Virtual Law Practice - Elawyering and Virtual Law Offices

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In January 2006, the State Bar adopted the 2005 Formal Ethics Opinion 10 providing advice regarding virtual law practice and online unbundled legal services. The Bar expressed five concerns with virtual law practice and I will discuss each of these. I included the entire opinion in Appendix III at the back of the manuscript for this session.Regarding the unauthorized practice of law in other jurisdictions (professional rule of conduct 5.5), the virtual law practitioner must provide clear notice through the VLO website that he or she is only licesned to practice law in the state or states in which the attorney holds an active bar license. Pursuant to Professional rule of conduct 7.2, the VLO must contain an address and the name of the attorney operating the VLO. In addition to providing notice through the website, the VLO also contains a jurisdiction check and red flag for both the attorney and the client. Ex: Ohio client w/NC real estate matter. In addition to clear notice on the VLO website, the Jurisdiction red flag to both client and attorney, the client will also be required to accept a clickwrap agreement providing an additional reminder that the attorney is only licensed to practice law in NC. Providing Competent Limited Representation. Ethics Opinion 10 written from the prospective of attorneys using email as the primary form of communication with clients, not a web-based vlo. The VLO contains a referral database and similar to a traditional law office, if the client’s matter requires a full-service firm and the VLO attorney does not have one in addition the VLO, then the attorney should refer them to an attorney who may provide adequate representation. Must be determined on a case by case basis. Clients are noticed at multiple stages regarding the nature of unbundled legal services and the scope of the VLO attorney’s representation. Establishing the Attorney/Client Relationship. Multiple clickwrap agreements both at the initial registration by the client and before the client accepts the attorney’s legal representation ensure that no unintended attorney/client relationship is formed. As long as the terms and conditions for the VLO are accessible by the client at all times online, the clickwrap agreement is considered by the courts to be a valid and enforceable contract form. The ABA’s Committee on Cyberspace Law has a great website explaining in details what an attorney’s clickwrap agreement should contain. In addition to the clickwrap agreements and notice in the discussion thread between the attorney and client, the VLO attorney may upload to the client a traditional engagement or disengagement letter that the client may sign and either scan and upload back to the attorney or sign and snail mail back. Between these multiple methods, the VLO attorney may firmly establish the attorney/client relationship. Just as in a traditional law practice, it is the responsibility of the virtual attorney to clearly state the terms of the relationship, the billing methods to be used, services to be provided and any responsibilities that the client has during the term of the relationship. Protecting Client Confidences. Rule 1.6(a) of the Rules of Professional Conduct provides that “a lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation…” Email communication, which was the primary consideration of Ethics Opinion 10, would not be the safest method for an attorney to transmit confidential client data. Email is unencrypted and not secure. Because a VLO uses the same technology that online banking and government entities use to transfer data, the level of security in a VLO adequate protects client confidences in compliance with Rule 1.6(a). As with an traditional law practice, the day to day practices of the individual attorney outside of running their law office management tools, whether a filing cabinet or a web-based VLO, will really be what protects client confidences. I will discuss ways to securely practice from a VLO including securing mobile devices in a few minutes. Another topic that I believe goes along with Protecting Client Confidences is the issue of verifying the client’s identity online. How do you know the person who registered on your VLO is who they say they are? While an attorney cannot ensure that the final use of the legal document he or she has created never fall into the hands of someone committing fraud (whether in a traditional practice or a VLO), the attorney may draft legal documents to the best of his or her ability based on the information provide online by the client. An attorney may use various online methods to verify the client’s indentity, from running a check on their contact information, to requesting that they scan and upload a copy of their driver’s license to the case file. Another safeguard, especially with the drafting of estate planning documents in a VLO, is that the client must take these documents to a notary public, often with two witnesses, in order to execute the documents. The notary public is required to check the identity of the person signing the legal documents before notarizing the signature. This is an additional safeguard.

