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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3389" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/06/Virtual-law-office-200x300.jpg" alt="Beach Office 1" width="200" height="300">Practicing law&nbsp;out of a &ldquo;virtual law office&rdquo; (&ldquo;VLO&rdquo;), without being tied to the overhead expense of a brick-and-mortar facility, is&nbsp;increasingly attractive&nbsp;to lawyers in many stages of their careers:&nbsp; junior lawyers hanging out their shingles in a tough market; senior lawyers who want to keep practicing, but in a flexible format; and mid-career lawyers who are attracted to the increased options for leveraging their practices by using&nbsp;cutting-edge technology.
Ohio&rsquo;s Board of Professional Conduct is the latest to issue an <a href="http://www.ohioadvop.org/wp-content/uploads/2017/03/Adv.-Op.-2017-5.pdf">ethics opinion </a>on the subject.&nbsp; But by not discussing&nbsp;an inherent issue &mdash;&nbsp;multi-jurisdictional practice and possible unauthorized practice &mdash; the Ohio opinion leaves some gaps.
VLO:&nbsp; OK in OH
The Ohio Board&rsquo;s opinion lays out the basic concepts&nbsp;of a VLO:&nbsp;&nbsp;it typically involves communicating with clients &ldquo;almost exclusively&rdquo; in a non-face-to-face way, using various forms of technology, including secure internet portals, and without &ldquo;a physical office where the lawyer works, meets with clients, and stores client files.&rdquo;&nbsp;&nbsp;Following the lead of several earlier ethics opinions, including&nbsp;from Florida, <a href="http://lawyersusaonline.com/wp-files/pdfs-2/f2010-200.pdf">Pennsylvania</a>, <a href="http://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2005-formal-ethics-opinion-10/">North Carolina</a> and <a href="http://mcle.mywsba.org/IO/print.aspx?ID=1686">Washington</a>, the Ohio Board in general greenlights VLO&rsquo;s for lawyers in the Buckeye State.
The Board&nbsp;pointed to several ethics&nbsp;duties inherent in operating a VLO:
<ul>
<li>maintaining the technological competence needed to operate the VLO;</li>
<li>using reasonable efforts to prevent inadvertently disclosing client information;</li>
<li>discussing at the outset of the representation the office technology the lawyer uses;</li>
<li>keeping up adequate communication with the client, &ldquo;regardless of the type of technology used;&rdquo; and</li>
<li>making reasonable efforts to ensure that technology vendors are providing their services &ldquo;in a manner compatible with the lawyer&rsquo;s professional obligations,&rdquo; as required by Ohio&rsquo;s version of&nbsp;<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_3_responsibilities_regarding_nonlawyer_assistant.html">Model Rule 5.3(a)</a>.</li>
</ul>
&ldquo;Office address&rdquo; requirement
Some jurisdictions &mdash; but not Ohio &mdash; have bar rules or&nbsp;court rules requiring&nbsp;a lawyer to have a &ldquo;<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1892892">bona fide office,</a>&rdquo;&nbsp;interpreted as traditional office space.&nbsp;&nbsp;Such rules clearly limit the ability to operate through a VLO.&nbsp; But even without a bona fide office requirement, a corollary&nbsp;issue lurks:&nbsp; most state versions of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_2_advertising.html">Model Rule 7.2(c)</a> require legal marketing materials&nbsp;to include the &ldquo;office address of ... [a] lawyer ... responsible&rdquo; for the advertising.
The Oho Board resolved that issue, saying that the language does not require a physical address, and can also include the lawyer&rsquo;s home address, the address of shared office space or even&nbsp;a registered post office box.&nbsp; In order to avoid being misleading, lawyers who have untethered themselves from physical offices must state in their advertising that they are able&nbsp;to meet in person with clients &ldquo;by appointment only.&rdquo;
VLO&rsquo;s and UPL/MJP
The Ohio Board&rsquo;s opinion doesn&rsquo;t discuss multi-jurisdiction practice, or when an Ohio&nbsp;lawyer&rsquo;s operation of a VLO might risk crossing the line into the unauthorized practice of law (&ldquo;UPL&rsquo;)&nbsp;in another state.&nbsp; That&rsquo;s&nbsp;somewhat puzzling &mdash; first, because <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_5_unauthorized_practice_of_law_multijurisdictional_practice_of_law.html">Model Rule 5.5(a)</a> (as adopted in Ohio and elsewhere), bars lawyers from practicing in a jurisdiction in violation of regulations in that jurisdiction; and second, because&nbsp;the Board previously dealt with the flip side of the VLO/UPL&nbsp;issue.&nbsp; In&nbsp;2011, the Board&nbsp;<a href="http://www.ohioadvop.org/wp-content/uploads/2017/04/Op_11-002.pdf">opined</a> that out-of-state lawyers who represented Ohio residents through a VLO had impermissibly established a &ldquo;systematic presence&rdquo; in Ohio for the practice of law, in violation of Ohio&rsquo;s version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_5_unauthorized_practice_of_law_multijurisdictional_practice_of_law.html">Model Rule 5.5(b)</a>.&nbsp; The Board said that &ldquo;&lsquo;systematic and continuous presence&rsquo; includes both physical and virtual presence in Ohio.&rdquo;
<a href="https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/quick_guide_5_5.authcheckdam.pdf">Most jurisdictions</a> have adopted some version of the rule prohibiting out-of-state lawyers&nbsp;from establishing a systematic presence in&nbsp;that jurisdiction.&nbsp;&nbsp;Therefore, if&nbsp;another state were to adopt&nbsp;Ohio&rsquo;s stance that &ldquo;systematic presence&rdquo; includes virtual presence,&nbsp;Ohio lawyers could risk&nbsp;a UPL finding&nbsp;if they provide services to clients in that state through an Ohio-based VLO.&nbsp;&nbsp;That&rsquo;s a risk that the Ohio Board could have cautioned about.
Ethics opinions from <a href="https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL%202012-184-ADA.pdf">California</a> and <a href="https://www.isba.org/sites/default/files/ethicsopinions/12-09.pdf">Illinois </a>(citing the 2011 Ohio opinion)&nbsp;have discussed the UPL issues with VLO&rsquo;s.
The ABA&rsquo;s Task force on E-Lawyering&nbsp;has&nbsp;advised in its <a href="http://www.google.com/url?url=http://apps.americanbar.org/dch/thedl.cfm%3Ffilename%3D/EP024500/relatedresources/Minimum_Requirements_for_Lawyers_2009_10_24.pdf&amp;rct=j&amp;frm=1&amp;q=&amp;esrc=s&amp;sa=U&amp;ei=KvBQVPrULs6YyATlwYH4Dg&amp;ved=0CBQQFjAA&amp;sig2=8ioAOJ0Tnl9oVkqKamVnOw&amp;usg=AFQjCNGZCM4pmA8Cyzzn9JI7ajbMkfeO7w">Suggested&nbsp;Minimum Standards for Delivering Legal Services On-Line</a>&nbsp;that lawyers operating VLO&rsquo;s should avoid UPL by serving &ldquo;only clients who are residents of the state where the firm is authorized to practice, or clients who have a matter within the state where the law firm is authorized to practice.&rdquo;
That seems like a good way to stay out of border-crossing trouble, and to minimize UPL risks while using technology to engage in virtual practice, with its potential benefits.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Virtual law offices OK’d, but unauthorized practice issues linger