This is part of the Ethics Committee’s regular series of Ethics Minutes for federal litigators and others – what to watch out for, what to do and what not to do. Let us know what you think! Have an idea for a future Ethics Minute? Reach out to us!
The Curtain Rises
You decide to hang out a shingle (congratulations!). To save on overhead and commuting time, you decide to work from home three days a week and rent an office in a co-working space nearby for the remaining two days where you can see clients if needed. To get your practice up and running, you also contract with a vendor that provides secure document storage and virtual client communications. You think you have all the pieces in place, but is there anything you are forgetting?
The Moral of the Story
Don’t forget the ethics rules! State bars have acknowledged the emergence of virtual law offices, and issued legal opinions accordingly (see examples from Virginia,Ohio,NYC, and Washington). Below is a sampling of some ethics rules that may come into play. (References are to the Model Rules, but of course you should check your jurisdiction’s version.)
- Competence– Attorneys have a basic duty of competence, and a majority of states have also added a technological component. (See Model Rule 1.1, including cmt. .) So it is essential that you understand how the technological logistics of your practice work, including how vendors ensure client information is protected (including making sure it is backed up to prevent data loss), which leads us to the second ethical implication…
- Confidentiality– Attorneys should ensure any virtual law office service provider understands the duty of confidentiality (see Model Rule 1.6), and will maintain client data securely. Additionally, you should ensure that the vendor notifies you of any data breaches and a way to retrieve the data in case the vendor goes out of business. Finally, you want to be sure any in-person communications in a co-working space cannot be overhead by the others sharing space with you.
- Communication– Managing client expectations regarding communication is an important, and perhaps often overlooked, ethical duty. (See Model Rule 1.4.) When using new technologies, you need to be aware of client expectations regarding your communications, and ensure things do not get “lost in translation” as often can happen with electronic communication.
- Advertising– Many of the opinions cited above opine regarding whether an attorney can list the address of the co-working space as a “law office” for advertising purposes. You should check your local rules regarding law office address requirements and ensure potential clients are not misled/it is clear that the lawyer is primarily engaging in a virtual law practice. (See Model Rule 7.1.)
As rules can vary by jurisdiction, check your state and local bar for any applicable ethics opinions relating to virtual law offices and review the ethics rules for any applicable provisions to virtual law practice. Doing so will help you avoid potential ethical dilemmas and get your new practice started off on the right foot.
“Ethics Minutes” are for your general information and do not constitute legal advice. The rules, ethics opinions and disciplinary cases in particular jurisdictions vary, and might result in an outcome different from the scenarios that are described here.
Nicole Kolinski is an attorney for the Architect of the Capitol Office of General Counsel. She serves on the FBA’s Ethics Committee, and is the Secretary for the Capitol Hill Chapter. The above reflects the views of the author and do not represent the position of the Architect of the Capitol, legislative branch or any government agency.