In this week that NY law grads were originally scheduled to be taking the bar exam, the New York State Court of Appeals (the highest court in the state) has announced a revision of its rules to temporarily authorize qualifying graduates of ABA-accredited law schools to practice law in New York under supervision pending their admission to the bar. Supervising attorneys must be admitted to practice in New York for at least three years and must be in good standing.
To be eligible, an applicant must be qualified to take the New York bar exam, employed to practice law in New York, and not have failed a bar exam in the United States previously, in addition to having graduated from an ABA-accredited law school.
Those wishing to be granted this authorization must submit an application to the Appellate Division in the Department in which they anticipate being admitted to the bar. The application must include an affirmation in support from a representative of the employer who is admitted to practice law in New York, as well as the application form signed by the applicant seeking temporary authorization. All signatures are required to be by hand (as opposed to electronic signatures).
There are some limitations on what attorneys authorized to practice under the new rule will be able to do. For example, an attorney authorized under this rule cannot conduct a deposition (examination before trial) or appear in court without the presence of the supervising attorney who is available to supplement or correct any written or oral statement or action made by the authorized attorney. If the authorized attorney appears without a supervising attorney, the matter cannot proceed. There is an exception, however, for routine calendar calls - the authorized attorney may appear without a supervising attorney as long as a supervising attorney is immediately available to appear if necessary.
When an authorized attorney is appearing in any of the above instances, notice must be given to the judge before whom the appearance will be made. An authorized attorney must obtain prior Court approval to appear before the Court of Appeals or the Appellate Division of the Supreme Court.
In addition, any legal or litigation documents prepared or drafted by an authorized attorney must be approved by a supervising attorney, and the supervising attorney's name must appear on the document. If a signature is required under 22 NYCRR 130, the supervising attorney is required to sign.
Authorized attorneys under this part are not authorized to open, maintain, or be a signatory on any attorney escrow account, and may not make a final disposition of any matter without prior approval of a supervising attorney.
Authorized attorneys are subject to the same disciplinary authority as practicing attorneys who have been admitted to the bar. Termination of authority under this part can occur in a number of ways, including revocation of the part, or revocation of the attorney's authority for good cause, as well as if the authorized attorney fails a bar exam in the United States or fails to sit for the Uniform Bar Exam by August 2021.
The ABA Annual meeting is currently underway in San Francisco, California. One of the items on this year's agenda for consideration by the House of Delegates is a resolution to amend to the ABA Model Rules of Professional Conduct, Rule 8.4, Misconduct. The resolution was the work of several entities within the ABA, including the Standing Committee on Ethics and Professional Responsibility, the Diversity and Inclusion 360 Commission and the Commission on Women in the Profession, among others.
The proposed amendment would add subsection (g) to the Rule, making it professional misconduct for a lawyer to:
engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The New York Times carried a story on the proposal yesterday, including comments from those on both sides of the issue, including those who argue that the Rule violates free speech.
Another article this week, at American Thinker, calls the new rule an attempt by the ABA to impose political correctness on all lawyers, although one of the objections in the article - that the rule would prohibit lawyers from choosing whom to represent - seems unfounded given the proposed wording of the most recent revision of the proposed rule, which can be found here.
Another concern might be that lawyers will be forced to take on clients that they cannot afford to represent so as not to be seen to violate the prohibition against discrimination based on socioeconomic status. This concern also seems to be covered by the statement that the ability of a lawyer to accept, decline or withdraw from representation in accordance with Rule 1.16. In addition, proposed Comment [5], which states in part, "A lawyer may charge and collect reasonable fees and expenses for a representation."
In New York (as in several other states), Rule 8.4 already contains a subsection (g) as follows:
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding;
Read the proposed ABA model rule and new comments for yourself and let me know what you think in the comments. Should the bar prohibit lawyers from these kinds of comments and activities, or do they go too far and impose on lawyers' rights of free speech and association?
Last Wednesday, the ABA Journal reported that the New York State Bar Association's House of Delegates would be considering social media ethics guides for lawyers on Saturday during the State Bar's meeting. The story was picked up by several people, including noted blogger and social media expert, Kevin O'Keefe, in his post, "New York Social Media Ethics Guidelines a roadmap or a rabbit hole?" in which O'Keefe questions the necessity for a specific set of guidelines specifically addressing social media and opines that the general rules should suffice to cover these new technologies.
