and IT platforms to facilitate eLawyering has not stood still. In 2006, the ABA’s Law Practice Management Section created the eLawyering Task Force, charged with the responsibility of defining eLawyering within the confluence of these new and confusing techniques, and generating best practices and guidelines for safe and ethical methods of practicing law online. As words like unbundling, document assembly, and others have infiltrated our vocabulary at the same time that the ABA’s Ethics 2020 Commission reviews and makes changes to the Model Rules related to the use of cloud technology to practice law, a clear understanding of eLawyering tools and methods is paramount.

One of the primary challenges of using any cloud, or web-based, technology in your practice is the fact that by storing data on your vendor’s servers or communicating with your clients via email, you give up a certain amount of control over the documents and information, yet remain obligated to safeguard your client’s information and preserve the attorney-client privilege (see M.R. 1.6(a) and 1.15 (Confidentiality); M.R. 1.1 and 1.3 (Competence and Diligence); M.R. 5.3 (Duty to Supervise)). The security of that data in both transmission and storage is therefore crucial.

For that reason (and others), the eLawyering Task Force defines eLawyering or a virtual law practice as one that includes the use of a client portal within the architecture of the technology a lawyer uses to practice online. A client portal, or secure web space, is an electronic sharing mechanism between an organization and its clients. It allows clients to access the firm’s lawyers, communications, and documents related their legal matter through a password-protected and web space where both attorneys and clients may interact, share, and collaborate on documents, upload private information, and provide legal services. The portal exists only on the web, and data is stored in the cloud. When data is transmitted between the secure portal and the client, it is encrypted.

This is the difference between being a virtual law firm and being an untethered lawyer. You can characterize an untethered lawyer as one who is mobile and free from a specific office location, using open email for communicating and document-sharing as a primary means of connection to clients. A virtual lawyer is also an untethered lawyer, but he or she is also much more than that when integrating a client portal into their virtual practice model.

Thus, the best choices for lawyers seeking cloud software that will enable them to practice ethically are products specifically designed for the legal profession that employ or integrate client portals in their design. Although consumer or commercial products such as Dropbox or Box, and project management systems like Basecamp, employ client portal technology, they are not intended for use by service professionals such as lawyers or financial advisors, who have a high degree of security compliance to meet. Though the Model Rules still require that lawyers perform due diligence when selecting a cloud vendor, choosing legal practice management cloud technology is much more likely to help you meet your obligations of confidentiality and competence than consumer-oriented products.

Moreover, you have a choice among these products, some of which will enable you to offer document assembly, and all of which will enable you to offer unbundled services to clients. These legal services delivery methods are essential to solo and small firm practices to remain viable in this era of nonlawyer legal service sites such as LegalZoom or RocketLawyer, whose success in the legal marketplace is uncontroverted.

To help lawyers understand the utility of web-based practice management products that are most useful in establishing a virtual law practice, the eLawyering Task Force will soon publish a matrix of existing SaaS platforms and the functions and integration options that each one offers. The practice management software included in the matrix is:

There are lawyers (and legal technology consultants) who espouse that the only technology you need is that which enables you to sit on the beach and work at the same time. Please don’t drink the cool tips Kool-Aid. Although the right eLawyering technology will allow you to do that, it doesn’t mean that slapping a bunch of mobile apps together makes you an ethically compliant virtual lawyer.

For more information and updates in this evolving area, check out eLawyering’s Resources, which include best practices, guidelines, and other important documentation. Two blogs that focus exclusively on these topics are Stephanie Kimbro’s Virtual Law Practice and Rich Granat’s eLawyering Redux.

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