It’s Only Virtual For You

While some lawyers who have chosen the more  avant garde 21st century Lawyer route of having a Virtual Law Office care little about such archaic details as the Code of Professional Responsibility, others, most notably Stephanie Kimbro, are deeply concerned.  The rules sometimes make it difficult for change, and for lawyers to do what’s best or easiest for them.

This is why I invariably turn to Steph when ethical issues arise, knowing that she won’t just shrug them off as the yoke of antiquity, to be ignored at her leisure.  While others argue that it’s their right to ignore the disciplinary rules, Steph may not like them any more than any other virtual lawyer, but she acknowledges and confronts them.

And so Steph did :

The NY State Bar Association Committee on Professional Ethics has published a new ethics Opinion 964 on April 4, 2013 that affects virtual law offices. (HT to  Niki Black for bringing it to my attention.)

The opinion is more related to lawyer advertising than virtual law offices, but it affects advertising for virtual, traditional and hybrid delivery models. The opinion was prompted by an inquiry from a lawyer who delivers immigration law services primarily online. Like many lawyers with virtual law offices, the lawyer rarely meets with clients in person and communicates using video conferencing and other digital methods of communication. Working from home, the opinion explains that the lawyer did not want to have clients coming to her home office. Accordingly, she preferred to use a PO Box or other mailbox service than providing her home address.

The issue arises from the fact that the lawyer, who works from home via her VLO, didn’t want clients “coming to her home.”  Steph explains why she doesn’t see the lawyer’s concern as unreasonable:

Being able to work from a home office and provide basic legal services through online delivery provides them with a way to get started in the legal profession. There are obvious security reasons for not wanting to give out your home address. My clients have 21st Century access to me, and frankly, that’s way more prompt and personal than your traditional 9-5pm street address and snailmail.

And, in a curious twist, she argues that it’s not as if the lawyer’s home address can’t be found anyway.

A virtual lawyer’s clients tend to be ones who can Google proficiently and find numerous online legal service options. They are smart enough to figure out that this is how you operate. And even if they aren’t, won’t that information be in your engagement agreement before any relationship is entered into? I can’t imagine a client who searches for me online, finds my website that says “virtual law office,” but then after seeing that really wants to drive to my house to meet me in person. That doesn’t happen. They want a virtual law office because they don’t have to go to an office. They have OTHER WAYS, modern methods, secure methods, of communicating with the lawyer.

After raising questions about this analysis, Steph asked me to explain why this was a problem.  At the most superficial level, it’s a problem because the rules say it’s a problem, and upon accepting our role as an attorney admitted to practice law, we commit ourselves to adhering to the Code of Professional Conduct.  But that’s not an explanation, and I owe Steph a more thoughtful response.

The rules exist for two reasons, the first being to set the parameters within which lawyers work, as a means of guiding our choices so that each individual lawyer doesn’t get to decide for himself what constitutes sufficiently ethical practices.  The second reason, however, is to protect clients from lawyers.

Steph’s analysis views the Virtual Lawyer from the perspective of everything working great. Her model client is knowledgeable, and both seeks and appreciates the alternative mode of practice.  Her model lawyer is competent, responsive and honest. Everybody is happy. Everything works great.  The only thing in the way are these damn rules.

But as many “consumers of legal services” tell us, lawyers aren’t always so wonderful, and neither are clients.  What about the lawyer who takes money and is never heard from again? What about the lawyer who provides inadequate, inaccurate, incompetent legal services, but insists their work is fabulous? What about the lawyer who assumes the responsibility of serving a client, but on the eve of the client’s need, can’t be found?

The rules exist for the bad times, not the good.  And even Virtual Lawyers can make mistakes, screw up, be grossly incompetent and unethical. This isn’t to say they are more or less so inclined, but no different than any other lawyer.  Stercus accidit. That’s where the rules come in.  So if the client can’t find the lawyer on the internet or by telephone, telex, smoke signals, Skype, whatever, and their need is to have something completed by tomorrow, where do they turn?  They may not want to pay the lawyer a visit, but they want to lose even less.

After some twitter discussion, Steph added:

UPDATE: After reading a couple comments about this post on Twitter, it seems to me a valid concern here is enforcement. How does the state bar monitor and enforce these rules. Yes, they have access to licensed lawyer’s contact information and some states do random auditing. Maybe the better discussion we should be having that hangs over all of these different tech-related ethics opinions is “How do we help the states to enforce the rules in an age where it’s easier for unethical lawyers (and those not even licensed to practice) to use the tech to hide and cover up the evidence?”  Part of this may be providing education to the state agencies handling enforcement about how the technology works and how to use it to handle online auditing and to track down folks who aren’t following the rules. This would be a worthwhile conversation.

This is why I like Steph so much, because she doesn’t hide from ethical issues.  But the question isn’t limited to bar enforcement of its rules, but to the actual needs of the maligned client.  The client whose lawyer disappears in the ether (with her money) and needs a document by tomorrow isn’t interested in how the bar can enforce its rules and discipline the lawyer. The client wants the job done, done right and done now.

So my short answer to Steph’s question is that the rules don’t exist to accommodate the wants of lawyers under the best of circumstances, but to protect the needs of clients under the worst of circumstances.

And Steph Kimbro is still my VLO heroine. Happy birthday, Steph.