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1.0 Ethics CLE Credit – A/V Approval #1077476 Recording Date - May 23, 2018 Recording Availability – August 24, 2018

Meeting Location Date Time Topic

King County Bar Association 1200 Fifth Avenue - Suite 700

Seattle, WA

Wednesday, May 23, 2018

12:00 PM to 1:15 PM

Ethical Considerations Involved in Practicing in a Virtual Law Firm

AGENDA 12:00 PM Introduction 12:10 PM Presentation: ‘Ethical Considerations Involved in Practicing in a Virtual Law Firm’, by

Stacey L. Romberg, Stacey L. Romberg, Attorney at Law

Trends for attorneys working remotely

Defining a virtual law practice

Exploring the requirements of WSBA Advisory Opinion 201601 (2016)

Looking at the relationship between a virtual law practice and the unauthorized practice of law

1:15 PM Adjourn

SPEAKER BIOGRAPHY Stacey L. Romberg, Stacey L. Romberg, Attorney at Law – Stacey Romberg has practiced law for over 25 years, focusing her practice on business law, estate planning and probate. She earned her B.A. in 1985 from Idaho State University, graduating with High Honors, a J.D. from the University of Idaho College of Law in 1987, graduating cum laude, and an LL.M. from Georgetown University Law Center in 1991, graduating with distinction. Prior to opening her own law firm in 1999, Ms. Romberg drafted legislation for the U.S. Senate’s Office of Legislative Counsel and worked in private practice both in Washington, D.C. and Seattle. Ms. Romberg enjoys writing, and has published many articles in a variety of publications including the GPSolo eReport (a publication of the American Bar Association’s Solo, Small Firm and General Practice

Division), the Puget Sound Business Journal and the King County Bar Bulletin. She frequently speaks at a variety of venues including radio programs, continuing legal education courses, events sponsored by business organizations, and programs sponsored by the U.S. Small Business Administration. A former college tennis player, Ms. Romberg proudly serves on the Advisory Board of the non-profit Tennis Outreach Programs (“TOPs”).

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http://www.mywsba.org/

Ethical Considerations Involved in

Practicing in a Virtual Law Firm

KCBA Business Law Section

May 23, 2018

Trends - General

• In the last decade, the number of

telecommuters increased by 115%.

• Almost 3% of the U.S. workforce worked

from home at least half the time in 2015.

Source: CNN

Trends - Attorneys

• 46% of lawyers work remotely 10-24% of

the time.

• 33% of attorneys telecommute at least one

day per week.

Source: ABA Tech Report 2016. Mobile Technology. Aaron Street

Trends - Attorneys

• When working remotely, almost 80% of

attorneys work from home.

• Other prominent places to work remotely

include hotels, transit, airports, and client

offices.

Source: ABA Tech Report 2016. Mobile Technology. Aaron Street.

Trends - Attorneys

• 16% of lawyers work primarily from home.

• 37% of solo and small firm attorneys work

primarily from home.

Source: ABA Tech Report 2016. Mobile Technology. Aaron Street

Defining Virtual Law Practice

• What exactly is a virtual law practice?


• Is it a lack of traditional office space?


• 74% of solo attorneys, and 57% of all

attorneys, say yes.

Source: ABA Tech Report 2016. Virtual Law Practice. Chad Burton.


• Is a virtual law practice characterized

by minimum in-person contact and

use of web-based tools?


• 49% of solo attorneys, and 33% of all

attorneys, say yes.



• Does a virtual law practice offer

unbundled legal services?


• 27% of solo attorneys say yes.



• Does a virtual law practice use a

secure client portal?


• 15% of solo attorneys say yes.


Tools of a Virtual Law Practice

• 33% of lawyers use document sharing

tools with clients.

• Other online tools: communication;

invoicing and bill payment products;

scheduling and calendar solutions.



• 73% of large law firms, and 11% of solo

firms, offer secure client portals.

• Can be customized / in house (15%) or

sharing a folder in Box (7%).



• Popular cloud based solutions: Dropbox

(58%); Google Docs (49%); iCloud (28%);

Evernote (25%); and Clio (16%).


WSBA’s Position

• WSBA Advisory Opinion 201601 (2016)

• “Ethical Practices of the Virtual Law Office”

WSBA’s Position

• “For the most part, the Rules of

Professional Conduct (RPC) apply no

differently in a virtual office context.”

The Mechanics

• WSBA members are not required to have

a physical office space.

• But, what is required?

The Mechanics

#1. A physical residential address.

• It can be your house. It’s not revealed to

the public.

• Used to determine your district for the

Board of Governors.

The Mechanics

#2. A resident agent.

• See Washington Supreme Court

Admission and Practice Rule 13(f).

• Required if out of state, or not using a

physical street address.

The Mechanics

• Resident agent is revealed to the public.

• Used for receiving service of process.

The Mechanics

#3. Compliance with GR 30.

• Service by hand delivery, email, or mail.

Advertising Requirements

• RPC 7.2(c) requires an “office address” be

used in the advertisement.


• Advisory Opinion 201601: “As long as it is

not misleading, the lawyer may use a post

office box, private mail box, or a business

service center as an office address in

advertisements.”


• What would be “misleading?”


• For example, listing a Seattle address if

the lawyer is not available to meet in

Seattle. That fact must be disclosed in the

ad.

RPC 5.1 Responsibilities of Partners,

Managers and Supervisory Lawyers

A partner in a law firm . . . shall make

reasonable efforts to ensure that the firm

has in effect measures giving reasonable

assurance that all lawyers in the firm

conform to the Rules of Professional

Conduct."



• Is compliance with RPC 5.1 more

difficult in a virtual setting?



• Need to “up your game” in hiring.

Other Pertinent RPCs

• RPC 5.2 - Responsibilities of a

Subordinate Lawyer

• RPC 5.3 - Responsibilities Regarding

Nonlawyer Assistants

• RPC 5.10 - Responsibilities Regarding

Other Legal Practitioners

Additional Guidance:

Bar of the City of New York: Formal Opinion

2014-2:

• "It may be more challenging" for virtual

lawyers to comply with RPC 5.1.”

• Lawyers have “less control over [virtual]

personnel than . . . in a conventional

physical law firm office."


Virginia Legal Ethics Opinion 1872:

• Lawyers must take “reasonable steps" to

comply, which “may vary depending upon

the structure of the law firm and its

practice."

• "Additional measures may be necessary

to supervise staff who are not physically

present."


California Formal Opinion No. 2010-179:

• Personnel working remotely must be

“appropriately instructed regarding client

confidentiality."

RPC 1.6 Confidentiality of Information

"A lawyer shall not reveal information

relating to the representation of a client . . . "


• Advisory Opinion 201601 emphasizes use

of online data storage.

• Cites to Advisory Opinion 2215 (2012).


• Attorneys need “to be able to evaluate a

particular vendor’s security and storage

systems.”


• Attorneys need to take “reasonable care to

ensure that the information will remain

confidential and the information is secure

from risk of loss.”


• RPC 1.1 – Competence

• RPC1.15A – Safeguarding Property

Additional Guidance


2014-2:

• Attorneys can use shared services and

office space with “appropriate safeguards."

• Attorneys must “take reasonable steps to

ensure" client confidential information is

not placed at risk.

Additional Guidance

Virginia Legal Ethics Opinion 1872:

• Also addresses confidentiality from a

technology perspective.

• Duty to act with “reasonable care" to

protect confidential information. Includes

cloud computing & use of vendors for

storage/transmission of data.


California Formal Opinion No. 2010-179:

• Discouraged use of public WiFi absent "a

combination of file encryption, encryption

of wireless transmissions and a personal

firewall."

• Allows attorneys to work from home if

“personal wireless system . . . configured

with appropriate security features."

RPC 7.1 Communications Concerning

a Lawyer's Services

"A lawyer shall not make a false or

misleading communication about the lawyer

or the lawyer's services."


a Lawyer's Services

• How does RPC 7.1 come into play for

a virtual law firm?


a Lawyer's Services

• Advisory Opinion 201601: “A lawyer may

not mislead others through

communications that imply the existence

of a physical office where none exists.”


• RPC 8.4 – Misconduct

Additional Guidance


2014-2:

• Lawyers should not “mislead the public as

to the nature of their office arrangements,

accessibility, or availability for meetings."

RPC 1.7: Conflicts of Interest

Advisory Opinion 201601: “In the physical

office setting, physical proximity can in some

circumstances provide more reliable access

to the conflicts checking system . . .”


Advisory Opinion 201601: “Lawyers in a

virtual law practice, who most likely do not

have the advantage of physical proximity,

must ensure that the conflicts checking

system is equally accessible to all members

of the practice, lawyers and staff, and that

such access is reliably maintained.”


How is a conflicts checking system

different for a virtual law firm than a

brick & mortar law firm?


• RPC 1.9 – Duties to Former Clients

• RPC 1.18 – Duties to Prospective

Client

Unauthorized Practice of Law

• Scenario: Alice Advocate, a Washington

licensed attorney and lover of sun, spends

each winter in Palm Springs, California,

representing her clients remotely.

• Is this okay?


• Suppose Alice Advocate moves

permanently to Palm Springs, but travels

monthly to Seattle to meet with her clients

in person.

• Is this okay?


• Suppose Alice Advocate moves

permanently to Palm Springs, decides to

never set foot in Washington again, but

continues to represent her clients

remotely.

• Is this okay?


• ABA’s Task Force on E-Lawyering, Suggested

Minimum Standards for Delivering Legal

Services Online, states that virtual lawyers

should serve “only clients who are residents of

the state where the firm is authorized to practice,

or clients who have matters within the state

where the law firm is authorized to practice.”


• How is your physical location impacting

clients and potential clients?

• Is your physical unavailability being fully

disclosed?


• See ABA Model Rule 5.5 – Unauthorized

Practice of Law

• “Lawyers are using tools that facilitate virtual

practices – there’s no doubt about that. The

question is whether it matters if a lawyer

considers their practice virtual or not. If the

label serves a purpose to help lawyers think

differently about how they operate their

businesses, then let’s keep it around. . . . ”Source: ABA Tech Report 2016. Virtual Law Practice. Chad Burton.

Conclusion

• “If we are in a post-virtual scenario where

lawyers just consider the way they operate in

a mobile environment as “practicing law,”

even better. The key is whether clients are

being served well.”


Conclusion

Questions?

ETHICAL CONSIDERATIONS INVOLVED IN PRACTICING

IN A VIRTUAL LAW FIRM KING COUNTY BAR ASSOCIATION – BUSINESS LAW SECTION

May 23, 2018

Stacey L. Romberg

Attorney at Law

Telephone: (206) 784-5305 Email: [email protected]

Website: www.staceyromberg.com

STACEY L. ROMBERG has practiced law for over 25 years, focusing her practice on business law, estate planning and probate. She earned her B.A. in 1985 from Idaho State University, graduating with High Honors, a J.D. from the University of Idaho College of Law in 1987, graduating cum laude, and an LL.M. from Georgetown University Law Center in 1991, graduating with distinction. Prior to opening her own law firm in 1999, Ms. Romberg drafted legislation for the U.S. Senate’s Office of Legislative Counsel and worked in private practice both in Washington, D.C. and Seattle. Ms. Romberg enjoys writing, and has published many articles in a variety of publications including the GPSolo eReport (a publication of the American Bar Association’s Solo, Small Firm and General Practice Division), the Puget Sound Business Journal and the King County Bar Bulletin. She frequently speaks at a variety of venues including radio programs, continuing legal education courses, events sponsored by business organizations, and programs sponsored by the U.S. Small Business Administration. A former college tennis player, Ms. Romberg proudly serves on the Advisory Board of the non-profit Tennis Outreach Programs (“TOPs”).

Opinion: 201601Year Issued: 2016RPC(s): RPC 1.1, 1.6, 1.7, 1.9, 1.15A, 1.18, 5.1, 5.2, 5.3, 5.10, 7.1, 7.2, 8.4Subject: Ethical Practices of the Virtual Law Office

Increasing costs of doing business, including the costs associated with physical office space, have motivated lawyers to rethink how they deliver legal services. Many lawyers are choosing to do some or all of their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, and email services have allowed the development of the virtual law office, in which the lawyer does not maintain a physical office at all.

Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same. The core duties of diligence, loyalty, and confidentiality apply whether the office is virtual or physical. For the most part, the Rules of Professional Conduct (RPC) apply no differently in the virtual office context. However, there are areas that raise special challenges in the virtual law office. Below we address whether a lawyer needs a physical address. We then summarize some of the ethical issues lawyers with virtual law practices may face.

I. Requirement for Physical Office Address

A. General Requirements

There is no requirement that WSBA members have a physical office address. Section III(B)(1)(of the Bylaws of the Washington State Bar Association (WSBA) requires that each member furnish both a “physical residence address” and a “principal office address.” The physical residential address is used to determine the member’s district for Board of Governors elections. The principal office address does not need to be a physical address. Similarly, Admission and Practice Rule (APR) 13(b) requires a lawyer to advise the WSBA of a “current mailing address” and to update that address within 10 days of any change. Nothing in that rule indicates the mailing address must be a physical address.

General Rule (GR) 30 permits courts to require service by email. If a lawyer is handling litigation in a jurisdiction that has not adopted such a requirement, the lawyer might wish to serve opposing counsel through hand delivery. The Civil Rules (CR) do not require that a lawyer provide an address for hand delivery. Rather, CR 5(b)(1) provides that if the person to be served has no office, service by delivery may be made by “leaving it at his dwelling house with a person of suitable age and discretion then residing therein.” Service, of course, also may be made by mail. Particularly in jurisdictions where it is customary to serve pleadings by hand delivery, providing the opposing counsel with a physical

Page 1 of 9Opinion 201601

2/15/2018http://mcle.mywsba.org/IO/print.aspx?ID=1686

address to do so (such as a business service center) may mean that the lawyer will get the pleadings considerably faster. If a lawyer does not want to provide opposing counsel with an address for hand delivery, we recommend that the lawyer seek an agreement to have pleadings served by email instead, as permitted under GR 30(b)(4).

B. Address in Advertisements

RPC 7.2(c) requires that lawyer advertisements “include the name and office address of at least one lawyer or law firm responsible for its content.” Some lawyers with virtual law practices practice from home and use a post office box for mail. Others contract with business service centers that receive mail and deliveries and also make conference rooms available for meetings.

The term “office address” in RPC 7.2(c) should not be so narrowly construed to mean only the place where the lawyer is physically working. Rather, the “office address” may be the address the lawyer uses to receive mail and/or deliveries. It may also be the address where a lawyer meets in person with clients, but does not have to be.

Therefore, a lawyer who works from home is not required to include her home address on advertising. As long as it is not deceptive or misleading, the lawyer may use a post office box, private mail box, or a business service center as an office address in advertisements.

An address listed in an advertisement may be misleading if a reader would wrongly assume that the lawyer will be available in a particular location. See RPC 7.1. [n.1]. For example, it may be misleading for an out-of-state lawyer to list a Seattle address in an advertisement if the lawyer will not be available to meet in Seattle. However, if the advertisement discloses that the lawyer is not available for in-person meetings in Seattle, the advertisement may not be misleading. See also Section C below.

