By Joan C. Rogers
A lawyer may operate a virtual law office in which legal services are provided wholly through the internet so long as she exercises due diligence to vet the third-party vendor who furnishes the technology platform and takes reasonable steps to ensure competent representation and effective lawyer-client communication, according to a recent opinion from the California bar's ethics committee (California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal Op. 2012-184).
Attorneys practicing in an internet-only structure have the same professional obligations as other lawyers but must take additional steps to assure themselves that these duties are met, the committee advised.
A California-licensed sole practitioner asked the committee whether ethics rules permit her to operate a “virtual law office practice.” The lawyer's target clients would be individuals who have access to the internet and are looking for legal help in business transactions, family law, and probate law.
The lawyer proposes to communicate with clients entirely through a secure internet portal on her website rather than by phone, email, or in person. The information on the portal would be password protected and encrypted, and each client would be assigned an individual password enabling access to that client's information only.
The committee approved this plan on the condition that the lawyer takes additional steps to confirm that she is meeting the professional obligations all lawyers must observe, including those relating to confidentiality, competence, client communication, and supervision within the practice.
“[The] Attorney's compliance with her duty of confidentiality requires that she exercise reasonable due diligence both in the selection, and then in the continued use, of the VLO vendor,” the opinion states.
To do so, the committee observed, the lawyer must have a basic understanding about the security of the technology she is using in her practice--or else consult with someone who has that knowledge.
The lawyer should determine, the panel said, that the selected vendor has policies and procedures at least equal to what the lawyer would use on her own to comply with her duty of confidentiality. Citing numerous ethics opinions and several other sources, the opinion suggests that factors to consider when selecting a vendor may include:
• the vendor's credentials;
• data security;
• the vendor's transmission of the client's information across jurisdictional boundaries or other third-party servers;
• the lawyer's ability to supervise the vendor; and
• the terms of service of the contract with the vendor.
The lawyer periodically should reassess all of these factors to make sure the vendor's services and systems remain adequate, the committee noted.
In a footnote, the committee said that unless the client has provided written consent otherwise, the lawyer's process for selecting a VLO vendor should minimize the client's exposure to harms that might arise out of the international movement or storage of information and by the vendor's potential subcontracting to unknown third-party vendors.
Citing several ethics opinions, the committee advised that the virtual practitioner should consider whether she needs to obtain client consent in the first place to the proposed arrangement in which an outside vendor will receive and exclusively store confidential client information. The committee itself did not express a position on the issue.
The committee found that the internet-only nature of the proposed virtual law practice raises special concerns that may call for extra measures to fulfill the lawyer's duties of competence (California Rule of Professional Conduct 3-110) and communication (Rule 3-500).
“While Attorney may maintain a VLO in the cloud, Attorney may be required to take additional steps to confirm that she is reasonably addressing ethical concerns raised by issues distinct to this type of VLO,” the opinion states. Failure to take these extra steps as needed precludes the operation of the proposed virtual law practice, the panel declared.
First, the committee said, the lawyer must assure herself that the person communicating with the lawyer is actually the client or an authorized representative. Whether proof of the client's identity is needed depends on the circumstances of the representation and initial communications, it said.
Second, a lawyer in a virtual law office needs to analyze, for each matter, whether she will be able to provide competent representation in that type of matter and in the particular matter. Differing levels of complexity, even within the same practice area, may affect a lawyer's ability to provide competent services through a VLO, the opinion states.
Third, the lawyer may need to take additional steps to verify that the client understands the legal concepts involved and the advice given, so that the client is capable of making informed decisions. The committee said a virtual practitioner may have more difficulty evaluating the client's comprehension than would a lawyer who speaks to a client in person or by phone.
Fourth, the committee said, the virtual practitioner must take reasonable steps to confirm that the client is receiving information posted on the portal in a timely way, so as to meet her obligations to keep the client reasonably informed about significant developments under Rule 3-500 and California Business & Professions Code Section 6068(m) and (n).
Fifth, the lawyer using a VLO must have a reasonable basis to believe that the client has sufficient access to technology and adequate ability to communicate through the portal.
Sixth, if the lawyer begins representation through the VLO but concludes that she cannot competently deliver services in that way, she must either continue to represent the client through traditional means, withdraw without harming the client, or limit the scope of representation, the panel advised.
Finally, the committee said, attorneys practicing in a VLO have the same duty as other lawyers to supervise subordinate attorneys and nonlawyer employees or agents. While this supervision may be challenging in a VLO, it said, the practitioner must take reasonable measures to ascertain that everyone under her supervision is complying with professional conduct rules, notwithstanding any physical separation.
Full text at http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-184-ADA.pdf.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.