The second part of Ethics Opinion 10 concerns unbundled legal services and the requirement that the clients understand the scope and nature of the legal representation being offered through the VLO. Rule 1.2(c) of the Rules of Professional Conduct states that “a lawyer may limit the scope of representation if the limitation is reasonable under the circumstances.” Limited legal services are allowed provided the attorney complies with Rule 1.1 regarding competence of legal services provided. Of particular concern to a VLO may be the thoroughness and preparation of legal services online. However, the ability of the virtual attorney to provide unbundled legal services depends on the area of law he or she practicing and the services they decide to handle online. Defining the scope of representation may be handled through the use of a traditional engagement letter which may be uploaded to the client for their signature, but I have found that I am comfortable relying on the combination of the discussion thread in the client’s case and the clickwrap agreement that they must sign to accept the terms that I have provided to them. The entire discussion for a case between the attorney and client is visible as long as the case remains open so both parties have their entire discussion accessible in the event that the client denies being provided with notice of any of the terms of the representation. I would think that an overly cautious virtual attorney could do a combination of both a traditional engagement letter and the methods used in the VLO. In both instances, the client is being provided with adequate notice of the terms of the representation and are clearly accepting those terms, either by signature that is uploaded back to you or through the clickwrap agreement and case thread dialogue. Regarding the ability to provide competent limited legal services online, just as with any traditional law practice it depends on the attorneys area of practice, their experience and what services they offer clients in their practice. For example, I’m working with an solo attorney who runs a full-service litigation practice. He wants to open a VLO as an amenity to his regular clients and as a way to bring in some additional revenue with online clients handling some traffic and small claims court matters online. If he runs into an online client who needs to meet with an attorney in person, then if they are located near his physical office location then he has them come in. If not, he refers them to a full service law practice in their area. That’s where the referral database comes in handy on the VLO. As another example, I am a solo practitioner and I only practice online, with no office to meet with clients. When I encounter a client that requires more complex estate planning that I feel should be handled by a more experienced and full-service law practice, then I refer them out. It is not different with a VLO. Client intake is on a case by case basis and is a decision that the attorney has to make considering the type of practice they have set up.

Rule 7.1 states that any advertising must not contain “false or misleading communication about the lawyer or the lawyer’s services.” Methods used to advertise a VLO would be the same as used to advertise a brick & mortar law office with perhaps a stronger emphasis on online advertising. VLO attorneys need to comply with the advertising rules set out in 7.2 regarding adequate contact information and will need to register the law firm’s URL with the State Bar in compliance with Rule 7.5(a). A 2005 Formal Ethics Opinion 14 adopted in January 2006 requires that the URL name not be misleading. The key to compliance with these rules in setting up the VLO website is to clearly identify the attorney or attorneys operating the VLO and provide updated contact information and notice of the state law that the online VLO is licensed to handle. Regarding VLO Website or Blog content, most attorney websites without VLOs contain disclaimers and a VLO’s website should be no different. If the VLO website contains pages with resources and general legal information for the public, the content should be updated and the attorney needs to post a disclaimer somewhere on the site letting the public know that the information is general, that it is N.C. law specific and that they should seek the advice of an attorney before relying on the statements posted. Any general legal advice on the website should contain the date last updated. Members of the public have been using the Internet to find attorneys for several years now and it’s only becoming more popular. Operating a VLO is not a direct solicitation to the public for online legal services just by being on the Internet. A prospective client would have to actively search online for legal services to find the VLO and given the large number of attorney listings and directories online it is unlikely that the existence of a VLO would somehow be seen as taking advantage of the public or misleading them about your services.

Virtual Attorneys may be more likely to seek out the services of a Virtual Legal Assistant or a VA. The VLO is a permissions based system so the VA may be given remote access to handle a portion of the law office functions for the attorney. Accordingly, virtual practitioners need to comply with Rule 5.3 regarding management of non-lawyer assistants. The virtual attorney needs to clearly explain the importance of nondisclosure and security for the VLO clients and that the VA should closely guard their username and password to their permissions-based VLO access.

