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NYC bar revisits New York lawyers and virtual law offices

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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NYC Bar Revisits New York Lawyers and Virtual Law Offices


Lawyers have been practicing law remotely for many years now, first via remote access tools and more recently by using cloud computing software, such as cloud-based law practice management software. Not surprisingly, as cloud computing legal software has become increasingly common in law firms, so too has the occurrence of practicing law virtually.

The ethical issues posed by New York lawyers practicing from virtual law offices (VLO) have been grappled with repeatedly in recent years. As.a result, I’ve often written about many of then different ethics opinions and legal decisions that have been handed down regarding those issues.

The most recent opinion addressing lawyers and virtual law firms was handed down by the New York City Bar Association’s Committee on Professional Ethics. In March it issued Formal Opinion 2019-2, noting that he opinion replaced its earlier opinion, 2014-2, which I wrote about previously. The reason The Committee replaced its earlier opinion was so that it could take into account the subsequent determinations of “the New York Court of Appeals and the United States Court of Appeals (which) held that Section 470 requires lawyers admitted in New York but who reside in another state…maintain a physical law office within New York State.”

At issue in the March opinion was whether a solo practitioner who did not intend to have a traditional law firm, and instead planned to work from a home office while using a VLO for some purposes such as client meetings and service of process, could use the VLO’s physical address as the “principal law office” address for advertising purposes pursuant to Rule 7.1(h), and also on the firm’s business cards, letterhead, and website. For purposes of the opinion, a VLO was understood to be a “a facility that offers business services and meeting and work spaces to lawyers on an ‘as needed’ basis.”

One reason that this is such an important issue is that lawyers who work mostly from a home office are often reluctant to use their home address for attorney registration and advertising purposes. Requiring them to do so would stifle innovation in law practice and prevent New York lawyers from providing affordable and superior client service by taking advantage of emerging technologies.

Fortunately, the NYC Bar recognized this fact, and declining to adopt New Jersey’s “bona fide office rule,” which requires that lawyers maintain a fixed, specific, and full-time physical location where most law office functions occur, reasoning that “(s)uch a requirement would unnecessarily burden busy solo practitioners who spend most days in court and may have no full-time support staff.”  

The Committee explained that technology has drastically impacted the practice of law, and as a result, the concept of a “law office” has changed over time: “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.”

The Committee then concluded that a VLO can satisfy the requirements of a “principal law office” in New York: “(A) VLO as described in this Opinion includes a physical facility at which a lawyer may meet with clients and receive service of process…(A)ssuming the VLO qualifies under Section 470, it may be identified as a lawyer’s ‘principal law office’ under Rule 7.1(h).”

This is a notable and timely opinion. Certainly legal ethics should not be sacrificed in the face of change, but neither should ethics prevent or discourage lawyers from embracing change. Fortunately, in this opinion the Committee strikes the right balance and provides much-needed guidance for New York lawyers seeking to take advantage of 21st technologies in their virtual practices.

 

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.