Originally published in the July 2018 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.
What defines a virtual law office, and as such, what are the ethical considerations that accompany the use of one? A virtual law office does not mean the same thing for everyone, including attorneys who self-identify as practicing law in a virtual law office.
For example, the 2016 American Bar Association Legal Technology Survey Report revealed that 74 percent of solo attorneys, but only 57 percent of attorneys overall, believed that the lack of traditional office space defines a virtual law practice.1 Is a virtual law office determined by the lack of traditional office space, the absence of any face-to-face contact with clients, the use of a combination of cloud computing methods, the use of a secure client portal, or the use of email as the primary method of communication with clients?
Or, should there be a balancing test involving all of these characteristics? It may be that a virtual law office falls into the category of things that defy a clear description but, as U.S. Supreme Court Justice Stewart famously wrote about obscenity, can be identified as “I know it when I see it.”2
WSBA’s Committee on Professional Ethics appears to be in the camp that defines a virtual law office by the lack of traditional office space. No doubt to the relief of the attorneys practicing in virtual law offices in Washington, WSBA Ethics Advisory Opinion 201601 (2016) addressing “Ethical Practices of the Virtual Law Office” confirms that “[t]here is no requirement that WSBA members have a physical office address.”
Not all state bar associations agree that attorneys do not need to have a physical office. New Jersey, for example, required attorneys to maintain a physical office to practice law in that state until a 2013 change to its court rules.3
Washington attorneys with virtual law offices should note that while no physical office is required to practice law in our state, 2017 amendments to the Admission and Practice Rules (APR) require that an attorney provide WSBA with the address of a resident agent if the attorney has a public mailing address that is outside Washington or is not a physical street address.4 A P.O. box does not qualify as a physical street address for this purpose. In addition, attorneys with virtual law offices should note that the resident’s agent address is publicly available.
It should be no surprise that Advisory Opinion 201601 states that attorneys who practice in a virtual law office must meet the same ethical standards under the Rules of Professional Conduct (RPCs) as attorneys who practice in a traditional office setting. There are, however, special ethical considerations for any attorney engaged in the practice of law using a virtual law office, or thinking about hanging a virtual shingle.
While the RPCs do not require a virtual law office to have a physical location, attorneys practicing in virtual law offices must take care that statements regarding their offices are not misleading and therefore in violation of RPC 7.1: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”
Further, materials advertising a virtual law office are not required to contain the physical address where an attorney works, so long as the materials are not misleading. While RPC 7.2(c) requires that attorney advertisements include the name and address of the attorney or law firm responsible for the advertisement’s content, this address can be a mailing address, so long as the advertisement is not deceptive or misleading and thus in violation of RPC 7.1.
Practitioners with a virtual law office must avoid misleading clients or others that they have a physical office when none exists, as that could not only violate RPC 7.1 but also potentially violate RPC 8.4(c), which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Thus, while an attorney is not required under the RPCs to maintain a physical office, if the attorney practices in a virtual law office, the attorney must be clear about that fact in marketing materials and communications with clients and potential clients.
An attorney practicing in a virtual law office may need to be particularly mindful in hiring staff and other attorneys, as well as implementing systems to ensure adequate supervision of staff. Like any other law firm, an attorney with a virtual law office must ensure that all of the firm’s lawyers comply with the RPCs pursuant to RPC 5.1 and that the conduct of any non-attorney staff person is consistent with the attorney’s ethical obligations under the RPCs pursuant to RPC 5.3.
A virtual law office may be more inclined to adopt innovative technology or to rely heavily on tried-and-true technology like email. An attorney with a virtual law office should evaluate any technology used in their practice to confirm that it would not result in a violation of the RPCs. In particular, the restrictions on revealing client information related to representation under RPC 1.6 and an attorney’s duty to keep a client reasonably informed regarding their matter under RPC 1.4 are relevant to the use of technology in a law practice.
WSBA Ethics Advisory Opinion 2215 (2012) addresses the use by attorneys of cloud computing, such as online data storage and backup systems. According to the American Bar Association’s 2017 Legal Technology Survey Report, more than 50 percent of attorneys reported using cloud computing in their practices, while a frightening, but honest, 10 percent either didn’t know what cloud computing was or didn’t know whether they used cloud computing.5
Advisory Opinion 2215 concluded that attorneys may use cloud computing in their practice so long as they take care to ensure that client information will remain confidential and thus avoid any violation of RPC 1.6. Attorneys must also ensure that clients’ data are secure against risk of loss, consistent with the attorney’s duty to protect client property under RPC 1.15A. Advisory Opinion 2215 also provides that an attorney’s general duty of competence under RPC 1.1 includes the ability to understand and keep up with any technology the attorney utilizes in their practice.
The American Bar Association’s 2017 Legal Technology Survey Report perhaps unsurprisingly found that 99 percent of attorneys responding to the survey reported checking email while outside the office.6 WSBA Ethics Advisory Opinion 2175 (2008) addresses email communications by attorneys and is referenced in Advisory Opinion 201601. No doubt to a collective sigh of relief in 2008, Advisory Opinion 2175 confirmed that “[i]t is not a violation of the RPCs to use e-mails to communicate with clients.”
Similarly, WSBA Ethics Advisory Opinion 2217 (2012) addresses how an attorney should proceed if a client uses a method of communication through which the attorney believes confidentiality may be compromised, such as an employer-provided email account. Advisory Opinion 2217 states that an attorney has a duty to advise a client that the use of the potentially compromised communication method could result in the waiver of the attorney-client privilege if a third party, such as the client’s employer, views communications between the client and the attorney.
This duty arises under RPC 1.4(b), which requires that a lawyer “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” As Advisory Opinion 2217 notes, “whether to use a method of communication that may be accessed by third parties, particularly if the lawyer has reason to believe that the client is unaware that may occur” is the type of information an attorney is expected to provide the client in order to make a reasonably informed decision.
It is not only the attorney with a virtual law office, but every attorney practicing today who should be familiar with the ethical considerations inherent in the use of cloud computing, email and other technology. As noted in Advisory Opinion 2215, the general duty of competence under RPC 1.1 includes a duty to understand the technology relevant to the attorney’s law practice and how to make use of that technology in a manner consistent with the RPCs.
Attorneys who practice in either a virtual or a traditional law office must meet the same ethical standards under the RPCs, and they likely make use of the same technological tools in their practice. Because of this, at least one online commentator has questioned whether there is any significance in distinguishing a virtual law office from a traditional law office.7
However, eliminating that distinction has the potential to mislead clients, which would violate RPC 7.1, as discussed in Advisory Opinion 201601. While a virtual law practice may not look all that different from any other law practice from the attorney’s perspective, it remains important for the attorney to make sure a client understands whether the attorney maintains a traditional office or practices from a virtual law office.