City Bar Formal Ethics Opinion: Use of Virtual Law Offices by New York Attorneys

The New York City Bar Association’s Committee on Professional Ethics has issued an opinion (2014-02) stating that a New York lawyer may use the street address of a virtual law office (VLO) as the “principal law office address” for the purposes of Rule 7.1(h) of the New York Rules of Professional Conduct, even if most of the lawyer’s work is done at another location. The lawyer also may use the VLO address on business cards, letterhead and law firm website. New York lawyers who use a VLO also must comply with other New York Rules, including 1.4, 1.6, 5.1, 5.3, and 8.4. A virtual law office, as it is used in this Opinion, refers to a physical location that offers business services and facilities, such as private or semi-private work spaces, conference rooms, telephones, copy machines, and mail drop services to lawyers. As the Committee notes, “given the lower overhead, improved encryption systems, expansion of mobile communication options, availability of electronic research, and the ease of storing and transmitting digital documents and information, VLOs are becoming an increasingly attractive option for attorneys throughout the country.” New York Rule 7.1 sets restrictions on advertisements disseminated by lawyers or law firms. One of those restrictions is stated in Rule 7.1(h): “All advertisements shall include the…principal law office address…of the lawyer or law firm whose services are being offered.” Although the phrase “principal law office address” is not defined anywhere in the New York Rules, New York State Bar Association Ethics Opinions 756 and 964 have concluded that Rule 7.1(h) requires a physical street address. NYSBA Ethics Op. 756 identifies several reasons for the office address requirement. First, disclosure of a physical address “should facilitate a prospective client’s ability to make an intelligent selection of lawyer.” Second, a physical location enables members of the public or clients to meet with the lawyer, contact them by mail, and serve legal papers. Third, the absence of an address “could be misleading,” for example, “by suggesting a physical proximity to the recipient that does not in fact exist” or “the ability to serve in jurisdictions in which the advertising firm or lawyer is not qualified to practice.” According to Opinion 2014-02, each of these policy interests can be advanced by the use of a VLO. First, the fact that a lawyer uses a VLO “may itself be a relevant factor in selecting or rejecting a particular lawyer.” Second, the VLO provides a physical location for clients or members of the public to contact, meet with or serve legal papers on the lawyer. And lastly, states the Committee, “we do not believe use of a VLO address in advertising is inherently misleading. Given the prevalence of alternative work arrangements (telecommuting, work-sharing, office-sharing, etc.), members of the public no longer assume that a physical street address is equivalent to a traditional, single-purpose, brick-and-mortar office.” The Committee also notes, “economic conditions in the legal world and technological developments persuade us that we should not create obstacles to the use of VLOs as long as the interests of clients, the courts, and the legal system are protected.” Still, the Opinion states that attorneys should be aware of to the following ethical concerns when using a VLO:

• Under Rules 5.1 and 5.3, law firms and lawyers are responsible for supervising the conduct of subordinate lawyers and nonlawyers and ensuring they comply with the Rules. Given the differences between a VLO and a traditional law office, lawyers who use VLOs may need to take additional precautions to ensure that they are fulfilling their supervisory obligations.

• Rule 1.6(a) prohibits a lawyer from “knowingly revealing confidential information,” absent informed consent or other exception. In addition, Rule 1.6(c) provides that “a lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates and others whose services are utilized by the lawyer from disclosing or using confidential information of a client.” A lawyer who uses the shared services and office space of a VLO must take reasonable steps to ensure that he or she does not expose or put the client’s confidential information at risk.

• Rule 1.4 requires lawyers to communicate with clients and keep them apprised of the status of their legal matters. Lawyers who use VLOs must be particularly mindful of these ethical obligations, given that the lawyers may frequently be away from the physical location that serves as their business address.

• A significant concern underlying Rule 7.1(h) is the availability of an address for purposes of personal delivery and acceptance of service of process. Where a VLO is authorized to accept service of process, the attorney must ensure that the VLO communicates with them concerning the receipt of any materials with sufficient promptness.

New York lawyers may need to consider additional issues, such as whether the contemplated arrangement complies with relevant substantive laws and court rules, and the professional conduct rules of other jurisdictions. The Opinion can be read here: bit.ly/1p78jWF