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January 16, 2018 Top Story

Enhanced Ethical Obligations for Virtual Law Practices

The trend is to permit virtual legal practices with extra ethical precautions

By Amy Mattson

Practicing law without a brick and mortar office is now permissible in Ohio, according to an Advisory Opinion issued by that state's Board of Professional Conduct.

There is a rise in virtual law offices across the nation

There is a rise in virtual law offices across the nation

Pexels | Vlada Karpovich

The Advisory Opinion reinterpreted the term "office address" as it pertains to attorney advertising, and joined other states in giving guidance on the growing trend toward Virtual Law Offices (VLOs), a legal practice without a physical place of business.

Definition of "Office" Expands, But Multi-Jurisdictional Practice Rules Remain

Like most states, Ohio's version of Model Rule 7.2 requires legal marketing materials to state the office address of the lawyer responsible for the advertising. The Advisory Opinion resolves this issue for VLOs, interpreting the term "office address" to include shared office space, a post office box, or the attorney's home address, so long as the attorney is "transparent about the nature of the VLO."

Though this provides more flexibility, it does not address multi-jurisdictional practice as it relates to the unauthorized practice of law. Under Model Rule 5.5(a), a lawyer may not practice in any jurisdiction in a way that violates that jurisdiction's regulations. According to a 2011 Ohio Board Advisory Opinion, this means that out-of-state lawyers representing Ohio residents through a VLO could find themselves in violation for impermissibly establishing a "systematic presence" in Ohio.

The ABA Task force on E-Lawyering recognized the potential growth and trend toward VLOs and has issued a white paper advising that lawyers operating VLOs should only represent clients who are residents of the state where the lawyer is authorized to practice, or who have a matter within that state.

VLO Operation Requires Close Scrutiny of Ethics Rules

The Advisory Opinion states that the establishment of a VLO requires "close scrutiny" of rules pertaining to competence, communication with clients, and confidentiality. Electronic communications, it states, may have "obvious limitations" when compared to face-to-face interactions. As such, the Advisory Opinion urges VLO lawyers to take additional steps to ensure that e-communications are both secure and comprehensible by clients.

To avoid running afoul of Model Rule of Professional Conduct 1.1 requiring competent representation, the Advisory Opinion urges attorneys to keep abreast of the technology utilized in their practice by maintaining an awareness of its safeguards and risks. In the alternative, a lawyer should hire or associate with those who can advise and inform on such matters. A VLO attorney also may want to take "extra precautions" to verify a client's identity, though the Advisory Opinion gives no guidance as to what measures might be used.

The Advisory Opinion makes clear that a VLO lawyer's obligation under Model Rule 1.4 to maintain adequate communication with clients is not diminished due to the use of technology. "If a client wishes to follow more traditional modes of communication, the lawyer will have to accommodate that," says  Brian A. Berkley, Philadelphia PA, co-chair of the ABA Section of Litigation's Business Torts and Unfair Competition Committee. According to the Advisory Opinion, such accommodations may include a "standing offer to meet in person at the client's reasonable request or to communicate by telephone." VLO lawyers are also advised to consult with clients at the beginning of the representation about their preferred method of communication, and to address that issue in the fee agreement.

Finally, the Advisory Opinion directs that attorneys utilizing cloud computing or other third party hosted technologies should use "reasonable efforts" under Model Rule 1.6(c) to prevent inadvertent disclosure of confidential information. Such efforts include the "diligent investigation" of electronic service vendors' data storage and access procedures to ensure they are operating in a manner compatible with the lawyer's professional obligations as required under Ohio's version of Model Rule 5.3(a).

Virtual Practice is Not One Size Fits All

The Advisory Opinion acknowledges that a VLO is "uniquely situated" to provide limited scope representation or unbundled legal services, including document review and case evaluation. It further notes that a remote work environment "reduces or eliminates the overhead typically associated with traditional offices."

But while VLOs can have advantages over more traditional firms, lawyers should consider their clients before taking their practice virtual. "Make sure your anticipated client base will be comfortable working with a lawyer without a physical office, and with whom primary communication will be electronic," suggests Berkley. "Saving on overhead is important, but without clients, it will not matter much," he notes.

"You have to have a sense of who your clients are," observes Helen E. Casale, Norristown, PA, co-chair of the Section of Litigation's LGBT Law and Litigator Committee. For example, "doing everything virtually may not be practicable for criminal or family law lawyers for whom it is important to have face-to-face contact with clients and establish chemistry."

And even when abandoning a physical office is feasible, it may create other challenges. "The law has not caught up to technology. Courts still serve notices by mail. If you are an attorney without an office, what information do you provide the court," asks Casale. VLO lawyers should also consider whether a virtual space will limit opportunities for collaboration. "In a physical office I can decompress with someone else, throw ideas off of them, and strategize. That isn't always possible with a VLO," says Casale.


Amy Mattson is a contributing editor for Litigation News.

Hashtag: #virtuallawoffice, #virtuallawyer, #ethicallawyer, #vlo

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