January 17, 2018

Virtual Law Offices Create Ethical Concerns

<a href="mailto:Martha.O'Connor@icemiller.com" target="_blank">Martha L. Kohlstrand</a> – December 27, 2017

Lawyers may practice in a "virtual law office" (VLO), but doing so triggers certain ethical concerns, according to the Ohio Board of Professional Conduct. Some jurisdictions have issued opinions echoing similar ethical considerations while others have identified additional guidelines. Attorneys involved with VLOs should be aware of the ethical issues at play, especially those related to technological competence, cautions ABA Section of Litigation leaders.

In an advisory opinion, the Ohio Board stated that a lawyer may provide legal services via a VLO by using available technology. The opinion addressed two issues: first, whether it is proper for an attorney to provide legal services exclusively, or almost exclusively, via a VLO, and second, whether it is proper for a lawyer operating primarily as a VLO to lease a shared, nonexclusive office space for the purpose of occasional face-to-face meetings with clients, or receiving mail.

The Board concluded that an attorney may work out of a VLO but must adhere to the Ohio Rules of Professional Conduct. The VLO lawyer must competently manage the technology used in the practice, satisfying Rule 1.1. Another related Rule, 1.4, requires that the lawyer discuss the office technology used with the client and ensure that the client understands electronic communications in order to make informed decisions regarding the representation. Rule 1.4 also requires that the lawyer keep the client reasonably informed of the status of the matter, using the client's preferred method of communication.

In addition to communications, a VLO attorney must make "reasonable efforts" to prevent the inadvertent or unauthorized disclosure of information related to the representation of the client, required by Rule 1.6. Finally, the attorney must adhere to Rule 5.3 by ensuring that vendors for internet, email, and cloud-based services provide services "in a manner compatible with the lawyer's professional obligations."

The Board also concluded that leasing shared office space for the purpose of occasional face-to-face meetings or receiving mail is permitted under the Rules of Professional Conduct as long as specific guidelines are observed. First, the attorney must comply with Rule 7.2, which requires that "[a]ny communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content." A VLO lawyer may satisfy the Rule by providing an office address corresponding to the lawyer's home of physical office, the address of a shared office space, or a registered post office box.

Next, the lawyer must adhere to Rule 7.1, requiring that the attorney not make a false, misleading or non-verifiable communication about the lawyer's practice, including the office address and nature of the practice. Under the Rule, the lawyer must state that he or she meets in person with clients "by appointment only" or that he or she works out of a VLO and will meet with clients either via technology or in person. Finally, VLO lawyers who lease a shared office space must adhere to Rule 1.6 by ensuring that client confidentiality is always maintained. These precautions may include the use of a private Wi-Fi network, virtual private networks (VPNs), firewalls, and other technology.

Other jurisdictions are in accord with Ohio's opinion, while others have addressed additional ethical concerns. The North Carolina Bar Association adopted an opinion regarding VLOs, which addressed an issue not discussed in the Ohio opinion: the unauthorized practice of law (UPL). The North Carolina opinion cautioned that VLO lawyers must include a physical address on their website and reminded VLO lawyers from other jurisdictions that they must comply with North Carolina's unauthorized practice restrictions. Ethical opinions from California and Illinois also discussed the UPL issues inherent with VLOs.

Section leaders caution attorneys seeking to practice in a VLO setting to beware of ethical pitfalls. "Limiting lawyer-client interaction to electronic messaging may not fully satisfy the lawyer's duty," warns Thomas G. Wilkinson, Jr., Philadelphia, Pennsylvania, CPR/SOC Professional Responsibility Committee Liaison of the Section of Litigation's Ethics and Professionalism Subcommittee. "Endorsing VLOs should not come at the expense of in-person meetings with clients, which could be accomplished via Skype or alternative video conferencing services." Cyril Vidergar, Fort Collins, Colorado, cochair of the Young Lawyers Subcommittee of the Section's Ethics and Professionalism Subcommittee, agrees. "With the availability of video technology, VLO practitioners should encourage some face time, even if in-person meetings are not possible. Coming out of the vacuum and attaching a face or voice to a client not only improves one's understanding of the client and his or her needs, it creates the emotional attachment necessary for the core 'counseling' component of the attorney-client relationship."

Likewise, a lawyer retains his or her duty to protect client information: "Protecting client confidential information can be more challenging when operating in a VLO environment," notes Wilkinson. "The VLO lawyer should not bypass the usual safeguards law firms employ in protecting client files from inadvertent disclosure, including effective password protection and personal device policies."

Lastly, to avoid the unauthorized practice of law, "an attorney should ask where the client is located, whether the matter pertains to a contract or proceeding and if so where, as well as where the event at issue occurred and where the parties are domiciled," recommends Vidergar.


Martha L. Kohlstrand is a contributing editor for Litigation News.

Hashtags: #virtuallawoffice, #vlo, #ohioboardofprofessionalconduct, #bpc, #rule1, #rule5, #rule7


<a href="mailto:Martha.O'Connor@icemiller.com" target="_blank">Martha L. Kohlstrand</a> – December 27, 2017