The guidelines being considered appear to be the most recent version of guidelines put together by the New York State Bar Association's Commercial and Federal Litigation Section, but these guidelines are not new (here's a version from 2014). Nor are they particularly surprising. They were developed based on the New York Rules of Professional Conduct and various ethics opinions which have interpreted those rules. While most of the ethics opinions cited in the guidelines are from New York, there are opinions cited from other states where no New York ethics opinions could be found and another jurisdiction's rule was similar.
As O'Keefe says in his post,
Rather than providing an onramp to social media for lawyers as intended, won’t these guidelines scare the heck out of lawyers? Lawyers don’t understand social media to start with and now we layer on ethics guidelines the relevance of which to particular situations could only be determined by a lawyer with practical knowledge of social media?
Blogging, social media, social networking and the like are learned through trial and error. A lawyers common sense, good judgment and a working understanding of existing ethics rules guide them.
Lawyers have been doing exactly this for the last twenty plus years, beginning with online bulletin board systems, message boards, newsgroups, listservs and virtual communities. Lawyers participated and did not drum up ethics sanctions along the way.
Now it’s blogs, LinkedIn, Facebook, Twitter, YouTube and more. And still lawyers are not going down in ethics’ flames.
But the fact is that attorneys have been inquiring about the rules that govern social media, as evidenced by opinions such as NYSBA Committee on Professional Ethics Opinion 1009, issued in May of 2014, discussing whether tweets in a specific circumstance require a disclaimer under the New York rules, or Formal Opinion 748 of the New York County Lawyers Association Professional Ethics Committee issued in March of 2015 addressing LinkedIn ethics with respect to skills, endorsements and recommendations.
"Should" lawyers be able to use common sense and apply the existing ethics rules to new technologies like social media the same way they have with previous technologies? Probably. Have most attorneys been able to do so? So far, it seems that way. Will the guidelines scare some attorneys away? Perhaps, but the fact is that the attorneys who are able to use "common sense" to apply the rules to social media, should be able to do the same with regard to the guidelines and still use social media effectively. Indeed, since the guidelines suggest that attorneys should have at least a basic knowledge of social media (since their clients may use it, even if they don't), the guidelines may have the opposite affect - once attorneys learn about these tools, they may be less afraid to use them.
Are specific guidelines necessary? Probably not. Will they be helpful to many attorneys? That remains to be seen; I haven't seen any reports about the action taken by the House of Delegates last weekend, and a link on the Home page of the NYSBA website that purports to lead to a recent report on Social Media Ethics Guidelines appears to lead to an unavailable page. But New York isn't the first or only state to issue similar guidelines about social media use for attorneys - take, for example, Pennsylvania.
In New York, even if adopted, the guidelines would be just that - guidelines - just as the ethics opinions are advisory and only issued based on the specific circumstance in the inquiry presented. Whether an attorney can or will be disciplined as a result of social media use (or misuse) remains to be seen, but the disciplinary authority often relies upon guidelines and ethics opinions such as these, so like it or not, New York attorneys need to take heed.
Despite opposition from many lawyers and bar associations throughout the state, Chief Judge Jonathan Lippman announced today that New York State will begin administering the Uniform Bar Exam (UBE) beginning in July of 2016.
According to this article, Lippman made the announcement at a Law Day celebration in Albany, claiming that the adoption of the UBE will allow New York to remain the gold standard for the profession, and stating that it will allow New York law graduates greater portability and flexibility of their law licenses.
The article goes on to say that Chief Judge Lippman argued that the new examination will "be more comprehensive in testing state-specific knowledge." This is difficult to comprehend, as the existing New York State Bar Examination, written by lawyers in New York State, includes New York State-specific essay questions, as well as New York multiple choice questions. By contrast, the new examination will include only essays testing general legal knowledge (not specific to New York State, nor written by New York laweyrs), but will retain the 50 New York multiple choice questions.
Interestingly, the article also indicates that the new exam "will also include a separate, New York-specific online course, which will include videotaped lectures." This is particularly interesting since New York State currently does not permit continuing legal education credits for young lawyers (those admitted less than two years) to be taken online or by video or audio recordings - all credits must be taken live. Although I haven't seen details of what the new "online course" will entail, it seems odd that this would be an accepted method by which lawyers will now learn New York State-specific law prior to admission to the bar, and that, having taken this online course, lawyers would not be tested on their proficiency in what is taught in those courses.
