ABA Issues Opinion on Virtual Law Practice

ABA Issues Opinion on Virtual Law Practice

When the COVID-19 pandemic began in March of 2020, businesses had to make adjustments. Law firms were no exception. 

Instead of working in the office, attorneys and legal staff worked remotely from home. Someone typically reported to the office to pick up mail or organize files, but most communication and work were handled virtually from multiple off-site locations.

Together, we stumbled through 2020 as best we could, adapting to constant changes and trying to learn from our mistakes. It took a full year for the American Bar Association (ABA) to issue an opinion on the virtual law practice. 

Because our country is still in the grips of a global pandemic, many law firms may continue practicing virtually, at least in part. Some clients may be hesitant to come into the office. Therefore, attorneys may have no choice but to continue virtual consultations to secure new clients. 

Because we do not know how the pandemic will evolve, it is a good idea for lawyers to read and analyze the ABA’s opinion now. We never know when we might be required to operate virtually again, and we do not want to make the same mistakes regarding business ethics and technology.

What is a Virtual Practice?

The ABA Formal Opinion 498, released on March 10, 2021, defines virtual practice as a “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” The ABA Model Rules of Professional Conduct allow for virtual practices. 

However, the opinion points out that while lawyers can practice law virtually, there are several ethical duties to consider when using technology. The areas of confidentiality, competence, and supervision are of particular importance. 

The opinion discusses some of the issues related to virtual practice. It points out that the ABA Model Rules of Professional Conduct provide minimum requirements and some suggestions of best practices for a virtual practice.

Commonly Implicated Model Rules of Professional Conduct

The opinion discusses specific Model rules related to:

Competence, Diligence, and Communication 

The Model Rules require that attorneys keep informed about changes in the law and its practice. This duty includes the benefits and risks of relevant technology. 

Therefore, attorneys should take steps to ensure they are aware of changes. They need to comply with continuing legal education requirements and research the matter independently. 

Attorneys also must ensure they exercise due diligence on behalf of their clients. Lawyers must communicate regularly with their clients regarding the status of their matters. 

Lawyers have a duty to pursue a matter, despite any obstruction, opposition, or personal inconvenience. Clients have a right to be consulted about their case and receive the information they request.

Attorneys need to develop plans that ensure they can comply with these requirements, even if they practice virtually.

Confidentiality

Model Rule 1.6 prohibits lawyers from revealing information related to representing a client. The duty persists even if an attorney is practicing virtually. There must be informed consent, a specific exception, or implied authorization for the attorney to discuss client matters.

An attorney must make reasonable steps to protect client confidentiality. 

According to the ABA Formal Opinion, a lawyer should consider:

  • The sensitivity of the information
  • The cost of employing additional safeguards
  • Likelihood of disclosure if no other safeguards are installed
  • The extent to which the safeguards negatively impact the representation of clients
  • The difficulty in applying the safeguards 

A virtual practice adds additional concerns related to confidentiality. Transmitting documents virtually poses a risk of disclosure. Discussing information online could result in breaches of confidential information. Additional steps may be required to protect confidentiality in a virtual practice.

Supervision

Lawyers have a duty to ensure nonlawyer staff members and subordinate lawyers comply with ethics rules. Practicing virtually does not lessen the attorney’s duty. 

An attorney should instruct employees about ethics, especially related to confidentiality. Employees should understand the rules about safeguarding information. They must avoid inadvertent disclosure or unauthorized access to client information. 

Other Matters Covered by the ABA Formal Opinion for Virtual Practice

There are several other topics covered in the ABA Formal Opinion, including:

  • Hardware and software systems
  • Accessing client data and files
  • Videoconferencing and virtual meeting platforms
  • Virtual data and document exchange platforms
  • Virtual Assistants, Smart Speakers, and other listening-enabled devices
  • Supervision

The opinion also discusses the possible limitations of virtual practice. Virtual practices may not be suitable for all areas of law or law firms. 

The Bottom Line

Attorneys are expected to follow all ethics rules. They must continue fulfilling their duty of care. These requirements exist regardless of whether they are virtual or meet with clients in a traditional law firm setting. It is up to each attorney to ensure compliance with the rules for themselves and their staff members. 

Read More
Florida Bar Issues Complaint About "Pitbull" Lawyer Ads

Florida Bar Issues Complaint About “Pitbull” Lawyer Ads

A lawyer in Florida is in trouble with the Florida Bar because he used a pit bull in his advertising material. The Florida Bar filed a complaint on March 2, 2021, alleging several violations of the Rules Regulating The Florida Bar

The Pitbull Lawyer at Taylor Law

According to the complaint, Robert Laurence Pelletier is an of counsel lawyer with David Taylor Law. Mr. Pelletier advertised as the “Pitbull Lawyer at Taylor Law” on numerous platforms. 

The platforms included online websites, blogs, Facebook, and an advertising wrap on a boat. He also used the name “Pitbull” on his business cards and Mr. Taylor’s office door.

