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.
The ABA does not have a comment facility on their web site, but comments can be contributed on this blog, well as a discussion group that has been set up on LinkedIn called Virtual Lawyering.
Any comments that are submitted will be circulated among members of the Task Force.
DirectLaw is pleased to announce the launching of SlatterLaw its third virtual law firm in the State of Georgia. SlatterLaw will provide online legal services to small businesses and individuals throughout Georgia.
Kerry Slatter founded the law firm with the goal of providing convenient and cost-effective legal services to small business owners and individuals across the state of Georgia. In addition to small business legal services, the Slatter Law Firm also provides counsel in various other areas, including estate planning, corporate law, and employment law.
From the web site:
"Slatter Law provides the following core values for its clients:
Customer Service – Provide value and legal solutions to exceed client’s expectations.
Cost Efficiency – Provide cost efficiencies to enable clients to obtain more value from their legal budgets.
Responsiveness – Limit attorney workload and the number of clients. The motivation to build long term relationships with clients drives this goal.
Convenience – Utilize excellent customer services and technology to provide legal services in a convenient manner for the client (via secure online website client space, by email or by phone as needed).
Innovation – Promote innovation for all aspects of client legal services, including the use of cutting edge technology, resources, and fixed fee arrangements."
Mr. Slatter has an undergraduate degree from Morehouse College and a law degree from State University of New York at Buffalo School of Law and is licensed to practice in Georgia.
We are pleased to announce the launch of the law firm of Pfau and Associates that will provide online Estate Planning services to Nevada residents. This is the first DirectLaw law firm in the State of Nevada.
Pfau and Associates concentrates solely on the areas of estate planning and probate to ensure the highest quality of legal representation. The firm offers both online digital estate planning solutions and in-office services to provide for the client’s estate planning needs. Among the online offerings are simple living wills and trusts, durable powers of attorney, and advance healthcare directives.
Matt Pfau says that his philosophy is, “We make sure that we are always available to our clients for any type of support that they need. Since the choices that you will make are deeply personal, we will provide you with individualized, one-on-one attention"
Matthew Pfau has an undergraduate degree from the University of Nevada, Las Vegas and his law degree from Wittier Law School. Matthew is admitted to practice before all courts in the State of California and Nevada. He is also admitted to practice before the United States Court of Appeals for the Ninth Circuit. For more information visit his website.
We discussed the two heads of the definition of virtual law practice:practising law over the Internet through a secure online portal and practising law under one brand through satellite offices (which are often home offices).
Nicole is an early adopter who described her experience in managing Heritage Law, a paperless office where most staff work from home.Some staff are located in places such as Victoria and the Sunshine Coast that are remote from Heritage Law’s central office in West Vancouver.Heritage Law soon will be implementing DirectLaw through a separate business model called Heritage Law Online, subject to regulatory approval.
I analyzed Web-enabled virtual law practice using the Eliminate-Reduce-Raise-Create grid, which sets out a framework for contrasting innovative value propositions with conventional value propositions.It comes from a book called Blue Ocean Strategy.Among other things, Web-enabled virtual law practice eliminates the visit to the lawyer’s office, reduces cost and waste, raises a lawyer’s reach beyond his or her immediate geographical area, and creates a packaged solution.I also discussed Chrissy Burns’ PhD thesis, entitled “Online Legal Services—A Revolution that Failed?.”It is found at http://tinyurl.com/kvtden.
Simon discussed the regulatory issues involved in setting up a virtual law practice in Canada.Canadian regulators have not addressed virtual law practice specifically but there are issues with regard to limited scope representation, preservation of data, and the client identification and verification rules.
Our PowerPoint slides from the presentation are located here:
It has been a very busy summer at DirectLaw. We are constantly adding features to our DirectLaw Virtual Law Firm Platform. Sometimes new features are suggested by our growing network of DirectLaw law firms; often one of our staff gets a good idea and we push it out to the Platform to see what kind of response we get from consumers and our client law firms. The nature of a SaaS (Software as a Service) offering, like DirectLaw, is that we can can modify and enhance the platform at any time and all law firms in the network benefit immediately. Our clients don't have to wait until "the next quarterly software release."
Here are some of the recently features that have been added to the DirectLaw Virtual Law Firm Platform:
July 13, 2009 - DirectLaw Workspace™. brings the benefits of web-enabled document automation for clients who are not online by enabling law firms to use our web-enabled document automation system for regular office-based clients.
