Another NYS Bar Decision On Virtual Offices

This week's Daily Record column is entitled "Another NYS Bar Decision On Virtual Offices."  My past Daily Record articles can be accessed here.

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Another NYS Bar Decision On Virtual Offices

 

 

In September I wrote about a recent decision on virtual law offices handed down by the New York City Bar Association in Formal Opinion 2014-2. In it, The Association of the Bar of the City of New York Committee on Professional Ethics concluded that it was ethically permissible for an attorney contemplating opening a virtual law office to use the VLO address as her “principal law office address” and on her law firm’s business cards, website and letterhead.

In that case, the attorney planned to open a virtual law practice wherein, instead of maintaining a physical office, she would do most of her work from home but would meet with clients in an alternate physical location other than her home, such as an office that rented out space.
In other words, her proposed VLO differed somewhat from the more accepted definition of a VLO, where lawyers practice law and interact with clients via their computer and mobile devices in lieu of a traditional brick and mortar office. One issue with this type of VLO in New York — where there is no physical office space — has always been the physical office requirement of Rule 7.1(h).

Fortunately, the New York State Bar Association weighed in on that issue in September when it issued Ethics Opinion 1025. In this case, the inquiring attorney — who lived outside the United States but was licensed to practice law in New York — sought to open a VLO. She planned to market her practice as one that provided only transactional legal services, including preparing contracts relating to employment law, business law, and charity law. At issue was whether the physical office requirement of Rule 7.1(h) prevented her “from operating a purely virtual law office?”

In reaching its decision, the committee noted that “Rule 7.1(h) of the New York Rules of Professional Conduct (the ‘Rules’) requires attorney advertising to include the attorney’s ‘principal law office address.’ Rule 7.1(h) states what an attorney’s advertising must contain, but does not expressly state that all attorneys ‘shall’ or ‘must’ maintain a physical office, or set standards to determine what constitutes such an office.”

Then, in keeping with its forward thinking ethics decisions issued in the recent past regarding the intersection of Internet-based technologies and the practice of law, the committee then concluded that based on recent New York case precedent and decisions being issued in other states regarding the physical office requirement, that Rule 7.1(h), which is intended to regulate only advertising, no longer “provides an independent basis for requiring a physical office.’”

The committee then clarified its conclusion: “In whatever manner the courts resolve the statutory issues regarding virtual law offices — and we express no opinion on how they will or should resolve those issues — neither Rule 7.1(h) nor any other advertising rule imposes or defines the contours of an attorney’s office or style of practice. To the extent N.Y. State 756 and 964 opine that Rule 7.1(h) or its predecessor imposes an obligation for a physical office, they are modified. We now conclude that an attorney who is admitted to practice in New York but who is not resident in New York and who advertises his or her law practice in New York must include the address of the attorney’s principal office, which may be the Internet address of a virtual law office.”

Once again New York leads the way in issuing ethics decisions that reflect a thoughtful understanding of the impact of technology on the practice of law. To ignore the incredible changes occurring would be a disservice to the profession. Fortunately, the New York State Bar’s Committee on Professional Ethics is issuing decisions which have the opposite effect.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, intuitive web-based law practice management software 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 bereached at niki@mycase.com.