[Note: I have made two minor updates to this post since it was originally published. The updates are shown in bold below.]
“It is not only the right but the duty of the profession as a whole to utilize such methods as may be developed to bring the services of its members to those who need them, so long as this can be done ethically and with dignity. . . As society changes, these methods must necessarily change; otherwise, the profession will become dormant and static and fail to fulfill its proper function.” -ABA 320 (1968)
Responding to Critics
It is not uncommon for young entrepreneurs and lawyers to be met with criticism and “disbelief that their product or service lives up to its claims, even when it is proven.” This week I faced such criticism after writing an article addressing an issue in the legal profession of older lawyers bullying younger lawyers, particularly with the use of the word “ethics.” Understandably, the opinion of experienced attorneys is meaningful to young lawyers which is why it is such a shame that some older lawyers use that power to discourage young lawyers from doing anything they wouldn’t do (i.e., anything innovative). As you can see in the comments of the article I wrote, several older lawyers immediately engaged in the practice I was writing about. There were also several blog posts written about me from lawyers claiming that I was practicing law in an unethical manner, among other criticisms.
I have chosen not to make a habit out of responding to criticism of my work and ideas. If I sought to answer every criticism posted on the internet or otherwise sent my way, my virtual assistant and I would have little time for meaningful work. But since I believe that at least some of the criticisms of my colleagues are sincerely set forth, I will try to respond to their statements sincerely and reasonably.
Virtual Law Practice
First, let me start off by sharing why I am here in Phoenix, AZ since that appears to be a major point of contention to my critics. I am a New Yorker. I was born and raised in New York City and I attended law school in New York City. I am also married to a fellow New Yorker who delayed some of his goals to allow me to pursue mine. Once I completed law school and a judicial clerkship in the New York area, my husband and I became free to relocate so that he could pursue his goals. Currently, my husband and I reside in Phoenix. I am not certain that this is a permanent station and another move may be in my near future.
As a result of my not uncommon need to relocate with some regularity (I know several lawyers who are practicing the law of one state while residing in a different, non-adjoining state due to their spouse’s career), I chose a virtual law practice model for my solo practice. While virtual law practice is somewhat of a new model for the legal profession, I am far from the first lawyer to set up this type of firm. In fact, alternative law firms are increasing in popularity and practically being demanded by clients. Sadly, such innovation has been met with much resistance by those who seem to fear change and those who have benefited from the traditional methods of practicing law. “Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily.”
The virtual law office greatly serves the needs of clients who desire unbundled and affordable legal services. This model also greatly serves members of the legal profession who, historically, have been discriminated against such as women, minorities and parents. I am currently pregnant with my first child and greatly enjoy the flexibility my virtual law office (VLO) has afforded me while I meet the needs of my clients, who also benefit from my VLO’s flexible form. Diversity and affordability are two things the legal profession has long been in desperate need of.
My critics deplore virtual law practice but fail to express similar concern for the traditions in legal practice that led to the popularity of the VLO. These traditions include enormous hourly rates, absurd work hours for lawyers, gate keeping which kept disadvantaged groups from leadership in the profession and an old boys club that many clients and lawyers could not relate to.
My critics also express a great deal of anxiety over my alleged willingness to violate ethics rules in order to maintain a virtual law practice. This is certainly a legitimate concern; however the assumption that I am violating the ethics rules of the states of Arizona, New Jersey and/or New York are incorrect.
Ethics Compliance: Arizona
A fellow critic and non-attorney member of the legal profession (as in someone who did not attend law school) sent letters to the State Bar of Arizona alleging that they believed I was engaging in the unauthorized practice of law in Arizona. This belief was based on the fact that the mailing address listed on my website is a Phoenix address, though I do not list Arizona as a state I am admitted in on my bio page. I received a letter from the State Bar of Arizona seeking to clarify the following specific issues:
- “Please state whether you practice law in Arizona.
- Explain why your law office address is in Arizona.
- Please state whether you have provided legal services to individuals or entities located in Arizona. If so, please explain the nature of those services and when you first began providing those services.”