The complaint states that Mr. Pelletier was informed on three dates of the violations of the Rules Regulating The Florida Bar. He was told to remove or correct them. The complaint alleges that he corrected the office door and business cards, but he failed to correct the other instances. 

The complaint alleges that Mr. Pelletier did not remove the boat wrap until the grievance committee set the case for review. He only partially corrected his website. 

What is Wrong with Using Pitbull in an Attorneys Advertisement?

The Florida Supreme Court has ruled on this matter in a previous case. 

In a 2005 case, the Supreme Court ruled that the use of “Pit Bull” and a pit bull’s image harmed the legal profession. It stated that using the phrase and image in advertising did not assist the public in making an informed decision before hiring an attorney.

The order stated that devices that invoke the breed of dog known as pit bull demeans lawyers. Therefore, it harms the legal professional and the public’s confidence and trust in the justice system.

Specific Violations of the Regulations 

The complaint against Mr. Pelletier sets forth in detail the specific Rules that the Florida Bar alleges Mr. Pelletier violated with his “Pitbull” advertisements.

The alleged violations are:

  • Rule 4-7.12 Required Content 
  • Rule 4-7.13 Inherently and Deceptive Misleading Advertisements 
  • Rule 4-7.15  Unduly Intrusive or Manipulative Advertisements
  • Rule 4-7.17 Payment for Advertising and Promotion
  • Rule 4-7.19 Evaluation of Advertisements 

The Florida Bar is asking the court to discipline Mr. Pelletier according to the provisions of the Rules Regulating The Florida Bar.

Lawyers Have Strict Rules Regarding Advertising

Marketing and advertising are important tools for attorneys to generate business. However, the need to generate business is weighed against the public interest. 

For example, misleading and false claims intended to solicit business violate the public interest. Attorneys and law firms must ensure that all statements and claims can be verified.

Each state sets ethics rules for attorney advertising within the state. The ethics rules for advertising vary by state. The Ethics and Advertising Department of The Florida Bar produced a Handbook on Lawyer Advertising and Solicitation to help lawyers avoid mistakes and errors in advertising that could lead to an ethics complaint. 

Some states may not allow an attorney or law firm to make a comparative statement, while other states may not have specific rules regarding these states. You might not be able to claim to be the best personal injury law firm in one state, but you could in another state. Likewise, many states prohibit lawyers from claiming to be experts if they do not hold a specialty certification in that specific area of law.

Attorneys and law firms are responsible for researching and abiding by the ethics rules in each state in which they advertise. For national law firms, advertising can be challenging. Local law firms only need to know the ethics laws that govern advertising in their state.

Check Before You Pay for Advertising Material 

A  comprehensive advertising campaign can be expensive. If you hire a firm to create and design a marketing campaign, the cost increases. Before investing your time and funds into marketing and advertising, review the ethics rules and guidelines for attorney and law firm advertising.

Even a small, solo practitioner can spend a significant amount of money on business cards, letterhead, website design, and other advertising materials. You do not want to spend the money to find out that it all must be changed because it violates ethics rules for advertising.

Whenever you are in doubt, submit your material to the Ethics and Advertising Department of The Florida Bar for consideration. If there is a problem with your advertising or marketing campaign, it is better to catch it before launching the campaign or using the advertising materials. You do not want to face an ethics complaint and potential disciplinary actions. 

Read More
How Getting a DUI Could Affect Your Ability To Practice Law

How Getting a DUI Could Affect Your Ability To Practice Law

The penalties for Driving Under the Influence (DUI) are significant in every state in the country. First-time offenders can expect to face steep fines and even jail time in addition to having their driver’s license suspended for anywhere from ninety days to a year. In some states, treatment for drug and alcohol abuse is also required in order to restore your driver’s license. 

If a person is convicted of a DUI more than once, the penalties only get harsher. Of course, many see stiff fines and jail time as a reasonable consequence for driving under the influence as it is an extremely serious offense. But for lawyers and those who are studying to practice law, the consequences can be even more severe. 

In order to be admitted to a state’s bar and be licensed to practice law, a candidate has to do several things. The most well-known steps a person must take include graduating from an accredited legal institution and passing the state’s bar exam. However, there is another requirement that might sometimes be taken for granted. 

Moral Character and Fitness

In order to be admitted to a state’s bar, a candidate must demonstrate that they are of sound moral character. This requirement is strictly upheld around the country and is a very important requirement given lawyers’ authority and power due to their knowledge of the law. 

Generally speaking, legal trouble, such as a DUI, is seen as a red flag and might suggest that a person is not of sound moral character. In most cases, a lawyer or person desiring to become a lawyer will be unable to do so if they have a felony on their record. It is an automatic disqualifier.

DUI’s, however, are typically not a felony. What that means is that, while a DUI might not automatically get your license revoked, it will mean the state bar and school officials will take a closer look at you during their review processes. This could mean they talk with more of your references and go into greater detail with them.

