The Internet has created a revolution in the way lawyers and clients interact, but the “virtual” lawyer must not lose sight of the “actual” client.
The most familiar form of the online revolution’s impact on small and solo law firms is the use of the Internet for everything from websites and blogs to client updates and webinars. Social networking allows lawyers to access literally a world of potential clients through sites such as LinkedIn. And clients can be contacted instantaneously for anything from a quick question to a document review through texting and email.
It’s just a small step to the next transformation: the virtual law practice, in which lawyer, staff and clients conduct legal practice primarily through the Internet. For a lawyer in a larger firm, the phenomenon is labeled telecommuting; for a solo practitioner it involves the establishment of a virtual office.
In either instance the concept is the same: minimal expenditures on physical office space; contact with clients or professional colleagues largely by email, Internet portal or telephone; and the use of online “virtual assistants” at another remote location for staff support.
Some futuristic thinkers declare that where lawyers practice is irrelevant, as long as clients can call or email them. In an abstract sense that may be true. Certainly there is no formal ethical prohibition against having a virtual office. In fact, the eLawyering Task Force of the American Bar Association’s Law Practice Management Section has prepared guidelines for conducting a virtual practice.
“To be successful in the coming era, lawyers will need to know how to practice over the Web [and] manage client relationships in cyberspace,” the Task Force says.
But even if a virtual law office or law practice is acceptable, a virtual lawyer is not. The attractions of a virtual office must be balanced by consideration of their limitations.
When it comes to a virtual practice, value is determined by the client, not the lawyer. If the lawyer does not educate the client about the cost and convenience of a virtual practice, and the client does not recognize and agree to this value, the result is misunderstanding and miscommunication, and possibly a bar disciplinary hearing and/or malpractice suit.
The key to avoiding ethics problems in a successful virtual practice is to fulfill all ethical requirements while conveying the value of the arrangement to the client.
If lawyers are perceived as inaccessible, fees become an issue and client complaints are a problem. The ability to respond quickly is essential to answering the visibility question. Clients may be more inclined to flexibility about where a solo practice is if they have the assurance that they can always get in touch when they need to. Consider what could be called a quasi-virtual practice, one in which a lawyer may have a physical office space but does the majority of legal work offsite and online.
Keep in mind that while the flexibility offered by voicemail, email and other electronic tools is real, it can become dangerous when used as a replacement for client contact. A major differentiating factor for most clients is the “care and feeding” offered by lawyers. Nothing should be allowed to disrupt the means by which the lawyer learns the intent and needs of the client. No matter what technology makes possible, it is not the answer if it makes life more difficult for the client.
Confidentiality and security
Along with the responsibility for service comes the need for confidentiality. Wireless laptops and smartphones are prerequisites for virtual practice. But the eLawyering Task Force has emphasized the need for a secure, encrypted website for maintaining client confidentiality in representation, in retainer agreement terms and in online payment.
Otherwise, the Task Force says, it would be “difficult or impossible to comply with the rules of professional conduct that deal with … client confidentiality.”
It is a lawyer’s ethical duty to protect all documents on behalf of clients. If a lawyer conducts a virtual practice over wireless laptop or smartphone connection, it is absolutely essential to address such issues as the security of email and file encryption. If the client has specified that wireless communication is not confidential enough, or that a particular kind of communication must be encrypted, the lawyer must comply with that request or risk a malpractice claim. An inadvertent disclosure of privileged or confidential information or work product through insecure wireless connections would have severe consequences and needs to be guarded against at all costs.
These issues are cautions, not prohibitions. If service and security demands can be met, the virtual law office could ultimately be the salvation of the legal profession, keeping lawyers from the fate of other once respected professions rendered obsolete by Internet speed and convenience.
The issue is the customer’s evaluation of cost versus benefit. With incomes shrinking and access to information on the Internet expanding, many people assume they cannot afford a lawyer and that they can do just as good a job for themselves using what they find on the web. If lawyers embody the efficiency and low cost of the Internet while bringing their creativity and experience to the table, they will maintain their professional positions, even if those positions are virtual ones.