eLawyering Blog : Online Legal Services : DirectLaw : Document Automation, Web-Enabled Document Assembly, Virtual Lawyering

The latest edition of the ABA's Law Practice Today webzine has good articles on elawyering and virtual practice and a really innovative piece by Marc Laurtisen titled,  Dancing in the Cloud, and an introduction to the elawyering concept by Stephanie Kimbro --  Getting Started With eLawyering).

I also wrote a short article on Document Assembly Over the Internet , which as readers of this Blog will know is an old theme for me.

For our latest analysis on what is working in the virtual law firm space, download our White Paper on Virtual Law Practice: Success Factors.

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A new nonprofit organization has emerged to help lawyers assess the safety and security of their law practice environment. The organization is the International Legal Technology Standards Organization and it recently released a set of standards that law firms can used to evaluate:

1. the law firm's internal security standards; and
2. help law firm's make informed decisions about "cloud computing" vendors and other hosting arrangements where confidential data is stored outside of the physical office of the law firm

The Standards are much more detailed and comprehensive than the ABA/LPM's eLawyering Task Force publication of Cloud Computing Guidelines for Law Firms.

Disclosure: I am on the Advisory Board of ILTSO and provided some guidance to the development of the standards.

The standards are being circulated for comment before final publication.

The standards offer a sensible definition of "reasonable under the circumstances" by recognizing that different types of law firms have different security needs, although all lawyers are bound to prevent the disclosure of client data. Law firms are categorized into three types of situations:

• "Bronze - this standard is appropriate in every law practice, including solo practices."

• "Silver - this standard is typically appropriate for firms of more than one attorney, or where circumstances or resources dictate."
   
• "Gold - this standard is typically appropriate for larger firms or those with additional IT resources, or where circumstances or resources dictate."

The idea of categorizing law practice environments into these three categories is a new idea, as some of the standards only apply to the Gold and Silver category. The intent is to recognize that law firms have different IT capabilities and the size of the law firm usually determines how the law firm will approach the problem of securing client and other firm data.

At this point of development, the law firm is responsible for undertaking their own self-assessment. Law firms can apply to the standards to their own law practice environment and if in compliance display the ILTSO seal.

At some point, I can see where ILTSO might undertake an independent assessment of a law firm's security arrangements and if it compliance with the standards, award a certificate like the Truste certification which assesses an organization's privacy policies. A small fee could be charged for this assessment and it would vary depending on whether the type of law firm practice environment is  Bronze, Silver, or Gold. This would give assurance to clients that all reasonable efforts have been taken to secure the confidentiality of their data.

It will be interesting to see how the organized bar responds to these standards, as their are entities both at the state level, and the American Bar Association that are analyzing these same subjects.

The ABA Ethics 20/20 Commission, for example, has been holding hearings on cloud computing and security of data and has released a working paper on this subject.

Just last week, the Commission released its recommendations on outsourcing, which is a process that has an impact on the confidentiality of client data. The recommendations have not yet been posted on the Commission's web site, but the ABA Journal reports that:

"The commission proposes revisions to the Model Rules recognizing that electronically stored information, including metadata, is material subject to confidentiality rules. It also proposed revisions directing lawyers to make reasonable efforts to prevent inadvertent disclosure of information relating to representation of a client."

ILTSO's new standards would give concrete meaning to the definition of "reasonable efforts" and provide a detailed framework that could guide attorney assessment of particular outsourcing and cloud computing arrangements.

A positive impact of having this evaluation framework in place might be the accelerated adoption of technologies, such as cloud computing. Compliance with the guidelines would support a law firm's assertion that the firm has taken all reasonable steps to secure client data to reduce its liability in case of a security breach over which the firm had no control.

An unanticipated consequence might be a slow down in adoption, as the lack of clarity in this area might give many lawyers a reason not to become "early adopters." Many lawyers might choose to wait until standards like ILTSO's are accepted by a broad base of legal organizations and law firms.

Of course, by then, the "real" early adopters will have acquired a first mover advantage over law firms that are still thinking about the subject, to the those firms competitive disadvantage.

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The James I. Keane Memorial Award for Excellence in eLawyering for 2011 is going to the Legal Aid Society of Orange County for their Legal Genie Project, reports the eLawyering Task Force of the Law Practice Management Section of the ABA, the group that makes the Award.

James Keane was the first appointed Chair of the group, and passed away tragically from cancer six years ago.

Bob Cohen is the long time leader of Orange County Legal Aid, and provided the leadership for this Project. 

This project combines the use of advanced web-enabled document automation technology to generate Chapter 7 and Chapter 13 documents, as well as California divorce pleadings. It is unique because it involves a network of lawyers who provide legal advice, document review,  and other assistance to clients who use the program. The use of Internet technology makes it possible for the lawyers to be involved, and to also get paid a fee, because the entire transaction is made more efficient. The lawyers who participating get the benefit of the Legal Aid brand, and the marketing that results from promoting the project.

