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Virtual Law Office,cont. from page 27Duty of ConfidentialityLawyers are also required to take reasonable measuresto safeguard confidential client information onthe website portal, including investigating and monitoringthird-party providers, limiting access to confidentialinformation and obtaining written assurances fromthe provider concerning data security and the handlingof breaches of confidentiality. 7 If a lawyer is not able toevaluate the security of the technology used, the lawyermust seek additional information, or consult withsomeone who possesses the requisite knowledge to ensurecompliance with the lawyer’s duties of competenceand confidentiality. 8Duty of CompetenceIn addition to ensuring that confidential informationis protected, the lawyer’s duty of competenceincludes implementing data backupsystems for the paperless law office.In addition, the lawyer must supervisesubordinate attorneys andstaff who may be working invarious physical locations toensure compliance with thelawyer’s professional obligations.9Duty of CommunicationAlthough the duty to keepthe client “reasonably informedabout significant developments”and “to promptlyrespond to reasonable requestsfor information“ 10 may seem easier through electroniccommunication, the attorney should ensure that theclient is receiving and understanding the informationexchanged via the website portal. 11 In certain circumstances,phone conferences, video-conferences or inpersonmeetings would be prudent.Duty of Candor in Advertising and MarketingTo avoid claims of misleading or false statements underCRPC 1-400 and corresponding State Bar Act provisions,lawyers should disclose to potential clients thenature and composition of the firm’s virtual law office,relevant practice areas and the jurisdictions where itslawyers are licensed to practice.Avoiding Unauthorized Practice of LawBecause a virtual law firm’s audience reaches acrossjurisdictions, lawyers must avoid the unauthorizedpractice of law when responding to requests from potentialclients outside the jurisdictions where the lawyersare admitted to practice. In California, engaging inthe unauthorized practice of law is not only a basis fordiscipline, it is a misdemeanor. 12 What constitutes thepractice of law is a fact-specific determination that is thesubject of California case law. 13Under the Model Rules, Rule 5.5(b)(1) prohibits a lawyerfrom establishing a “systematic and continuous presence”for the practice of law in a jurisdiction in whichthe lawyer is not admitted to practice. While Comment[4] provides that a lawyer’s “presence may be systematicand continuous even if the lawyer is not physicallypresent” in the jurisdiction, the rule provides no otherguidance on when virtual practice is sufficiently “systematicand continuous” to require that the lawyer belicensed in that jurisdiction.On June 19, 2012, the Ethics 20/20Commission published an “issuespaper” proposing several optionsto clarify when virtualpractice in a jurisdiction is“systematic and continuous,”including identifying relevantfactors that lawyersand disciplinary authoritiesshould consider and referringthe issue to the StandingCommittee on Ethicsand Professional Responsibilityfor an ethics opinion.Although the Commissionreceived substantial feedback,it ultimately decided todefer the issue as virtual law practice and the pertinenttechnology continues to develop. 14Virtual law practice offers many potential benefits,but also presents distinct issues regarding a lawyers’compliance with the existing rules of professional conduct.While California’s rules of professional conductmay not keep pace with the evolving nature of virtuallaw practice, virtual law practitioners need to stayabreast of changes in California’s rules, and should remainalert to new ethics opinions, amendments to theModel Rules and law practice management standards 15addressing virtual law practice. s28MAY 2013