II. Complying with the RPCs when Using a Virtual Law Office

Lawyers practicing in a virtual law office are no less bound by the ethical duties noted above than their colleagues practicing in a physical office. The standards of ethical conduct set forth in the RPC apply to all lawyers regardless of the setting: physical or virtual. However, certain duties present special challenges to lawyers practicing in the virtual law setting, including the duties of supervision, confidentiality, avoiding misleading communication, and avoiding conflicts of interest as set forth below.

A. Supervision

The duties of supervision embodied in RPC 5.1 [n.2], 5.2 [n.3], 5.3 [n.4] and 5.10 [n.5] apply in all law offices. But staff and other lawyers in a virtual law office might not share any physical proximity to their supervising lawyer, making direct supervision more difficult. Thus a lawyer operating remotely may need to take additional measures to adequately supervise staff and other lawyers in her employ.

B. Confidentiality



The use by a lawyer, whether a virtual office or traditional practitioner, of online data storage maintained by a third party vendor raises a number of ethical questions because any confidential client information included in the stored data is outside of the direct control of the lawyer. WSBA Advisory Opinion 2215 (2012) addresses the lawyer’s ethical obligations under RPC 1.1 [n.6], 1.6 [n.7], and 1.15A [n.8]. A lawyer intending to use online data storage should review that opinion, and be especially mindful of several important points emphasized in the opinion:

- The lawyer as part of a general duty of competence must be able to understand the technology involved sufficiently to be able to evaluate a particular vendor’s security and storage systems.

- The lawyer shall be satisfied that the vendor understands, and agrees to maintain and secure stored data in conformity with, the lawyer’s duty of confidentiality.

- The lawyer shall ensure that the confidentiality of all client data will be maintained, and that client documents stored online will not be lost, e.g., through the use of secure back-up storage maintained by the vendor.

- The storage agreement should give the lawyer prompt notice of non-authorized access to the stored data or other breach of security, and a means of retrieving the data if the agreement is terminated or the vendor goes out of business.

- Because data storage technology, and related threats to the security of such technology, change rapidly, the lawyer must monitor and review regularly the adequacy of the vendor’s security systems.

As the opinion concludes, “A lawyer may use online data storage systems to store and back up client confidential information as long as the lawyer takes reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.”

Lawyers in virtual practices may be more likely to communicate with clients by email. As discussed in WSBA Advisory Opinion 2175 (2008), lawyers may communicate with clients by email. However, if the lawyer believes there is a significant risk that a third party will access the communications, such as when the client is using an employer-provided email account, the lawyer has an obligation to advise the clients of the risks of such communication. See WSBA Adv. Op. 2217 (2012).

C. Duty to Avoid Misrepresentation

Another duty with special implications for lawyers operating virtual law offices is the duty to avoid misrepresentation. RPC 7.1, 8.4(c).[n.9]. A lawyer may not mislead others through communications that imply the existence of a physical office where none exists. Such communications may falsely imply access to the resources that a physical office provides like ready access to meeting spaces or the opportunity meet with the lawyer on a drop in basis. Unless the lawyer has arranged for such resources, she may not imply their existence. RPC 7.1.

Similarly, a lawyer may not mislead others through communications that imply the existence of a



formal law firm rather than a group of individual lawyers sharing the expenses related to supporting a practice. For example, in the physical office setting, lawyers who are not associated in a firm may house their individual practices in the same building, with each practice paying its share of the overall rent and utilities for the space. These space-sharing lawyers would be prohibited from implying (e.g. via the use of letterhead or signage on the building) that they practice as single law firm. Similarly, lawyers with virtual law offices cannot state or imply on websites, social media, or elsewhere that they are part of a firm if they are not.

D. Duty to Avoid Conflicts of Interest

A robust conflicts checking system is critical to any law office, physical or virtual, in order to avoid conflicts of interest under RPC 1.7 [n.10], 1.9 [n.11], and 1.18.[n.12]. A robust conflicts checking system will include information on current and former clients, prospective clients, related parties, and adverse parties. The conflicts checking system is particularly important in a law firm where an individual firm lawyer’s conflicts of interest will be imputed to the rest of the lawyers in the firm. RPC 1.10. [n.13]. In the physical office setting, physical proximity can in some circumstances provide more reliable access to the conflicts checking system. Lawyers in a virtual law practice, who most likely do not have the advantage of physical proximity, must ensure that the conflicts checking system is equally accessible to all members of the practice, lawyers and staff, and that such access is reliably maintained.

Endnotes

1. RPC 7.1 states, “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”

2. RPC 5.1 states:

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.



3. RPC 5.2 states:

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

4. RPC 5.3 states:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of thelawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

5. RPC 5.10 states:

With respect to an LLLT employed or retained by or associated with a lawyer;

(a) a partner and a lawyer who individually or together with other lawyers possess comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the LLLT's conduct is compatible with the professional obligations of the lawyer and the professional obligations applicable to the LLLT directly; and

(b) a lawyer having direct supervisory authority over the LLLT shall make reasonable efforts to ensure that the LLLT's conduct is compatible with the professional obligations of the lawyer and the professional obligations applicable to the LLLT directly; and

(c) a lawyer shall be responsible for conduct of an LLLT that would be a violation of the Rules of



Professional Conduct if engaged in by a lawyer if;

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the LLLT is employed, or has direct supervisory authority over the LLLT, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

6. RPC 1.1 states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

7. RPC 1.6 states:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer to the extent the lawyer reasonably believes necessary:

(1) shall reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm;

(2) may reveal information relating to the representation of a client to prevent the client from committing a crime;

(3) may reveal information relating to the representation of a client to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) may reveal information relating to the representation of a client to secure legal advice about the lawyer's compliance with these Rules;

(5) may reveal information relating to the representation of a client to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(6) may reveal information relating to the representation of a client to comply with a court order; or

(7) may reveal information relating to the representation of a client to inform a tribunal about any breach of fiduciary responsibility when the client is serving as a court appointed fiduciary such as a guardian, personal representative, or receiver.



8. Paragraph (c)(3) of RPC 1.15A states:

A lawyer must identify, label and appropriately safeguard any property of clients or third persons other than funds. The lawyer must keep records of such property that identify the property, the client or third person, the date of receipt and the location of safekeeping. The lawyer must preserve the records for seven years after return of the property.

9. RPC 8.4 states, “It is professional misconduct for a lawyer to: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . .”

10. RPC 1.7 provides:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing (following authorization from the other client to make any required disclosures).

11. RPC 1.9 provides:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.



(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in whicha firm with which the lawyer formerly was associated had previous represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom that lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

12. RPC 1.18 states in part:

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client or except as provided in paragraph (e).

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraphs (d) or (e). If a lawyer or LLLT is disqualified from representation under this paragraph or paragraph (c) of LLLT RPC 1.18, no lawyer in a firm with which that lawyer or LLLT is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d) ...

13. RPC 1.10 states, with certain exceptions:

[W]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessor, the Rules of Professional Conduct Committee.



Advisory Opinions issued by the CPE are distinguished from earlier RPC Committee opinions by a numbering format which includes the year followed by a sequential number. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.



Admission and Practice Rules

APR 13 SIGNING OF PLEADINGS AND OTHER PAPERS; ADDRESS OF RECORD; ELECTRONIC MAIL ADDRESS; NOTICE OF CHANGE OF ADDRESS, TELEPHONE NUMBER, OR NAME; RESIDENT AGENT

(a) Signing of Pleadings and Other Papers. All pleadings and other papers signed bylawyer, LLLT, or LPO and filed with a court shall include the lawyer's, LLLT's, or LPO'sBar number in the signature block. The law department of a municipality, county, orstate, public defender organization or law firm is authorized to make an application tothe Administrative Office of the Courts for an office identification number. An officeidentification number may be assigned by the Administrative Office of the Courts upona showing that it will facilitate the process of electronic notification. If an officeidentification number is granted, it shall appear with the lawyer's, LLLT's, or LPO'sBar number in the signature block. (b) Address of Record; Change of Address. A lawyer, LLLT, or LPO must advise theBar of a current mailing address and telephone number. The mailing address shall bethe lawyer's, LLLT's, or LPO's public address of record. A lawyer, LLLT, or LPO whosemailing address or telephone number changes shall, within 10 days after the change,notify the Bar, which shall forward changes weekly to the Administrative Office ofthe Court for entry into the state computer system. The notice shall be in a formacceptable to the Bar and shall include (1) the lawyer's, LLLT's, or LPO's full name,(2) the lawyer's, LLLT's, or LPO's number, (3) the previous address and telephonenumber, clearly identified as such, (4) the new address and telephone number,clearly identified as such, and (5) the effective date of the change. The courtsof this state may rely on the address information contained in the state computersystem in issuing notices in pending actions. (c) Electronic mail address. A lawyer, LLLT, or LPO shall advise the Bar ofa current electronic mail address. A lawyer, LLLT, or LPO whose electronic mailaddress changes shall, within 10 days after the change, notify the, which shallforward changes weekly to the Administrative Office Court for entry into thestate computer system. Use of electronic mail addresses for court notice,service and filing must comply with GR 30. (d) Change of Name. A lawyer, LLLT, or LPO whose name changes shall, within10 days after the change, notify the, which shall forward changes weekly to theAdministrative Office of the Court for entry into the state computer system. Thenotice shall be in a form acceptable to the Bar Association and shall contain (1)the full previous name, clearly identified as such, (2) the full new name, clearlyidentified as such, (3) the lawyer's, LLLT's, or LPO's number, and (4) the effectivedate of the change. (e) Requirements of Local and Other Court Rules Not Affected. The responsibilityof a party or a lawyer, LLLT, or LPO to keep the court and other parties and lawyers,LLLTs, or LPOs informed of the party's or lawyer's, LLLT's, or LPO's correct name andcurrent address, as may be required by local or other court rule, is not affected bythis rule. (f) Resident Agent. If the address of record required under this rule is notin the state of Washington or is not a physical street address, the lawyer, LLLT, orLPO shall file with the Bar the name and address of an agent within this state forthe purpose of receiving service of process or of any other document required orpermitted by statute or court rule to be served or delivered to a resident lawyer,LLLT, or LPO. Service or delivery to such agent shall be deemed service upon ordelivery to the lawyer, LLLT, or LPO. The name and address of the resident agentshall be a public record. If the address or name of the resident agent changes,the lawyer, LLLT, or LPO shall notify the Bar of the change within 10 days afterthe change. Judicial and honorary members of the Bar are exempt from the requirementsof this section.[Adopted effective September 1, 1990; amended effective October 30, 2001;September 1, 2005; April 30, 2013; January 1, 2014; September 1, 2017.]

General Rules

GR 30 ELECTRONIC FILING AND SERVICE

(a) Definitions.

(1) "Digital signature" is defined in RCW 19.34.020.

(2) "Electronic Filing" is the electronic transmission of information to a court or clerk for case processing.

(3) "Electronic Document" is an electronic version of information traditionally filed in paper form, exceptfor documents filed by facsimile which are addressed in GR 17. An electronic document has the same legal effect asa paper document.

(4) "Electronic Filing Technical Standards" are those standards, not inconsistent with this rule, adopted bythe Judicial Information System committee to implement electronic filing.

(5) "Filer" is the person whose user ID and password are used to file an electronic document.

Comment: The form of "digital signature" that is acceptable is not limited to the procedure defined by chapter19.34 RCW, but may include other equivalently reliable forms of authentication as adopted by local court rule orgeneral order.

(b) Electronic filing authorization, exception, service, and technology equipment.

(1) The clerk may accept for filing an electronic document that complies with the Court Rules and the ElectronicFiling Technical Standards.

(2) A document that is required by law to be filed in non-electronic media may not be electronically filed.

Comment: Certain documents are required by law to be filed in non-electronic media. Examples are original wills,certified records of proceedings for purposes of appeal, negotiable instruments, and documents of foreign governmentsunder official seal.

(3) Electronic Transmission from the Court. The court or clerk may electronically transmit notices, orders, orother documents to all attorneys as authorized under local court rule, or to a party who has filed electronically orhas agreed to accept electronic documents from the court, and has provided the clerk the address of the party'selectronic mailbox. It is the responsibility of all attorneys and the filing or agreeing party to maintain anelectronic mailbox sufficient to receive electronic transmissions of notices, orders, and other documents.

(4) A court may adopt a local rule that mandates electronic filing by attorneys and/or electronic service ofdocuments on attorneys for parties of record, provided that the attorneys are not additionally required to file papercopies except for those documents set forth in (b)(2). Electronic service may be made either through an electronictransmission directly from the court (where available) or by a party's attorney. Absent such a local rule, partiesmay electronically serve documents on other parties of record only by agreement. The local rule shall not beinconsistent with this Rule and the Electronic Filing Technical Standards, and the local rule shall permit paper filingand/or service upon a showing of good cause. Electronic filing and/or service should not serve as a barrier to access.

Comment: When adopting electronic filing requirements, courts should refrain from requiring counsel to provideduplicate paper pleadings as "working copies" for judicial officers.

(c) Time of Filing, Confirmation, and Rejection.

(1) An electronic document is filed when it is received by the clerk's designated computer during the clerk'sbusiness hours; otherwise the document is considered filed at the beginning of the next business day.

(2) The clerk shall issue confirmation to the filing party that an electronic document has been received.

(3) The clerk may reject a document that fails to comply with applicable electronic filing requirements. Theclerk must notify the filing party of the rejection and the reason therefor.

(d) Authentication of Electronic Documents.

(1) Procedures

(A) A person filing an electronic document must have received a user ID and password from a government agency ora person delegated by such agency in order to use the applicable electronic filing service.

Comment: The committee encourages local clerks and courts to develop a protocol for uniform statewide single userID's and passwords.

(B) All electronic documents must be filed by using the user ID and password of the filer.

(C) A filer is responsible for all documents filed with his or her user ID and password. No one shall use thefiler's user ID and password without the authorization of the filer.

(2) Signatures

(A) Attorney Signatures. An electronic document which requires an attorney's signature may be signed with adigital signature or signed in the following manner:

s/ John Attorney State Bar Number 12345 ABC Law Firm

ABC Law Firm 123 South Fifth Avenue Seattle, WA 98104 Telephone: (206) 123-4567 Fax: (206) 123-4567 E-mail: [email protected]

(B) Non-attorney signatures. An electronic document which requires a non-attorney's signature and is not signedunder penalty of perjury may be signed with a digital signature or signed in the following manner: s/ John Citizen 123 South Fifth Avenue Seattle, WA 98104 Telephone: (206) 123-4567 Fax: (206) 123-4567 E-mail: [email protected]

(C) Non-attorney signatures on documents signed under penalty of perjury. Except as set forth in (d)(2)(D) ofthis rule, if the original document requires the signature of a non-attorney signed under penalty of perjury, the filermust either:

(i) Scan and electronically file the entire document, including the signature page with the signature, andmaintain the original signed paper document for the duration of the case, including any period of appeal, plus sixty(60) days thereafter; or

(ii) Ensure the electronic document has the digital signature of the signer.

(D) Law enforcement officer signatures on documents signed under penalty of perjury.

