Are virtual law offices ethically impermissible?

Mandatory state bar associations like paying attention to what their sister bars are doing. A recent New Jersey opinion on virtual offices from the state’s supreme court-appointed Advisory Committee on Professional Ethics, Committee on Attorney Advertising will get the attention of other jurisdictions, especially Arizona’s.

To the alarm of many an Arizona home-based solo practitioner, the Arizona State Bar’s already been definitionally tinkering with bona fide lawyer offices. But then that’s just business-as-usual for the local bar here. It’s so diligent that it hunts for solutions for even illusory problems. I guess there’s nothing like getting ahead of the curve even when you’re driving a straight line.

No virtual offices in New Jersey.

The issue presented in New Jersey was whether a home office or a “virtual office” can qualify as a bona fide office for the practice of law” under Ethical Rule 1:21-1(a). The one word answer to the question presented in New Jersey was “No.”

The New Jersey Opinion states: “A so-called “virtual office” does not qualify as a bona fide office. A “virtual office” refers to a type of time-share arrangement whereby one leases the right to reserve space in an office building on an hourly or daily basis.”

Used to be that unlike a traditional office, a virtual law office was a place where web-based technology was leveraged, quality of  life was improved, expenses were minimized, and in most cases, accessibility, mobility and affordability of client services were enhanced. So-called Virtual Lawyers increasingly became a viable way to practice law. But after more than a decade of existence, someone forgot to get all of this cleared with the state bar or at least that’s one conclusion to draw from New Jersey where such offices aren’t considered bona fide.

According to New Jersey’s bona fide office rule at ER 1:21-1(a):

“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.”

In sum, the purpose of the New Jersey rule is to supposedly ensure the availability of lawyers so that they “can be found by clients, courts, and adversaries.” It’s a good thing novelist Michael Connelly’s fictional lawyer Mickey Haller, The Lincoln Lawyer, practices in Los Angeles and not Jersey. There’s no parking space for a Lincoln Lawyer in Jersey. As Connelly explains his version of the virtual office, “Haller is a Lincoln Lawyer, a criminal defense attorney who operates out of the back seat of his Lincoln Town Car, traveling between the far-flung courthouses of Los Angeles to defend clients of every kind.”

What about Arizona?

As alluded above, there’s good basis for concern. Very recently, the State Bar of Arizona was working to amend Ethical Rule 7.2, which deals with advertising. Some home-based law office practitioners who meet clients off-site and operate virtually from post office boxes or executive suites, were understandably apprehensive at a proposed requirement to publicly disclose the physical address of their home offices. The proposal read:

Threat to solos working from home?

Even before the economy tanked, a number of lawyers, especially solo practitioners, had opted to work from home offices and to meet their clients elsewhere. These lawyers met at the home of clients or at the library or at court or or at executive rent-by-the-hour or by-the-month conference suites.

Intentional or not, the change proposed by the savants at the bar effectively discouraged home office practices. Besides the obvious financial implications of incurring significant expense to lease office space, there was also the adverse impact to quality of life and for some lawyers working in volatile practice areas such as criminal defense and family law, safety and security implications.

New Jersey’s non-solution.

So in New Jersey, even under the new interpretation of the bona fide office rule, lawyers can still work from home and can even meet clients at locations other than home. But here’s the catch. They still have to comply with the rule requiring a bona fide office. “As long as the bona fide law office is in fact the place where the attorney can be found, and clients could be met there, an attorney’s decision to meet clients at a location outside that office does not render the office noncompliant with Rule 1:21-1(a).”

Well, that’s what I call an illusory solution to a real problem for those wanting to work from home and wishing to forgo the added overhead of an outside bricks and mortar law office.