Because the VLO has the potential to widen the attorney’s client base to the entire state where they are licensed to practice law, having a good conflict of interest checking system in place is critical to comply with Rules 1.7, 1.8 and 1.9 of the NC Rules of Professional Conduct. On a VLO when an attorney opens a new prospective client’s request for legal services, the attorney is prompted to run a check on the name of the prospective client and can run a check on any parties that he or she names in the request for legal services. In each case, the attorney may enter all parties involved in the case and the conflict of interest check is run on all parties and can be narrowed down by relevancy so that the attorney may make an informed decision before accepting the case.As any traditional practice, the VLO contains a calendaring and ticker system to alert the attorney to upcoming deadlines, lessening the risk of malpractice.Metadata is a risk that is not unique to a VLO, but that may occur more often because of the transfer of documents through the system. Metadata is the information contained in the document about the document. For example, if you and a client are working together on the draft of a document and using Word’s track changes. This data may be left in the document even after the changes and your discussions are finalized. This could create a potential embarassment for the attorney or result in malpractice if the client or another attorney were able to view that information. The average online client is not going to be actively searching for metadata in the documents they download from the VLO. However, the attorney needs to be proactive by removing the metadata before sending any documents through the VLO. Microsoft Office has several metadata removal programs. Converting docs to PDFs before uploading them to the VLO is another option but you have to enable the security features on the PDF program, such as those on Adobe Acrobat or Primo PDF. There are alos outside companies that provide metadata removal applications, such as Workshare, Payne Consulting Group, or iScrub. If you use Open Office programs, 3bview offers a metadata removal program that works with that open source product. Electronic Discovery Accepting Online Payments: Because VLOs allow for online payments, they must be PCI compliant. I won’t go into this other than to say that these rules were set by the credit card industry and the VLO software should be PCI compliant. Similar to a traditional law practice, the VLO must comply with the Bar’s Trust Account requirements found in Rule 1.15-1 and 1.15-2. The VLO allows for different forms of payment, including credit card, personal or certified check. There is also payment plans, recurred billing and a combination of billing methods that may be used. The method used depends on how the attorney decides to run their practice. In my practice, I do not require retainers from my clients. I have not had any collections issues and the way the system is set up with the client’s accepting my services and then not receiving the work until they pay has made retainer unnecessary. But that is how I operate my practice. One gray area is the use of Paypal or other credit card processing services to hold a retainer fee before it is transferred to the attorney’s trust account. It sounds hypertechnical, but since paypay or the credit card processing company is not a federal or NC chartered bank as required by Rules 1.15-2 (e) and 1.15-(a) this may be in violation of the Bar’s Trust Account Rules because for a short period of time the funds are held by this third party even though the funds would end up in the attorney’s trust account. This is a question that maybe someone who is interested in using retainers with a VLO will propose to the Bar’s Ethics Committee.

In order to practice ethically online, you need to have an understanding of the technology and also day to day best practices for handling that technology securely.

Computrace Lojack may delete the stolen data and track down your laptop.WiF- - hotspots, the shared wireless connection in a public place is not secure. Viewing a secure website with SSL may be safe, but a wireless eavesdropper could still view any websites you have visited and acquire any login information you used on unsecured sites (non-SSL).Instead, use a wireless broadband card which avoids the shared hotspot and directly connects you to the Internet. Or purchase an aircard from a wirelss Internet provider. With any remote access device, install a firewall on your device and make sure it is activated and functioning correctly.

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Virtual Law Practice - Elawyering and Virtual Law Offices - Presentation Transcript