If they find you have a pattern of reckless behavior or more than one DUI conviction, there is a good chance you will be denied admission to the bar. However, if your DUI is found to be an isolated incident and reference checks produce a more favorable picture of you, there is the chance that you will be able to practice law after all.

How You Respond Matters

Getting a DUI doesn’t mean your legal career is automatically over. There is much you can do to minimize the damage caused by a DUI. The first step is hiring a qualified criminal defense attorney who can mount a vigorous defense on your behalf. A good lawyer will know how to fight the charges against you and in some cases may be able to get those charges dismissed or lowered. 

If your DUI is from long ago and you have conducted yourself as an upstanding citizen since that time, you may also be able to pursue an expungement. While procedures and requirements vary from state to state, expunging your record is a powerful tool and a way to keep your professional hopes alive.

Finally, a contrite, humble response to a DUI conviction will go a long way in the eyes of state bar examiners. For example, if you seek treatment, the bar will view that as a positive indicator of your commitment. Even if it is not a requirement to getting your driver’s license, bar examiners will see your willingness to take responsibility for your actions and deem that a sign of good moral character

Read More
How to Deal With Bad Client Reviews – Ethically

How to Deal With Bad Client Reviews – Ethically 

The internet has changed how potential clients locate attorneys. They often begin searching for attorneys by Googling attorneys near them. They narrow their list by reading online reviews on social media sites, Yelp, Avvo, Google, and other online review sites.

Having a robust online presence can boost a lawyer’s business significantly. For the most part, online advertising is less expensive and more effective than many other forms of advertisement. However, how should attorneys ethically respond and deal with negative online reviews?

Negative Reviews Are Part of Doing Business

You will never please every client. There will always be some clients who feel that they did not receive the best legal services possible. They could have had unrealistic expectations, or they may have had a genuine complaint about the services they received. 

In either case, attorneys must be cautious when responding to bad reviews from clients. Issues of legal ethics could come into play. An attorney could create serious problems if the response to a bad client review violates any rules of professional conduct or confidentiality rules.

Consider the Facts and Circumstances 

Before jumping to the keyboard to respond to a negative review, do your due diligence to determine why the reviewer left a negative review. 

First, verify that the reviewer was or is a client. If you did not represent the person, contact the review site. Some review sites remove reviews if the reviewer cannot verify their identity. 

If the site refuses to remove the review, you may want to use a generic response asking the person to contact your office because you want to resolve the matter but do not have a record of the person as a client.

If the person is or was a client, it is time for reflection. Review the file and consider whether the client has a valid complaint. You may want to call the client to discuss the matter, but it might not be productive if the client is angry or the relationship ended poorly.

Review Your Practice’s Policies and Processes

The client might have a valid complaint about the services you or your staff provided. Review and evaluate the policies and processes related to the client’s case and the specific complaint contained in the review. 

If you discover a problem, correct it immediately. You do not want to repeat the same mistake and risk having additional bad reviews from other clients. 

Should I Respond to a Client’s Bad Review?

The American Bar Association recently released a formal opinion about responding to online criticism. Formal Opinion 496 was dated January 13, 2021. According to the opinion, the main concern related to responding to an online review would be maintaining the confidentiality of client information. 

The ABA Model Rules of Professional Conduct 1.6 prohibits an attorney from disclosing any information related to representing a client without the client’s informed consent, except in a few narrow exceptions. 

One exception would be establishing a claim or defense on behalf of the attorney in a controversy between the client and the attorney. The Committee on Ethics and Professional Responsibility concluded a negative online review is not a controversy within the meaning of the rule.

The Committee goes on to provide a detailed and comprehensive discussion of attorneys responding to online criticism and negative reviews. It determined that lawyers should consider ignoring the bad review. Responding to a bad review could draw more attention to the matter and invite additional negative responses from the reviewer.

It also stated that if an attorney does choose to respond to bad reviews online, the attorney must not disclose information that relates to a client matter or that could lead to the discovery of confidential information by another party. 

Examining Other Opinions and Policies Regarding Ethical Responses to Negative Reviews

Attorneys should check with their local and state bar associations for opinions regarding the ethics of responding to reviews. Numerous bar associations throughout the country have issued opinions on the matter. Some opinions you may want to consider include:

Attorneys should also carefully review the Rules of Professional Conduct for their specific state. The rules may address when and how attorneys can respond to online reviews.

Final Thoughts About Ethical Responses to Bad Reviews

Negative reviews can hurt your business and your reputation. Most attorneys who have aggressive marketing strategies and a strong online presence may choose to respond to reviews. If so, they must ensure that their responses do not violate the rules of professional conduct or pertinent case law.

Any response that a lawyer posts to an online review should be measured, polite, and ethical. Never admit fault or apologize, but always offer a way to resolve the matter without giving any information that could be considered confidential or privileged. 

Read More