(i) A citation or notice of infraction initiated by an arresting or citing officer as defined in IRLJ 1.2(j)and in accordance with CrRLJ 2.1 or IRLJ 2.1 and 2.2 is presumed to have been signed when the arresting or citingofficer uses his or her user id and password to electronically file the citation or notice of infraction.

(ii) Any document initiated by a law enforcement officer is presumed to have been signed when the officer useshis or her user ID and password to electronically submit the document to a court or prosecutor through the StatewideElectronic Collision & Traffic Online Records application, the Justice Information Network Data Exchange, or a localsecured system that the presiding judge designates by local rule. Unless otherwise specified, the signature shall bepresumed to have been made under penalty of perjury under the laws of the State of Washington and on the date and at theplace set forth in the citation.

(E) Multiple signatures. If the original document requires multiple signatures, the filer shall scan andelectronically file the entire document, including the signature page with the signatures, unless:

(i) The electronic document contains the digital signatures of all signers; or

(ii) For a document that is not signed under penalty of perjury, the signator has the express authority to signfor an attorney or party and represents having that authority in the document.

If any of the non-digital signatures are of non-attorneys, the filer shall maintain the original signed paperdocument for the duration of the case, including any period of appeal, plus sixty (60) days thereafter.

(F) Court Facilitated Electronically Captured Signatures. An electronic document that requires a signature maybe signed using electronic signature pad equipment that has been authorized and facilitated by the court. This documentmay be electronically filed as long as the electronic document contains the electronic captured signature.

(3) An electronic document filed in accordance with this rule shall bind the signer and function as the signer'ssignature for any purpose, including CR 11. An electronic document shall be deemed the equivalent of an originalsigned document if the filer has complied with this rule.All electronic documents signed under penalty of perjury must conform to the oath languagerequirements set forth in RCW 9A.72.085 and GR 13.

(e) Filing fees, electronic filing fees.

(1) The clerk is not required to accept electronic documents that require a fee. If the clerk does acceptelectronic documents that require a fee, the local courts must develop procedures for fee collection that comply withthe payment and reconciliation standards established by the Administrative Office of the Courts and the WashingtonState Auditor.

(2) Anyone entitled to waiver of non-electronic filing fees will not be charged electronic filing fees. The courtor clerk shall establish an application and waiver process consistent with the application and waiver process used withrespect to non-electronic filing and filing fees.

[Adopted effective September 1, 2003; December 4, 2007; September 1, 2011; December 9, 2014.]

RPC 1.6 CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer to the extent the lawyer reasonably believes necessary: (1) shall reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm; (2) may reveal information relating to the representation of a client to prevent the client from committing a crime; (3) may reveal information relating to the representation of a client to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) may reveal information relating to the representation of a client to secure legal advice about the lawyer's compliance with these Rules; (5) may reveal information relating to the representation of a client to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (6) may reveal information relating to the representation of a client to comply with a court order; or (7) may reveal information relating to the representation to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client; (8) may reveal information relating to the representation of a client to inform a tribunal about any client's breach of fiduciary responsibility when the client is serving as a court appointed fiduciary such as a guardian, personal representative, or receiver.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. [Originally effective September 1, 1985; amended effective September 1, 1990; September 1, 2006; September 1, 2016.] RPC 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing (following authorization from the other client to make any required disclosures). [Originally effective September 1, 1985; amended effective September 1, 1995; September 1, 2006.] RPC 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses

comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. [Originally effective September 1, 1985; amended effective September 1, 2006.]

RPC 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. [Originally effective September 1, 1985; amended effective September 1, 2006.] RPC 7.2 ADVERTISING (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may (1) pay the reasonable cost of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service;

(3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or LLLT pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer or law firm responsible for its content. [Originally effective September 1, 1985; amended effective September 1, 1988; September 1, 2006; April 14, 2015.]

The Association of the Bar of the City of New York Committee on Professional Ethics

Formal Opinion 2014-2: Use of a Virtual Law Office by New York Attorneys

June 2014

TOPIC: Use of virtual law office as a principal law office address in advertising and on business cards, letterhead and website

DIGEST: A New York lawyer may use the street address of a virtual law office ("VLO") located in New York state as the "principal law office address" for the purposes of Rule 7.1(h) of the New York Rules of Professional Conduct (the "New York Rules" or the "Rules"), even if most of the lawyer's work is done at another location. In addition, a New York lawyer may use the address of a VLO as the office address on business cards, letterhead and law firm website. Given the lower overhead, improved encryption systems, expansion of mobile communication options, availability of electronic research, and the ease of storing and transmitting digital documents and information, VLOs are becoming an increasingly attractive option for attorneys throughout the country. A New York lawyer who uses a VLO must also comply with other New York Rules, including Rules 1.4, 1.6, 5.1, 5.3, 8.4(a) and 8.4(c).

A New York lawyer may need to consider additional issues, such as whether the contemplated arrangement complies with relevant substantive laws and court rules, and the professional conduct rules of other jurisdictions. These additional issues fall outside the jurisdiction of the Committee on Professional Ethics (the "Committee"), which is limited to interpreting the New York Rules.[1]

RULES: 1.4, 1.6, 5.1, 5.3, 7.1(h), 7.5(a)(1), 7.5(a)(4), 8.4(a), 8.4(c)

QUESTIONS:

1. Is a New York lawyer permitted to use the street address of a VLO located in New York State as a "principallaw office address" for purposes of Rule 7.1(h), even though most of the lawyer's work is done at anotherlocation?

2. Is a New York lawyer permitted to use the street address of a VLO on business cards, letterhead, and lawfirm website?

OPINION

A New York lawyer (the "Lawyer") is considering becoming a solo practitioner and plans to do most of her work at her home. The Lawyer does not intend to maintain a separate physical office. Instead, she plans to use a VLO in New York State, as defined below, to meet with clients, hold "office hours," receive mail, or otherwise be present and available at various times. For privacy and security reasons, she does not wish to identify her home address as her business address. She would like to use the address of the VLO as her "principal office address" for purposes of advertising her legal services under Rule 7.1(h). She would also like to use the VLO address on her letterhead, business cards and law firm website.

A VLO, as it is used in this opinion, refers to a physical location that offers business services and facilities, such as private or semi-private work spaces, conference rooms, telephones, printers, photocopy machines, and mail drop services to lawyers. Although arrangements vary, many VLO's charge a monthly fee for use of their services and facilities.[2]

I. Is a New York Lawyer Permitted to Use the Street Address of a VLO Located in New York State as a "Principal Law Office Address" for the Purposes of Rule 7.1(h)?

New York Rule 7.1 sets restrictions on advertisements disseminated by lawyers or law firms.[3] One of those restrictions is stated in Rule 7.1(h): "All advertisements shall include the . . . principal law office address . . . of the lawyer or law firm whose services are being offered." Comment [17] to Rule 7.1 adds: "A law firm that has no office it considers its principal office may comply with paragraph (h) by listing one or more offices where a

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substantial amount of the law firm's work is performed." For the reasons set forth below, the Committee concludes that a VLO address meets the requirement of a "principal law office address" under Rule 7.1(h).

A. The VLO Has a Physical Location with a Street Address in New York State that Qualifies as a "Principal Law Office Address"

Although the phrase "principal law office address" is not defined anywhere in the New York Rules, two ethics opinions issued by the New York State Bar Association ("NYSBA") have concluded that Rule 7.1(h) requires a physical street address. NYSBA Ethics Op. 756 (2002) states that a "principal law office" means "a physical street address at which the principal office of the firm or lawyer offering legal services is located and to which mail, express deliveries and other communications can be addressed."[4] Failing to include a street address in an attorney advertisement could be misleading, according to Opinion 756, because it could suggest "a physical proximity to the recipient that does not in fact exist." Thus, Opinion 756 concluded that a website or e-mail address does not qualify as a "principal law office address." Building on the reasoning of Opinion 756, NYSBA Op. 964 (2013) concluded that a "mailbox service address" also does not qualify as a "principal law office address" for purposes of Rule 7.1(h). As explained in Opinion 964, the intent of Rule 7.1(h) is to require all lawyer advertisements to "disclose the address of an office where the lawyers were present and available for contact, and where personal service or delivery of legal papers could be effected."[5]

The VLO, as used herein, has a physical street address where the Lawyer plans to make herself available for meetings with clients and where the Lawyer can receive service and delivery of legal papers. Accordingly, we conclude that the use of a VLO address in attorney advertising complies with the requirement of 7.1(h) to disclose a physical street address.

B. Use of a VLO Address Is Consistent with the Policies Underlying Rule 7.1(h)

Ethics opinions that discuss Rule 7.1(h) identify several reasons for the office address requirement. See, e.g., NYSBA Ethics Op. 756. First, disclosure of a physical address "should facilitate a prospective client's ability to make an intelligent selection of lawyer." Id. Second, a physical location enables members of the public or clients to meet with the lawyer, contact the lawyer by mail, and serve legal papers. Id. Third, as noted above, the absence of an address "could be misleading by suggesting a physical proximity to the recipient that does not in fact exist" or "the ability to serve in jurisdictions in which the advertising firm or lawyer is not qualified to practice." Id.

Each of these policy interests can be advanced by the use of a VLO. First, the fact that a lawyer uses a VLO may itself be a relevant factor in selecting or rejecting a particular lawyer. For example, a prospective client may conclude that a lawyer who uses a VLO can provide greater value due to lower overhead and other efficiencies. In addition, clients who are technologically savvy and who themselves may use similar facilities for their own businesses may be more comfortable with a lawyer who understands how those business models work. On the other hand, use of a VLO may be less appealing to clients that prefer their lawyers to work in more traditional office environments.

Second, the VLO – as defined herein – provides a physical location for clients or members of the public to contact, meet with or serve legal papers on the Lawyer. In view of the saturation of our society with mobile devices enabling voice and electronic communications as well as the numerous other communication options that emerging technologies have made available, the concern that a client might not be able contact a lawyer simply because the lawyer does not have a traditional brick-and-mortar law office is less compelling than in the past. In fact, a lawyer who uses a VLO may be at least as accessible as a lawyer who rents a dedicated physical office space. Imposing an inflexible requirement on lawyers to maintain a traditional brick-and-mortar office does not necessarily provide enhanced protection to clients or the public.

Third, we do not believe use of a VLO address in advertising is inherently misleading. Given the prevalence of alternative work arrangements (telecommuting, work-sharing, office-sharing, etc.), members of the public no longer assume that a physical street address is equivalent to a traditional, single-purpose, brick-and-mortar office. Nor do they assume that a lawyer is always present and available to meet at the address provided in the lawyer's advertising. As discussed further below, however, all lawyers (including those using VLOs) should take care not to mislead the public as to the nature of their office arrangements, accessibility, or availability for meetings.



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C. The Evolving Jurisprudence Surrounding New York Judiciary Law Section 470, While Not Directly on Point, is Instructive

New York ethics opinions have noted that the policy goals discussed above are the same or similar to those which animate New York Judiciary Law § 470 ("Section 470"). See, e.g., NYSBA Ethics Op. 756 (noting that "[t]he requirement of a street address in lawyer advertising . . . serves the same purposes as Judiciary Law § 470," such as "to ensure that attorneys practicing in this state are amenable to contact by their clients, adversaries and other interested parties" and to facilitate "personal service or delivery of legal papers and other correspondence").

Section 470 states that "[a] person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state." Historically, New York state courts have interpreted this provision to require New York-admitted lawyers who reside in adjoining states to maintain a bona fide physical law office in New York. SeeSchoenefeld v. New York, ___ F.3d ___, No. 11-4283-CV, 2014 WL 1362351, at *3 (2d Cir. 2014) (citing cases). In 2010, however, a solo practitioner licensed to practice law in New York, New Jersey and California challenged the constitutionality of Section 470, arguing that it violates the Privileges and Immunities Clause of the United States Constitution insofar as it requires non-resident New York admitted attorneys to maintain an "office for the transaction of law business" when resident New York admitted attorneys are not burdened with that requirement. Schoenefeld v. New York, 907 F. Supp. 2d 252 (N.D.N.Y. 2011). In 2011, the lower federal court issued a decision holding the office requirement unconstitutional. The state appealed to the Second Circuit. See id.

The Second Circuit recently determined that, in order to rule on the constitutionality of Section 470, it needed to certify the following question to the New York Court of Appeals: "Under New York Judiciary Law § 470, which mandates that a nonresident attorney maintain an 'office for the transaction of law business' within the state of New York, what are the minimum requirements necessary to satisfy that mandate?" 2014 WL 1362351, at *6. The Second Circuit noted that, as the statute is currently interpreted by the lower state courts, "it appears that Section 470 discriminates against nonresident attorneys with respect to their fundamental right to practice law in the state and, by virtue of that fact, its limitations on non-resident attorneys implicate the Privileges and Immunities Clause."[6] 2014 WL 1362351, at *4.

A fundamental premise of the Second Circuit's decision is that, unlike nonresidents, lawyers who reside in New York are not subject to a bona fide office requirement. As the court notes, "with respect to New York residents the Judiciary Law does not impose a specific obligation on an attorney to maintain an office for the transaction of law business in New York." Id. at *3. Furthermore, while the New York Rules require "that an attorney be adequately equipped to maintain a certain level of accessibility and communication with clients," there is "no authority specifically requiring New York residents to maintain any office at all." Id. Thus, according to the Second Circuit, a lawyer who is a New York resident "may set up her 'office' on the kitchen table in her studio apartment and not run afoul of New York law." Id.

While a conclusive interpretation of Section 470 awaits the decision of the New York Court of Appeals, one clear inference that can be drawn from the Second Circuit's ruling is that New York lawyers do not require a traditional office in order to maintain appropriate levels of "accessibility and communication with clients." This rationale is consistent with our view that Rule 7.1(h) does not require a conventional office and may be satisfied by a VLO.[7]

D. Use of a VLO Address Is Consistent with the Evolution of Modern Law Practice

Courts and enforcement authorities increasingly recognize that the economic and technological conditions of modern law practice justify some flexibility in practice arrangements. One example involves an attorney who was a member in good standing of the D.C. bar and was employed by a D.C. law firm, but resided in Cambridge, Massachusetts.SeeIn re Application of Carlton, 708 F. Supp. 2d 524 (D. Md. 2010). When the attorney applied to renew her membership in the Maryland bar, she identified the address of her D.C. law office as her "principal office." Id. at 525. The attorney's mail and phone calls went to the D.C. office. She met with clients in the D.C. office. However, she spent most of her time working from home in Cambridge or from an office space in Boston. The Chair of the Disciplinary and Admissions Committee of the District Court of Maryland denied her application, based on a Maryland rule that required her to be "a member in good standing of the highest court of any state (or the District of Columbia) in which [she] maintains [her] principal law office . . . ." Id. at 524-25. The District Court disagreed and granted the attorney's application to renew her membership in the Maryland Bar. The court concluded that her D.C.



