The legal profession has been moving quickly toward the virtual practice of law. Office sharing, virtual meetings, and other technology has made brick-and-mortar establishments optional for some. Now, law firms across the country are being forced to work remotely and without meeting clients. Here is what you need to know to set up a successful virtual practice.
Managing a Virtual Law Practice: Technology
The heart and soul of a virtual firm is the technology used to manage and conduct business. You may need to be creative in the use of software and technology, so that you can do more with less staff and resources. It's important to stay current with technical improvements to make the practice work as efficiently as possible.
The first place to start is a practice management system. Legal tech has exploded in recent years, so you can shop around to determine which one is right for you. Since cybersecurity remains vital, consider whether you need a virtual private network and a secure client portal that clients can use to communicate and share documents securely. There are plenty to choose from. Thomson Reuters offers one, for example (disclaimer: FindLaw is a part of Thomson Reuters).
The main concerns with any software is:
- Can you communicate with clients and share documents securely?
- Can clients reach you as easily as if they were calling an office?
- Is the practice management system easily and securely accessible from anywhere?
Is Your "Office Space" Ethically Compliant?
Even if your office exists solely online, it's important to make sure that you abide by your state's Professional Rules of Conduct. Your bar association will also be a valuable resource in this. Some potential ethical issues include:
Bona Fide Office
Working from home and taking client meetings at the coffee shop isn't a bad model, but it is prohibited by a small number of states which have a bona fide office requirement. For example, in the case of In re: Barakat, a Delaware attorney was suspended for, among other things, failure to maintain a physical office. His argument that he was "reachable by phone" didn't meet the bona fide office requirements which, in some states, is defined as a location where clients can meet with the attorney face-to-face, files are kept, the telephone is answered, mail is received, and the attorney can be reached during normal business hours.
Obviously, these are not normal times, so meeting clients face-to-face is not advisable. If you end up shuttering your office space for good, however, it is something to keep in mind.
Misleading the Public
Even if your state doesn't have a bona fide office requirement, many states have adopted the Model Rules of Professional Conduct and Rule 7.2(c) requires legal marketing materials to include the address of the lawyer responsible for the advertising. Some states take the position that failure to have a physical address is misleading to the public and a violation of Rule 7.2. Other states, such as Florida, and Ohio have issued ethics opinions specifically authorizing virtual practices, while others haven't addressed the issue at all.
Jurisdiction Issues
Always lurking behind the scenes when dealing with clients who may not live in your state is the unauthorized practice of law. With a virtual firm, it's much easier to find yourself providing legal services across state lines. States have a variety of laws about what constitutes unauthorized practice, which may include providing services if you are not located in the state, even if you are licensed there. The famous case of Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court is a case in point, where the court denied the payment of legal fees because the law office was out of state.
Sharing Office Space
Sharing an office raises concerns about protecting attorney-client privilege and client confidentiality. If you're sharing an office with other attorneys, it's important to maintain independence from these other lawyers by having separate firm names, letterheads, and anything else that might lead the public to conclude that the attorneys are in a partnership with each other, as addressed in ABA Model Rule 7.5.
Sharing an office with non-lawyers can be even more problematic. There can be shared common areas, but the attorney must have a dedicated and distinct office space. It's also important to have locked file cabinets and not to share client information with non-lawyers. This can happen even inadvertently in such settings, like when printing sensitive documents to a shared printer that non-lawyers can access. The State Bar of Michigan discussed the issue of sharing office space with non-lawyers in detail in its Ethical Opinion RI-255.
Document Retention
A great deal of the paper documents needed in a law practice can be converted into electronic copies. The Uniform Electronic Transactions Act allows for the recognition of electronic records and digital signatures as long as both parties agree. However, the act excludes required notices, disclosures or communications by courts. State and Federal courts are quickly moving to electronic filing. The actual details of e-filing are governed by local rules, which vary from court to court, and you may still be required to keep a physical hard copy in an e-filing jurisdiction.
Cloud Based Legal Services
An attorney has a duty to preserve the secrets of the client and such secrets may not be revealed without the client's written consent. A web-based practice will mean that the attorney needs to verify the security of the web service provider and take advantage of secure communication channels that are provided.
Data Breach Laws
Beyond the inadvertent disclosure of client data and information there are the data breach notification laws. All 50 states have laws that require private entities to notify individuals of security breaches of personally identifiable information, generally within specified time periods, as illustrated by California Civil Code Section 1798.82. Law firms are not immune from having to make these kinds of disclosures.
Supervising Staff
The professional rules of conduct require that any work done by junior attorneys and non-attorneys must be supervised by the requesting attorney. This rule may present unique challenges for out-sourced legal services. The American Bar Association Opinion 08-451 addresses several ethical issues relating to outsourcing of legal services, such as background checks and the monitoring of work.
Anything a Physical Office Can Do . . .
There are challenges to running a remote office. However, with foresight, a commitment to the right technology, and creativity, it is possible to have a thriving virtual law practice. One that is as respected as any brick-and-mortar establishment.