Do Virtual Law Firms Violate Ethics Laws? Not Necessarily.
Much has been said about the recent New Jersey ruling about virtual law offices. But is the issue one of being virtual, or of being transparent?
Lawyers who rent offices under time-sharing arrangements may violate New Jersey ethics rules if they hold out these workplaces as their principal place of business, according to a recent ethics opinion.
Such “virtual offices” violate the state requirement for a bona fide office, according to a joint opinion by the New Jersey Advisory Committee on Professional Ethics and the Committee on Attorney Advertising.
Most states no longer have a bona fide office rule, the New Jersey Law Journal reports. The joint opinion is “likely to reinforce New Jersey's reputation among attorney regulators around the country as a state that bends its ethics rules slowly to the inchoate winds of social and economic change," the story says.
According to the opinion, a virtual office refers to a time-sharing arrangement in which lawyers visit the office by appointment only. A receptionist serves all of those who rent space in the shared office, directing clients to the proper room at the appointed time. Depending on the lease, the receptionist may also receive and forward mail and phone calls.
New Jersey requires lawyers to maintain a bona fide office where clients are met, files are kept, mail is received, and the lawyer or “a responsible person acting on the attorney's behalf” can be reached in person and by phone. The purpose, according to the opinion, is to make sure lawyers are available and can be found by clients.
A virtual office can’t be a bona fide office, the opinion says, since the lawyer is only present when he or she has reserved the space. And a receptionist at a virtual office doesn’t qualify as “a responsible person acting on the attorney's behalf"—indeed such a receptionist shouldn’t be entrusted with confidential information, the opinion adds.
A home office, however, can meet the requirement for a bona fide office, the opinion says. And solos who can’t afford a receptionist can still meet the requirement, as long as absences from the office are only occasional and the lawyer can be reached by phone, e-mail or the like.
Some women lawyers are criticizing the opinion, the New Jersey Law Journal reports in a separate story. One of them is Washington, D.C., lawyer Carolyn Elefant, who writes about solo practice at MyShingle.com. She told the publication that lawyers who work at home may be reluctant to list their home office as their principal place of business because of security and privacy concerns.
But here's the thing: a home office apparently satisfies the bona fide office rule. If you practice from home, you're good to go. If you work from Panera Bread, not so much. So where's the difference? I think the key is that you've got to disclose to your clients, adversaries, and the rest of the world how you work. That includes where you are, how you can be located, and your contact information.
The way you market your law firm needs to spell out exactly how you operate, and you can't hide behind the facade of a physical location while operating in a different manner. Sorry, but if you work virtually you need to publish your cell phone number (or Google Voice number) as well as your email. You need to be accessible when you say you're going to be accessible. You need to use technology not only to make your life easier, but to make your business run smoothly. Not having a physical office does not somehow absolve you from your professional responsibilities or the basic human responsibility of being transparent and honest.
Comments 3 Comments
Take a close look at the opinion. It "says" that a home office can be a bonafide office provided that it meets all requirements. These include safe file storage (which anyone working from home should be doing) and someone who is available at the address at most times (and when would that be a for a person working from home? While the kids are running around the house?) What if someone works from home at night and cares for kids most days? Also, the rule requires that calls be routed, but seems to prohibit use of answering services where one receptionist handles answers for multiple attorneys.
I'm all for transparency - but I have never believed that lawyers who work from home should be required to disclose this to clients, unless asked directly (e.g, if client says "Do you work from home, lawyer is obligated to say yes). There is still discrimination against lawyers who work from home, particularly women, who are likely to be written off as "dabblers." I doubt that I'd have ever gotten my law firm off the ground if my colleagues knew that I was working from home - and even in an era where home offices are more accepted, not everyone wants to use a home office lawyer.
Finally - in a day and age where filings are publicly posted, use of one's home address could pose serious security issues.
Carolyn Elefant