I quickly responded to the State Bar of Arizona’s questions in detail. As such I informed them that I do not currently practice Arizona law nor have I provided legal services to Arizona clients or entities nor do I attract potential Arizona clients with my advertising or website. I informed them that I practice New York and New Jersey law and that I have worked jointly with my Of Counsel (who is admitted in California) on California cases. I also informed them that my law office address is listed in Phoenix because that is where my home office is located and I am required to list the physical address of where I actually work in order to comply with New Jersey ethics rules. In response, I received verbal and written confirmation from the State Bar of Arizona that no further investigation was necessary and that they would be closing my file. Additionally, I was informed that “this charge has no adverse impact on [my] standing with the State Bar.”
Ethics Compliance: New Jersey
My critics are also concerned that I am violating New Jersey’s Bona Fide Office rule because I do not maintain a physical office in New Jersey. My understanding of the New Jersey bona fide office rule (Rule 1:21(a)) is based on the following relevant parts of the rule as stated on the New Jersey Court website:
- “For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.” <–My home office in Phoenix clearly meets this standard.
- “For the purpose of this section, a bona fide office may be located in this or any other state, territory of the United States, Puerto Rico, or the District of Columbia (hereinafter “a United States jurisdiction”). <– My home office in Phoenix clearly meets this standard.
- “An attorney who is not domiciled in this State and does not have a bona fide office in this State, but who meets all the qualifications for the practice of law set forth herein must designate the Clerk of the Supreme Court as agent upon whom service of process may be made for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, in the event that service cannot otherwise be effectuated pursuant to the appropriate Rules of Court. The designation of the Clerk as agent shall be made on a form approved by the Supreme Court.” <– I have complied with this section by filing said approved form which designates the Clerk of the Supreme Court of NJ as agent for my firm for the purposes of service of process.
Based on the above, I am in compliance with New Jersey’s bona fide office rule.
Ethics Compliance: New York
Though it has not been mentioned by my critics to my knowledge, I am also in compliance with New York’s ethics requirements related to maintaining a virtual law office. New York Judiciary Law s. 470 requires that non-resident attorneys living in an adjoining state and admitted to practice in New York maintain an “office for the transaction of law business” within New York.
“Adjoining State” Requirement No Longer Relevant
The “adjoining state” requirement was later found unconstitutional in White River Paper Co., Ltd. vs. Ashmont Tissue, Inc., 110 Misc. 2d 373 (unfortunately, I could not find a link to the text of the opinion on the open web). In Lichtenstein vs. Emerson 674 N.Y.S.2d 298 (App. Div. 1998), Justice Lehner elaborated on his opinion related to the “adjoining state” issue in White River:
“In 1981, in White River Paper Co., Ltd. v. Ashmont Tissue, Inc., 110 Misc.2d 373, 441 N.Y.S.2d 960, I ruled that in light of the decision in Gordon it would be unconstitutional to limit non-residents who wish to practice here to those who reside in adjoining states, and similarly unconstitutional to continue the requirement for the maintenance of a local law office to only residents of adjoining states, citing Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 and Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397. Therefore, to uphold constitutionality, I ruled that the statute would be interpreted to require a local law office for all non-residents who wish to appear as attorneys of record in courts of this state.”
Based on the above, non-resident New York attorneys of any state are required to maintain “an office for the transaction of law business” within the state. Therefore, the fact that I am a resident of Arizona and not a state adjoining the State of New York is a non-issue.
Defining “An Office for the Transaction of Law Business”
The precise meaning of “an office for the transaction of law business” has been further defined by case law. In Austria v. Shaw, 143 Misc. 2d 970 (1989), the court found that the non-resident, New York attorney met the office requirements of Judiciary Law s. 470. The court stated that:
“Nothing in [Judiciary Law s. 470] states the size or type of office required to be maintained. Specifically, a rental of desk space, with a telephone which is answered, as here, suffices. Neither the telephone nor the desk need be exclusively that of the attorney. Here, the Judicial Hearing Officer found that telephone messages or calls to the attorney were answered and forwarded to the attorney. Mail was apparently forwarded to the attorney. This suffices to meet the requirements of the statute.”