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office met the requirements of Maryland's "principal office" rule, even though she was physically located in Massachusetts when performing many legal tasks. Said the court:

In recent years, the concept of a "principal law office" has evolved somewhat as a result of significant advances in technology which provide an attorney with the flexibility to carry out a variety of activities at different locations and under varying circumstances. The term does not necessarily mean continuous physical presence but, at a minimum, it requires some physical presence sufficient to assure accountability of the attorney to clients and to the court.

Id. at 526.

Recently, New Jersey grappled with whether to permit VLOs, and in 2013 changed its rules to allow them. These developments are instructive. Prior to 2013, a New Jersey court rule required that "a New Jersey attorney maintain a bona fide office for the practice of law." N.J. Eth. Op. 718, N.J. Eth. Op. 41, 2010 WL 1829019, at *1 (2010) ("N.J. Ethics Op. 718") (quoting former R. 1:21-1(a)). N.J. Ethics Op. 718 interpreted the "bona fide office" requirement to mean a fixed specific full-time physical location where "clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time." Id. By contrast, a VLO "refers to a type of time-share arrangement whereby one leases the right to reserve space in an office building on an hourly or daily basis." Id. The opinion continued:

[A]n attorney's use of a "virtual office" is by appointment only. The office building ordinarily has a receptionist with a list of all lessees who directs visitors to the appropriate room at the appointed time. Depending on the terms of the lease, the receptionist may also receive and forward mail addressed to lessees or receive and forward telephone calls to lessees.

Id. N.J. Op. 718 concluded that such an office was not a "bona fide office" because, inter alia, "the attorney generally is not present during normal business hours but will only be present when he or she has reserved the space" and "the receptionist at a 'virtual office' does not qualify as a 'responsible person acting on the attorney's behalf' who can 'answer questions posed by the courts, clients or adversaries.'" Id.

In the wake of N.J. Op. 718, the Court amended Rule 1:21-1(a) to eliminate the bona fide office requirement and to permit the use of a VLO. Rule 1:21-1(a) now provides:

An attorney need not maintain a fixed physical location for the practice of law, but must structure his or her practice in such a manner as to assure, as set forth in RPC 1.4, prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice, provided that an attorney must designate one or more fixed physical locations where client files and the attorney's business and financial records may be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served on the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto.[8]

In contrast to New Jersey's former bona fide office rule, New York's Rule 7.1(h) merely requires a lawyer to designate a "principal law office address" in advertising – a requirement that has been expanded to mean a "physical street address" through the interpretation of various ethics opinions. Rule 7.1(h) does not, in our view, impose a requirement to maintain a "bona fide" office as that term was formerly used in New Jersey. To engraft a more burdensome "bona fide office" requirement onto New York Rule 7.1(h) via an interpretation of "physical street address" (which is itself an interpretation of Rule 7.1(h)) is not justified. If we were to read such a requirement into Rule 7.1(h), busy solo practitioners who spend most days in court and may have no full-time support staff would be in jeopardy of violating the rule every day. Requiring full-time support staff or any other significant office expense is not necessary to further the policy goals of 7.1(h) and should not be imposed under guise of "interpreting" the Rule.

Finally, economic conditions in the legal world and technological developments persuade us that we should not create obstacles to the use of VLOs as long as the interests of clients, the courts, and the legal system are protected. Economic conditions and technological advances justify giving lawyers flexibility. Online research eliminates the need for a physical library. By using an Internet connection, a laptop computer, a mobile phone, and other devices, a



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lawyer can communicate easily with colleagues, clients, and adversaries from any location, at any time. Our interpretation of the Rules should recognize these technological developments.[9]

II. Is a New York Lawyer Permitted to Use the Street Address of a VLO on Her BusinessCards, Letterhead, or Law Firm Website?

The Lawyer also asks whether she may use the VLO address on her letterhead, business cards and law firm website. As noted above, NYSBA Ethics Op. 964 concluded that business cards and letterhead do not need to list a physical street address, unless they are used for advertising purposes. Even when business cards and letterhead are not used for advertising purposes, however, they must not be deceptive or misleading. See Rule 8.4(c) (providing that a "lawyer or law firm shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation"). As with all attorney communications, any information contained on an attorney's website, letterhead and business cards must be truthful.

As discussed above, in our view the use of a VLO address is not inherently misleading. Accordingly, we conclude that a lawyer may use a VLO address on letterhead and business cards, so long as the use is not misleading under the circumstances. The same conclusion applies to the law firm website.

III. Additional Ethical Considerations When Using a VLO

Although we approve the use of VLOs in appropriate circumstances, we recognize that they carry with them certain challenges that may not be present in a traditional law firm office. Attorneys who elect to use VLOs should be mindful of these challenges and should not allow them to become obstacles to fulfilling their ethical obligations. We believe that attorneys should pay particular attention to the following ethical concerns when using a VLO.

A. Supervision of Subordinate Lawyers and Nonlawyers

Under Rules 5.1 and 5.3, law firms and lawyers are responsible for supervising the conduct of subordinate lawyers and nonlawyers and ensuring that their conduct complies with the Rules. These obligations apply to attorneys who use VLOs. See Cal. Op. 2012-184, 2012 WL 3182985, at *7 (noting that "in all law offices, including this hypothetical VLO, attorneys have a duty to supervise subordinate attorneys, and non-attorney employees or agents"). Given the differences between a VLO and a traditional law office, however, it may be more challenging for lawyers who use VLOs to comply with their supervisory obligations. As explained in Cal. Op. 2012-184, "supervision [in the context of a VLO] can be a challenge if Attorney and her various subordinate attorneys and employees operate out of several different physical locations." Id. Furthermore, as a practical matter, lawyers have less control over the conduct of VLO personnel than they would over their own direct employees in a conventional physical law firm office. Thus, lawyers who use VLOs may need to take additional precautions to ensure that they are fulfilling their supervisory obligations. Notwithstanding the differences between VLOs and traditional law firms, the "[a]ttorney must take reasonable measures to ascertain that everyone under her supervision is complying with the Rules of Professional Conduct, including the duties of confidentiality and competence." Id. at *7.

B. Confidentiality

Rule 1.6(a) prohibits a lawyer from "knowingly revealing confidential information," absent informed consent or other exception. In addition, Rule 1.6(c) provides that a "lawyer shall exercise reasonable care to prevent the lawyer's employees, associates and others whose services are utilized by the lawyer from disclosing or using confidential information of a client." As observed in NYSBA Op. 794 (2006):

[I]n opinions addressing office sharing among separate law firms or lawyers in solo practice … [w]e and others have found that, depending on the facts and circumstances of a particular situation, [the confidentiality Rules] may prevent lawyers who practice separately but share office space from representing clients with differing interests. Under these opinions, with appropriate safeguards, and assuming that the arrangement is not misleading to prospective and actual clients, the sharing of merely the same leasehold, a library, an electronic research account, restrooms, a central phone system with individual lines, or a common receptionist is not sufficient, alone or in combination, to merge lawyers in separate practices into one. Acceptance of these organizations presupposes,



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however, that the confidences and secrets of the clients of each separate practice will not be shared or appear to be subject to sharing with lawyers working on a conflicting matter.[10]

A lawyer who uses the shared services and office space of a VLO to perform legal services and to meet with clients, witnesses, or other third parties must take reasonable steps to ensure that she does not expose or put the client's confidential information at risk. This should include, as appropriate, training and educating staff at the VLO on these obligations. See Rule 5.3(a) (requiring lawyers to supervise the work on nonlawyers).

C. Communication

Rule 1.4 requires lawyers to communicate with clients and keep them apprised of the status of their legal matters. Lawyers who use VLOs must be particularly mindful of these ethical obligations, given that the lawyers may frequently be away from the physical location that serves as their business address. Lawyers who use VLOs should also take steps to ensure that they are available to meet with and communicate with their clients and respond promptly to their requests for information.

D. Personal Delivery and Acceptance of Service

Finally, because a significant concern underlying Judiciary Law § 470 and Rule 7.1(h) is the availability of an address for purposes of personal delivery and acceptance of service of process, a lawyer using the VLO's services also should provide for personal delivery and acceptance of service. This can be done either by: (a) identifying an agent for these purposes or (b) arranging for the VLO to accept service of process on the attorney's behalf. Where a VLO is authorized to accept service of process, the attorney must ensure that the VLO communicates with the attorney concerning the receipt of any materials with sufficient promptness to meet all professional and ethical requirements.

CONCLUSION

A New York lawyer may designate the street address of a VLO as the "principal law office address" for the purposes of Rule 7.1(h). In addition, the lawyer may use the VLO address on business cards, letterhead and law firm website. A New York lawyer who uses a VLO must also comply with all other ethical obligations, including duties under Rules 1.4, 1.6, 5.1, 5.3, 7.1(a), 7.1(h), 7.5(a)(4), 8.4(a) and 8.4(c).

[1] The following ethics opinions from outside New York state highlight the broad range of ethics issues that may be raised by the use of VLOs and other nontraditional office arrangements: Pennsylvania Bar Committee on Legal Ethics and Professional Responsibility Formal Opinion 2010-200 ("Pa. Ethics Op. 2010-200") (applying the following rules to Pennsylvania lawyers who maintain virtual law offices: Pa. Rules 1.4 (Communication), 1.14 (Clients with Diminished Capacity), 1.6 (Confidentiality of Information), 1.18 (Duties to Prospective Clients), 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), 7.1 (Communications Concerning a Lawyer's Services), 7.2 (Advertising) and 7.5 (Firm Names and Letterheads); California State Bar Standing Committee on Professional Responsibility and Conduct Formal Opinion 2012-184 ("Cal. Ethics Op. 2012-184"), 2012 WL 3182985 (applying the following California rules to VLOs: Cal. Rules 1-100, 1-300 (unauthorized practice of law), 3-100 (Confidentiality), 3-110 (Competence), 3-310 (Conflicts), and 3-500 (Communication)); North Carolina State Bar Formal Ethics Opinion 2005-10 "Virtual Law Practice and Unbundled Legal Services" ("N.C. Ethics Op. 2005-10") (approved January 2006), 2006 WL 980309, at *1 (identifying "key concerns"); Illinois State Bar Opinion 12-09 "Unauthorized Practice of Law; Multijurisdictional Practice; Law Firms," 2012 WL 979607, at *3 ("The advent of the virtual law office, or online legal practice, has raised several ethical challenges" which "should be analyzed under the framework of the Rules of Professional Conduct.") (citation omitted). Issues arising under statutes, regulations, court rules and other laws and rules may also need to be considered.

[2] A VLO as it is used in this opinion should be distinguished from a "Virtual Law Practice," which typically has no physical address and operates primarily over the Internet. Virtual Law Practice is also known by terms such as



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"Digital Law, Online Law, [and] eLawyering." See, e.g., Cal. Op 2012-184 at 2. Although a Virtual Law Practice might make use of the facilities of a VLO to conduct business, this opinion does not address the ethical issues associated with operating a Virtual Law Practice.

[3] An "Advertisement" is defined as "any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers." Rule 1.0(a).

[4] NYSBA Ethics Op. 756 pre-dates the adoption of the New York Rules, which became effective in 2009, replacing the New York Code of Professional Responsibility (the "Code"). The language of Rule 7.1(h) is identical to the corresponding Code provision, however. Consequently, prior interpretations of this provision continue to be influential.

[5] By contrast, Opinion 964 concluded that business cards and letterhead do not need to list a physical street address, unless they are used for advertising purposes. Business cards and letterhead are governed primarily by Rule 7.5. An attorney may list a "mailbox service address" on business cards or letterhead that are not used for advertising purposes, provided they are not deceptive. NYSBA Ethics Op. 964. For example, "a mailing address that is in a community other than the one in which the lawyer's physical office is located, or that appears to be a physical address when it is in fact only a mail drop, could be misleading if not adequately explained." Id. This aspect of the opinion is relevant to the inquiring lawyer's second question, discussed further below.

[6] At least one New York state court decision addressed the "office" requirement of Section 470 after the federal district court declared it unconstitutional but before the Second Circuit certified the question to the New York Court of Appeals. SeeEIC Associates, Inc. v. Nacirema Environmental Services Company, Inc., No. 652308/11, 2012 WL 10008215 (N.Y. Sup. Aug. 27, 2012) (Schweitzer, J.) (noting that the federal district court decision in Schoenefeld"is not binding on this court" and referring to a 1998 First Department decision, Lichtenstein v. Emerson, 251 A.D.2d 64 (1998), which ruled that Section 470 does not violate the Privileges and Immunities Clause). EIC Associates did not discuss of what constitutes an "office" and did not discuss VLOs.

[7] Significantly, the Second Circuit's decision contains the following cautionary message: "If the New York Court of Appeals accepts and answers our certified question(s), that answer, in all likelihood, dictates the outcome of the constitutional privileges and immunities analysis we have commenced and must complete as we decide the appeal before us." Id. at *5 (emphasis added). The implication is that, if Section 470 is interpreted to require nonresident lawyers to maintain a bona fide office, the statute may well be unconstitutional, because it creates a substantially higher burden on the practice of law for nonresidents than for residents. Conversely, if the Court of Appeals concludes that the goals of Section 470 may be met by something less than a bona fide office, the statute may yet pass constitutional muster.

Unlike the mandate from the Second Circuit, our opinion here does not purport to articulate a minimum requirement for compliance with Rule 7.1(h). Conceivably, modern law practice may enable lawyers to comply with all requirements of the New York Rules (including not only lawyer advertising rules, but also rules governing competence, diligence, communication, etc.) and may enable lawyers to satisfy the policy goals of those rules (availability to clients, acceptance of legal process, etc.) without any physical street address at all. For a discussion of relevant issues, see, e.g., Pa. Ethics Op. 2010-200; Cal. Ethics Op. 2012-184; N.C. Ethics Op. 2005-10; Stephen Gillers, A Profession If You Can Keep It: How Information Technology and Fading Borders Are Reshaping the Law Marketplace and What We Should Do About It, 63 Hastings Law Journal No. 4 (May 2012).

[8] The amended New Jersey rule can be found at: https://www.judiciary.state.nj.us/rules/r1-21.htm (last visited May 21, 2014).

[9]See generally S. Gillers, A Profession If You Can Keep It, supra, n.7; Jordana Hausman, Who's Afraid of the Virtual Lawyers? The Role of Legal Ethics in the Growth and Regulationof Virtual Law Offices, 25 Geo. J. Legal Eth. 575 (Summer 2012).

[10]See also, NYSBA Ethics Op. 939 (2012) (independent lawyers sharing office space may share computer for client-related information if they exercise reasonable care to assure that confidential information is not disclosed).



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Virginia State Bar Legal Ethics Opinion 1872

March 29, 2013

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LEGAL ETHICS OPINION 1872 VIRTUAL LAW OFFICE AND USE OF EXECUTIVE OFFICE SUITES

This opinion is an examination of the ethical issues involved in a lawyer or firm’s use of a virtual law office, including cloud computing, and/or executive office suites. These issues include marketing, supervision of lawyers and nonlawyers in the firm, and competence and confidentiality when using technology to interact with or serve clients.

