Your Practice Isn’t a Used-Car Lot: Puffery and Virtual Offices

imaginary office

Lawyers can attract new clients and engage existing ones with the click of a button, without leaving home. But as some law firms shift from traditional brick and mortar law firms to virtual environments, lawyers must be careful not to mislead the public.

Present your firm in the best light, but don’t make it larger than life.

How Many Attorneys Does Your Firm Actually Have?

Several bar associations have condemned the use of “and associates” and similar terms in solo practitioner firm names. That includes office sharing agreements unless a formal partnership agreement or the equivalent is in place.

Some jurisdictions have adopted a revised version of Model Rule 7.2 which explicitly spells out that a sole practitioner should not use any “language implying a group practice,” noting “and associates” as an example of objectionable language—even if the lawyer plans to employ associates at a later date.

The term “law group” has also raised eyebrows among state bar associations, which have found that this term should be limited to law practices with multiple lawyers. Even if a firm has herds of non-lawyer staff supporting a solo practitioner, the use of “law group” is frowned upon.

Some jurisdictions also question the ethics of using the plural “offices” to describe a single law office. The ABA cites the conclusion of the San Diego County Bar Association’s Legal Ethics Corner to explain that using the singular “law office” is safer: “The ultimate question is whether the lawyer’s use of the plural ‘offices’ is likely to deceive, confuse or mislead the public by implying the lawyer is in practice with additional attorneys.”

How Do States Deal with Virtual Law Practices?

Where state bars have been very clear that solo practitioners should not imply that their firms are larger than they are, the rules about how those same practitioners should deal with virtual law practices (VLPs) are much less clear. State bars that have approached the issue of VLPs generally fall into one of three camps: states that just require disclosure that a firm is a VLP, states that require a physical “bona fide” office, and states that require an address or physical office in the state.

Some jurisdictions have held on to the traditional notion of a brick and mortar law firm, requiring that lawyers practice out of a physical bona fide office. However, states vary in their approaches to defining what constitutes a bona fide office.

Delaware says a bona fide office must be “more than a mail drop, a summer home which is unattended during a substantial portion of the year or an answering, telephone forwarding, secretarial or similar service.”

Florida’s standing committee on advertising developed five factors for determining whether a location constitutes a bona fide office.

Does the office have the firm’s name on an outside office sign or on the building’s directory?

Is the advertised location staffed by law firm employees who answer phone calls at that location from prospective clients?

Is the advertised location staffed by receptionists, secretaries, clerks, or paralegals employed by the firm on a full-time basis?

Other than client interviews and conferences, do firm attorneys furnish legal services from the advertised location?

Is the advertised location staffed by at least one firm lawyer on a regular and continuing basis?

Virginia simplifies this further into a three-factor test looking at the frequency with which the lawyer uses the space, whether non-lawyers also use the space, and whether signage indicates that the space is used as a law office.

Some states have more readily embraced new technology, while others are still figuring out the details. A Maryland District Court opinion even concluded that remote access to a server and computer in an office located in another state was sufficient for that office to constitute a lawyer’s principal office. Under a six-factor test, the lawyer’s remote access to the office computer network was considered the equivalent of any other telecommuting worker. The judges drew a distinction between a “mere maildrop” and unused office space, stating that the latter provided a greater accountability, passing muster under the local rules defining a principal law office.

Whether you are practicing in a state where the issue has yet to be broached or in others where the rules surrounding VLPs are more established, straightforward disclosure and keeping up-to-date with any changes to rules is still the safest route to avoiding any potentially misleading communications. Even some states once staunchly opposed to virtual offices are now evolving to accept them.

For years, New Jersey was known for its rigid bona fide office rule which required that lawyers maintain a bona fide office to practice law in the state. As late as 2010, the New Jersey Advisory Committee on Professional Ethics and the Committee on Attorney Advertising issued a joint opinion that even a virtual office with a physical office address manned by a receptionist on a continuous basis could not be a bona fide office because a receptionist did not qualify as a “responsible person acting on the attorney’s behalf” and should not be entrusted with confidential information. This effectively acted as a ban on VLPs in New Jersey.

Although New Jersey no longer requires lawyers to have a fixed “bona fide” physical office, a lawyer must structure his or her practice in such a manner as to ensure “accessibility” and “prompt and reliable communication” with clients, other lawyers, and courts. This could be anything from a telephone service staffed during business hours or the lawyer promptly returning calls and emails. The lawyer should also be reasonably available for in-person consultations on request at mutually convenient times and places and designate a physical location for inspection of files, hand deliveries, and service of process, though this location may be outside New Jersey.

Whether lawyers physically located outside of a jurisdiction can be required to maintain a physical office in a state when in-state lawyers are held to a different standard and not required to maintain one remains a hotly contested issue. Earlier in 2016, the U.S. Court of Appeals for the Second Circuit ruled that New York’s Judiciary Law §470 requiring out-of-state attorneys to maintain a physical office in New York to legally practice law in the state does not violate the privileges and immunity clause of the Constitution.  According to the New York City Bar Association’s Committee on Professional Ethics, a ­nonresident attorney with a VLP must have access to a physical street address in New York to satisfy both the statute and ethics rule—effectively acting as a bar on most out-of-state VLP practitioners.

The ABA says that a good rule of thumb for virtual practitioners is to serve only clients who are residents of the states where they are authorized to practice and clients whose matters are also venued in states where the lawyer is licensed to practice.

Many states have yet to rule on the legality of virtual law practices, but as new technologies continue to make VLPs a more attractive alternative to traditional brick and mortar law firms, the legal landscape will undoubtedly continue to evolve.

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • Atty. Mark

    Anna:

    NH has begun to facilitate VLPs through a proposed amendment to its version of Rule 5.5 – UPL/MJP. Essentially, NH is taking the position that one does not need to be licensed in NH in order to practice the law of another jurisdiction, e.g., NY, British Columbia, China, etc., or U.S. federal law from an office physically located in NH. Also, apparently, the new rule allows a non-NH attorney to maintain an office in NH where she could solicit legal work, provided, however, that the legal work involves only non-NH law and the attorney is licensed in the jurisdiction appropriate to the law practiced. See the proposed rule in Appendix “L” in the .pdf at the following address: http://www.courts.state.nh.us/supreme/orders/10-17-16-order-2.pdf