The idea of a virtual law practice, often called “elawyering”, can be traced to the early days of the Internet when early law firm Web sites such as http://www.visalaw.com and http://www.mdfamilylawyer.com first appeared. In January 2000, William Paul, then president of the American Bar Association, created the ABA eLawyering Task Force. President Paul’s vision was that lawyers would be able to use the power of the Internet to serve clients of moderate means who have been priced out of the legal market. The eLawyering Task Force still exists today as a program unit within the Law Practice Division of the American Bar Association. Each year, among other activities, the eLawyering Task Force awards the James Keane Memorial Award for Excellence in eLawyering to a law firm or organization that demonstrates innovation in the delivery of online legal services to clients of moderate means. The award has been granted six times.
With the passage of time, the idea of elawyering became associated with the concept of virtual law practice. The period between 2000 and 2009 witnessed the emergence of a number of virtual law firms that sought to deliver legal services online directly to clients. The ABA”s Legal Technology Resource Center reported in 2013 that approximately 7% of solos and small law firms have a truly virtual law practice. Unlike a simple law firm Web site that may only have a description of a firm’s practice, biographical information about the partners and employees of the firm, and some legal information, a “virtual law firm” is characterized by access by the firm’s clients to a password-protected and secure Web space where both the attorney and client may interact and legal services are consumed by the client. Some of these legal tasks may include the delivery of online legal advice, legal review of documents that have been received by the client from another party, discussions between the lawyer and the client, and the creation, assembly, and review of legal documents and forms.
In response to inquiries from law firms about what constitutes an ethically compliant virtual law practice, the eLawyering Task Force in 2009 released “Suggested Minimum Requirements for Law Firms Delivering Legal Services Online“.
These minimum requirements are designed to help lawyers resolve questions about whether their “virtual practices” comply with the applicable professional rules of conduct. Since every state develops and enforces its own rules for the legal profession, these requirements were intended to be advisory only. The guidelines were never submitted to the ABA House of Delegates for approval, so their authority is limited to the wisdom contained within the guidelines themselves, but they have had an impact on the definition of what constitutes a “virtual law practice.”
The core definition of a “virtual law practice” proposed by the eLawyering Task Force in the Requirements is linked to the architecture of a law firm’s Web site. Thus:
“The basic structure of a law firm Web site that offers legal services online requires a secure client Web space that is accessible only with a user name and secure password. Without such a mechanism it is difficult or impossible to comply with the rules of professional conduct that deal with UPL, client confidentiality, establishing the lawyer/client relationship, and conflict of interest issues.”
In other words, the idea of virtual law practice is linked to the idea of delivering legal services online. In order to protect the confidentiality and security of client information this requires a secure “client portal” accessible with a user name and password. Within the secure client portal, clients can communicate and collaborate with their lawyers online with the assurance that their transactions are secure and ethically compliant.
A “secure Web space” that is accessible to a client is commonly known as a “client portal”. The term is most often applied to an electronic sharing mechanism between a law firm and its clients. The law firm provides a secure entry point that enables its clients to log into an area where they can communicate, view and download documents, collaborate on document editing and upload private information. The portal exists only on the Web and data is stored in the cloud. When data is transmitted between the secure portal and the client, it is encrypted.
eLawyering can only take place within a secure web space. eLawyering includes the tasks that a lawyer does within the “client portal” itself. These eLawyering tasks can be of many different types. Marc Lauritsen, co-chair of the eLawyering Task Force in an article in Law Practice Magazine in January-February, 2004, p. 36, defined eLawyering as:
“all the ways in which lawyers can do their work using the Web and associated technologies. These include new ways to communicate and collaborate with clients, prospective clients and other lawyers, produce documents, settle disputes and manage legal knowledge. Think of a lawyering verb-interview, investigate, counsel, draft, advocate, analyze, negotiate, manage and so forth-and there are corresponding electronic tools and techniques.”
The literature about “virtual law practice” often quotes some lawyers as referencing themselves as “virtual lawyers” because they don’t have a physical office, meet clients within their client’s office or at the local Starbucks, and do their legal work by email, cell phone and laptop computer more often than not in the comfort of their own home. The likes of these lawyers, as well as any other self-employed people that work from home, often have an office address by using a service such as you’re able to find looking at these Boston virtual offices or similar virtual office address providers. These services allow those that work from home to have an alternative address to start a company through, instead of having to use the address of where they personally live, as well as many other benefits
This is a difference between virtual law practice and just being a “mobile” lawyer. We would characterize the lawyer in the previous paragraph as just being “untethered” – a lawyer who is mobile and free from a specific office location. A “virtual lawyer” is also an “untethered” lawyer, but he/she is also much more than that when integrating a client portal into their virtual practice model. Making this distinction is important because when the lawyer is evaluating his or her compliance with the rules of professional conduct, different ethics issues may arise from the direct delivery of legal services to clients online that would not arise from merely using online tools to conduct legal tasks. For example, if the lawyer is delivering legal services to clients online, there may be an online form of limited scope engagement agreement that must be properly handled securely online. The establishment of the lawyer/client relationship online through a secure client portal and use of a click wrap agreement requires compliance with rules that a virtual practitioner would need to be aware of that go beyond the traditional establishment of the lawyer/client relationship. Therefore, simply being a “mobile” lawyer may not raise the same ethics issues or require the same level of security and attention to procedure.
To summarize: A “virtual lawyer” is one who delivers legal services online through a secure Web space, normally characterized as a “client portal.” Without the security of “client portal technology” where communications are encrypted and protected, the practice is not ethically compliant. It is estimated that approximately 6 percent of solos and small law firms use a secure client portal to communicate and collaborate with their clients and deliver other legal services online. The idea of “virtual law practice” is still in its early stages in terms of wide spread adoption by the legal profession. However, given the continued rise in consumer use of companies that provide online legal services, with or without the review of a licensed lawyer, the market need for virtual law offices as an alternative to traditional legal service delivery will most likely be driven by consumer demand and adoption by the profession will increase in the coming years.
In the fullness of time, almost every law firm will have the capacity to work with their clients online, and their clients will expect them to have this capacity. The idea of a “Virtual Law Practice” will not be only something that early adopters utilize in their law practice – it will become an essential component of every law firm practice.
About the Authors
Richard S. Granat is Co-Chair or the eLawyering Task Force, CEO of DirectLaw and Co-Director, Center for Law Practice Technology, Florida Coastal School of Law.
Stephanie Kimbro, MA, JD, is Co-Director of the Center for Law Practice Technology and a Fellow at Stanford Law School with the Center on the Legal Profession. She is the recipient of the 2009 ABA Keane Award for Excellence in eLawyering and the author of Virtual Law Practice: How to Deliver Legal Services Online(2010), Limited Scope Legal Services: Unbundling and the Self-Help Client (2012),Consumer Law Revolution: The Lawyers’ Guide to the Online Legal Marketplace (2013), and Online Legal Services for the Client-Centric Law Firm (2013).
Full disclosure, Legal Ink Magazine is an affiliate partner with DirectLaw.