July 29, 2009 - A new "collaboration" function that enables law firms to communicate and collaborate securely with their clients over the Internet. Click here for screenshot.
August 5, 2009 - We installed a new "billing" function that enables law firms to bill clients online for traditional legal services and supports online bill payment by clients through their MyLegalAffairs page. Click here for screenshot.
August 20, 2009 - Today we released a new user friendly design for the Legal Services Page , which is now available to all law firms in the DirectLaw network of law firms. Each legal service offered by the law firm now appears on a separate tab, with detailed explanations of the scope of the legal service. Legal services offered by the law firm can be added or deleted and the fees charged increased or decreased at any time by the individual law firm using the Attorney Dashboard - the Administrative area that the law firm uses to manage their virtual law firm platform.
"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:
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 !!
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.
Recently a prospect for our DirectLaw Web Service asked me whether it was the unauthorized practice of law for a law firm to use a legal document that is generated by our web-enabled document automation system (Rapidocs), because the legal form did not originate within the law firm itself. In this model, a client completes an on-line questionnaire which generates a legal form or legal document instantly ready for attorney review and further modification. I asked my colleague Will Hornsby, who is Counsel to the Standing Committee on the Delivery of Legal Services, American Bar Association, and a leading expert on ethical issues that arise from delivering legal services over the Internet.
Hornsby says that a lawyer commits the unauthorized practice of law when the lawyer assists a non-lawyer, whether that is a person or a corporation, to undertake the practice of law. This leads to the question of whether online document automation that creates a legal form or document from data provided by the client is the practice law. The definition of “the practice of law” varies from state-to-state but frequently includes the drafting of legal documents and the use of legal knowledge or skill. (For specific state definitions of what is the practice of law, or the unauthorized practice of law, click here.
However, the question here revolves around whether the lawyer is “assisting” the software vendor in practicing law when the document preparation is provided as a legal service of the law firm. This is analogous to services provided by paralegals and other outsourced services. In most states, for example, paralegals have no independent authority to provide legal services. If they independently provide document preparation or use their legal skills in serving clients, they may be deemed in violation of their state’s UPL laws, as are any lawyers who assist them in providing those services. [This is the LegalZoom model ]. However, if paralegals provide those same services under the direction of a lawyer and the lawyer assumes supervisory obligations, the paralegal is not practicing law and is not violating UPL laws, nor is the lawyer who provides the supervision “assisting” in the unauthorized practice of law.
ABA Formal Opinion 08-451 (Aug. 5, 2008) clarifies that a lawyer may outsource legal services, subject to several considerations. The opinion directly addresses independent contractors, such as temporary lawyers, but also mentions sources of tasks such as a photocopy shop, a document management company and a third-party vendor for the firm’s computer services. In its discussion of Model Rule 5.5 and the unauthorized practice of law, the Opinion states, “Ordinarily, an individual who is not admitted to practice law in a particular jurisdiction may work for a lawyer who is so admitted, provided that the lawyer remains responsible for the work being performed and that the individual is not held out as being a duly admitted lawyer.”
Therefore, according to Hornsby, and I agree, even if a document automation application would be deemed the unauthorized practice of law if its services were provided independently of a lawyer’s services, once those service or the documents produced by the software application are provided under the lawyer’s direction and supervision, within the scope of the lawyer’s services, the lawyer can no longer be assisting the document preparation in the practice of law and no longer has a risk of assisting in the unauthorized practice of law.
EssentiaLegal, based in Atlanta, Georgia, and founded by Robert Arrington, Latif Oduolo-Owoo, & Michael Mason, three alumni from large law firm practices in Atlanta, is a new style law firm, part virtual and part physical that is designed to serve the broad middle class with unbundled legal services. The physical office is located in a shopping mall for easy access, but the virtual component is powered by our DirectLaw Service and enables the firm to serve clients throughout the state of Georgia. Clients can complete Questionnaires either on-line, or within the physical office, which results in the instant creation of the first draft of a document or form, ready for the lawyer's review and further modification. Clients have the option of meeting with an attorney at their offices or relating to the firm on purely virtual basis through the MyLegalAffairs application created within the web site by our DirectLaw Web Service. I believe that this "click and mortar" strategy will be ultimately more effective than a purely virtual strategy because clients have the option of face to face contact with their attorney. "Click and mortar" refers to a business model that has both on-line and off-line components.
