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We're All Virtual Lawyers Now

We're All Virtual Lawyers Now

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Published by George W. Conk
by George W. Conk
New Jersey Lawyer magazine (December 2011)
Whether we practice law with an iPad at the local Starbucks, or work in a complex litigation team - you need to stay current with new technology that affects the practice of law.
by George W. Conk
New Jersey Lawyer magazine (December 2011)
Whether we practice law with an iPad at the local Starbucks, or work in a complex litigation team - you need to stay current with new technology that affects the practice of law.

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Published by: George W. Conk on Feb 10, 2012
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Commentary
We’re All Virtual Lawyers Now
by George W. Conk
A
dozen or so years ago, before Internet-basedcommunications became such a dominantpart of our lives, controversy raged whenNew York and Pennsylvania lawyers soughtto sidestep the New Jersey requirement thata lawyer practicing in the state must main-tain an in-state “
bona fide
office.
1
As a result, mail drops, con-venience offices, and other shadows of a real law office pro-liferated. Adamant in its defense of the
bona fide
officemandate at the time, the New Jersey State Bar Association(NJSBA) stated:
Simply put, the
bona fide
office rule protects New Jersey citi-zens from lawyers who are not familiar with state practice andprocedure, are not as readily accessible as local New Jerseycounsel, are often ignorant of the generally higher standardsof ethics and professionalism found in our daily practice, andwho have no commitment to our legal community and courts.
2
But the
status quo
was soon to change. In 2001, theSupreme Court of New Jersey appointed a committee, chairedby retired Supreme Court Justice Stewart G. Pollock, (the Pol-lock Commission) to review amendments approved by theAmerican Bar Association (ABA) for the New Jersey ModelRules of Professional Conduct (RPC). The Pollock Commis-sion also reviewed the ABA’s proposal on multi-jurisdictionalpractice (MJP), including a proposed MJP rule, and a recom-mendation supporting the admission of out-of-state lawyersto the New Jersey bar on motion.
3
The Pollock Commissionconcluded that a New Jersey-admitted lawyer’s
bona fide
officeneed not be in New Jersey, and that out-of-state attorneysshould be allowed to work in New Jersey under limited cir-cumstances—so-called MJP—without worrying about beingengaged in the unauthorized practice of law.
4
In response, the NJSBA emphasized the importance of thephysical, personal availability of attorney to client within thestate.
5
The Supreme Court amended the
bona fide
office rule in2003. It maintained the requirement of a
bona fide
office for thepractice of law, but that office need not be in New Jersey.
6
Theamended rule defines a
bona fide
office as:
a place where clients are met, files are kept, the telephone isanswered, mail is received and the attorney or a responsibleperson acting on the attorney’s behalf can be reached in per-son and by telephone during normal business hours to answerquestions posed by the courts, clients or adversaries and toensure that competent advice from the attorney can beobtained within a reasonable period of time.
7
The Virtual Challenge
In a recent challenge to this amended standard, some haveurged that a ‘virtual law office,’ a kind of mail drop with dress-ing, satisfies the
bona fide
office requirement. Specifically, theNew Jersey Supreme Court’s Advisory Committee on Profes-sional Ethics (ACPE) received the following inquiry: Can ahome office or a ‘virtual office’ qualify as a
bona fide
office forthe practice of law under Rule 1:21-1(a)? The ACPE answeredwith a resounding no.In a joint opinion with the Committee on Attorney Adver-tising, the ACPE declared that a
bona fide
office does notinclude a time-share arrangement with a receptionist whoknows nothing of the lawyer’s business.
8
A home office cansuffice because “the
bona fide
law office is in fact the placewhere the attorney can be found.” However, if the attorney isregularly out of the office during normal business hours, a
 
responsible person must be present atthe office.
9
In a reversal due to changing times,the joint opinions were challenged bythe NJSBA and members of the legalcommunity. Relying on a report by its Joint Subcommittee on the
 Bona Fide
Office Rule, the NJSBA forwarded a letterto the chief justice stating the rule erectsa barrier to those who wish to practicelaw in a cost-effective manner and deliv-er reasonably priced legal series to clientsof moderate means. The NJSBA peti-tioned the Supreme Court to “eliminatethe current requirement for a fixed officelocation, in favor of functional tests thatrequire a lawyer to structure a practice ina manner that stresses accessibility andresponsiveness.”