Additionally, while the claim is that adoption of the UBE will allow for greater "portability" of a New York law license, the fact remains that only 14 other states thus far have adopted the UBE, and none of the largest states are among them. While proponents of the UBE may surmise that other states will follow New York's lead, there is no guarantee that this will occur. Meanwhile, lawyers who wish to enter New York's legal market from foreign jurisdictions will have an easier time competing with New York educated lawyers for desirable New York jobs - arguably with very limited knowledge of the quirks of New York law, including the CPLR.
It is difficult to reconcile the claims that the UBE was instituted in part as a reaction to the fact that "employment prospects are still grim" for recent New York law graduates (a Lippman quote from this New York Times article) with the inevitable fact that adopting the UBE will increase the competition for New York legal jobs. New York educated lawyers who pass the UBE may find it easier to transfer their licenses to states like Alabama, Kansas, Idaho, Utah, North Dakota and Montana (all of whom have adopted the UBE), but with the crippling debt faced by many law graduates today, will the ability to move to these states be a real economic benefit?
And what impact will the lack of New York educated lawyers or lawyers with little knowledge of New York law have on the representation of clients?
According to an article in the ABA Journal, a Texas judge who has been admonished by an ethics panel claims that she did nothing wrong by posting about trials she was overseeing. The judge claims the information she posted contained only publicly available information and that she continued to remain impartial.
The admonition requires the Galveston Judge of the 405th Judicial District to obtain four hours of instruction with a mentor regarding the proper and ethical use of social media by judges. The 5+ page opinion was issued April 20, 2015. According to the admonition, the judge maintained a Facebook page identifying her as a judge and featuring a photograph of her in her judicial robes. It was a publicly accessible page.
The admonition goes on to set forth a number of Facebook posts authored by the judge both before and during trials before her, despite her instructions to the jury that their use of Facebook to discuss the case was "absolutely forbidden." One of the posts even included a link to a news article about the trial pending before her. That article contained references to information that the judge had previously instructed the jury to disregard.
Another post referenced evidence that had not yet been admitted as an exhibit or evidence at the trial. That evidence, although ultimately admitted by the judge, was the subject of an objection by defense counsel. The judge was ultimately removed from that case and a mistrial was granted. The judge argued that her intent was to promote transparency and to encourage the public to come to watch the proceedings in her courtroom.
Despite negative media attention about the judge's conduct in the first case, she continued to post on Facebook about cases before her, including a post about completing the sentencing of a "very challenging" defendant.
The Texas State Commission on Judicial Conduct cited Canons 3B(10) and 4A of the Texas Code of Judicial Conduct, as well as Article V, Section 1-a(6)A of the Texas Constitution in its determination that by posting the comments on her Facebook page, the judge "cast reasonable doubt on her own impartiality" and violated her own admonition to the jury. They concluded that:
The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial. Judge Slaughter’s Facebook activities interfered with her judicial duties in that, as a direct result of her conduct, a motion to recuse was filed and granted requiring the judge to be removed from the Wieseckel case. The judge’s recusal then led to the granting of a motion for mistrial so that the case could be retried in its entirety before another judge. Judge Slaughter’s conduct in the case was clearly inconsistent with the proper performance of her duties and cast public discredit upon the judiciary or administration of justice in light of the considerable negative media attention given the case and her posting. The Commission therefore concludes that Judge Slaughter’s conduct constituted a willful and persistent violations of Canons 3B(10) and 4A of the Texas Code of Judicial Conduct, and Article V, Section 1-a(6) of the Texas Constitution.
Social media can be an exceptional tool for communication, and could be a good way for this judge to accomplish what she claims was her aim - educating the public about the court system. Unfortunately, the focus has now become these ill-advised Facebook posts which call into question her ability to be impartial.
Last week, the New York County Lawyers Association Professional Ethics Committee released Formal Opinion 748, addressing the ethical implications of lawyers' use of LinkedIn. I had the opportunity to speak about this opinion and about other ethics issues involved with LinkedIn use at a CLE program for the New York State Trial Lawyers Association last Friday, and some interesting discussions ensued.
Here's a quick overview of the opinion:
Is LinkedIn Advertising in New York?
According to Opinion 748, LinkedIn is not advertising if it only contains information about an attorney's Education and current and past employment. However, if it contains additional information, such as a description of the attorney's practice areas, skills, endorsements or recommendations, the attorneys's LinkedIn Profile will be considered advertising.