Virtual Law Practice: Technology & Ethics Considerations CLE Presentation for the NC Bar Association July, 2008 Presenter: Stephanie L. Kimbro, Esq. Owner, Kimbro Legal Services, LLC @ kimbrolaw.com Co-owner, Virtual Law Office Technology, LLC (VLOTech)
What is a Web-Based Virtual Law Practice? A professional law practice that exists online through a secure portal and is accessible to the client and the attorney anywhere the parties may access the Internet. Features: Client Interface  Discuss Legal Matters Securely Online  Download and Upload Docs for Review  Online Billing and Payment  VLO Management Tools 
Topics to Discuss What is a VLO and how does it work?   Sample VLOs  What is not a VLO?  What is Software as a Service?  Review of a sample VLO from client and attorney side 2005 Formal Ethics Opinion 10  Defining the Scope of Representation  Advertising a VLO  Supervising a Virtual Assistant  Best Practice Methods for Running a Secure VLO 
A virtual law office is not… Legalzoom, Nololaw, Rapidocs and other entities  offering form-generated online legal documents. Non-secure “Contact Us” email forms on law office  websites. Renting remote law office spaces  (ie,Regus). Law Office Extranets  (ie, GoToPC, LogMeIn).
What is Software as a Service (SaaS)? A web-based VLO operates with the SaaS business model.  Data is encrypted and kept confidential through the use of  Secure Sockets Layer (SSL) on the web browser. Regular software updates and new features added without  disturbing the workflow. No in-house software installations.  Access to your data anywhere you may securely access the  Internet. Regular backups of your data.  Less expensive than paying for software, storage and server  hardware and hiring an IT professional.
Sample Client Homepage
Sample Client Homepage - Request for Legal Services
Sample Client Entry of Initial Request for Legal Services
Sample Attorney Side - Case View
Sample Attorney Case View – Sticky Note Reminders of New Activities in Case File
Attorney Side – Case Management Tools
Sample Events Created in a Case File. Events Appear in Main VLO Calendar and Reminders Appear on Attorney’s Main VLO Homepage.
Sample Files Added to a Client’s Case File. Files not specific to the client’s case may also be stored in the Main VLO File Library.
Searchable VLO File Library
Sample VLO Search for Prior Legal Research/Cases
VLO Billing Methods Fixed Fees  Billable Hour  Combination of Fees and Payment Plans  Invoicing and Payment Online 
Sample View of Invoice – Client Side
Sample Charge Entered By Attorney for Case
Sample Invoice Creation -Attorney Side
Sample View of Invoice Sent to Client
Your Clients are Ready. Clients shop, bank, conduct business and  pay their credit cards and taxes online. The technology is no more complicated to  use than email. You CAN have personal connections with  clients online. Alternative billing options: Fixed Fee,  Combination of Billable Hour and Fixed Fee
2005 Formal Ethics Opinion 10 Unauthorized Practice of Law in Other  Jurisdictions – Rule 5.5 and 7.2 Providing Competent Limited  Representation Establishing the Attorney/Client  Relationship Clickwrap Agreement  Protecting Client Confidences – Rule 1.6  Verifying the Client's Identity Online 
Rule 1.2(c) Defining the Scope of Representation  Engagement Letters   Adequate Notice and Acceptance of Terms of Representation
Advertising a VLO Rules 7.1 and 7.2  Register URL with the Bar  VLO Website/Blog Content  Adequate contact info.   Update content  Disclaimers
Virtual Legal Assistants Rule 5.3 – Management of  Non-lawyer assistants Keep good digital records  of instructions to VA Nondisclosure and security issues 
Avoiding Malpractice Online Conflict of Interest Checking  Calendar and Ticker System  Metadata  Electronic Discovery  Accepting Online Payments  PCI Compliance  Retainers – Trust Account Rules 
Sample Conflict of Interest Check – Attorney Prompted to Complete Before Responding to New Client
VLO Security Use an SSL Certificate  Data in system encrypted  Browser Security  Firefox vs. IE  Add-ons for browser security  Know the company hosting your VLO  Backup server locations  Data retention policies  Return of VLO data  Data Security and Encryption 
Securing Mobile Devices Theft of mobile devices  Risk of Malpractice  End to End encryption   Wi-Fi  Wireless Broadband Card  Aircard
Added Benefits of a VLO Bottom Line  Low overhead   Flexible practice  Expanded client base  Streamline Practice & Improve Efficiency Going Green – Eco-benefits  Reduced office waste  Improved Attorney Work/Life Balance 
Benefits of a Virtual Law Office “The highest leadership of the ABA knows we need a catalyst for lawyers to adapt and flourish in the new technology-driven economic order. The Internet presents us with unparalleled opportunities and powerful new tools to provide legal services. Innovative law firms and web-based companies (many run by lawyers) have already cast off - successfully - into these uncharted waters. They have set up web sites that go far beyond a list of partners, practice areas and a map to the law firm.” - ABA E-Lawyering Task Force
Contact Me VLOTECH:  skimbro@vlotech.net Blogs:  www.VirtualLawPractice.org www.VLOTech.com