A virtual law practice involves a lawyer/firm interacting with clients partly or exclusively via secure Internet portals, emails, or other electronic messaging.1 This practice may be combined with an executive office rental, where a lawyer rents access to a shared office suite or conference room. This space is generally either unstaffed or staffed by an employee of the rental company who provides basic support services to all users of the space, rather than by an employee of the lawyer. The space is also not exclusive to the lawyer – even if she has exclusive access to a particular office or conference room, the suite is open to all other “tenants.” Lawyers who maintain a virtual practice, who work from home, or who wish to expand their geographic profile without the higher costs of exclusive office space and staff all use these spaces as client meeting locations. In other words, virtual law offices and executive office suites do not always go together, but they frequently do.

APPLICABLE RULES AND OPINIONS

The applicable Rules of Professional Conduct are Rules 1.12, 1.6(a)3, 5.1(a) and (b)4, 5.3(a) and (b)5, and 7.16. The relevant legal ethics opinions are LEOs 1600, 1791, 1818, and 1850. Finally,

1 Stephanie Kimbro, a practitioner and scholar of virtual law offices, defines a virtual law practice as one where “[t]he use of an online client portal allows for the initiation of the attorney/client relationship through to completion and payment for legal services. Attorneys operate an online backend law office as a completely web-based practice or in conjunction with a traditional law office.” http://virtuallawpractice.org/about/, accessed Jan. 22, 2013.

2 Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

3 Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). (b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal: *** (6) information to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided the lawyer exercises due care in the selection of the agency, advises the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential.

4 Rule 5.1 Responsibilities of Partners and Supervisory Lawyers (a) A partner in a law firm, or a lawyer who individually or together with other lawyers possesses managerial authority, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

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Regulation 7 Governing Applications for Admission to the Virginia Bar Pursuant to Rule 1A:1 of the Supreme Court of Virginia applies to lawyers who are admitted or seeking admission by motion to the Bar of Virginia7.

ANALYSIS

Virtual law offices involve issues that are present in all types of law offices – confidentiality, communication with clients, and supervision of employees – but that manifest themselves in a new way in this context. See also LEO 1850 (exploring similar concerns in context of outsourcing legal support services).

A lawyer must always act competently to protect the confidentiality of clients’ information, regardless of how that information is stored/transmitted, but this task may be more difficult when the information is being transmitted and/or stored electronically through third-party software and storage providers. The lawyer is not required, of course, to absolutely guarantee that a breach of confidentiality cannot occur when using an outside service provider. Rule 1.6 only requires the lawyer to act with reasonable care to protect information relating to the representation of a client. When a lawyer is using cloud computing or any other technology that involves the use of a third party for the storage or transmission of data, the lawyer must

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

5 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner or a lawyer who individually or together with other lawyers possesses managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and…

6 Rule 7.1 Communications Concerning a Lawyer’s Services (a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. ***

7 7. Intent to Practice Full Time in Virginia. An applicant must intend, promptly after being admitted to practice in Virginia without examination, to establish his or her office in Virginia and to practice full time from such Virginia office. Full time is defined as being engaged in the active practice of law (as defined above) as one’s primary occupation for at least thirty-five (35) hours weekly and having an office where clients can be seen on the premises. The Board shall not approve an application unless the applicant has verifiable plans to practice in Virginia (i.e., a job offer from a Virginia firm, a relocation to the Virginia office of the applicant’s firm, an executed lease for office space in Virginia, etc.). Practice from one’s residence shall not constitute satisfactory evidence of intent to practice law full time unless the applicant’s residence is in a zoning classification which permits seeing clients on the premises and displaying an exterior sign identifying the law office. Virtual offices or shared occupancy arrangements shall not be acceptable. In addition, an applicant shall not divide his or her time between an office within Virginia and one in another jurisdiction. An applicant who is a member of or associated with a firm which has offices outside Virginia must be resident at such firm’s Virginia office, shall not maintain an office at a location outside Virginia, and may work at one of his or her firm’s other offices only on an occasional and not on a regular basis. The Court will monitor to determine whether an applicant maintains his or her Virginia office.

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follow Rule 1.6(b)(6) and exercise care in the selection of the vendor, have a reasonable expectation that the vendor will keep the data confidential and inaccessible by others, and instruct the vendor to preserve the confidentiality of the information. The lawyer will have to examine the third party provider’s use of technology and terms of service in order to know whether it adequately safeguards client information, and if the lawyer is not able to make this assessment on her own, she will have to consult with someone qualified to make that determination. 8

Similarly, although the method of communication does not affect the lawyer’s duty to communicate with the client, if the communication will be conducted primarily or entirely electronically, the lawyer may need to take extra precautions to ensure that communication is adequate and that it is received and understood by the client. The Committee previously concluded in LEO 1791 that a lawyer could permissibly represent clients with whom he had no in-person contact, because Rule 1.4 “in no way dictates whether the lawyer should provide that information in a meeting, in writing, in a phone call, or in any particular form of communication. In determining whether a particular attorney has met this obligation with respect to a particular client, what is critical is what information was transmitted, not how.” On the other hand, one of the aspects of communication required by Rule 1.4 is that a lawyer must “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Use of the word “explain” necessarily implies that the lawyer must take some steps beyond merely providing information to make sure that the client actually is in a position to make informed decisions. A lawyer may not simply upload information to an Internet portal and assume that her duty of communication is fulfilled without some confirmation from the client that he has received and understands the information provided.

Finally, the technology that enables a lawyer to practice “virtually” without any face-to-face contact with clients can also allow lawyers and their staff to work in separate locations rather than together in centralized offices. As with other issues discussed in this opinion, a partner or other managing lawyer in a firm always has the same responsibility to take reasonable steps to supervise subordinate lawyers and nonlawyer assistants, but the meaning of “reasonable” steps may vary depending upon the structure of the law firm and its practice. Additional measures may be necessary to supervise staff who are not physically present where the lawyer works.

The use of an executive office/suite rental or any other kind of shared, non-exclusive space, either in conjunction with a virtual law practice or as an addition to a “traditional” office-based practice, raises a separate issue. A non-exclusive office space or virtual law office that is advertised as a location of the firm must be an office where the lawyer provides legal services. Depending on the facts and circumstances, it may be improper under Rule 7.1 for a lawyer to list or hold out a rented office space as her “law office” on letterhead or other public communications. Factors to be considered in making this determination include the frequency with which the lawyer uses the space, whether nonlawyers also use the space, and whether

8 See LEO 1818, where the Committee concluded that a lawyer could permissibly store files electronically and destroy all paper documents as long as the client was not prejudiced by this practice, but noted that the lawyer may need to consult outside technical assistance and support for assistance in using such a system.

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signage indicates that the space is used as a law office. In addition, a lawyer may not list alternative or rented office spaces in public communications for the purpose of misleading prospective clients into believing that the lawyer has a more geographically diverse practice and/or more firm resources than is actually the case. As discussed above in the context of Internet-based service providers, a lawyer must also pay careful attention to protecting confidentiality if any client information is stored or received in a shared space staffed by nonlawyers who are not employees of the law firm and may not be aware of the nature or extent of the duty of confidentiality.

For lawyers who are licensed to practice in Virginia by motion rather than by bar exam, Regulation 7 of the Regulations Governing Applications for Admission to the Virginia Bar Pursuant to Rule 1A:1 of the Supreme Court of Virginia creates an additional difficulty in using an executive office rental or virtual office. This Regulation requires that a lawyer who is seeking admission, or who is already admitted, by motion maintain an office in Virginia where clients can be seen on the premises, and specifically provides that virtual office or shared occupancy arrangements are not acceptable for purposes of satisfying the office requirement.9 Accordingly, a lawyer who is admitted by motion should first ensure that any office space arrangement complies with Regulation 7 before there is any need to consider the ethics issues raised.

This opinion is advisory only and is not binding on any court or tribunal.

Committee Opinion March 29, 2013

9 But see Proposed Amendments to Rules 1A:1 and 1A:3, proposed October 22, 2012, available at http://courts.state.va.us/news/draft_revisions_rules/2012_rules_1_3_draft.pdf (proposing change to requirements for admission by waiver from “full-time” practice requirement to “predominant” practice requirement).

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THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT FORMAL OPINION NO. 2010-179

ISSUE: Does an attorney violate the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be susceptible to unauthorized access by third parties?

DIGEST: Whether an attorney violates his or her duties of confidentiality and competence when using technology to transmit or store confidential client information will depend on the particular technology being used and the circumstances surrounding such use. Before using a particular technology in the course of representing a client, an attorney must take appropriate steps to evaluate: 1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security; 2) the legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information; 3) the degree of sensitivity of the information; 4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product; 5) the urgency of the situation; and 6) the client’s instructions and circumstances, such as access by others to the client’s devices and communications.

AUTHORITIES INTERPRETED: Rules 3-100 and 3-110 of the California Rules of Professional Conduct.

Business and Professions Code section 6068, subdivision (e)(1).

Evidence Code sections 917(a) and 952.

STATEMENT OF FACTS

Attorney is an associate at a law firm that provides a laptop computer for his use on client and firm matters and which includes software necessary to his practice. As the firm informed Attorney when it hired him, the computer is subject to the law firm’s access as a matter of course for routine maintenance and also for monitoring to ensure that the computer and software are not used in violation of the law firm’s computer and Internet-use policy. Unauthorized access by employees or unauthorized use of the data obtained during the course of such maintenance or monitoring is expressly prohibited. Attorney’s supervisor is also permitted access to Attorney’s computer to review the substance of his work and related communications.

Client has asked for Attorney’s advice on a matter. Attorney takes his laptop computer to the local coffee shop and accesses a public wireless Internet connection to conduct legal research on the matter and email Client. He also takes the laptop computer home to conduct the research and email Client from his personal wireless system.

DISCUSSION

Due to the ever-evolving nature of technology and its integration in virtually every aspect of our daily lives, attorneys are faced with an ongoing responsibility of evaluating the level of security of technology that has increasingly become an indispensable tool in the practice of law. The Committee’s own research – including conferring with computer security experts – causes it to understand that, without appropriate safeguards (such as firewalls, secure username/password combinations, and encryption), data transmitted wirelessly can be intercepted and read with increasing ease. Unfortunately, guidance to attorneys in this area has not kept pace with technology. Rather than engage in a technology-by-technology analysis, which would likely become obsolete shortly, this

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opinion sets forth the general analysis that an attorney should undertake when considering use of a particular form of technology.

1. The Duty of Confidentiality

In California, attorneys have an express duty “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”1/ (Bus. & Prof. Code, § 6068, subd. (e)(1).) This duty arises from the relationship of trust between an attorney and a client and, absent the informed consent of the client to reveal such information, the duty of confidentiality has very few exceptions. (Rules Prof. Conduct, rule 3-100 & discussion [“[A] member may not reveal such information except with the consent of the client or as authorized or required by the State Bar Act, these rules, or other law.”].)2/

Unlike Rule 1.6 of the Model Rules of Professional Conduct (“MRPC”), the exceptions to the duty of confidentiality under rule 3-100 do not expressly include disclosure “impliedly authorized in order to carry out the representation.” (MRPC, Rule 1.6.) Nevertheless, the absence of such language in the California Rules of Professional Conduct does not prohibit an attorney from using postal or courier services, telephone lines, or other modes of communication beyond face-to-face meetings, in order to effectively carry out the representation. There is a distinction between actually disclosing confidential information to a third party for purposes ancillary to the representation,3/ on the one hand, and using appropriately secure technology provided by a third party as a method of communicating with the client or researching a client’s matter,4/ on the other hand.

Section 952 of the California Evidence Code, defining “confidential communication between client and lawyer” for purposes of application of the attorney-client privilege, includes disclosure of information to third persons “to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) While the duty to protect confidential client information is broader in scope than the attorney-client privilege (Discussion [2] to rule 3-100; Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621, fn. 5 [120 Cal.Rptr. 253]), the underlying principle remains the same, namely, that transmission of information through a third party reasonably necessary for purposes of the representation should not be deemed to have destroyed the confidentiality of the information. (See Cal. State Bar Formal Opn. No. 2003-161 [repeating the Committee’s prior observation “that the duty of confidentiality and the evidentiary privilege share the same basic policy foundation: to encourage clients to disclose all possibly pertinent information to their attorneys so that the attorneys may effectively represent the clients’ interests.”].) Pertinent here, the manner in which an attorney acts to safeguard confidential client information is governed by the duty of competence, and determining whether a third party has the ability to access and use confidential client information in a manner that is unauthorized by the client is a subject that must be considered in conjunction with that duty.

2. The Duty of Competence

Rule 3-110(A) prohibits the intentional, reckless or repeated failure to perform legal services with competence. Pertinent here, “competence” may apply to an attorney’s diligence and learning with respect to handling matters for clients. (Rules Prof. Conduct, rule 3-110(B).) The duty of competence also applies to an attorney’s “duty to supervise the work of subordinate attorney and non-attorney employees or agents.” (Discussion to rule 3-110.)

1/ “Secrets” include “[a]ny ‘information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.’” (Cal. State Bar Formal Opn. No. 1981-58.)

2/ Unless otherwise indicated, all future references to rules in this opinion will be to the Rules of Professional Conduct of the State Bar of California. 3/ In this regard, compare Cal. State Bar Formal Opn. No. 1971-25 (use of an outside data processing center without the client’s consent for bookkeeping, billing, accounting and statistical purposes, if such information includes client secrets and confidences, would violate section 6068, subdivision (e)), with Los Angeles County Bar Assn. Formal Opn. No. 374 (1978) (concluding that in most circumstances, if protective conditions are observed, disclosure of client’s secrets and confidences to a central data processor would not violate section 6068(e) and would be the same as disclosures to non-lawyer office employees).4/ Cf. Evid. Code, § 917(b) (“A communication … does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.”).

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With respect to acting competently to preserve confidential client information, the comments to Rule 1.6 of the MRPC5/ provide:

[16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3.

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

(MRPC, cmts. 16 & 17 to Rule 1.6.) In this regard, the duty of competence includes taking appropriate steps to ensure both that secrets and privileged information of a client remain confidential and that the attorney’s handling of such information does not result in a waiver of any privileges or protections.

3. Factors to Consider

In accordance with the duties of confidentiality and competence, an attorney should consider the following before using a specific technology:6/

a) The attorney’s ability to assess the level of security afforded by the technology, including withoutlimitation:

i) Consideration of how the particular technology differs from other media use. For example, while onecourt has stated that, “[u]nlike postal mail, simple e-mail generally is not ‘sealed’ or secure, and can beaccessed or viewed on intermediate computers between the sender and recipient (unless the message isencrypted)” (American Civil Liberties Union v. Reno (E.D.Pa. 1996) 929 F.Supp. 824, 834, aff'd (1997)521 U.S. 844 [117 S.Ct. 2329]), most bar associations have taken the position that the risks of a thirdparty’s unauthorized review of email (whether by interception or delivery to an unintended recipient)are similar to the risks that confidential client information transmitted by standard mail service will beopened by any of the many hands it passes through on the way to its recipient or will be misdirected7/

(see, e.g., ABA Formal Opn. No. 99-4138/ [concluding that attorneys have a reasonable expectation ofprivacy in email communications, even if unencrypted, “despite some risk of interception anddisclosure”]; Los Angeles County Bar Assn. Formal Opn. No. 514 (2005) [“Lawyers are not required

5/ In the absence of on-point California authority and conflicting state public policy, the MRPC may serve as guidelines. (City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal. 4th 839, 852 [43 Cal.Rptr.3d 771].) 6/ These factors should be considered regardless of whether the attorney practices in a law firm, a governmental agency, a non-profit organization, a company, as a sole practitioner or otherwise. 7/ Rule 1-100(A) provides that “[e]thics opinions and rules and standards promulgated by other jurisdictions and bar associations may . . . be considered” for professional conduct guidance. 8/ In 1999, the ABA Committee on Ethics and Professional Responsibility reviewed state bar ethics opinions across the country and determined that, as attorneys’ understanding of technology has improved, the opinions generally have transitioned from concluding that use of Internet email violates confidentiality obligations to concluding that use of unencrypted Internet email is permitted without express client consent. (ABA Formal Opn. No. 99-413 [detailing various positions taken in state ethics opinions from Alaska, Washington D.C., Kentucky, New York, Illinois, North Dakota, South Carolina, Vermont, Pennsylvania, Arizona, Iowa and North Carolina].)

