Commentary

Were All Virtual Lawyers Now

by George W. Conk

A
(NJSBA) stated:

dozen or so years ago, before Internet-based communications became such a dominant part of our lives, controversy raged when New York and Pennsylvania lawyers sought to sidestep the New Jersey requirement that a lawyer practicing in the state must main1

engaged in the unauthorized practice of law.4 In response, the NJSBA emphasized the importance of the physical, personal availability of attorney to client within the state.5 The Supreme Court amended the bona fide office rule in 2003. It maintained the requirement of a bona fide office for the practice of law, but that office need not be in New Jersey.6 The amended rule defines a bona fide office as:
a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorneys behalf can be reached in person and by telephone during normal business hours to answer

tain an in-state bona fide office. As a result, mail drops, convenience offices, and other shadows of a real law office proliferated. Adamant in its defense of the bona fide office

mandate at the time, the New Jersey State Bar Association

Simply put, the bona fide office rule protects New Jersey citizens from lawyers who are not familiar with state practice and procedure, are not as readily accessible as local New Jersey counsel, are often ignorant of the generally higher standards of ethics and professionalism found in our daily practice, and who have no commitment to our legal community and courts.
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questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.7

The Virtual Challenge

In a recent challenge to this amended standard, some have urged that a virtual law office, a kind of mail drop with dressing, satisfies the bona fide office requirement. Specifically, the New Jersey Supreme Courts Advisory Committee on Professional Ethics (ACPE) received the following inquiry: Can a home office or a virtual office qualify as a bona fide office for the practice of law under Rule 1:21-1(a)? The ACPE answered with a resounding no. In a joint opinion with the Committee on Attorney Advertising, the ACPE declared that a bona fide office does not include a time-share arrangement with a receptionist who knows nothing of the lawyers business.8 A home office can suffice because the bona fide law office is in fact the place where the attorney can be found. However, if the attorney is regularly out of the office during normal business hours, a
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But the status quo was soon to change. In 2001, the Supreme Court of New Jersey appointed a committee, chaired by retired Supreme Court Justice Stewart G. Pollock, (the Pollock Commission) to review amendments approved by the American Bar Association (ABA) for the New Jersey Model Rules of Professional Conduct (RPC). The Pollock Commission also reviewed the ABAs proposal on multi-jurisdictional practice (MJP), including a proposed MJP rule, and a recommendation supporting the admission of out-of-state lawyers to the New Jersey bar on motion.3 The Pollock Commission concluded that a New Jersey-admitted lawyers bona fide office need not be in New Jersey, and that out-of-state attorneys should be allowed to work in New Jersey under limited circumstancesso-called MJPwithout worrying about being
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responsible person must be present at the office.9 In a reversal due to changing times, the joint opinions were challenged by the NJSBA and members of the legal community. Relying on a report by its Joint Subcommittee on the Bona Fide Office Rule, the NJSBA forwarded a letter to the chief justice stating the rule erects a barrier to those who wish to practice law in a cost-effective manner and deliver reasonably priced legal series to clients of moderate means. The NJSBA petitioned the Supreme Court to eliminate the current requirement for a fixed office location, in favor of functional tests that require a lawyer to structure a practice in a manner that stresses accessibility and responsiveness.10 The Supreme Court denied the petition but remanded the matter to the Supreme Court Professional Responsibility Rules Committee, with the task of recommending whether Rule 1:21-1(a) should be amended to permit the use of a virtual office.11 The most detailed critique of the New Jersey bona fide office rule is by Stephanie Kimbro, a blogger, activist, and webbased practitioner located in North Carolina, who penned a defense published in the University of Dayton Law Review and her blog Virtual Law Practice. Kimbro is a defender of law practices that are entirely web based. But she recognizes that [v]irtual law practice is being integrated into traditional law firm structures or [is] being used to set up completely virtual law offices that provide unbundled or limited legal services online.12 Unbundled legal services apparently means things like the web-based lawyer can offer limited services along the lines of: Well help you get started, from there on you are pro se. What troubles me is the concept of unbundled or limited legal services online, because each of us gains a license to practice law from a state or states, and the law under which we labor is generally the place where we are

