"In a nutshell, Mr. Zelotes’s 303-page complaint (including exhibits) alleges that Total Bankruptcy (and various other Total Attorneys companies) is a for-profit referral service, that the business model of the Total Attorneys marketing sites amounts to impermissible fee splitting, that our advertising is impermissible solicitation and that our advertising is misleading. The complaint is a hodge-podge of hearsay, factually inaccurate statements, and carefully selected lines from a myriad of state advisory opinions taken wholly out of context, all crafted together to paint a picture of our program that could not be ignored by state regulatory counsel."
This is a complicated issue that needs further analysis, as there are two sides to this story. Supporting documents in the Total Attorneys response which require further examination include:
The Rimon Law Group, based in Israel, is a virtual law firm of lawyers who are members of various U.S. bars but who live in Israel and offer their services to lawyers and corporate legal departments in the United States at fees which are less than half U.S.-based legal fees. The Group claims that its attorneys all have experience in complex legal matters and can deliver legal services that are comparable to legal services offered by U.S. based lawyers for much less cost because of the different cost structures between the U.S. and Israel. I think this is an interesting example of a law firm building a virtual business based on identifying a niche market and maximizing a comparative economic advantage.
With today's connectivity, some kinds of legal work no longer require face to face interaction. This results in a kind of economic leverage based on geographic location. It is interesting to note that the Rimon Law Group has as its clients other law firms and corporate legal departments, rather than working with clients directly.
To take this model even further, one could envision a virtual law firm of attorneys who are members of various U.S. state bars, and who are active members of those bars, but serving clients directly by telephone and email, and using virtual tools that are now being developed that facilitate the delivery of online legal services directly to consumers. These attorneys, for various reasons may live in locations that are lower in cost, than our major metropolitan areas, such as downtown Chicago or New York, and and are able to translate lower costs into reduced fees. Such lawyers don't have to live in Israel. They could live where ever it is possible to leverage a lower cost of living into reduced legal fees particularly, for the same commodity transactions that traditional face-to-face lawyers, with dedicated expensive offices, charge out at a much higher rate.
After all, I operate a virtual law firm in Maryland, where I am an active member of the bar, from my home in Palm Beach Gardens, Florida. Not a bad life style if you make it work.
I predict we will see many more "virtual networks" of lawyers emerge in the coming decade, some based in the United States, and some based in other parts of the world, serving not only client law firms in the U.S., but U.S. consumers directly.
Some of our law firm clients have asked us whether there is a breach of confidentiality if a law firm uses our automated legal documents and virtual law firm technology as part of their web site. In our model, we provide a technology platform where a client who has been accepted by the law firm can complete an on-line questionnaire which captures answers provided by the client through the web browser. All information provided by the client is passed by the client to the law firm in encrypted form. These factual answers from the client, and client choices, are used by our web-enabled document automation technology ( Rapidocs) to instantly create a first draft for the lawyer to review or amend as appropriate.
The question is:
Does a lawyer breach his or her obligation to maintain a client’s confidentiality when using an online document automation application for his or her clients, which is provided from a third party vendor?
The rules of professional conduct of every state impose an obligation on lawyers to maintain the confidences of their clients. In addition, rules of evidence protect lawyers from testifying against their clients under the attorney-client privilege.
ABA Model Rule 1.6 addresses confidentiality and has been adopted by most states. The rule provides that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted” by one of the exceptions set out in the next part of the rule, none of which pertain to this situation. Paragraph 16 of the comment to the rule states, “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 client or who are subject to the lawyer’s supervision.”
Opinions that examine the lawyer’s obligation to maintain confidentiality when using technology generally address email. The leading analysis of this is ABA Formal Opinion 99-413 (March 10, 1999). The opinion examined different modes of email transmission and concluded that in all modes, “lawyers have a reasonable expectation of privacy …despite some risk of interception and disclosure.” The opinion also cautions that when a lawyer may send information that is “so highly sensitive that extraordinary measures to protect the transmission are warranted,” the lawyer should consult the client about the mode of the transmission.
Opinion 99-413 is of particular note here because it includes an examination of email transmitted over the Internet, like online forms. The opinion states that confidentiality may be compromised by an ISP’s legal right to monitor what is transmitted through it or stored on its network and by illegal hacking. On the first point, the opinion indicates that by law providers may conduct random monitoring only for mechanical or quality service control checks. Therefore, the interception of content of a communication sent through the Internet would be illegal in either situation. This gives the lawyer a reasonable expectation of privacy that requires no further action, except as noted in the highly sensitive communication.
Although not required under the ABA Opinion or those of various states, encryption makes the possibility of interception even more remote and creates even greater assurances the information will be confidential. Nevertheless, under the analysis of these opinions, the transmission of online forms over the Internet would not breach the lawyer’s obligation to maintain the client’s confidentiality even when the communication is not encrypted.