[Comment: As my readers know from past posts on this blog and elsewhere, to get the most out of LinkedIn, attorneys should be making their LinkedIn Profiles as complete as possible and including information about what areas they practice in, what kinds of clients they represent, what skills they have, what services they provide to their clients, and more. If they do so, their LinkedIn Profile will be considered advertising in New York, according to this definition.]
Compliance with Rule 7.1- Advertising
Once you have established that your LinkedIn Profile qualifies as advertising, you'll need to review Rule 7.1 to ensure your Profile is in compliance. According to Opinion 748, this includes ensuring that your LinkedIn Profile contains appropriate disclaimers, such as the "Attorney Advertising" disclaimer.
The opinion also notes that
If an attorney also includes (1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the services of other lawyers; (3) testimonials or endorsements of clients; or (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services, the attorney should also include the disclaimer “Prior results do not guarantee a similar outcome.” (emphasis added)
Specialization and Rule 7.4
As I mentioned in this post, in 2013, NYSBA Committee on Professional Ethics issued Opinion 972, which prohibits attorneys from using any section on LinkedIn with the title or heading "Specialties" unless they are properly certified. Opinion 748 addresses specialization in another area of LinkedIn: the Skills section.
Although Opinion 748 requires lawyers who include skills on their LinkedIn Profiles to include disclaimers, merely listing those skills on your LinkedIn Profile does not constitute a claim to be a specialist under Rule 7.4. In other words, you can list a skill on your LinkedIn Profile even if you have not been certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association.
Endorsements and Reccomendations
According to Opinion 748,
The ethical treatment of endorsements and recommendations depends on who is considered to “own” the endorsement and recommendation: the author of the endorsement or recommendation or the person whose profile is enhanced by it.
On LinkedIn, users have control over what is posted on their own Profiles. They can choose to reject or hide an Endorsement, and Recommendations do not appear on a user's Profile unless approved by the owner of the Profile. Accordingly, Opinion 748 holds lawyers responsible for ensuring the accuracy of what appears on their Profiles, stating that, "there is a duty to review social networking sites and confirm their accuracy periodically, at reasonable intervals."
Nothing in Opinion 748 was particularly surprising, and not all jurisdictions in New York may follow the opinion, but it is instructive and is worth the read.
March is women's history month and this year's theme is "Weaving the Stories of Women’s Lives." Is disparate treatment in the workplace an element of women lawyers' (and other professionals) stories?
I came across this presentation entitled, "LeanIn Together: 8 Tips for Managers" that describes how men and women are treated differently at work and how managers can address those issues. I've decided to share it in honor of women's history month.
Do you see these kinds of things still happening in your workplace?
Are female lawyers treated differently and do they have more trouble getting promoted than men?
Is the fact that we need a "Women's History Month" at all evidence of disparity?
Do these issues need to be addressed in order to create future women leaders in the legal profession and elsewhere?
On March 1, 2015, Bradley Horowitz (a Google VP), posted on his Google Plus page that he will be running Google Photos and Streams products. Although his post itself doesn't mention Google Plus and there has been no official announcement from Google that Google Plus will be retired, other news sources have reported that Google Plus will be breaking up into distinct services.
For example, The Verge reported that Hangouts will continue to operate, but as a stand-alone product, and that the split divides Google Plus into distinct realms - the social aspect (streams); photos; and communications. Gigaom, Mashable, Business Insider and other outlets have featured similar stories over the past week, but none have much detail to date.
Search Engine Journal reported, however, that Google is not, in fact, separating Google+ into separate products, but instead simply changed an internal team name, and that no "user-facing" changes are actually in the works. This seems to contradict the interview given at Mobile World Congress in Spain by Sundar Pichai, Senior VP of Products at Google this past week as reported in the articles mentioned above and in Venture Beat.
If Google does decide to do away with the social network aspect of Google+ it wouldn't be the first time Google has abandoned a product. And it will be interesting to see what they do with Photos and whether both photos and hangouts survive. Stay tuned!
In a case entitled Robert Rubenstein v. The Florida Bar, United States District Court Judge Beth Bloom of the Southern District of Florida ruled last week that it is unconstitutional for the Florida Bar to prevent a lawyer from using past results in advertising their services, saying that the Bar had the burden of establishing that the ban on the use of past results in attorney advertising supports the interests the Rules were designed to promote, and that they failed to meet that burden.