The Project demonstrates how a vertical branded network of attorneys, empowered by a robust technology platform, can provide legal services at an affordable fee to individuals who could not normally afford a lawyer.

This is from the Legal Genie website:

 “Legal Genie is a simple, affordable and reliable online service created by Legal Aid Society of Orange County. It is designed for people who do not qualify for legal aid and cannot afford the services of an attorney. It asks simple questions and puts answers on the forms in the correct place.

"Legal Genie is different from other services because it connects you to a licensed attorney on our Lawyers Referral Service panel. The LRS attorney will give you telephone consultations, review your documents and give you legal advice. Legal Genie combines the magic of technology with the help of a professional at a price you can afford.”

The formal granting of the Award will be on April 12, 2011, at a Lunch for all of the attendees of  ABA TECHSHOW in Chicago, Illinois at the Hilton Hotel.

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Private capital is beginning to flow into companies that are operating at the intersection of the delivery of legal services and the Internet.

Total Attorneys, a Chicago-based company,  just announced that they received a multimillion dollar investment from BIA Digital Partners, a Virginia-based venture capital firm. Total Attorneys is most known for the marketing services that it provides to law firms and the recent ethical controversy in some states surrounding the use of pay-per-click advertising on behalf of law firms. (Apparently this controversy has been resolved in favor of Total Attorneys in every state where it was considered by bar ethics committees.)

The company plans to extend its technology assisted services to law firms by expanding its virtual law firm Software as a Service offerings (SaaS).   Total Attorneys mission is to become a leading provider of elawyering Services to solos and small law firms by providing a comprehensive suite of outsourced technology services, from marketing to web-based practice management tools to a robust client portal.

The company licenses virtual law office technology to solos and small law firms as a subscription service, that now consists primarily of a robust suite of "back-office" practice management tools. The pan is to expand the service into a more comprehensive "front-office" client portal, providing a total solution to solos and small law firms.

This expansion would entitle the company to claim that it is a leading provider in the eLawyering space  and it would compete more directly with our own DirectLaw virtual law firm platform service and other web-based companies moving in the same direction.  [ See:  Legal Vendors Cloud Computing Association ] .

The concept of "technology-assisted service" is an interesting category for  the legal industry for it describes a form of outsourcing which combines both a digitally-based service combined with human service. Thus Total Attorneys also provides "virtual receptionist services", and at one point virtual support services to bankruptcy law firms. One management solution for solos and small law firms it to out source to independent specialized companies functions which can be done more effectively and at less cost than the law firm can do itself using internal resources.

It is good to see competition heating up in the eLawyering space, which has been moribund for a long period of time.  The eLawyering Task Force of the Law Practice Management Section of the ABA was created in 2000, more than a decade ago. For many  years there was not much to report in terms of the innovative delivery of on-line legal services by law firms. The last 2 years has witnessed an explosion in elawyering industry developments as lawyers adapt to change -- caused by a severe recession, widespread unemployment of recent law school graduates, and the challenges created by consumers who are seeking lower-cost and "good enough" alternatives to lawyers, [such as LegalZoom.]

Competition among a variety of vendors provides choices to law firms.  Competition focuses attention on the fact that delivering legal applications as a SaaS is emerging as a new paradigm for enabling solos and small law firms to access complex Internet technologies at a fraction of the capital cost of developing these applications internally.  Private capital moving into the legal industry will create more choices for law firms, and as a consequence more choices for consumers.

Creative legal outsourcing will enable solos and small law firms to become more productive and survive in an increasingly competitive environment.

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Volume IV of the recently released 2010 ABA Legal Technology Survey Report is devoted to Web and Communication Technology. A section on E-Lawyering reports that 14% of Respondents over all, and 19% of solo practitioners, report that they have a virtual law office or virtual law practice. This question in the survey that deals with with the question of whether a law firm has a 
"virtual law practice" was framed in terms of whether the attorney primarily interacts with clients using Internet-based software and other electronic communications software.

In my opinion, these self-reported responses from attorneys are not meaningful and are much too high to be accurate. The reported numbers are not useful in understanding where the legal profession is in terms of adopting the concept of a "virtual law practice." The reality is that the adoption rate is much lower.

The ABA Law Practice Management Section's eLawyering Task Force (disclosure: I am Co-Chair of the eLawyering Task Force),  defines a "virtual law practice" as one that offers to its clients a secure client portal, as part of the law firm's web site, where the client can log in with a user name and password, and interact with their attorney, as well as consume other online legal services. A virtual law practice is more than simply communicating with clients by email and never meeting with clients face-to-face. In order to have a "virtual law practice" by our definition,  you have to have a web site and a portion of that web site has to be dedicated as a secure portal for clients. Without this distinction, many law firms can claim that they are "virtual law firms" simply because they use email extensively, as the ABA Study seems to imply, giving the impression that integration of Internet technologies as part of their legal service delivery system is much higher than it actually is.