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to encrypt e-mail containing confidential client communications because e-mail poses no greater risk of interception and disclosure than regular mail, phones or faxes.”]; Orange County Bar Assn. Formal Opn. No. 97-0002 [concluding use of encrypted email is encouraged, but not required].) (See also City of Reno v. Reno Police Protective Assn. (2003) 118 Nev. 889, 897-898 [59 P.3d 1212] [referencing an earlier version of section 952 of the California Evidence Code and concluding “that a document transmitted by e-mail is protected by the attorney-client privilege as long as the requirements of the privilege are met.”].)

ii) Whether reasonable precautions may be taken when using the technology to increase the level ofsecurity.9/ As with the above-referenced views expressed on email, the fact that opinions differ onwhether a particular technology is secure suggests that attorneys should take reasonable steps as aprecautionary measure to protect against disclosure.10/ For example, depositing confidential client mailin a secure postal box or handing it directly to the postal carrier or courier is a reasonable step for anattorney to take to protect the confidentiality of such mail, as opposed to leaving the mail unattended inan open basket outside of the office door for pick up by the postal service. Similarly, encrypting emailmay be a reasonable step for an attorney to take in an effort to ensure the confidentiality of suchcommunications remain so when the circumstance calls for it, particularly if the information at issue ishighly sensitive and the use of encryption is not onerous. To place the risks in perspective, it shouldnot be overlooked that the very nature of digital technologies makes it easier for a third party tointercept a much greater amount of confidential information in a much shorter period of time thanwould be required to transfer the same amount of data in hard copy format. In this regard, if anattorney can readily employ encryption when using public wireless connections and has enabled his orher personal firewall, the risks of unauthorized access may be significantly reduced.11/ Both of thesetools are readily available and relatively inexpensive, and may already be built into the operatingsystem. Likewise, activating password protection features on mobile devices, such as laptops andPDAs, presently helps protect against access to confidential client information by a third party if thedevice is lost, stolen or left unattended. (See David Ries & Reid Trautz, Law Practice Today,“Securing Your Clients’ Data While On the Road,” October 2008 [noting reports that “as many as 10%of laptops used by American businesses are stolen during their useful lives and 97% of them are neverrecovered”].)

iii) Limitations on who is permitted to monitor the use of the technology, to what extent and on whatgrounds. For example, if a license to use certain software or a technology service imposes arequirement of third party access to information related to the attorney’s use of the technology, theattorney may need to confirm that the terms of the requirement or authorization do not permit the thirdparty to disclose confidential client information to others or use such information for any purpose otherthan to ensure the functionality of the software or that the technology is not being used for an improperpurpose, particularly if the information at issue is highly sensitive.12/ “Under Rule 5.3 [of the MRPC],a lawyer retaining such an outside service provider is required to make reasonable efforts to ensure that

9/ Attorneys also should employ precautions to protect confidential information when in public, such as ensuring that the person sitting in the adjacent seat on an airplane cannot see the computer screen or moving to a private location before discussing confidential information on a mobile phone. 10/ Section 60(1)(b) of the Restatement (Third) of The Law Governing Lawyers provides that “a lawyer must take steps reasonable in the circumstances to protect confidential client information against impermissible use or disclosure by the lawyer’s associates or agents that may adversely affect a material interest of the client or otherwise than as instructed by the client.” 11/ Similarly, this Committee has stated that if an attorney is going to maintain client documents in electronic form, he or she must take reasonable steps to strip any metadata containing confidential information of other clients before turning such materials over to a current or former client or his or her new attorney. (See Cal. State Bar Formal Opn. 2007-174.) 12/ A similar approach might be appropriate if the attorney is employed by a non-profit or governmental organization where information may be monitored by a person or entity with interests potentially or actually in conflict with the attorney’s client. In such cases, the attorney should not use the technology for the representation, absent informed consent by the client or the ability to employ safeguards to prevent access to confidential client information. The attorney also may need to consider whether he or she can competently represent the client without the technology.

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the service provider will not make unauthorized disclosures of client information. Thus when a lawyer considers entering into a relationship with such a service provider he must ensure that the service provider has in place, or will establish, reasonable procedures to protect the confidentiality of information to which it gains access, and moreover, that it fully understands its obligations in this regard. [Citation.] In connection with this inquiry, a lawyer might be well-advised to secure from the service provider in writing, along with or apart from any written contract for services that might exist, a written statement of the service provider's assurance of confidentiality.” (ABA Formal Opn. No. 95-398.)

Many attorneys, as with a large contingent of the general public, do not possess much, if any, technological savvy. Although the Committee does not believe that attorneys must develop a mastery of the security features and deficiencies of each technology available, the duties of confidentiality and competence that attorneys owe to their clients do require a basic understanding of the electronic protections afforded by the technology they use in their practice. If the attorney lacks the necessary competence to assess the security of the technology, he or she must seek additional information or consult with someone who possesses the necessary knowledge, such as an information technology consultant.13/ (Cf. Rules Prof. Conduct, rule 3-110(C) [“If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.”].)

b) Legal ramifications to third parties of intercepting, accessing or exceeding authorized use of anotherperson’s electronic information. The fact that a third party could be subject to criminal charges or civilclaims for intercepting, accessing or engaging in unauthorized use of confidential client information favorsan expectation of privacy with respect to a particular technology. (See, e.g., 18 U.S.C. § 2510 et seq.[Electronic Communications Privacy Act of 1986]; 18 U.S.C. § 1030 et seq. [Computer Fraud and AbuseAct]; Pen. Code, § 502(c) [making certain unauthorized access to computers, computer systems andcomputer data a criminal offense]; Cal. Pen. Code, § 629.86 [providing a civil cause of action to “[a]nyperson whose wire, electronic pager, or electronic cellular telephone communication is intercepted,disclosed, or used in violation of [Chapter 1.4 on Interception of Wire, Electronic Digital Pager, orElectronic Cellular Telephone Communications].”]; eBay, Inc. v. Bidder’s Edge, Inc. (N.D.Cal. 2000) 100F.Supp.2d 1058, 1070 [in case involving use of web crawlers that exceeded plaintiff’s consent, court stated“[c]onduct that does not amount to a substantial interference with possession, but which consists ofintermeddling with or use of another’s personal property, is sufficient to establish a cause of action fortrespass to chattel.”].)14/

c) The degree of sensitivity of the information. The greater the sensitivity of the information, the less risk anattorney should take with technology. If the information is of a highly sensitive nature and there is a riskof disclosure when using a particular technology, the attorney should consider alternatives unless the clientprovides informed consent.15/ As noted above, if another person may have access to the communicationstransmitted between the attorney and the client (or others necessary to the representation), and may have aninterest in the information being disclosed that is in conflict with the client’s interest, the attorney shouldtake precautions to ensure that the person will not be able to access the information or should avoid usingthe technology. These types of situations increase the likelihood for intrusion.

13/ Some potential security issues may be more apparent than others. For example, users of unsecured public wireless connections may receive a warning when accessing the connection. However, in most instances, users must take affirmative steps to determine whether the technology is secure. 14/ Attorneys also have corresponding legal and ethical obligations not to invade the confidential and privileged information of others. 15/ For the client’s consent to be informed, the attorney should fully advise the client about the nature of the information to be transmitted with the technology, the purpose of the transmission and use of the information, the benefits and detriments that may result from transmission (both legal and nonlegal), and any other facts that may be important to the client’s decision. (Los Angeles County Bar Assn. Formal Opn. No. 456 (1989).) It is particularly important for an attorney to discuss the risks and potential harmful consequences of using the technology when seeking informed consent.

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d) Possible impact on the client of an inadvertent disclosure of privileged or confidential information or workproduct, including possible waiver of the privileges.16/ Section 917(a) of the California Evidence Codeprovides that “a communication made in confidence in the course of the lawyer-client, physician-patient,psychotherapist-patient, clergy-penitent, husband-wife, sexual assault counselor-victim, or domesticviolence counselor-victim relationship … is presumed to have been made in confidence and the opponentof the claim of privilege has the burden of proof to establish that the communication was not confidential.”(Evid. Code, § 917(a).) Significantly, subsection (b) of section 917 states that such a communication “doesnot lose its privileged character for the sole reason that it is communicated by electronic means or becausepersons involved in the delivery, facilitation, or storage of electronic communication may have access tothe content of the communication.” (Evid. Code, § 917(b). See also Penal Code, § 629.80 [“No otherwiseprivileged communication intercepted in accordance with, or in violation of, the provisions of [Chapter 1.4]shall lose its privileged character.”]; 18 U.S.C. § 2517(4) [“No otherwise privileged wire, oral, or electroniccommunication intercepted in accordance with, or in violation of, the provisions of [18 U.S.C. § 2510 etseq.] shall lose its privileged character.”].) While these provisions seem to provide a certain level ofcomfort in using technology for such communications, they are not a complete safeguard. For example, itis possible that, if a particular technology lacks essential security features, use of such a technology couldbe deemed to have waived these protections. Where the attorney-client privilege is at issue, failure to usesufficient precautions may be considered in determining waiver.17/ Further, the analysis differs with regard toan attorney’s duty of confidentiality. Harm from waiver of attorney-client privilege is possible depending onif and how the information is used, but harm from disclosure of confidential client information may beimmediate as it does not necessarily depend on use or admissibility of the information, including as it doesmatters which would be embarrassing or would likely be detrimental to the client if disclosed.

e) The urgency of the situation. If use of the technology is necessary to address an imminent situation orexigent circumstances and other alternatives are not reasonably available, it may be reasonable in limitedcases for the attorney to do so without taking additional precautions.

f) Client instructions and circumstances. If a client has instructed an attorney not to use certain technologydue to confidentiality or other concerns or an attorney is aware that others have access to the client’selectronic devices or accounts and may intercept or be exposed to confidential client information, then suchtechnology should not be used in the course of the representation.18/

4. Application to Fact Pattern19/

In applying these factors to Attorney’s situation, the Committee does not believe that Attorney would violate his duties of confidentiality or competence to Client by using the laptop computer because access is limited to authorized individuals to perform required tasks. However, Attorney should confirm that personnel have been appropriately instructed regarding client confidentiality and are supervised in accordance with rule 3-110. (See Crane v. State Bar (1981) 30 Cal.3d 117, 123 [177 Cal.Rptr. 670] [“An attorney is responsible for the work product of his employees which is performed pursuant to his direction and authority.”]; In re Complex Asbestos Litig. (1991) 232 Cal.App.3d 572, 588 [283 Cal.Rptr. 732] [discussing law firm’s ability to supervise employees and ensure they protect client confidences]; Cal. State Bar Formal Opn. No. 1979-50 [discussing lawyer’s duty to explain to

16/ Consideration of evidentiary issues is beyond the scope of this opinion, which addresses only the ethical implications of using certain technologies. 17/ For example, with respect to the impact of inadvertent disclosure on the attorney-client privilege or work-product protection, rule 502(b) of the Federal Rules of Evidence states: “When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: 1. the disclosure is inadvertent; 2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and 3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).” As a practical matter, attorneys also should use appropriate confidentiality labels and notices when transmitting confidential or privileged client information. 18/ In certain circumstances, it may be appropriate to obtain a client’s informed consent to the use of a particular technology. 19/ In this opinion, we are applying the factors to the use of computers and wireless connections to assist the reader in understanding how such factors function in practice. Use of other electronic devices would require similar considerations.

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employee what obligations exist with respect to confidentiality].) In addition, access to the laptop by Attorney’s supervisor would be appropriate in light of her duty to supervise Attorney in accordance with rule 3-110 and her own fiduciary duty to Client to keep such information confidential.

With regard to the use of a public wireless connection, the Committee believes that, due to the lack of security features provided in most public wireless access locations, Attorney risks violating his duties of confidentiality and competence in using the wireless connection at the coffee shop to work on Client’s matter unless he takes appropriate precautions, such as using a combination of file encryption, encryption of wireless transmissions and a personal firewall.20/ Depending on the sensitivity of the matter, Attorney may need to avoid using the public wireless connection entirely or notify Client of possible risks attendant to his use of the public wireless connection, including potential disclosure of confidential information and possible waiver of attorney-client privilege or work product protections, and seek her informed consent to do so.21/

Finally, if Attorney’s personal wireless system has been configured with appropriate security features, 22 / the Committee does not believe that Attorney would violate his duties of confidentiality and competence by working on Client’s matter at home. Otherwise, Attorney may need to notify Client of the risks and seek her informed consent, as with the public wireless connection.

CONCLUSION

An attorney’s duties of confidentiality and competence require the attorney to take appropriate steps to ensure that his or her use of technology in conjunction with a client’s representation does not subject confidential client information to an undue risk of unauthorized disclosure. Because of the evolving nature of technology and differences in security features that are available, the attorney must ensure the steps are sufficient for each form of technology being used and must continue to monitor the efficacy of such steps.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.

20/ Local security features available for use on individual computers include operating system firewalls, antivirus and antispam software, secure username and password combinations, and file permissions, while network safeguards that may be employed include network firewalls, network access controls such as virtual private networks (VPNs), inspection and monitoring. This list is not intended to be exhaustive. 21/ Due to the possibility that files contained on a computer may be accessed by hackers while the computer is operating on an unsecure network connection and when appropriate local security features, such as firewalls, are not enabled, attorneys should be aware that any client’s confidential information stored on the computer may be at risk regardless of whether the attorney has the file open at the time. 22/ Security features available on wireless access points will vary and should be evaluated on an individual basis.

