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

The North Carolina Bar Committee reviewing the appropriateness of "cloud computing" has posted an Opinion for Comment which is posted on line courtesy of Stephanie Kimbro.  There are two parts to the Opinion. The first part leaves the issue of Cloud Computing to the law firm, leaving to the attorney to use his or her judgment in protecting client confidentiality and client data. The section part of the Opinion lists "best practices" for the use of Software as  a Service (SaaS), which are likely to be further refined by both comments and a review by a subcommittee.The proposed opinion will be published in the next issue of The State Bar Journal.

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The Ethics Committee of the North Carolina Bar, in response to an inquiry from a law firm, is assessing whether a law firm can utilize "cloud-based" legal applications where client and other law firm data is stored on the Internet.  It could result in a determination that law firms in North Carolina cannot operate as "virtual law firms."

Stephanie Kimbro, the founder of one of the first North Carolina virtual law firms, and  Virtual Law Office Technology, Inc., a web-based virtual law firm services provider, and originally a North Carolina company, (now owned by TotalAttorneys, Inc., which is based in Chicago),  has written an excellent post on this topic.

 "Cloud Computing" enables solo practitioners and small law firms to provide online legal services to individuals and small business at affordable legal fees, and therefore enables them to compete effectively against non-law firm providers, such as LegalZoom, which also operates in "the cloud."

The eLawyering Task Force of the Law Practice Management Section of the American Bar Association has submitted a statement to the North Carolina Ethics Committee on the issue of the relationship of "cloud computing" to solos and small law firms. the delivery of online legal services,  and access to the legal system by individuals of moderate income.

Interested parties who wish to submit comments, should submit them to:

Alice Neece Mine
Assistant Executive Director
North Carolina Bar Association
208 Fayetteville Street Mall
PO Box 25908
Raleigh, North Carolina 27611-5908
EMAIL:  amine@ncbar.gov

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The ABA Ethics 20/20 Commission had public hearings at the ABA mid-year meeting in Orlando. Florida this week-end. A focus of the Commission's work is the impact of Internet technology on the delivery of legal services, both globally and within the United States. The Commission has a 3 year period to undertake research, conduct hearings, and report its findings and recommendations.  Three years from now Internet technology will be further transformed, and by 2020 who knows what technologies will be available. By then, I am sure, legal business (negotiations, dispute settlement) could well be conducted by our avatars in virtual legal environments on an international and cross jurisdictional basis. Licensing of lawyers by states may prove to be increasingly anachronistic by 2020, although it is unlikely that state bars will go away without fight.

I was honored to be able to testify before the Commission and submit a written statement which can be found here. Stephanie Kimbro now a member of the ABA's eLawyering Task Force, also made a presentation on the virtual law office concept which I thought was very well received.  My impression was that the Commission members were very interested in our statements and explanations of how Internet technology enables the more effective delivery of legal services.

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The Law Practice Management Section of the American Bar Association is sponsoring a Teleconference on the The Virtual Law Firm: Benefits, Costs, and Ethical Pitfalls to Avoid, on Thursday, December 17, 2009 between 1:00 P.M. and 2:30 P.M.

The program is a Live Audio Webcast with PowerPoint support.

I am participating in the program, together with Stephanie Kimbro of KimbroLaw Services and Marc Lauritsen, President, Capstone Practice, and Co-Chair, eLawyering Task Force, ABA Law Practicement Section .You can register online.

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Total Attorneys has responded to Attorney Zenas Zelotes filing of ethics complaints in 47 different jurisdictions.

The Total Attorneys response can be found here.