Robert Rubenstein's tv ads made claims that he had collected over $50 million for clients in the past year, and also noted that these were gross recovery amounts and that, "results in individual cases are based on the unique facts of each." The Florida Bar warned Rubenstein not to run the ads, and threatened disciplinary proceedings. Rubenstein responded by filing suit.
Notably, in 2013, the Florida Bar changed its rules to allow attorneys to include past results in their advertising if those results were objectively verifiable and accompanied by the appropriate disclaimers, so as to avoid misleading the public.
In 2014, the Bar’s Board of Governors issued new “Guidelines for Advertising Past Results.” The Guidelines note that "inclusion of past results in advertising carries a particularly high risk of being misleading," that additional information would be required to accompany such results, and that as such, billboards, radio and television advertisements were not appropriate forms of media for advertising past results. The Guidelines also contain specific restrictions and instructions regarding advertising specific dollar amounts or aggregating past results.
The Court's opinion reiterates that lawyer advertising is protected commercial speech under the First Amendment and concluded that the Florida Bar, while claiming that the inclusion of past results in tv and radio advertisements was inherently misleading, failed to provide any factual support for this claim. Indeed, surveys conducted by the Bar itself indicated that consumers felt that past results were an important piece of information when choosing a lawyer. In addition, the disparity in the rules and guidelines in allowing past results in other forms of advertising, but excluding it from billboards, television and radio ads, was troubling to the Court.
The Court concluded that, "The Bar has failed to demonstrate that its restrictions advance the governmental interests at play. For that reason alone, the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines are unconstitutional." But the analysis did not end there; the Court also held that, "The Bar has additionally failed to demonstrate that its subject restrictions on attorney speech are no broader than necessary to serve the interests they purport to advance."
But the Court went further than simply stating that the Bar's ban on Rubenstein's ads at issue in this particular case was unconstitutional. The opinion goes on to analyze the complete prohibition on attorney advertising referencing past results in indoor and outdoor display, television and radio media and to conclude that the blanket restriction is unconstitutional, stating,
The Bar can regulate attorney advertising. But, so long as it has not proven that its complete ban on advertising referring to past results in the specified media supports a substantial governmental interest, it is not justified in doing so as articulated in the Guidelines. The Bar may in the future seek to reconstitute the Guidelines by addressing and meeting its evidentiary burden, or may seek to introduce some sufficiently tailored variation of the Guidelines.
It remains to be seen whether Florida will attempt to modify the Guidelines.
Next week I’ll be presenting at the ABA Women Rainmakers Mid-Career Workshop on “Lawyering in the Digital Age.” My presentation covers technology issues that the lawyers of today are faced with that didn’t exist 20, 10, or sometimes even 5 years ago, including issues involving electronic communication, data storage and security, “cloud” services, websites and virtual law offices.
In the past several months, the New York State Bar Association Committee on Professional Ethics has issued a number of ethics opinions that deal with some of these topics.
Here is a quick overview of the New York Opinions.
Remote Access to Law Firm Electronic Files
Perhaps the most comprehensive of the recent New York opinions dealing with the application of the New York ethics rules to modern technology is Opinion 1019, discussing confidentiality and remote access to a law firm’s electronic files. The opinion concludes that, “A law firm may give its lawyers remote access to client files, so that lawyers may work from home, as long as the firm determines that the particular technology used provides reasonable protection to client confidential information, or, in the absence of such reasonable protection, if the law firm obtains informed consent from the client, after informing the client of the risks.”
This reasonableness standard comes from Rule 1.6, Confidentiality. Rule 1.6(c) provides that a lawyer must "exercise reasonable care to prevent . . . others whose services are utilized by the lawyer from disclosing or using confidential information of a client" except as provided in Rule 1.6(b).
Comment 17 to Rule 1.6 provides some additional guidance regarding reasonableness, and notes that “special circumstances might require additional security precautions.” Comment 17 also sets forth factors to be considered in determining reasonableness, including the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.
Opinion 1019 concludes that,
Because of the fact-specific and evolving nature of both technology and cyber risks, we cannot recommend particular steps that would constitute reasonable precautions to prevent confidential information from coming into the hands of unintended recipients, including the degree of password protection to ensure that persons who access the system are authorized, the degree of security of the devices that firm lawyers use to gain access, whether encryption is required, and the security measures the firm must use to determine whether there has been any unauthorized access to client confidential information. However, assuming that the law firm determines that its precautions are reasonable, we believe it may provide such remote access. When the law firm is able to make a determination of reasonableness, we do not believe that client consent is necessary.