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eLawyering Task Force | Law Practice Management Section | American Bar Association

Suggested Minimum Requirements for Law Firms Delivering Legal Services Online. eLawyering Task Force | Law Practice Management Section | American Bar Association

October 15, 2009

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Suggested Minimum Requirements for Law Firms Delivering Legal Services Online. Background On February 10, 2003, the American Bar Association House of Delegates approved a set of best practices guidelines for legal information web sites that were developed jointly by the Elawyering Task Force, ABA Law Practice Management Section and ABA Standing Committee On the Delivery of Legal Services. The purpose of these guidelines was to improve the quality and accuracy of legal information published both by law firm web sites and non-law firm legal information web sites. These guidelines can be found here. Since then, innovative law firms have sought to deliver legal services directly to clients through their web sites or to set up what some call - “virtual law offices.” Unlike a simple law firm site that may have just a description of a firm’s practice, biographical information about the partners and employees of the firm, and some legal information, a “virtual law firm” is characterized by access by the firm’s clients to a password protected and secure web space where both the attorney and client may interact and legal services consumed by the client. Some of these legal tasks may include the delivery of online legal advice, legal review of documents that have been received by the client from another party, discussions between the lawyer and the client, and the creation, assembly, and review of legal documents and forms. Examples of law firms that are delivering legal services online include: http://illionisdivorce.com; http://www.kimbrolaw.com; and http://www.mdfamilylawyer.com. As more law firms become interested in adding a “virtual” dimension to their practice, there is increasing interest in making sure that the “practice” meets requirements for the delivery of legal services on-line directly to clients. These minimum requirements are designed to help lawyers resolve these questions so that their “virtual practices” comply with the applicable professional rules of conduct. Since every state develops and enforces its own rules for the legal profession, these requirements will be advisory only. The following draft requirements provide a framework for further discussion and are likely to evolve over time as more law firms move their practices online and encounter novel and unique situations that are not anticipated by rules that were aimed at law firms purely operating in the physical world. Suggested Requirements Law firms that wish to deliver legal services on-line should meet the following requirements:

1. Web Site Architecture: The basic structure of a law firm web site that offers legal services online requires a secure client web space that is accessible only with a user name and secure password. Without such a mechanism it is difficult or impossible to comply with the rules of professional conduct that deal with UPL, client confidentiality, establishing the lawyer/client relationship, and conflict of interest issues.

. a. Ethics Issues: The Rules of Professional Responsibility are not revoked just

because you are delivering legal services online and through the law firm’s web site. Mechanisms such as the following must be put in place:

b. Conflicts of Interest still must be checked. c. The law firm must not violate UPL rules and must serve only clients who are

residents of the state where the firm is authorized to practice, or clients who have a matter within the state where the law firm is authorized to practice. A procedure must be in place to verify that the law firm is authorized to provide service to the client.

http://www.abanet.org/elawyering/tool/practices.shtml

http://illionisdivorce.com/

http://www.kimbrolaw.com/

http://www.mdfamilylawyer.com/



October 15, 2009

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d. If the state has residency requirements, then the attorney will have to comply with those by adding a statement to their site that informs the public that there is no physical law office in that state or that the attorney resides in a state other than the one in which he or she is offering services.

2. A disclaimer should be published on the site that makes UPL limitations clear.

3. A Terms and Conditions Statement should be published on the public section of the

site that describes precisely limitations on services, the requirements to establish a lawyer-client relationship, and disclaimers related to the creation of the lawyer-client relationship. It should make clear that any legal information that appears on the web site is not legal advice, and that a lawyer/client relationship must be established before any legal services are provided.

4. The client must accept and agree to a retainer agreement outlining the scope of legal services at the time they become a client. The acceptance of the retainer agreement establishes the lawyer/client relationship. The attorney should not provide legal services until the lawyer/client relationship is established.

a. If the jurisdiction in which the law firm operates has “client-identification” rules, these rules must be complied with even though the client is an ”on-line” client.

b. Retainer agreements may be handled in different formats online whether that is through a traditional click-wrap agreement, sending a traditional engagement letter for signature and then uploading it into the client’s online file, using a digital signature service on a letter, or creating an online HTML form that requires the client to click to accept each provision of an engagement letter that is then stored in their file.

Marketing Rules: The law firm web site must comply with the marketing rules incorporated into the state’s Rules of Professional Responsibility that apply to the law firm. This usually requires a disclaimer that the public section of the web site is a form of advertising. Usually a disclaimer must appear in the footer which indicates that the law firm’s public web site (the “front-end”) is a form of advertising and information contained herein should not be relied on for legal advice. Note: A “best practice” would be adherence to the ABA’s Guidelines for Legal Information web sites.

5. On-Line Payment of Legal Fees: Payment of legal fees on-line by credit card will have to comply with the state rules that govern attorney trust accounts.

a. If the method of collecting online payments is such that the attorney is collecting and storing credit card information on their virtual law practice, it must comply with federal regulations, such as PCI Compliance.

6. Protecting Client Confidences:

a. All data that is transferred online between the law firm’s web site and the server

must be encrypted.

b. Third-party hosting providers should have policies and procedures in place for security breaches, data theft, privacy and other concerns.

c. The contract with the hosting provider should make clear under what circumstances the provider’s staff has access to client files and also make clear that if the vendor’s staff is accessing client data for technical reasons, they are functioning as agents of the law firm as if they were the law firm’s internal staff.



October 15, 2009

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d. A procedure should be in place that guarantees the security of the firm’s client data, provides for redundant back-ups, and offers a procedure for exporting the data on behalf of the law firm at the request of the law firm.

: [There is another set of issues that a law firm must consider when selecting a hosting provider for the provision of a “Software as a Service” This subject is beyond the scope of this discussion of minimum requirements.] :

7. The law firm should consider securing various certifications that confirm the security and the privacy policy of the web sites, such as the Hacker safe NORTON Safe seal and the Truste Certificate. These are examples. There are other alternatives which vary in cost. This would provide notice to the consumer that the law the secure portion of the law firm’s web site complies with industry standards for security.

We are confident that as law firms respond to the needs of clients who want to deal with attorneys on-line, they will adapt to delivering services in ways that are consistent with the legal profession core professional values. Reactions to the draft requirements outlined above would be most welcome. We also welcome participation in the eLawyering task force. If you are an ABA member, you can sign up for our email discussion list by visiting http://www.abanet.org/abanet/common/email/listserv/listcommands.cfm?parm=subscribe&listgroup=LPM-ELAW. Appendix: (To be Completed).

1. Sample Retainer Agreements for On-Line Delivery of Legal Services. 2. Sample Disclaimers

The Virtual Truth: Seven Factors to Consider Before Opening a Virtual Law Practice

GPSOLO eReport, American Bar Association, Nov. 2013 - Vol. 3, No. 4 (Reprinted with Permission)

Stacey L. Romberg

http://www.americanbar.org/publications/gpsolo_ereport/2013/november_2013/virtual_truth_seven_factors_to_consider_before_opening_virtual_law_practice.html

Stacey L. Romberg is a Seattle attorney focusing on business law, estate planning and probate. For further information, please see Stacey’s website at www.staceyromberg.com.

• A virtual law practice works best for what sort of person?• How can I make sure that my virtual law office saves me money?

As I write this, I am sitting in my virtual law office—more specifically, a spare bedroom in my townhouse that has been converted into an office. My attire, admittedly, is quite casual: black running tights paired with a T-shirt. Tonight, I’m attending the annual Washington Women Lawyers dinner in downtown Seattle. I’ll need to change clothes at some point, but for now I’m quite comfortable. My cat, Roger, snoozes contentedly downstairs on the sofa. The tea kettle simmers in the kitchen. And, consistent with the stereotype of a home office, the washing machine spins away while I work.

I opened my virtual law firm in 1999 after an eclectic first decade of legal work, which included five years in Washington, DC, writing legislation for the US Senate and working as a registered foreign lobbyist, and then a move to Seattle to work both in private practice and as a pro-tem magistrate.

When I started my solo practice, a woman operating a law firm out of her home conjured up images of someone fitting in a few hours of work before picking up the kids at school and driving them to soccer practice. Some attorneys assumed, and a few verbalized, that my practice was not “serious” and that a home-based law practice could never survive on a long-term basis.

In reality, a home-based law office is often a smart option for lawyers starting a solo or small-firm practice, or changing the physical environment of their existing practice. Far from lacking in seriousness, a virtual practice can be cutting edge, technologically savvy, environmentally conscious, and profitable. If you are contemplating the merits and drawbacks of a virtual office, you should consider the following.

Factor 1: Legal Requirements Are there any legal constraints regarding home-based businesses that might impact your decision? To ensure that your business model is in compliance, it’s important that you check all state and local legal requirements. For example, the City of Seattle imposes various restrictions on home-based businesses in order to reduce the impact of commercial activity within residential neighborhoods, such as limiting business deliveries to one per day on weekdays. Make sure you feel comfortable with any restrictions before you proceed.

Factor 2: Home Environment

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http://www.staceyromberg.com/

I do not have children, and I live in a quiet neighborhood. My home offers sufficient space so that my office is set apart and completely dedicated to my law firm. When guests come, I don’t have to clean out my office so it can be used as a spare bedroom. If your home environment is noisy, disruptive, or does not have the capacity for you to permanently and consistently dedicate a specific room as office space, operating a successful virtual law practice becomes much more problematic.

Factor 3: Practice Areas My practice focuses on business law, estate planning, and probate. Other than the occasional probate hearing, my firm does not handle litigation. A transactional practice lends itself to a virtual environment more readily than a litigation practice, due to the practicalities involved in serving and receiving pleadings, conducting discovery, etc.

Factor 4: Staffing My primary office consists of an office administrator/legal assistant, an of counsel attorney, and a paralegal. Our team has worked together on a long-term basis, always out of our individual home offices. The larger your team is, the more difficulties you’ll face in implementing a virtual office structure, due in part to your inability to physically monitor the work being performed.

Factor 5: Costs I rent a $35-per-hour conference room in an office suite filled with lawyers, located less than a mile from my home. Additionally, for $28 per month I rent a nearby private mail box so that my home address is not associated with my law firm, and delivery of office supplies and documents is convenient. In 2012, my average monthly cost for the conference room and mailbox combined came to $160—undoubtedly, a tremendous savings over typical office rent! However, you’ll need to budget for additional technology costs to run a virtual firm effectively.

Factor 6: Time I create significant time savings for my virtual law firm by avoiding a daily commute, office chit chat, and the need to dress up on the days without meetings. However, my set up also requires some tasks that a brick-and-mortar lawyer would not face, including the need to drive to my conference room and private mailbox, additional organizational time, and time spent communicating with staff by telephone, email, and instant messaging as opposed to the efficiency of direct in-person communication. In deciding whether to choose a virtual model, consider which aspects of your practice will be time savers and which will be time consumers. For example, if you are driving back and forth five times every day to a conference room to meet with your clients, your virtual law firm will cost time rather than save it. If you are communicating daily with 10 staff members rather than three, again, the virtual office may not save time.

Factor 7: Personal Priorities This tops my list of factors to consider when contemplating a virtual practice. As a former college tennis player and a lifelong athlete, I currently work out six days a week. My fitness program, although time consuming, creates a foundation for my life. Having a home-based office allows for the extra flexibility I need to meet my fitness goals. As an additional component to my law practice, I speak frequently to groups, teach continuing legal education courses, and publish articles. Additionally, I serve on the Board of Directors of the nonprofit organization Tennis Outreach Programs. My days tend to be jam-packed and time pressured. I appreciate every bit of time saved and flexibility achieved with my virtual structure, and I put it to good use! Spending time commuting or in office chatter would seem

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unproductive and frustrating to me. And despite my outside activities, I’m an introvert at heart. I love being at home, enjoying the calmness of being around pets during the day, and the luxury of concentrating on work without continuous interruptions. Not everyone is wired to work virtually. Are you an introvert or an extrovert? Do you enjoy daily personal interactions with colleagues, or do you often shut the door to your office, hoping to have quiet uninterrupted work time? If you were to work at home, would you consistently be able to stop working, shut the office door, and relax when it’s time for your workday to conclude? What are your personal aspirations outside of work? Would a virtual model help you achieve these goals? Take an honest look at yourself, and visualize how your life might change—for better and for worse—if you were to have a home office.

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The Virtual Truth: Taking on Technology

GPSOLO eReport, American Bar Association, Feb. 2014 - Vol. 3, No. 7 (Reprinted with Permission)

Stacey L. Romberg

http://www.americanbar.org/publications/gpsolo_ereport/2014/february_2014/virtual_truth_taking_on_technology.html


• What type of networking structure should a virtual law firm adopt?• How can remote staff most effectively use technology to work together efficiently?

Although this is probably difficult for many younger lawyers to imagine, I, along with the vast majority of my law school classmates, graduated from law school in 1987 without ever using a computer. I considered myself to be fairly technologically savvy by rejecting a typewriter in favor of a new word processor, specifically a “speedy” Brother WP-500 that allowed me to save my documents onto 3.5" discs.

In 1987, I could not have successfully operated a virtual law firm using the technology at hand. Thankfully, now I can. In 2014, technology plays a pivotal role in enabling a virtual law firm to effectively compete with a brick-and-mortar firm.

Tip #1: Select the Right Networking Structure Telecommuting involves the ability to perform office tasks without actually being in the office. A telecommuter can connect remotely to an office computer or network and use it just as if she were sitting at her desk. A virtual law firm adopts the concept of permanent telecommuting. My staff, consisting primarily of an office administrator, two of counsel attorneys, and a paralegal, does all of its work remotely. In establishing a virtual law firm, an initial decision must be made regarding the best networking structure for your specific staff configuration. I’ve utilized two approaches, both of which are fairly common.

First, the server model: staff can connect their remote computers through a VPN (virtual private network) to the main office network stored on a server. Second, the headless work station model: because my staff doesn’t work in my home, I do not need to provide them with a desk, monitor, keyboard, or mouse. Instead, each person connects their remote computer to a second, individually dedicated computer, which in turn is connected to a server.

I originally chose the server model, but last year I switched to headless work stations due to the lower costs, decreased maintenance requirements, and easier implementation of a standard set of software. The footprint of each headless work station is smaller than a breadbox. Thankfully, a stack of these small computers along with a server can easily fit into a closet located in my home office. Common software programs are installed on each computer, and networked through the server. Thus far, I’m thrilled with the stability, cost, and ease of the new setup. With a larger staff, storage of the work stations would become an issue, but with my small staff, this model serves me well.

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Tip #2: Choose to Go Paperless As mentioned in my first article, I maintain a nearby private mail box so that my home address is not associated with my law firm. In a typical day, my office mail might include a few checks from clients and several probate pleadings that need to be filed with our local superior court. In a brick-and-mortar firm, the secretary or receptionist handles each piece of paper pursuant to standard office procedures. A virtual firm is no different, except that I’m unable to walk into my administrator’s office and hand her checks to deposit, and then walk into my paralegal’s office and give her the pleadings to be filed. Many solo and small firm practitioners are moving to a paperless model, but a virtual law firm must embrace it from the onset. Unless a document is digital, your remote staff will have no way to work with that document. Furthermore, most attorneys do not want their home to be slowly taken over by expanding client files. Scanning and shredding paper is a daily, essential part of operating a virtual law firm. I could not live without my quick and reliable Fujitsu ScanSnap S1500 scanner. As a virtual lawyer processing the mail, I scan in any documents and then ask my office administrator to deposit the checks via an online service, and similarly ask my paralegal to efile the probate pleadings. Then, I input the mail record confirming receipt of the probate pleading into the digital client file by using case management software.

