Here is this week's Daily Record column. My past Daily Record articles can be accessed here.
Washington Bar Association Allows Virtual Law Offices
The Washington State Bar Association wasn’t the first bar to consider the ethics of lawyers practicing law from virtual law offices and it won’t be the last. It did, however, write one of the more sensible opinions on this phenomenon, Advisory Opinion 201601.
The reasonable tone was set from the very outset, when the Committee on Professional Ethics explained that the phenomenon of lawyers practicing law from outside of their offices was not a new one and was simply a sign of changing times: “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.”
Next, the Committee turned to the requirement in some jurisdictions that a law firm must have a physical office address, noting that Washington has no such rule. And, unlike some other states, there is no need for Washington lawyers to include a physical address on lawyer advertising, “(a)s long as it is not deceptive or misleading…(a) lawyer may use a post office box, private mail box, or a business service center as an office address in advertisements.” Similarly, lawyers must also refrain form misleading colleagues and others - through communications or otherwise - into believing that the lawyer is part of a brick and mortar firm.
The Committee then moved on to addressing the ethics of virtual lawyers storing all firm data online, such as in a legal practice management system, and concluded that lawyers may ethically store confidential client data online “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.”
Factors that the Committee suggested lawyers take into consideration when using cloud computing software in their virtual law firm included:
Lawyers have a duty of general technology competence
Lawyers must thoroughly vet cloud computing vendors to ensure data is stored securely
Lawyers must ensure that there are sufficient data backup procedures in place
The agreement with the vendor should ensure that lawyers area able to retrieve law firm data in a readable format and that it includes breach notification clauses
Because technology can change quickly, lawyers have a continuing duty to monitor and review the adequacy of the vendor’s security procedures.
Importantly, the Committee acknowledged that in 2017, due to technology advancements, including secure online client portals, email is not necessarily the best way for lawyers to communicate with clients, regardless of whether the law firm has a virtual office or a brick and mortar office. Like the American Bar Association (in Formal Opinion 11-459) and the Texas Bar (in Ethics Opinion 648), the Committee warned against using email in some cases: “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.”
In other words, the Committee issued a well reasoned opinion that acknowledged the rapid pace of technological change. As such, its determinations include elastic standards that will no doubt withstand the test of time. Well done Washington State Bar Association! Let’s hope other bars that have not yet addressed these issues will follow in your footsteps.
Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.