Attorneys who practice out of the “virtual” office are becoming more common. Perhaps it is the overhead costs deterring some from shelling out for a physical address, or the ease with which one can practice entirely online, or maybe a bit of both. Whatever the reason, more and more attorneys, especially new bar admitees, are opting for the virtual office. But can an attorney practice entirely online, maintaining the client’s file online, and communicating only with the client via e-mail, all through a secure third -party vendor (i.e. cloud computing) and still be in compliance with his or her ethical obligations? This was the recent issue put before the California State Bar Standing Committee on Professional Responsibility and Conduct in Formal Opinion no. 2012-184.
The issues decided in this opinion concerned an attorney who, through the firm’s website, assigned a password to each client who could then access their individual file online and communicate with the attorney via e-mail through the portal. The attorney may never meet in person with the client, or even communicate with them via telephone. All communications were to occur solely through the secure website.
In its opinion, the Committee found that while the Rules of Professional Conduct and the Business and Professions Code do not directly place any additional or different requirements on attorneys operating out of a virtual office, specific issues are implicated in the virtual setting that may give rise to further due diligence requirements.
For example, an attorney has a duty to maintain her clients’ confidences. (Bus. & Prof. Code §6068(e)(1); Rule 3-100(A).) An attorney utilizing technology in any law practice has a duty to ensure that the duty to maintain her clients’ confidences is met, and all communications occurring via e-mail are secure. However, in the case of the virtual office, where all files are also stored, the attorney has an additional duty to ensure that the third-party vendor securing the site, information, and communications has employed policies and procedures to protect the data that at a minimum equal what the attorney would do on her own to comply with the rule. While an attorney must not be an expert in the technological field to make this determination, an attorney should at least know the basics in analyzing the vendors. Factors to be considered in assessing the vendor include the credentials of the vendor, data security, transmission of information in the cloud, ability to supervise vendor, and terms of service with the vendor. If an attorney is unable to make this assessment herself, she is required to seek an expert opinion.
Another duty that may be implicated in this situation is the duty to provide competent representation, which relies heavily upon the attorney’s ability to communicate with her clients. (Rule 3-500; see also Calvert v. State Bar (1991) 54 Cal.3d 765, 782 (“Adequate communication with clients is an integral part of competent professional performance as an attorney.”) In conducting a legal practice entirely through the virtual office, special considerations must be taken to ensure the attorney is communicating effectively with the client in order to comply with this ethical obligation. For example, from the first interview, the attorney must ensure that she takes in sufficient information from the prospective client to determine if she can provide the legal services in question. The attorney then must ensure that she communicates with the client about the case status and issues, and that the client understands the legal concepts involved sufficiently to make informed decisions. When communicating solely through e-mail, it can be difficult for an attorney to discern whether the client completely understands the issues, whereas in person the attorney would have the ability to read verbal and nonverbal clues.
Once an attorney begins representation of the client, she must keep the client reasonably informed. (Bus. & Prof. Code §6068(m) & (n); rule 3-500.) If an attorney’s communications with a client include merely posting information on a client’s portal, the attorney must take steps to ensure that the client is in fact receiving that information in a timely manner. It may be wise for the attorney to speak with the client regarding the importance of regularly logging into the portal to check for attorney communications. However, if the attorney does not believe the client is doing this regularly and therefore not timely receiving communications, it may be necessary to communicate with the client by other means to ensure this ethical obligation is complied with.
It should always be remembered that prior to beginning this sort of virtual representation, it must be determined if the client has sufficient knowledge of technology to check his or her portal, and navigate the site for case information and communications. If this is not the case, then the attorney may not be able to provide competent representation in this environment and all representation in the virtual office must cease immediately. The attorney would thereafter be free to represent the client in a non-virtual setting.
While operating a virtual office may provide many attorneys with a more economical and efficient means of connecting with their clients and providing legal services, it also presents ethical issues that are not encountered in a traditional law office setting. Attorneys choosing to go this route must ensure that they are complying with the same rules of professional conduct, however the means of compliance may require some additional due diligence.