Tip #3: Rely on Case Management Software A virtual law firm with staff cannot effectively operate without using case management software. My office uses Time Matters and the accompanying Billing Matters program. In a brick-and-mortar law firm, staff will personally communicate about dozens of daily issues, ranging from the attorneys’ substantive collaboration on a client matter to a request for more paper clips. Case management software provides a virtual law firm with an efficient way to manage these ongoing communications, so as to avoid getting lost in a tangled nightmare of countless email messages, phone calls, and text messages. Time Matters creates a structure for storing digital client files that accommodates all documents, email, contact records, telephone records (including mp3 files of voice mail messages), mail receipt records, billing records, outstanding tasks, calendar items, and notes involving research and collaboration. Time Matters also provides an internal messengering system, file triggers to track key recurring tasks, and document generation for your firm’s templates; additionally, the most recent version provides an online client web portal. Other brands of case management software provide a varying array of features that might uniquely benefit your virtual model. Case management software provides the cornerstone for enabling staff to work seamlessly in a remote environment, while creating significant time-saving advantages.

Tip #4: Embrace Mobile Technology To a much greater degree than in a brick-and-mortar law firm, most attorneys and staff choosing to work virtually will not be tied to their desks from 8 a.m. to 5 p.m. For example, on any given work day my office administrator could be watching her daughter’s soccer game, waiting at the car dealership while her car is getting fixed, or visiting family in California. Although I (usually!) know where she is, our clients and other parties with whom she interacts have no knowledge of her physical location. She continually relies on her smartphone, which contains a Time Matters mobile application, and other mobile computing devices in order to do her job. All attorneys and staff who work virtually need to be fully comfortable with smartphones, laptops, and tablets, and willing to use them daily, to create the

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most appealing options for work-life management while enhancing responsiveness to clients and speedy interoffice communications.

Some virtual lawyers create the illusion that they run their law firms from a physical office, due to fears that they may lose clients as a result of their office setup. On the contrary, in 2014, a well-run virtual law office supported by a solid technological infrastructure will actually attract many potential clients because of the creativity and innovation involved. Invest wisely, from the beginning, in quality equipment and software that supports your firm’s business model, and then be eager to explain to your clients how these investments in technology make you the best lawyer for the job.

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The Virtual Truth: Four Tips for Creating and Maintaining an Efficient and Productive Virtual Law Firm Team

GPSOLO eReport, American Bar Association, May 2014 - Vol. 3, No. 10 (Reprinted with Permission)

Stacey L. Romberg

http://www.americanbar.org/publications/gpsolo_ereport/2014/may_2014/virtual_truth_four_tips_creating_maintaining_efficient_productive_virtual_law_firm_team.html


• What unique issues should a virtual law firm expect to address in meeting its staffing needs?• How can remote staff most effectively communicate as a team?

Since opening my virtual law firm in 1999, I’ve found that, more than any other component of running a small business, developing an effective virtual team has proved challenging. After many mistakes and hard-learned lessons, along with some sleepless nights and occasional painful dramas, my current remote team consistently achieves high marks. Each person fulfills a defined function on our team and contributes positively to the team’s collaboration, work flow, and perhaps most importantly, strong sense of collegiality and commitment despite the lack of daily in-person communication.

My remote team currently consists of an office administrator, administrative assistant, paralegal, and two of counsel attorneys. I am the only full-time member of the team (and, as anyone who manages a small law firm knows, the term “full-time” generally extends well beyond a standard 40-hour work week!). My office administrator and administrative assistant job share one full-time administrative position. My paralegal and one of counsel attorney work half time, and the second of counsel attorney works one quarter time. Each member of my team chooses her own unique work schedule based on her individual life circumstances, including additional work commitments, family commitments, personal interests, and time spent giving back to the community. Although previously I’ve had male team members and worked with team members from out-of-state, my current team is all female and local to the Seattle area.

Tip #1: Recognize the Uniqueness of the Virtual Model To illustrate the nuances of staffing a virtual business, let me present two imaginary workers: Joe Average and Vanda Virtual.

Joe Average, a worker in a brick-and-mortar law firm, typically arrives at his nine-to-five job each Monday morning wearing an appropriate business-casual outfit. Joe greets the receptionist, several attorneys, and his secretary on his way to the break room to pour his daily cup of coffee. They exchange humorous stories about their weekend activities, and also discuss several significant work issues that they’ll be facing over the coming week. During the day, Joe personally interacts with his coworkers numerous times on both a personal and professional level, including attending several in-person

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meetings and enjoying lunch with a colleague. He leaves his office at approximately five o’clock, dreading his one-hour commute but looking forward to dinner with his family and a good night’s rest.

Vanda Virtual, a worker in a virtual law office, enjoys her work and loves her second job as the lead singer for the Seattle band Meat Market Surfers. She spends about 20 hours a week with the band including rehearsals, road trips, and late-night gigs. Each Monday morning, Vanda usually wakes up at about 10 a.m. She eats breakfast, exercises, showers, and then by 1 p.m. is ready to go to work. Wearing ripped jeans and a gray T-shirt, Vanda opens the door to the spare bedroom that serves as her office, and settles in for a six-hour workday. By 7 p.m., Vanda needs to sign off so she can make it to the band’s evening rehearsal.

In all likelihood, if Joe Average worked in a virtual environment, he would feel isolated and miss the daily routine and personal interaction with his colleagues. And, in all probability, if Vanda Virtual worked in a traditional brick-and-mortar job, she would feel confined due to her long commute, set hours, professional dress requirements, and the fact that her lifestyle significantly contrasts with that of her coworkers.

Of course, in real life, the lines between Joe Average and Vanda Virtual tend to be blurred and often difficult to discern. In order to develop an effective virtual team, you need to recognize that a virtual workplace contrasts dramatically with a brick-and-mortar office. Many candidates who may seem ideal on paper will simply wither and die in a virtual environment. Others will blossom. As a law firm owner, in addition to spending the time to ensure that potential team members possess the requisite skill sets, you need to spend an equal amount of time determining, to the best of your ability, whether the applicant can successfully transition to and thrive within a virtual environment.

Tip #2: Make the Talent Pool Work in Your Favor The second of counsel attorney to join my team, Sherry Bosse Lueders, boasts a highly competitive resume including having attended superior schools, earned top grades, and successfully completed her clerkship with a highly respected King County Superior Court judge. Sherry participates significantly in various bar groups and stands committed to providing pro bono services. Sherry also enjoys her role as parent of her two-year-old son and found that the strenuous billable requirements and the need for physical presence (a.k.a. “face time”) imposed by most Seattle brick-and-mortar law firms stifled her ability to fully engage as a parent. Recognizing the dearth of part-time law jobs in Seattle, Sherry took the initiative of starting her own law firm and spent a year gaining additional legal skills and business acumen prior to becoming a part of my team.

Every member of my team offers a different version of the same story. Each is a highly talented and attractive candidate—the type of person that most brick-and-mortar law firms would covet. However, for various reasons, including but not limited to parenting responsibilities, each team member thrives best in a virtual environment because of the opportunities afforded to achieve professional success while realizing other meaningful personal goals. By allowing people to work virtually, and according them flexibility in choosing a part-time work schedule, a virtual law firm often has its pick of the region’s top talents.

Tip #3: Create Communication Structures Once your virtual team is in place, how does it become a “team”? Because by definition you will not personally meet with them on a daily basis to discuss work, you will need to establish communication

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structures that will enable your team to collaborate effectively within a virtual environment. My office has established the following channels of communication:

• Each day, when either of my of counsel attorneys begins her work, we briefly communicate via TimeMatters Messenger, an instant chat tool, about the day’s work priorities.

• Each Monday afternoon, the three attorneys in my office participate in a half-hour teleconference todiscuss the client files.

• Each Wednesday morning, I personally meet with the office administrator for a 15-minute“exchange.” We briefly discuss the upcoming needs of the office, and then she brings documents formy signature, picks up various items that need to be mailed, scanned in, sorted out, etc.

• Each Friday, I send out a team email outlining the week’s successes and opportunities forimprovement. The email also informs the team of various deadlines for the following week. Thisweekly email keeps my team informed, in a holistic sense, about firm activities.

• Each quarter, I speak with each team member individually, either in person or by telephone, toprovide feedback on work performance and to listen to their perspectives regarding workload,schedules, and ideas for enhancing the firm as well as their own sense of professional fulfillment.

Tip #4: Promote In-Person Team Building Because my team members all reside in the Seattle area, we meet as a group several times a year to personally connect and share a meal. In addition, I truly appreciate having my team members and their spouses attend the annual auction for the nonprofit Tennis Outreach Programs in support of my work on its board of directors. These in-person activities create a sense of camaraderie and trust, and help us to work together positively and collaboratively.

In creating and maintaining a virtual office team, you should expect to work a little harder and apply much more creativity than you would in setting up an office staff for a brick-and-mortar law firm, but you can also expect to reap the rewards of cherry-picking highly talented workers and seeing those individuals thrive within the flexibility and independence offered by your firm.

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The Virtual Truth: Two Tips for Working Effectively with Clients in a Virtual Environment

GPSOLO eReport, American Bar Association, August 2014 - Vol. 4, No. 1 (Reprinted with Permission)

Stacey L. Romberg

http://www.americanbar.org/publications/gpsolo_ereport/2014/august_2014/virtual_truth_two_tips_working_effectively_in_a_virtual_world.html

This article is the last of four installments, designed to provide insight into operating a virtual law firm. Stacey L. Romberg is a Seattle attorney focusing on business law, estate planning, and probate. For further information, please see Stacey’s website at www.staceyromberg.com.

• How can a virtual law firm best address initial client perceptions?• How should in-person client meetings be handled?

Clients generally assume that an attorney practices from a brick-and-mortar office. In all likelihood, an attorney practicing virtually will seem radically different to clients due to their past experience with attorneys, as well as their preconceived images of law firms based on what they have seen on television and in the movies. In contemplating how to set up your virtual practice, consider how you might effectively communicate to your clients that you work virtually, and arrange your in-person meetings in such a way that your clients will be delighted and impressed with your innovative business model, rather than confused.

Tip #1: Explain the Virtual Model to your Clients Proactively and Positively

To increase the likelihood that your clients will understand and appreciate your virtual practice, your communications regarding your office set-up need to be up-front, consistent, and clear, starting with your website and initial consultation and extending through the course of the attorney-client representation. As an example of a frequent misperception, Victor Virtual, an attorney practicing virtually from his home, is having an initial telephone consultation with Polly Potential Client. Polly likes Victor, and wants to retain his services. Victor says, “Thank you Polly. I’ll forward a legal services agreement over to you for your review and completion. Please send it back to me, and then I’ll get started on your work.” Polly responds, “Thanks Victor. I’ll fill it out, and then I’ll drop by your office. I’ll give you the agreement and the check for the advance fee deposit, and then hopefully you’ll be available so we can talk about my case.”

In this ideal case, Victor’s website clearly indicated that he operated a virtual law firm so as to minimize this type of misperception. Nonetheless, many potential clients either do not look at a lawyer’s website or do not review it carefully enough to notice. Also, for many clients, the concept of working virtually is so foreign that it requires additional explanation beyond a website description.

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In the example given above, Victor might reply, “Thank you Polly. I don’t know if you had a chance to peek at my website, because it describes how I work virtually. Let me explain to you what that means.” Victor should then summarize his office set-up, so that Polly has a clear understanding prior to retaining his firm. In addition to describing his office, Victor could briefly explain to Polly, in positive terms, why he chose to set up his office virtually. For example: “I wanted to make my services more affordable for my clients, and I’ve found I‘ve been able to reduce my fees since I don’t incur needless expenses such as rent.” Or, “I’m an environmentalist, so I wanted to promote a green office environment by setting up my office to minimize paper and reduce car trips.”

Embrace this discussion as an initial step in developing a strong attorney-client relationship. In my Seattle practice, I’ve had countless potential clients who were intrigued by my set up, but I cannot recall ever having a potential client decide not to work with me upon discovering that I work virtually. A successful attorney-client relationship is built upon trust, so a potential client should be informed of your virtual set-up before retaining you and, ideally, understand its advantages.

Tip #2: Coordinate In-Person Client Meetings to Meet the Client’s Needs while Avoiding Confusion

As mentioned in my previous articles, I work from home, rent a nearby conference room to meet with clients, and also rent a nearby private mail box which is used as my firm’s mailing address. This set up is described on my firm’s website: http://staceyromberg.com/about-us-attorney-seattle/contact-maps-law-office-seattle-wa/. Additionally, I explain this in a letter sent to all new clients. All in-person client appointments are confirmed in advance, generally by e-mail, and the location of the conference room is stated again. Nonetheless, I find that approximately 5% of people meeting me for the first time are confused and go to my mail center rather than the conference room. Your office needs to be mindful that the virtual concept may be baffling to new clients. The meeting location should be communicated to your new clients clearly and repeatedly, so that you minimize the prospects of starting a relationship with a missed appointment and the resulting frustration.

Alternatively, you may choose to meet with clients in other varied locations such as their office, home, or a neighborhood coffee shop. Although I know attorneys who meet with clients in coffee shops or other public locations, I strongly discourage this practice. Privacy is vital in maintaining confidential communications with your client, and it cannot be guaranteed in these public spaces. When scheduling a meeting with a client in their home or office, be clear and up front with your client about whether your travel time will be billed. Also, be mindful of your unbilled travel time and your personal safety when scheduling client appointments in alternate locations, and make thoughtful choices.

When meeting with your clients, you should reasonably anticipate that they will ask wide-ranging questions regarding their file. If you practiced in a brick-and-mortar office, you could pull the paper file, find the pertinent document, and answer the question. As a virtual lawyer, this option will not be available. If you practice consistently within the virtual model, you will likely only have a digital client file. You will not impress your client by responding, “I practice virtually, so I cannot access your file right now. I need to go back to my office and look that up for you, and then I’ll respond.” Plan ahead, and make sure you can access the full client file during the meeting as well as any additional resources you

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http://staceyromberg.com/about-us-attorney-seattle/contact-maps-law-office-seattle-wa/

http://staceyromberg.com/about-us-attorney-seattle/contact-maps-law-office-seattle-wa/

may need. Bring your tablet or laptop to all client meetings. Your client’s file needs to either be fully loaded onto that device or you will need internet access to review the file via your server or the cloud. Additionally, if you are meeting in a public place such as a coffee shop, plan out your internet connection in advance and select more secure options such as your smartphone’s mobile hotspot, rather than public Wi-Fi.

If your meeting involves signing documents, you should again reasonably anticipate that your clients may want to change their documents during the appointment. Although last minute requests for changes can often be easily accommodated in a brick-and-mortar environment, these requests tend to be more problematic for a virtual attorney. Plan in advance how you will revise and reprint the documents during the meeting if necessary in order to meet your client’s needs. If you are able to print documents at your designated conference room, but not at the client’s house or a coffee shop, be sure to communicate this limitation with your clients well in advance of the appointment, so that they can carefully review the documents and ask questions so as to avoid any last minute changes.

A virtual lawyer, like any lawyer, wants to develop productive and positive attorney-client relationships. By taking a little extra time for advance planning and clear communications, your virtual business structure will impress your clients as an integral part of your outstanding client service.

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