located or where the work has its principal impact. Disappointed clients know where to find us and can readily understand which states law governs. The challenge for the courts is to maintain that guarantee integrity for the entire profession, so that clients can be confident that lawyers can be trusted. A triadclarity of licensing and disciplinary authority, physical presence, and financial responsibilityis an important foundation of public confidence in the bar, and, therefore, our clients confidence in each of us. The form of practice celebrated by Kimbro is elawyering, which she describes as dependent on use of software as a service or SaaS, a form of cloud computing. Clients communicate with an attorney through a secure online client portal, accessible anywhere the parties may access the Internet. Although, at first blush this may sound like a scheme by a con artist, or a clever tech-savvy solo artist, it is, in fact, the way much of the practice of law is currently going. Once one commits his or her own email to Googles gmail, or data storage to Lexis, Amazon, Dropbox, or other storage service, he or she is well into the cloud. Virtual lawyering has presented itself as a kind of democratizing move, which makes legal services more accessible. The image is a sort of low-overhead, low-cost, address-unknown, have-laptop-will-travel practitioner. But whether we are modern Paladins or brick and mortar practitioners, we are all in the cloud now. In complex multi-district, litigation documents are exchanged not physically but rather by posting on secure sites maintained by industry giants like Lexis. The official filing of a document in federal court is electronic now. Docket reports, briefs and appendices are accessed through PACER.
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the increased accessibility the Internet, cell phones, etc. provides, she concedes that a criminal defense practice would likely not be amenable to coffee shop conferences, and that an elder law practitioner would likely not be able to service his or her clients properly over the web. Rather, Kimbro leaves this assessment to the judgment of the individual attorney who would be required to provide for any physical or virtual office space in which the attorney and client are able to securely interact and conduct business in a confidential manner.14 In the same spirit as Kimbro, solo practitioners have sought support in their efforts to be released from the constraints of the requirement of a physical office. Much like the NJSBA, the Pennsylvania State Bar Association Committee on Legal Ethics and Professional Responsibility found the virtual law office concept as a method of eliminating or drastically reducing the overhead associated with brick and mortar facilities.15 The Pennsylvania Bar Association Committee rather blithely concludes the rules do not prohibit the creation of virtual law offices. As a result, Pennsylvania attorneys practicing in a virtual law office must take appropriate measures to assure that they comply with the Rules of Professional Conduct.16 That is entirely too breezy a dismissal of a principal concern; being professionally responsible includes being able to be located. A lawyer without a public physical address where he or she can be personally served cannot be held responsible.

The ABA Weighs In

But since we are all virtual lawyers now, what are we to do? What should the Rules of Professional Conduct require? Lawyers looking for guidance would do well to look at the recent output of the ongoing ABA Commission on Ethics 20/20.17 Examining the problems of technology and competency presented by cloud computing, the ABA, in a May 2011 report,
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Kimbro deprecates the New Jersey bona fide office rule as possibly discriminating against women who have parttime at-home practices. While lauding

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found the Model Rules to be largely adequate. However, because of the complex18

and representing clients is not a hobby, not just a matter of hanging out a shingle. Doing things the old-fashioned way will not suffice. The old business versus profession dichotomy is changing form, and the realization of duties of competence and confidentiality is emerging as a central concern. It is 10

ment 16 of Model Rule 1.6 provides new language:

Factors to be considered in determining the reasonableness of the lawyers efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not

ity of the use of these new technologies the ABA commission recommends amplifying Comment 6 of its Model Rule 1.1 regarding attorney competence. Currently, Model Rule 1.1 reads:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

p.m., do you know where your files are? Are they on some server maintained by Google, or Amazon, or perhaps only on your laptop? If those are the only places where they are located, you may have placed your trust in a form too fragile or too vulnerable to lose. To know what is reasonably required to meet the duty of safekeeping your clients property and confidences, you may need to know more, including that the server you have entrusted is secure, is in good mechanical condition, is independently backed up to a second secure location, and is protected against invasion.21 The ABA proposal also includes an amendment to Model Rule 1.6 regarding confidentiality of information. The ABA commission proposed addition of Section (c):
A lawyer shall make reasonable efforts

employed, and the cost of employing additional safeguards. Whether a lawyer may be required to take additional steps to safeguard a clients information in order to comply with other laws, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.