10
The Supreme Courtdenied the petition but remanded thematter to the Supreme Court Profession-al Responsibility Rules Committee, withthe task of recommending whether Rule1:21-1(a) should be amended to permitthe use of a virtual office.
11
The most detailed critique of the New Jersey
bona fide
office rule is by StephanieKimbro, a blogger, activist, and web-based practitioner located in North Car-olina, who penned a defense publishedin the University of Dayton Law Reviewand her blog Virtual Law Practice. Kim-bro is a defender of law practices that are“entirely web based.” But she recognizesthat “[v]irtual law practice is being inte-grated into traditional law firm structuresor [is] being used to set up completelyvirtual law offices that provide unbun-dled or limited legal services online.”
12
‘Unbundled legal services’ apparentlymeans things like the “web-based”lawyer can offer limited services alongthe lines of: “We’ll help you get started,from there on you are
 pro se.
What troubles me is the concept of “unbundled or limited legal servicesonline,” because each of us gains alicense to practice law from a state orstates, and the law under which welabor is generally the place where we arelocated or where the work has its princi-pal impact. Disappointed clients knowwhere to find us and can readily under-stand which state’s law governs. Thechallenge for the courts is to maintainthat guarantee integrity for the entireprofession, so that clients can be confi-dent that lawyers can be trusted. Atriad—clarity of licensing and discipli-nary authority, physical presence, andfinancial responsibility—is an impor-tant foundation of public confidence inthe bar, and, therefore, our clients’ con-fidence in each of us.The form of practice celebrated byKimbro is “elawyering,” which shedescribes as dependent on “use of soft-ware as a service” or “SaaS,” a form of “cloud computing.” Clients communi-cate with an attorney through a secureonline client portal, accessible anywherethe parties may access the Internet.Although, at first blush this may soundlike a scheme by a con artist, or a clevertech-savvy solo artist, it is, in fact, the waymuch of the practice of law is currentlygoing. Once one commits his or her ownemail to Google’s gmail, or data storage toLexis, Amazon, Dropbox, or other storageservice, he or she is well into the cloud.Virtual lawyering has presented itself as a kind of democratizing move, whichmakes legal services more accessible.The image is a sort of low-overhead,low-cost, address-unknown, have-lap-top-will-travel practitioner. But whetherwe are modern Paladins or brick andmortar practitioners, we are all in thecloud now. In complex multi-district,litigation documents are exchanged notphysically but rather by posting onsecure sites maintained by industrygiants like Lexis. The official filing of adocument in federal court is electronicnow. Docket reports, briefs and appen-dices are accessed through PACER.
13
Kimbro deprecates the New Jersey
bona fide
office rule as possibly discrimi-nating against women who have part-time at-home practices. While laudingthe increased accessibility the Internet,cell phones, etc. provides, she concedesthat a criminal defense practice wouldlikely not be amenable to coffee shopconferences, and that an elder law prac-titioner would likely not be able to serv-ice his or her clients properly over theweb. Rather, Kimbro leaves this assess-ment to the judgment of the individualattorney who would be required to “pro-vide for any physical or virtual officespace in which the attorney and clientare able to securely interact and conductbusiness in a confidential manner.”
14
In the same spirit as Kimbro, solopractitioners have sought support intheir efforts to be released from the con-straints of the requirement of a physicaloffice. Much like the NJSBA, the Penn-sylvania State Bar Association Commit-tee on Legal Ethics and ProfessionalResponsibility found the virtual lawoffice concept as a method of eliminat-ing or drastically reducing the overheadassociated with brick and mortar facili-ties.
15
The Pennsylvania Bar AssociationCommittee rather blithely concludes therules do not prohibit the creation of vir-tual law offices. As a result, Pennsylvaniaattorneys practicing in a virtual lawoffice must take appropriate measures toassure that they comply with the Rulesof Professional Conduct.
16
That is entire-ly too breezy a dismissal of a principalconcern; being professionally responsi-ble includes being able to be located. Alawyer without a public physical addresswhere he or she can be personally servedcannot be held responsible.
The ABA Weighs In
But since we are all virtual lawyers now,what are we to do? What should the Rulesof Professional Conduct require? Lawyerslooking for guidance would do well tolook at the recent output of the ongoingABA Commission on Ethics 20/20.
