Delaware court on technology: Bah Humbug!
Earlier this month, in the spirit of the holiday season, the state of Delaware decided it was high time to declare “Bah Humbug!” to new technologies. In Matter of Member of the Bar, Barakat, a decision that reads as if it were drafted during the same century that Scrooge visited with the various ghosts of Christmas, the Delaware Supreme Court staunchly rejected the concept of any law office that deviated from 19th century expectations.
In this case, the court re-visited the application of the state’s bona fide office rule, Supreme Court Rule 12(d), which provides that a bona fide office is one where the “attorney practices by being there a substantial and scheduled portion of time during ordinary business hours in the traditional work week. An attorney is deemed to be in an office even if temporarily absent from it if the duties of the law practice are actively conducted by the attorney from that office.
An office must be a place where the attorney or a responsible person acting on the attorney’s behalf can be reached in person or by telephone during normal business hours and which has the customary facilities for engaging in the practice of law. A bona fide office is more than a mail drop, a summer home which is unattended during a substantial portion of the year or an answering, telephone forwarding, secretarial or similar service.”
At issue was whether Mr. Barakat, a Delaware lawyer, had engaged in a number of ethical violations, including whether he had violated the bona fide office rule. It was alleged that Barakat had access to office space in Wilmington such that he could rent a conference room, when needed. Additionally, employees of the landlord collected his mail and directed any visitors to the fourth floor where a receptionist was stationed who greeted visitors.
In response to the allegations, Barakat claimed “that advances in technology enabled him to handle client matters effectively, despite his lack of presence in the Wilmington office.”
Silly Barakat! Technology is irrelevant. “Real” law offices have lots of unnecessary, costly overhead such as: 1) oversized mahogany desks with bottles of booze in the top right drawer, 2) big law libraries chock full of dusty books, 3) lots of carbon paper right next to the typewriter (some even have bulky desktop computers and copiers), 3) a number of abacuses (or maybe even new-fangled calculators), 4) Rolodexes, 5) rows and rows of cabinets for reams of paper files, and 6) quill pens (although the latest new trend sweeping antiquated offices everywhere is ballpoint pens).
So, because Barakat’s office arrangement lacked all of these traditional law office accoutrements, the court concluded that Barakat had failed to maintain a “bona fide office,” among other violations, and suspended his license to practice law for 2 years.
In other words, modern technology be damned. According to the plain reading of Delaware’s archaic rule and the court’s strict interpretation of the same, Delaware lawyers have no choice but to be chained to their big mahogany desks and like it. Either that, or they can practice law elsewhere until the state of Delaware decides to join the rest of us in the 21st century. To that I say “Bah Humbug!”
Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at firstname.lastname@example.org.