The ABA commission proposes to add an explicit duty of technological competence. The amended Comment 6 would provide:
Maintaining Competence To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology engage in con-

The identity, competence and viability of the storage system are all subjects about which a lawyer must be reasonably informed. The mention of state and federal privacy laws is an additional reminder that the modern lawyer, the lawyer whose world is virtual, in whole or in part, must be a well-informed practitioner. Finally, the ABA proposal would amend Model Rule 4.4 regarding respect for rights of third persons to make clear that the word document is inadequate to describe the matter we must safeguard. The proposal would replace the word document with information or material. Proposed Comment 2 of Model Rule 4.4 provides, in part:
For purposes of this Rule, information or material includes paper documents, email, and other forms of electronically

tinuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. [proposed new text underscored]

The New Jersey version of RPC 1.1 (Competence) is strangely spare. It omits the entire text of the ABA Model Rule. The ABA comments are not refer19

to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.

enced or adopted in our rules. Our rule provides only:

A lawyer shall not: (a) Handle or neglect a matter entrusted to the lawyer in such manner that the lawyers conduct constitutes gross negligence. (b) Exhibit a pattern of negligence or neglect in the lawyers handling of legal matters generally.
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This amplification of the duty to act competently to preserve confidentiality proposes a flexible standard. Comment 16 of Model Rule 1.6 now provides:
A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the

stored information, including electronic documents and the data contained in those documents (commonly referred to as metadata22), that are subject to being read or put into readable form. Receipt of electronic information containing metadata does not, standing alone, create a duty under this Rule.

If the ABAs elaborationdeclaring a duty to keep abreast of technologys risks and benefits gives you pause...well, it should. Practicing law
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client or who are subject to the lawyers supervision.

The commissions proposed Com-

If you dont know what metadata is

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and how it can help or hurt a third person, see Rule 1.1 (Competence) as it is proposed to be amended. So we are all virtual lawyers now. Competence requires staying current with the technology as it develops. The New Jersey Professional Responsibility Rules Committee would be well advised to study carefully the proposals of the ABA Commission on Ethics 20/20.

can (most readily) be reached (not) in person (but rather by email) and by (cell or smart) phone (not just) during normal business hours (but almost anytime) to answer questions posed by the courts, clients or adversaries. (An arrangement that usually) ensures that competent advice from the attorney can be obtained within a reasonable period of time. So we have met the virtual law office and it is us. Firms large and small, solo 8. and multi-national face problems of accountability and competence that are both aided and complicated by technological developments. 7. 6.

abused spouse seeking enforcement of a restraining order, a business owner seeking an injunction, or an accused facing police interrogation.

Rule changes implementing the Supreme Courts actions in response to the Wallace and Pollock Commissions may be found at www.judiciary.state.nj.us/notices/n031124.htm. Rule 1:21-1(a); amended July 28, 2004, to be effective Sept. 1, 2004. The Bona Fide Office Requirement and Listing of Offices on Letterhead, Websites, or Other Advertisements. Opinion 718, 200 N.J.L.J. 54, April 5, 2010, issued by the Advisory Committee on Professional Ethics and Opinion 41, 200 N.J.L.J. 54, April 5, 2010, issued by the Committee on Attorney Advertising.