For example, in another question, the survey participants were asked whether the firm has a web site. The solo practitioner group responded that only 52.1% had a web site, but this is the same group that responded that 19% has a "virtual law practice."  By our definition, if you don't have a web site you don't have a "virtual law practice." The only explanation for the discrepancy in these numbers is that the question of " Do you have a virtual law practice?" was phrased so broadly that more law firms where included in the category than should be.

Another question that was asked to determine what kinds of online legal services were offered by the firm was: "Does your law firm offer online document preparation?" 11.4% of solo firms reported that they did. Again this number doesn't make any sense. There were 149 respondents in the Solo category. Only 52.1% actually had a web site, or 77 firms had a web site from which online document preparation could be offered. 11.4% would suggest that only approximately 8 law firms could offer this service. Not only is this number too small to make any meaningful projections in terms of the total number of solo practitioners in the US (more than 400,000), but it is also likely to be misleading. Here's why:

The technological options for offering online document assembly for solo practitioners are very limited. One option is to provide fillable Adobe . pdf forms. But you can't easily use a fillable Adobe .pdf to create a text document such as a Will or a Shareholder's Agreement. The major document assembly vendors such as HotDocs, DealBuilder, and Exari have systems that support online document assembly but the price for licensing these systems is much too expensive for the average solo practitioner. Wizilegal, a new entrant to the field, provides a new low cost web-enabled document assembly solution, but our market information suggest that they have only a small number of users. (Disclosure: DIrectLaw, which sponsors this blog, is one of the few web-enabled document assembly solutions that is offered at a price that a solo practitioner can afford.)

In short, the question about the use of online document assembly should have been phrased much more narrowly, with a field in the questionnaire that would require that the law firm indicate what platform is being used to support online document assembly, and whether it is a third party vendor, or whether the programming was done in-house. My sense is that if the question were asked properly, the number of law firms offering online document assembly would be much lower than actually reported.

Finally, 3% of respondents report that their firms offer expert system on their web sites (compared with 1% in the 2009 survey), including 7% of the large firm respondents. Based on our surveys of law firms from solos to large law firms, this percentage seems very high to me. It is very rare that I come across a law firm web site that actually offers an "expert system" for use by its clients, and I review or check out literally thousands of law firm web sites a year.  Most lawyers don't even know what an "expert system" is! I would like to see a more precise question, where the respondent is required to name the kind of "expert system" they are offering and the url of the web site where it is offered, so that a reviewer could more closely examine what the law firm represents they are doing is in fact the case.

I think that it is commendable that the ABA Legal Technology Resource Center now has a separate section of its annual report just on web and communication technology. The platform for the delivery of legal services is gradually shifting from traditional face-to-face office practice to the Web, but my sense is that the the pace of adaptation is much slower than is being officially reported. This is understandable in a profession that views its core identity as one where clients are dealt with primarily face-to-face. 

On the other hand, our own research on consumer preferences suggests that more than half of consumers would like their law firm to have an online virtual component. Thus, the legal profession continues to lag behind what other service industries offer to their clients and customers online.

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The American Bar Association Journal has started a new Legal Rebels project to get lawyers thinking about how to change the legal profession. The Journal recognizes that the legal profession is undergoing structural change accelerated by the current recession, and that as the economy emerges from this recession, the landscape of the legal profession will be very different from the one that we have now know. 

Searching for new ways of practicing law, the Journal will profile 50 or so lawyers who are demonstrating new ways of serving clients by expanding their markets, delivering legal services in a different ways, or creating new styles of legal practice. The plan is to tell the stories of these lawyers through a variety of social media channels using text, pictures, audio and video.

A colleague of mine,  Jeffrey Hughes, was named today in the first group of profiles for his innovative and ground-breaking work in combining a law practice within the context of a coffee house under the Legal Grind brand, serving "legal counsel" and good coffee in a community setting. Legal Grind is an excellent example of delivering "unbundled" or "limited legal services" at prices that people can afford.

By the way, I was honored to also be included in this first group of profiles.

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Stephanie Kimbro, a solo practitioner who operates Kimbrolaw.com, a virtual law firm in North Carolina, has been selected as this year's winner of the James Keane Memorial Award for Excellence in eLawyering. This award is given annually by the eLawyering Task Force of the Law Practice Management Section of the American Bar Association, a group which was founded by Jim Keane an active and long-standing member of the ABA/LPM section who died tragically from lung cancer several years ago. I am the present Co-Chair with Marc Lauritsen.

Ms. Kimbro's law firm is a completely virtual law firm that serves individuals and small business over the Web. Our group concluded that Kimbrolaw.com  met the criteria for the Award perfectly as it demonstrates an innovative online model for delivering services to the broad middle class. Clients access their own individual web space where they can consult with their attorney, have their documents reviewed, and conduct other legal tasks -- all online.

The Award will be formally given to Ms. Kimbro at the American Bar Association's TECHSHOW on April 2, 2009, immediately before the key note speech by Richard Susskind, who will discuss his new book: The End of Lawyers: The Rethinking the Nature of Legal Services.

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