In Rosenshein v. Ernstoff, 176 AD 2d 686 (App. Div. 1991), the court found that a Massachusetts resident met the requirements of Judiciary Law s. 470 by (1) being admitted to the New York bar and (2) maintaining an office at a family member’s residence and/or a New York hotel. In Matter of Scarsella, 195 AD 2d 513 (App. Div 1993), the court found that the non-resident New York attorney satisfied the requirements of Judiciary Law s. 470 by (1) maintaining a desk at a realty company’s Manhattan office and (2) having access to a secretary at that location, though she was not on his payroll.
Taken together the above case law shows that meeting the requirements for “an office for the transaction of law business” can be met by maintaining an office space and/or desk at a residential or shared commercial location in the State of New York where service of process can be accepted, mail forwarded to the non-resident attorney and the telephone is answered.
Applying these facts to my practice, I meet these requirements. Up until a few months ago, I maintained a virtual office space in Manhattan where my phone was answered by a receptionist and the calls were forwarded to my cell phone or home office line. My mail was also received there and forwarded to me. An adult was present at that location to accept service. Due to repeated problems with their phone service, I decided to discontinue my arrangement with the virtual office company and move my “office for the transaction of law business” to a family member’s residence. At said location there is an adult who can accept service of process on my behalf and who forwards my snail mail (though it is rare since email is often used to send correspondence, even by the state bar). Additionally, I have a New York phone number that is forwarded to my home office line and cell phone at all times. Indeed, when I am in New York (as I was a few weeks ago), I have the option to work from said location, if I need or want to.
Based on the above, I am in compliance with NY Judiciary Law s. 470.
Publishing Address of New York Office
The address of my New York “office for the transaction of law business” is not published on my website. The address of said office can be found on the New York Courts website by anyone looking to serve me with court papers (though this is not a likely occurrence being that I practice transactional law). However, I do not think it is essential for me to publish my New York address on my website; “when the options for service of papers upon an attorney include [email,] mail, facsimile, and overnight delivery service (CPLR 2103(b)), it cannot seriously be argued that service upon an in-state law office is necessary to provide an easy method of service.”
New York State Ethics Opinion 756 states that attorney advertising, including an attorney’s website, must include the address of the attorney’s office. The main purpose of which is to prevent misleading the public, particularly when a potential client may be selecting an attorney based on the attorney’s proximity to the client. By placing the physical address of my home office in Phoenix on my website, I am avoiding misleading New York clients by not suggesting to them that I am physically located in New York. Furthermore, I believe that I am in compliance with the above ethics opinion as I have listed my physical office address on my website, which is what is required.
However, in the interest of being especially clear and because I do think it falls within a gray area, I have decided to commence listing my New York office on my website with language making it clear that it is for service of process and by appointment during times when I am in NY only. Correction: After further analysis of New York State Ethics Opinion 756 coupled with NY Rules of Professional Conduct Rule 7.1(h) which states that: ”All advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered” (emphasis mine), I am certain that it is not necessary for me to list my New York office address on my website since my principal office address (my Phoenix address) is already listed there.
Harm to Clients, Potential Clients & the Public-at-Large
In their outrage, my critics have claimed that the structure of my law practice harms and/or misleads my clients, potential clients and the public-at-large. However, it is unclear how I have misled them. It is clearly stated on my website that I operate an online law practice. I do not specifically state where I do and do not practice but not only is that not a requirement but part of my reason for doing so is that I handle trademark applications for which I am not limited to the states I am admitted in. Additionally, all of my clients are aware of my qualifications, that I practice law virtually and that I typically do not meet with clients in person. On my website and all over the web, clients have shared testimonials and nothing but positive responses to my law practice. I provide them with a service that is convenient, affordable and that meets their needs. I would venture a guess that a vast majority of attorneys cannot claim that their practice does the same.
Note: I have no problem with anyone sharing the link to this post but I ask that you refrain from cutting and pasting quotes from this article and re-posting them on another site, especially for the purpose of changing their meaning or taking them out of context. Thank you in advance.
Essential Elements of a Profitable & Kickass Virtual Law Office Website
