Technology over the last ten years has created many opportunities for change in the practice of law. Many lawyers have transformed their practices to streamline costs by eliminating some of the traditional aspects of a firm. For example there may not be a physical brick and mortar office where the lawyers and staff all gather to work. Instead lawyers may work remotely from a home office and make arrangements for conference space as needed. Lawyers may regularly interact with clients via phone, fax, and e-mail necessitating fewer face-to-face client meetings. Some firms expand, but not by hiring full-time lawyers as employees, instead they rely on lawyers who are independent contractors or of- counsel. The necessity for a physical business presence may now take a back seat to our on-line presence through our web-site, Facebook page, blog and Twitter account. Who is the law firm, what is the law firm, and where is the law firm and the client have become trickier questions to answer in today’s virtual world.
But the ethics rules still apply and some jurisdictions are beginning to address these issues in ethics opinions (See, e.g., Cal. Formal Opinion 2012-184; see also Florida Ethics Opinion00-4 (2000) and even disciplinary matters. Take for example, the June 2012 disciplinary disposition of the Fairfax Circuit Court in the matter of Virginia State Bar v. Sriskandarah, Case No. CL 2012-4137 (VSB Docket 10-022-081527) (Cir. Ct. Fairfax County, June 28, 2012). The order makes it clear that a lawyer operating a firm in a nontraditional manner must still comply with the ethics rules. Specifically, advertising cannot be used to create a false or misleading impression about whether a firm has a permanent presence at an address, or whether lawyers are employees or independent contractors, and the firm’s advertising should not provide conflicting information regarding whether pursuant to Rule 7.4 a lawyers practice is limited to a particular field of law.
While the Rules of Professional Conduct do not impose different obligations on non-traditional types of law practices there are areas of the existing rules that may require heightened scrutiny for firms relying more heavily on a virtual presence or e-lawyering. These include care to avoid engaging in the unauthorized practice of law in another state, care not to be misleading in advertising the nature of your firm, protection of confidences if there is increased reliance on the internet to deliver services and information, determining proper authority of client to act if there is no face to face assessment, and ensuring proper supervision of subordinates when lawyers and staff may be working from different locations. For a more detailed discussion on these issues see Michael Downey’s recent article Ethics and the Virtual Law Office.
There is no doubt that continued advances in technology have enhanced the opportunities for e-lawyering and virtual law practices. And lawyers can pursue these avenues as a means for delivering cost efficient legal services. However, we need to be mindful that the ethics rules still apply.
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Wendy Inge, Esq. is the Virginia Risk Manager for ALPS. She has over twenty years’ experience as a risk manager and legal malpractice claims handler. She is available to answer risk management questions at winge@alpsnet.com or 1- 800- 367-2577.
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