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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
1A virtual law office has been defined as the “delivery of, and paymentfor, legal services exclusively, or nearly exclusively, throughthe law firm’s portal on a website, where all of the processing,communication, software utilization, and computing will be internet-based.”Cal. State Bar Formal Opn. 2012-184.2Cal. State Bar Formal Opn. 2012-184.3The California State Bar Commission for the Revision of theRules of Professional Conduct recommended, and the State BarBoard of Trustees has approved, proposed revisions to California’srules of professional conduct that conform in style and format tothe American Bar Association’s Model Rules, and contain manysubstantive provisions similar to those in the Model Rules. Theseproposed revisions are currently under consideration for adoptionby the California Supreme Court.4CRPC 1-100(A); Vapnek, Tuft, Peck & Wiener, Cal. Prac. Guide: ProfessionalResponsibility, 1:88-90 (The Rutter Group, a division ofWest, a Thomson Reuters business, 2012).5See, e.g., Cal. State Bar Opn. 2012-184; Penn. State Bar Opn. 2010-200; Florida State Bar Opn. 00-4.6See Cal. State Bar Formal Opn. 2012-184.7See Cal. State Bar Formal Opn. 2012-184.8Id.9Id.10CRPC 3-50011See Cal. State Bar Formal Opn. 2012-184.12Bus. & Prof. C. § 6126.13See, e.g., Birbrower, Montalbano, Condon & Frank, P.C. v. Sup.Ct. (1998) 17 Cal.4th 119.14ABA Commission on Ethics 20/20, House of Delegate filing (February2013) available at: http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20121112_ethics_20_20_overarching_report_final_with_disclaimer.authcheckdam.pdf.15See, e.g., ABA Law Practice Management Section eLawyeringTask Force, “Suggested Minimum Requirements for Law FirmsDelivering Legal Services Online” (Oct. 15, 2009).Sarah Banola is a litigation attorney at Cooper, White& Cooper LLP’s San Francisco office. Ms. Banola representslawyers and law firms in matters related to legalethics, legal negligence, attorney-client fee disputes,professional discipline, conflicts of interest, disqualificationmotions and law firm breakups.Ms. Banola is a contributingeditor to the professional responsibilitychapter of the CaliforniaPractice Guide on Employment Litigationand the legal malpracticesection of the California PracticeGuide on Claims and Defenses (TheRutter Group, a division of West, aThomson Reuters business, 2012).She also serves as Secretary of theBar Association of San Francisco’sLegal Ethics Committee.Youngman & Ericsson, LLP1981 North Broadway • Suite 300Walnut Creek, CA 94596MCLE SELF-STUDY TESTTo download the test form and instructionsfor this Self-Study MCLE article,visit http://cclawyer.cccba.org andclick on the Self-Study MCLE link inthe top menu.If you prefer to receive the test form viaemail, please contact Theresa Hurleyat thurley@cccba.org or (925) 370-2548.NEED MORE MCLE CREDITS?Visit our calendar to browse upcomingMCLE programs:www.cccba.org/attorney/calendar/Or choose from our MCLE Self-Studyprograms - we offer self-study articles,audio and video programs:Tax Lawyers.www.cccba.org/attorney/mcle/other-self-study.phpwww.youngman.com (925) 930-6000CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 29
Page 2 and 3: Perry A. NovakSenior Vice President
Page 6 and 7: insideRevolutionizing LawWelcome to
Page 8: The Future of Law in Admissionsto t
Page 11 and 12: have crippled the judiciary’s abi
Page 14 and 15: Growing Trends in Today’s Legal W
Page 16 and 17: Growing Trends,cont. from page 15si
Page 18 and 19: LAW PRACTICE MANAGEMENT SERIES 2013
Page 20: Solo SectionBreakfastFebruary 21, 2
Page 23 and 24: 2013 MEXICO MCLERELAX AND STUDY IN
Page 25 and 26: 1990, it was 15 months; in 2001 it
Page 27: California lawyers and courts may a
Page 31 and 32: A GOODREVIEWbut only if the stateme
Page 33 and 34: The next Inns ofCourt meetingis May
Page 35 and 36: CALENDARUPCOMING EVENTS | OVERVIEWM
Page 37 and 38: May 29 | CCCBAFast Track Bench/Bar
Page 39 and 40: Interested inAdvertisingin theContr

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