Practical Advice for Virtual Law Offices

Last week we discussed the ethical implications of WSBA Advisory Opinion 201601, “Ethical Practices of the Virtual Law Office.”  As the Committee on Professional Ethics noted, virtual practitioners must take care with supervision, confidentiality, avoiding misrepresentation, and conflicts of interest.  Understandable, but what exactly does that mean?  Here is some practical advice.


Adequate supervision in a virtual workplace

In a virtual workplace lawyers and staff don’t work in proximity.  How do you ensure that remote workers receive “adequate supervision?”  The WSBA opinion mentions taking “additional measures,” but does not describe what those may be. Virtual employers should consider the following:

  1. Establish policies just as you would in a traditional office setting:  dedicated working hours when employees are expected to be within reach of their phones or computers; vacation allowance; sick leave policy; how you will measure performance; and so on.
  2. Create procedures for employees to follow.  Specifically, how will you distribute assignments and exchange completed work?  Technology is bound to be the solution, so see the discussion below about confidentiality.  Remember to address the “mundane” office tasks too: calendaring, accounting, conflict checking, etc.
  3. Require all remote workers to sign a confidentiality pledge or agreement.  The Professional Liability Fund has samples on its website.
  4. Get fully educated about legalities:  “In 2011, an Oregon appeals court found in favor of a J.C. Penney Co. Inc. home decorator who was injured after she tripped over her dog while working at home. Although the state workers’ compensation board had held her injuries were not work-related, the appeals court reversed, finding the employee had been working from her home as a term and condition of employment.”
    On-the-job injuries aren’t the only problem: be aware of Fair Labor Standards Act troubles, choice of jurisdiction, protecting proprietary information [forms bank, brief bank, customized practice management software], and the Americans with Disabilities Act.  The list doesn’t end there.
  5. Talk to an employment lawyer about securing your right to inspect employees’ remote workplaces and monitoring employees’ use of technology.
  6. Don’t neglect the need for face time. Management experts recommend regular web meetings and occasional in-person meetings for an optimal virtual workplace.
  7. Revisit your ethical responsibilities as a supervisor in Oregon.


Advisory Opinion 201601 revisits the ethical requirements for cloud computing and email communication, the gist of which is:

  • A lawyer may use online data storage systems to store and back up client confidential information as long as the lawyer takes reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.
  • Email communication with clients is allowed, except lawyers must warn clients if they believe there is a significant risk of third party access.

Oregon takes a similar stance on cloud computing:  “Lawyer may store client materials on a third-party server as long as Lawyer complies with the duties of competence and confidentiality to reasonably keep the client’s information secure within a given situation.” OSB Formal Opinion No. 2011-188 [Revised 2015.]  For more details, see this post.  See Also OSB Formal Opinion No. 2016-191, “Client Property: Electronic-Only or “Paperless” Client Documents and Files,” which includes a further discussion about electronic client files.

As to email, Oregon lawyers are forewarned to:

  1. Use proper security measures in cases where information is “particularly sensitive or subject to a confidentiality agreement.”
  2. Avoid email entirely if a client requests it.
  3. Scrub for metadata.

See “Safeguarding Client Information in a Digital World,” and “Competency: Disclosure of Metadata,” OSB Formal Opinion No. 2011-187 [Revised 2015].

No mention is made about a duty to warn clients of third party access where the lawyer believes there is a significant risk.  However, it would be foolish not to do so.  Consider the example mentioned in the WSBA opinion: where the lawyer knows her client is using an employer-provided email account.

We’ve discussed this issue before. Your email may not be protected by lawyer-client privilege if your client is reading it at work.  Before you begin communicating by email, take note of the client’s address.  Does the domain correlate to their place of employment?  Don’t use it!  Even if the address is or a similar web-based service, don’t assume your client only reads and prints email at home.  Have a discussion about where, when, and how your client reads your confidential communications and follow the other advice mentioned here.

Another quick word about using the cloud

Virtual practices could not exist without the cloud, a VPN, or some means of hosting and exchanging client information.  Beyond the basics of taking reasonable care to protect confidentiality, implement policies and procedures as described above.  Focus on security and steps to take when a virtual employee stops working for you.  Remote workers can put your law practice at risk if they upload or exchange content that contains malware or ransomware. A study commissioned by a security firm in the UK and Germany found:

  • One in four employees admitted breaking security policies.
  • Nearly two in five said either they, or someone they know, have lost or had stolen a device in a public place.
  • Three-quarters of these devices – such as laptops, mobile phones and USB sticks – contained work-related data, including confidential emails (37%), confidential files (34%) and customer data (21%).
  • Approximately one in ten lost financial data or access details such as login and password information, exposing even more confidential information to the risk of breach.

It is equally important to have a checklist for departing staff that ensures revocation of login credentials, return of workplace property, and disposition of ongoing email or voice communications directed to someone who no longer works for you.

Consider talking to an employment law attorney, or as a starter, see the Professional Liability Fund’s (PLF’s) Checklist for Departing Staff.

