Virtual, completely remote law offices are increasing in popularity—and for good reason. From a financial perspective, virtual law offices can significantly reduce operation costs. Virtual law offices also offer increased flexibility and mobility that can help lawyers strike their desired work-life balance.

Although the American Bar Association (ABA) Model Rules of Professional Conduct permit lawyers to practice virtually, lawyers are still obligated to comply with their ethical responsibilities when operating virtual law offices. Here are some tips for lawyers considering opening a virtual law practice.

Consider the Rules on Unauthorized Practice of Law

One of the benefits of a virtual law practice is that lawyers can practice from anywhere. However, this can create some risks under ABA Model Rule of Professional Conduct 5.5, which generally prohibits lawyers from practicing law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist[ing] another in doing so” unless authorized by the rules or laws of that state.

In 2020, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495, which addressed lawyers working remotely under Model Rule 5.5. The ABA concluded that unless a jurisdiction’s Unauthorized Practice of Law (UPL) regulations state otherwise, a lawyer does not violate Model Rule 5.5 by working remotely in a jurisdiction where the lawyer is not licensed to practice so long as the lawyer does not hold himself or herself out as licensed to practice in that jurisdiction.

Typically, lawyers who work remotely but are affiliated with a traditional law firm can note their affiliation and the resultant physical address. Thus, as long as lawyers are admitted in the jurisdiction where the physical office is (and as long as they do not suggest to the public that they are admitted to practice in their remote jurisdiction), they usually can practice remotely.

To address this issue, some remote law firms will have an affiliated mailing address to receive mail. Others may consider having a staff person to manage the mail and any “hard copy” needs of the practice (like preparing binders for trial or exhibits for a court).

In that instance, the firm could hold itself out as practicing out of the jurisdiction of its mailing address, and its affiliated lawyers can note the physical mailing address (and confirm that they are admitted in that jurisdiction).

But if the office is 100% remote, with no physical locations or mailing addresses, then the lawyers might have to be admitted in the jurisdictions in which they sit while practicing, because they are otherwise unaffiliated with an office in another jurisdiction. It will depend on the local ethical rules.

Most legal ethics experts believe these issues will continue to evolve as fully remote practices become more common.

What About Client Confidentiality and Data Security?

One of a lawyer’s major responsibilities is to ensure client data is kept secure and confidential under ABA Model Rule of Professional Conduct 1.6. In a virtual law office, it is particularly important to ensure client data is kept secure to maintain confidentiality if there is no dedicated office space.

A key part of this is data security. There are a number of methods by which virtual law firms can help ensure client confidentiality and data security. For example, firms can use secure Wi-Fi (instead of public Wi-Fi) to shield computers and other devices from cyberattacks.

Firms may also consider using a Virtual Private Network (VPN) or other secure portals to protect access to client documents, along with multi- factor authentication measures and complex passwords. Anti-malware, anti-spyware and ant-virus software can be good investments.

Additional Ethical Considerations

ABA Model Rule of Professional Conduct Rule 1.1 imposes a duty of competence. Part of this is staying abreast of changes in the law and in technology. For lawyers whose practices are entirely (or nearly entirely) remote, this is a critical duty.

To the degree that it is necessary, lawyers are encouraged to adopt new practices or gain new technological skills in order to meet these duties while practicing virtually. E-filing, cloud computing and other remote technologies will likely be part of the daily practice of a remote law practice, which means that lawyers who try to start remote practices without understanding (or affiliating with others who understand) the latest technology may be running afoul of their obligations.

Another challenge in a totally remote practice is the duty to supervise junior lawyers and staff under Model Rule 5.1. Practicing virtually does not change or diminish these obligations. Addressing this challenge head-on and with attention can go a long way.

Even when colleagues are not physically present together in the same offices, they can use online practice management tools to promote the coordination of work review and feedback. Video conferences, which have become a regular practice as a result of the COVID-19 pandemic, can also help facilitate compliance with Rule 5.1.

Get Insurance

As with any new practice and venture, it is highly recommended to explore applicable insurance to get adequate coverage to suit the practice needs. Lawyers can work with insurance providers or brokers to identify the unique requirements of the remote practice to help ensure the right type of insurance is being purchased.

For example, it may be important to partnerships that are totally remote to explore their options for cyber-liability coverage. Considering these issues before a claim (or threat of a claim) is ever made can help ensure risk is being managed.