Total Attorneys summarizes its response as follows:

"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:

Zelotes Complaint with Exhibits

Total Attorneys Response filed in Illinois

Zelotes Reply

South Carolina Ethics Opinion

Kentucky Ethics Opinion

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 TotalAttorneys, a so-called marketing association of attorneys that operates legal referral web sites,  such as TotalDivorce and TotalBankruptcy , is being sued in multiple jurisdictions by Attorney Zenas Zelotes, a consumer bankruptcy attorney, based in Hartford, Connecticut and Nevada, for violation of bar referral rules that exist in every state. The Connecticut Law Tribune just released a headline story about the pending Zelotes v. Chern et al .ethics investigations (wherein more than 500 bankruptcy practitioners face possible professional discipline for certain business transactions with Illinois Attorney Kevin W. Chern d/b/a Total Attorneys et al.).  The story in Monday's Connecticut Law Tribune summarizes recent findings of probable cause in Connecticut that certain attorneys doing (or having done) business with Chern committed professional misconduct.  The story (which is available on line now and which will be released in print edition on Monday) can be found by clicking on the following link: http://www.ctlawtribune.com/default.aspx .

One problem with web-based legal referral directories like the TotalAttorney directories is that the user doesn't see the qualifications of the law firm on the web site, Instead, the prospect submits information about their case which is then sent to a selected number of law firms who pay  high referral fees for the leads. The consumer is really unaware of the identity of the law firm to which they are being referred. Placement in the directory is based on the law firm's ability to pay the "marketing fee" .

Other law firm directories are more transparent and let the consumer view the attorneys profile on line which enables the prospect to make their own judgment about which law firm they want to explore a potential relationship or engagement. These more transparent directories include Findlaw, Lawyers.com, Nolo.com, and AVVO. The more transparent and information robust an attorney directory is, the more consumer friendly it is.  When a consumer provides information to an on line questionnaire when the identity of the law firm is masked by the web site, the consumer is assuming more risk that the attorney really meets their needs. Caveat Emptor !!

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The eLawyering Task Force of the Law Practice Management Section of the ABA, had its monthly telephone call on Friday. One of the action items is a renewed interest and commitment to produce a set of best practice guidelines for law firms that want to deliver legal services online. These guidelines would complement the Best Practice Guidelines for Legal Information Web Site Providers that were produced by the eLawyering Task Force and approved by the ABA House of Delegates in 2003. The Legal Information Best Practices Guidelines apply to both law firms and non-law firms and don't deal specifically with issues that lawyers face when they want to deliver legal services online. In some cases it has been reported that malpractice insurance carriers have declined coverage when a law firm attempts to provide legal services directly through their web site. With more law firms embracing the concept of virtual legal practice, it becomes even more important to provide a framework for best practices.  The guidelines would cover such topics as ethical issues in delivering online legal services, security issues, and the attorney/client relationship.

In addition, a new group of software vendors that license "software as a service" {SaaS) have emerged to provide online software applications that support virtual law practice. Some of these vendors include: Virtual Law Office Technology, RocketMatter, Clio, and our own DirectLaw, Inc.,  As part of the guidelines development process, we plan to seek input from this emerging group of software as service vendors.

The goal is to have a draft ready for the discussion by the eLawyering Task Force at the ABA mid-year meeting and then a revised draft for further discussion as the quarterly meeting of the Law Practice Management Section in New Orleans in May, 13- 16, 2009.

Feedback and ideas about what issues should be covered are welcome from all.

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Apparently LegalZoom has been advertising to its customers that the trademark filing fee is $325.00, when it was actually $275.00,  an obvious misrepresentation. Apparently they have been doing this since 2005. This has resulted in a consumer class action suit to recover the $50.00 overcharge on behalf of all customers who have paid the higher fee. Here is a good summary of the details of the case.  LegalZoom has since changed its web site to characterize the additional $50.00 fee as an administrative fee. If a law firm made this kind of misrepresentation on its web site it would receive a sanction from the bar for misrepresentation. This is another example of the lack of regulatory control over non-lawyer providers of legal services and the absence of any accountability other than the response of the market -- which is in inefficient as consumers  rarely have sufficient knowledge to understand the nature of a misrepresentation.  LegalZoom's claim that a consumer can save thousands of dollars by using its service, rather than lawyer, assumes that somehow the services of LegalZoom and an attorney are identical. Nothing could be further from the truth. Caveat Emptor!!!

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