Duty to avoid misrepresentation

Advisory Opinion 201601 warns that lawyers may not imply the existence of a physical office or formal law firm where none exists. Therefore, unless you’ve arranged for ready access to meeting spaces or the ability to see clients on a drop-in basis, don’t imply those resources exist.  Posting or implying that you are part of a firm on your website, social media, or elsewhere is also a no-no.  (The same is true for office sharers, an example given in the ethics opinion.)

Avoiding conflicts of interest

Advisory Opinion 201601 points out that virtual offices must ensure that the conflicts checking system is equally accessible to all members of the practice, lawyers and staff, and that such access is reliably maintained.  This only makes sense.

Be sure to add your calendaring system, billing system, client matter records, and everything else you need to operate virtually as a law practice.  All of it must be equally accessible and reliably maintained.

Will the cloud be your savior when it comes to accessibility and reliability?  Probably, but it can’t help you with issues like when to run a conflict check, how to run a conflict check, or the need to circulate a new client list to everyone in the office.  As noted above, procedures will be key!  For help, contact a friendly practice management expert, like myself or one of the advisors at the PLF. While you’re on the PLF site, check out the many publications, practice aids, and forms that will assist you with establishing office protocols.

All Rights Reserved Beverly Michaelis 2017

Recovering Deleted Dropbox Files

File sharing and online collaboration is the driving force of Dropbox.  It does a stellar job in this area, but like all tools, remains subject to the human factor.  What if you, your staff, or someone with whom you are sharing a Dropbox folder accidentally deletes a file?  Most everyone has had this experience on their personal computer, so it’s bound to happen sooner or later in the cloud.

If you notice a file has been deleted and less than 30 days have passed, you can easily recover the file on the Dropbox Web site.  Here are the steps, as explained in the Dropbox Help Center:

Restore Dropbox files

If more than 30 days have elapsed, you are out of luck unless you have a Dropbox Pro or Dropbox for Teams account.  Both include Packrat which “captures unlimited snapshots of your files,  allowing you to recover any file as far back in time as you like.”  Dropbox Pro and Dropbox for Teams users may also be able to restore a file from the hidden cache on their computer.  (Instructions are provided for Windows OS.  Contact Dropbox if you are using a different system.)  Dropbox recommends trying the restore steps described on their Help page first.)

Take Aways

1. Backup.  I can’t say that enough times.  See How to Backup Your Computer on the PLF Web site for a thorough discussion on the subject.  Select Practice Aids and Forms > Technology.

2. Train.  Make sure everyone you add to your Dropbox account understands how it works.  I’m writing this post because my husband and I had a personal experience with a family member who mistakenly deleted some shared files.  We successfully restored the files on the Dropbox Web site (and had a backups, just in case).  The family member deleted files after she received an e-mail message warning her that her Dropbox folder was full.  At the time our shared Dropbox folder was at about 50% capacity.  She had one item in her personal Dropbox folder.  Whether this was an error by Dropbox or malicious spam, we don’t know.  After the family member deleted the Dropbox files she also deleted the e-mail.

3. Share thoughtfully as all users are not equal.  However, if you follow the other two take-aways (backup and train) sharing is far less risky.

Copyright 2013 Beverly Michaelis

Unbundling Legal Services The Latest Twist

In recent years I have blogged about the ethical dilemmas and potential malpractice exposure for lawyers who choose to unbundle legal services. As interested readers know, some states have “bona fide office rules” which prohibit or greatly limit operation of a virtual law practice.  While unbundling and virtual practice are not the same, they are connected and frequently co-exist.

This leads me to a significant change that occurred this summer when the Oregon State Bar overhauled its lawyer referral policies.

Prior to July 1, 2012, the OSB LRS policy was clear:  Absent a physical office, lawyers practicing “virtually” were not eligible to receive referrals. The inability of virtual practitioners participate in the LRS referral system stemmed from both practice and policy – LRS clients were told to expect an “in-office” consultation; LRS Policy E(3) provided:

“No duplicate registrations shall be made outside of the city where the attorney maintains his or her practice unless: a) the attorney maintains a second physical location where attorney-client meetings may take place; or b) the attorney’s office is located within two (2) miles of the border between two locations.”

In other words, Oregon had a “bona fide office rule” – at least in the sense that virtual practitioners could not use the OSB LRS as a source for clients.

Three months ago, this all changed.

When the bar revamped the Lawyer Referral Service, it eliminated the physical location requirement.  In fact, the bar now permits statewide and territorial registration regardless of the lawyer’s physical office location.  Additionally, lawyers have tremendous flexibility in controlling exactly where and how they receive referrals:

  • Lawyers who register statewide can opt out of “entire territories;”
  • Lawyers who register for specific territories can opt out of particular counties, cities, or towns “within the territories” for which they are registered;
  • Lawyers can limit territories for each area of law (practice bankruptcy statewide, but limit criminal law referrals to a specific location)

Quite a development!  Along with Washington’s Limited Practice Rule for Limited License Legal Technicians (LLLTs) effective September 1, 2012, I’d say we’re in for some interesting times ahead.