However, if a law firm cannot make such a conclusion, the client’s informed consent may be obtained.
Use of Cloud Services for a Transaction
In Opinion 1020, issued September 12, 2014, the Committee addressed a question raised by a real estate attorney who wanted to use an electronic project management tool which would allow sellers’ attorneys, buyers’ attorneys, real estate brokers and mortgage brokers to post and view documents, including contracts and building financials, using a cloud-based data storage tool.
As they did in Opinion 1019, the Committee referred to Rule 1.6(c) and the reasonableness standard, stating that,
Whether a lawyer to a party in a transaction may post and share documents using a “cloud” data storage tool depends on whether the particular technology employed provides reasonable protection to confidential client information and, if not, whether the lawyer obtains informed consent from the client after advising the client of the relevant risks,” and that lawyers must “exercise reasonable care to prevent … [persons] whose services are utilized by the lawyer from disclosing or using confidential information of a client."
Virtual Law Offices
In Opinion 1025, issued September 25, 2014, the Committee opined that a lawyer would be permitted to have an entirely virtual law practice in the State of New York (operating solely online, with no physical location to meet with clients or conduct the practice of law), as long as the attorney complied with the requirements of Judiciary Law §470.
The issue presented was based on Rule 7.1(h) of the Rule of Professional Conduct, which requires that advertisements contain the attorney's principal law office address. An attorney inquired about whether Rule 7.1(h) prohibited the attorney from operating via a purely virtual law office.
Previous NYSBA Opinions concluded that Rule 7.1(h) required all attorneys who advertise to have and disclose a physical office address, however, based in part on court rulings applying Judiciary Law §470, Opinion 1025 comes to a somewhat different conclusion, stating that, “[W]e no longer believe that Rule 7.1(h) -- a rule that on its face regulates only advertising -- provides an independent basis for requiring a physical office.”
The opinion points out that there is potential value to clients of having a lawyer who works solely through a virtual law office, particularly where the client themselves works only virtually, and stating that, "The robustness of electronic communications, and the appointment of a virtual law office service as an agent for accepting service of process, effectively combine to eliminate any concern that a physical office is necessary in all cases for the receipt of service and other communications,” and that, “there is nothing inherently misleading about advertising a virtual law office.”
The opinion cites N.Y. City opinion 2014-2, which deals with a similar issue. It was noted however, that the lack of requirement for a physical law office was not automatic, and would depend heavily on the circumstances.
New York Rule of Professional Conduct 1.1, Competence, requires all attorneys to ensure competence, which Opinion 1025 notes
[N]ot only includes competence in performing the legal work but also competence in handling communications and storing and providing access to client files. An attorney should only use technology that he or she is competent to use. Attorneys owe duties of effective communication with clients to keep them promptly and reasonably informed and consulted about the means of achieving the client's objectives (Rule 1.4). Attorneys owe duties to maintain confidentiality (Rule 1.6), and there are unique concerns about confidentiality that relate to conducting all communications and client file storage electronically. Attorneys have numerous duties relating to the proper preservation of client materials (Rules 1.6(c) and 1.15). Attorneys must assure adequate supervision of subordinate lawyers and of non-lawyers (Rule 5.1 and 5.3). There is no “virtual law office exception” to any of the Rules.
Website Domain Names
As I discussed in this post, in mid-2013, the NYSBA Committee on Professional Ethics issued Opinion 972, in which it noted that attorneys are prohibited from listing their services under the heading “Specialties” on a social media site unless the lawyer is certified in conformity with the provisions of Rule 7.4(c).
On September 12, 2014, the Committee issued Opinion 1021, which addresses the issue of the use of the word “expert” in a law firm’s domain name, citing New York Rule of Professional Conduct 7.5(e)(3), which prohibits firms from using a domain name that implies the ability to obtain results in the matter. The opinion notes that, “The implication of the word [expert] is that the law firm may bring to the matter a seal of approval that provides comparatively greater assurance of some favorable outcome which no disclaimer may readily cure.”
With the rapid pace of technology change in today’s legal environment, all attorneys must remain up to date not only on the changes in technology that affect the delivery of legal services and advertising for those services, but in the ethical rules implicated in the use of such technology.
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