Conclusion
Jerold S. Auerbach identified the view of law practice as a profession, rather than a business, as a thin patina covering a resentment of barbarians at the gate, as a nativist and often anti-Semitic response to changing times. Today, the
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Endnotes
1. 2. Rule 1:21-1(a), known as the bona fide office rule. Richard J. Badolato, president, New Jersey State Bar Association, in a letter to the editor, State Bar Slams Editorial, NJ Law. Newspaper, Jan. 20, 2003. 3. 4. www.njsba.com/activities/index.cfm? fuseaction=pollockWallace. Robert G. Seidenstein, Pollock CommissionRevamping the Rules, NJ Law. Newspaper, Dec. 16, 2002. 5. The New Jersey State Bar Association Response to the Reports of the Supreme Courts Commission on the Rules of Professional Conduct and Ad Hoc Committee on Bar Admissions, April 2003 argued:
The bona fide office rule serves an important function for consumers of legal services that cannot be replaced by technology, regardless of whether the consumer may have a cell phone, computer, or other communications gadget (and many New Jerseyans have none of these). Consumers can be confident now that they will be able to obtain, from a New Jersey based lawyer, information about pending matters during normal business hours. They are assured they can drop off documents, sign papers, or be able to consult face-to-face with their lawyer if necessary. Being able to reach your lawyer in her out-of-state office by cell phone is one thing, but try telling that to an

defenders of the virtual office see themselves as David fighting Goliath with their laptops, tablets, and smart phones as the means of equalization in an unequal world; efficient, tech-savvy guerillas fighting the lumbering behemoths. Although, a romantic view, it has little connection to reality. The reality is that we are all virtual lawyers now. The technology we all use presents new challenges to the efforts to protect consumers of legal services from the incompetent and the unscrupulous. The new technologies similarly challenge those of us who are well-sheltered by brick and mortar; who have traditional firm names, and forms of organization. As Apple Corp. founder Steve Jobs declared, we have declared the end of the PC era, we have reduced the PC to a device. The challenge for the courts is to maintain lawyering as a well-regulated profession in the new environment. The reality of law practice today is that a Rule 1:21-1 (a)-compliant bona fide office is often a place where clients are (infrequently) met, files are (electronically) kept (on remote file server like Dropbox, Google, or Amazon), the telephone is (infrequently) answered, (little) mail is received and the attorney or a responsible person acting on the attorneys behalf

9.

Id. Jersey State Bar Association, to Rabner, June 28, 2010.

10. Richard H. Steen, president, New

11. Order of July 29, 2010. In Re ACPE Opinion 718 and CAA Opinion NO. 41, 65,869, September term 2009. 12. See, Stephanie L. Kimbros website Virtual Law Practice: http://virtuallawpractice.org. 13. Public Access to Court electronic Records <www.pacer.gov/>. 14. Stephanie L. Kimbro, Practicing Law Without an Office Address: How the Bona Fide Office Requirement Affects Virtual Law Practice, 36 Dayton L. Rev. 1, 27 (2010). 15. Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, Formal Opinion 2010-200. (see, lawyersusaonline. com/ wp-files /pdfs-2/f2010-200.pdf). 16. Id. 17. The commissions website can be found at www.americanbar.org/ groups /professional_responsibility/aba_com mission_on_ethics_20_20.html. 18. ABA Commission on Ethics 20/20 Initial Draft ProposalsTechnology and Confidentiality, May 2, 2011. www.americanbar.org/content/dam
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/aba/administrative/professional_re sponsibility/20110502_technology.authcheckdam.pdf. 19. The ABA rule states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

20. Rule 1.1. 21. RPC 1.15. 22. Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America. Oxford University Press, New York. 1976. See also, Samuel J. Levine, Rediscovering Julius Henry Cohen and the Origins of the Business/Profession Dichotomy: A Study in the Discourse of Early Twentieth Century Legal Professionalism, 47 American Journal

of Legal History 1 (2005). George W. Conk is adjunct professor of law and senior fellow of the Stein Center for Law & Ethics, Fordham Law School, where he teaches torts, remedies, product liability and professional responsibility. He is an elected member of the American Law Institute and currently serves as a member of the New Jersey Supreme Advisory Committee on Professional Ethics.

New Jersey case law spells out similar obligations, but our RPCs do not.

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