17
Examining the problems of technologyand competency presented by cloud com-puting, the ABA, in a May 2011 report,
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found the Model Rules to be largely ade-quate.
18
However, because of the complex-ity of the use of these new technologiesthe ABA commission recommends ampli-fying Comment 6 of its Model Rule 1.1regarding attorney competence.
Currently, Model Rule 1.1 reads:
A lawyer shall provide competent repre-sentation to a client. Competent repre-sentation requires the legal knowledge,skill, thoroughness and preparation rea-sonably necessary for the representation.
The ABA commission proposes toadd an explicit duty of technologicalcompetence. The amended Comment 6would provide:
Maintaining Competence
To maintain the requisite knowledgeand skill, a lawyer should keep abreastof changes in the law and its practice,
including the benefits and risks associat-edwith technolog
engage in con-tinuing study and education and complywith all continuing legal educationrequirements to which the lawyer is sub- ject. [proposed new text underscored]
The New Jersey version of RPC 1.1(Competence) is strangely spare. Itomits the entire text of the ABA ModelRule.
19
The ABA comments are not refer-enced or adopted in our rules. Our ruleprovides only:
A lawyer shall not:(a) Handle or neglect a matter entrust-ed to the lawyer in such mannerthat the lawyer’s conduct consti-tutes gross negligence.(b) Exhibit a pattern of negligence orneglect in the lawyer’s handling oflegal matters generally.
20
If the ABA’s elaboration—declaring aduty to “keep abreast of” technology’s“risks and benefits” gives youpause...well, it should. Practicing lawand representing clients is not a hobby,not just a matter of hanging out a shin-gle. Doing things ‘the old-fashionedway’ will not suffice. The old businessversus profession dichotomy is chang-ing form, and the realization of duties of competence and confidentiality isemerging as a central concern. It is 10p.m., do you know where your files are?Are they on some server maintained byGoogle, or Amazon, or perhaps only onyour laptop? If those are the only placeswhere they are located, you may haveplaced your trust in a form too fragile ortoo vulnerable to lose. To know what isreasonably required to meet the duty of safekeeping your client’s property andconfidences, you may need to knowmore, including that the server youhave entrusted is secure, is in goodmechanical condition, is independentlybacked up to a second secure location,and is protected against invasion.
21
The ABA proposal also includes anamendment to Model Rule 1.6 regard-ing confidentiality of information. TheABA commission proposed addition of Section (c):
A lawyer shall make reasonable effortsto prevent the inadvertent disclosureof, or unauthorized access to, informa-tion relating to the representation of aclient.
This amplification of the duty to actcompetently to preserve confidentialityproposes a flexible standard. Comment16 of Model Rule 1.6 now provides:
A lawyer must act competently to safe-guard information relating to the rep-resentation of a client against inadver-tent or unauthorized disclosure by thelawyer or other persons who are par-ticipating in the representation of theclient or who are subject to thelawyer’s supervision.
The commission’s proposed Com-ment 16 of Model Rule 1.6 provides newlanguage:
Factors to be considered in determiningthe reasonableness of the lawyer’sefforts include the sensitivity of theinformation, the likelihood of disclosureif additional safeguards are notemployed, and the cost of employingadditional safeguards. Whether a lawyermay be required to take additional stepsto safeguard a client’s information inorder to comply with other laws, such asstate and federal laws that govern dataprivacy or that impose notificationrequirements upon the loss of, or unau-thorized access to, electronic informa-tion, is beyond the scope of these Rules.
The identity, competence and viabilityof the storage system are all subjects aboutwhich a lawyer must be reasonablyinformed. The mention of state and feder-al privacy laws is an additional reminderthat the modern lawyer, the lawyer whoseworld is virtual, in whole or in part, mustbe a well-informed practitioner.Finally, the ABA proposal would amendModel Rule 4.4 regarding respect for rightsof third persons to make clear that theword “document” is inadequate to describethe matter we must safeguard. The propos-al would replace the word “document”with “information or material.”
Proposed Comment 2 of Model Rule4.4 provides, in part:
For purposes of this Rule, “informationor material” includes paper documents,email, and other forms of electronicallystored information, including electronicdocuments and the data contained inthose documents (commonly referredto as metadata
22
), that are subject tobeing read or put into readable form.Receipt of electronic information con-taining “metadata” does not, standingalone, create a duty under this Rule.
If you don’t know what “metadata” is
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