Copyright 2012 Beverly Michaelis

Sneak Preview: Virtual Practice in Oregon

Excerpted from my upcoming article in the Oregon State Bar Bulletin,
Unbundling Legal Services in the Twenty-First Century:

Providing limited legal services is not a new concept.  Transactional lawyers have long served in the role of document reviewer or preparer.  So how is unbundling different? It takes the idea one step further by employing a team approach in which the lawyer and client decide who will do what based on the legal services required by the client’s case.  The client takes a much more active role in the matter and often assumes responsibility for pro se court filings and appearances.  Add the twenty-first century twist of delivering unbundled services online, and some issues arise.

Ethics Revisited

Limited-scope representation is expressly permitted in Oregon so long as “the limitation is reasonable under the circumstances and the client gives informed consent.”  Oregon Rule of Professional Conduct 1.2(b). Whether unbundled services are “reasonable under the circumstances” will require your professional judgment.  For a complete discussion of the ethical implications in providing unbundled services, including restrictions on ghostwriting or scripting specific messages for clients engaged in settlement negotiations, see Helen Hierschbiel, The Ethics of Unbundling: How to Avoid the Land Mines of “Discrete Task Representation.”

Screening Clients Just Got Harder

In a virtual or online practice, clients are unseen.  You will need to invest extra effort to build rapport and gauge the likely success of your working relationship via e-mail or online contacts.  If you intend to practice virtually, checklists, tip sheets, and interview forms crafted around traditional screening criteria will be crucial to your success.  Review the resources listed at the end of this article and visit the sites of successful and respected virtual practitioners, like Stephanie Kimbro.

The Bona Fide Office Rule

Oregon has no “bona fide office rule,” requiring a brick-and-mortar office space to conduct a law practice.  If you practice in other states, the rules may be different. At least one jurisdiction has determined that virtual offices do not meet that state’s bona fide office requirement.

With that said, the same considerations involved in unbundling apply to online delivery of legal services.   (My forthcoming article analyzes unbundling in detail.)

Any virtual law office must also address:

  • Marketing restrictions
  • Full disclosure of the jurisdictional limits of practice
  • Client confidentiality (Any online portal that permits communication, collaboration, or document exchange with clients must be secure.)
  • Publication of terms and conditions identifying when an attorney-client relationship is formed

See Helen Hierschbiel, Internet Marketing: Rules of the Road and Odds & Ends: Safeguarding Client Information in a Digital World for more information regarding online marketing, jurisdictional disclosure, and protection of confidential client information in the cloud.

Online Practice and Lawyer Referral

Would a lawyer practicing virtually be eligible to receive referrals from Oregon’s LRS, absent a physical office?  The answer is no.  Clients referred by the LRS are specifically told to expect an “in-office” consultation.  See also LRS Policies and Procedures E.(3):

No duplicate registrations shall be made outside of the city where the attorney maintains his or her practice unless: a) the attorney maintains a second physical location where attorney-client meetings may take place; or b) the attorney’s office is located within two (2) miles of the border between two locations.

Online Practice and Professional Liability Fund (PLF) Coverage

Only an Oregon attorney engaged in the private practice of law whose principal office is in Oregon is covered by the PLF Claims Made Plan.  ORS 9.080(2).  But what if the attorney has no office in which he or she meets with clients? PLF Policy 3.180(C) provides:

If an attorney has no office as defined in subsection (B) above, the attorney’s principal office as defined by ORS 9.080 (2)(a) will be defined as the attorney’s principal residence if the attorney is an active member of the bar association of the state of residence; otherwise, the attorney’s principal office will be deemed to be in Oregon unless the attorney affirmatively demonstrates to the PLF that the attorney does not engage in the private practice of law in Oregon. (Emphasis added.)

PLF Policy 3.180 is available on the PLF Web site. Select Policies and Forms under Primary Coverage.  If you have questions regarding PLF coverage, call Jeff Crawford or Kimi Nam at (503) 639-6911 or (800) 452-1639.

Resources for Online Delivery of Unbundled Services

For additional information regarding virtual office practice, visit the ABA eLawyering Task Force and Stephanie Kimbro’s Virtual Law Practice Blog.  Delivering Legal Services Online, Stephanie Kimbro’s upcoming book, should be available soon.  Also see The Virtual Law Firm: Benefits, Costs, and Ethical Pitfalls to Avoid from the ABA.   Find more ABA Products related to virtual practice by searching the ABA Web store. ABA products can be purchased at a discount through the Professional Liability Fund. For more information, visit the PLF Web site.  Select ABA Products under Loss Prevention.  Vendors of online platforms for virtual offices include Virtual Law Office Technology, LLC and Direct Law.


If you are a brick-and-mortar lawyer, the potential traps of providing unbundled legal services are well known.  If you are one of the pioneers providing legal services online, the roadmap is a work in progress. Stay tuned.

Copyright 2010 Beverly Michaelis