Can a Virginia lawyer run a virtual law office or use a rented executive office suite as a firm location?

Plain-English summary

The opinion examines the ethics of practicing through a virtual law office (interacting with clients via secure Internet portals, email, or other electronic messaging, often using cloud computing) and through rented executive office suites (shared, non-exclusive space staffed, if at all, by the rental company rather than the firm). The committee frames the questions as the familiar duties of confidentiality, client communication, and supervision, which "manifest themselves in a new way in this context."

On confidentiality, the opinion applies Rule 1.6. A lawyer is not required to guarantee against a breach; Rule 1.6(d) requires only reasonable care. When using cloud computing or any technology that puts a third party in charge of storing or transmitting client data, the lawyer must follow Rule 1.6(b)(6): exercise care selecting the vendor, reasonably expect the vendor will keep the data confidential and inaccessible to others, and instruct the vendor to preserve confidentiality. If the lawyer cannot evaluate the provider's security alone, she must consult someone qualified to do so (citing LEO 1818).

On communication, the opinion holds that the method does not change the Rule 1.4 duty, but electronic-only communication may require extra steps. Citing LEO 1791, it states that Rule 1.4 does not dictate the form of communication, only that the necessary information is transmitted. Because Rule 1.4 also requires the lawyer to "explain" a matter, however, the lawyer cannot simply upload information to a portal and assume the duty is met without confirmation the client received and understood it. On supervision, Rules 5.1 and 5.3 impose the same duty, but the opinion says "reasonable" steps may require additional measures to supervise lawyers and nonlawyers who are not physically present. Finally, under Rule 7.1, a non-exclusive or virtual office advertised as a firm location must be a place where the lawyer actually provides legal services, and the lawyer may not list rented spaces to mislead prospective clients into believing the practice is more geographically diverse or better-resourced than it is.

In practice

Under the Virginia rules as they stood when the opinion issued, a lawyer may operate a virtual law office or use a shared executive office suite. The opinion holds that the ordinary duties apply in this setting and identifies where the virtual or shared format changes how they are met: care in selecting and instructing cloud or other third-party vendors under Rule 1.6(b)(6) and (d); confirmation that a client actually received and understood information delivered through an Internet portal under Rule 1.4; reasonable supervision of lawyers and staff who are not physically co-located under Rules 5.1 and 5.3; and, under Rule 7.1, not listing a rented or shared space in public communications in a way that misleads prospective clients about the firm's reach or resources.

Common questions

Q: Can a Virginia lawyer represent clients without ever meeting them in person?

A: Yes. Citing LEO 1791, the opinion states that Rule 1.4 does not dictate the form of communication; what matters is what information is conveyed, not how. But because Rule 1.4 requires the lawyer to "explain" matters, the lawyer cannot just upload information to a portal and assume the duty is satisfied without some confirmation the client received and understood it.

Q: What does the opinion require before storing client files in the cloud?

A: Under Rule 1.6(b)(6) and (d), the lawyer must exercise care selecting the vendor, reasonably expect the vendor will keep the data confidential and inaccessible to others, and instruct the vendor to preserve confidentiality. If the lawyer cannot assess the provider's security alone, she must consult someone qualified to make that determination.

Q: Can a lawyer list a rented executive-suite address as a firm office?

A: Only if the lawyer actually provides legal services there. The opinion holds, under Rule 7.1, that a lawyer may not list alternative or rented spaces in public communications to mislead prospective clients into believing the lawyer has a more geographically diverse practice or more resources than is actually the case.

Q: Does using remote staff change a lawyer's supervision duties?

A: The supervisory duty under Rules 5.1 and 5.3 is the same, but the opinion notes that what counts as "reasonable" steps may vary with the firm's structure, and additional measures may be necessary to supervise lawyers and nonlawyers who are not physically present where the lawyer works.

Background and rules framework

The opinion interprets Virginia Rules of Professional Conduct 1.1 (competence), 1.6 (confidentiality of information, including (b)(6) on disclosure to outside agencies for office-management purposes and (d) on reasonable efforts to prevent unauthorized disclosure or access), 5.1 (responsibilities of partners and supervisory lawyers), 5.3 (responsibilities regarding nonlawyer assistants), and 7.1 (communications concerning a lawyer's services). These track ABA Model Rules 1.1, 1.6, 5.1, 5.3, and 7.1. The opinion also builds on prior Virginia LEOs addressing electronic files and outsourcing.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / Va. Rule 1.1 (competence)
• MR 1.6 / Va. Rule 1.6 (confidentiality; (b)(6) outside-agency disclosure; (d) reasonable efforts)
• MR 5.1 / Va. Rule 5.1 (supervisory lawyers)
• MR 5.3 / Va. Rule 5.3 (nonlawyer assistants)
• MR 7.1 / Va. Rule 7.1 (communications about a lawyer's services)

Other opinions cited:

• Va. LEO 1600, 1791, 1818, 1850: electronic communication, electronic file storage, and outsourcing of legal support services.

See also

• ABA Formal Op. 498: Virtual Practice
• ABA Formal Op. 495: Lawyers Working Remotely
• CA COPRAC Op. 2012-184: Virtual Law Office and Cloud Computing

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1872.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
March 29, 2013
Supreme Court Approved
October 2, 2019

LEGAL ETHICS OPINION 1872. VIRTUAL LAW OFFICE AND USE OF EXECUTIVE
OFFICE SUITES.

This opinion is an examination of the ethical issues involved in a lawyer's or firm's use of a
virtual law office, including cloud computing, and/or executive office suites. These issues include
marketing, supervision of lawyers and nonlawyers in the firm, and competence and confidentiality
when using technology to interact with or serve clients.
A virtual law practice involves a lawyer/firm interacting with clients partly or exclusively
via secure Internet portals, emails, or other electronic messaging. This practice may be combined
with an executive office rental, where a lawyer rents access to a shared office suite or conference
room. This space is generally either unstaffed or staffed by an employee of the rental company
who provides basic support services to all users of the space, rather than by an employee of the
lawyer. The space is also not exclusive to the lawyer — even if she has exclusive access to a
particular office or conference room, the suite is open to all other "tenants." Lawyers who maintain
a virtual practice, who work from home, or who wish to expand their geographic profile without
the higher costs of exclusive office space and staff all use these spaces as client meeting locations.
In other words, virtual law offices and executive office suites do not always go together, but they
frequently do.

APPLICABLE RULES AND OPINIONS
The applicable Rules of Professional Conduct are Rules 1.1, 1.6(a) and (d), 5.1(a) and (b),
5.3(a) and (b), and 7.1. The relevant legal ethics opinions are LEOs 1600, 1791, 1818, and 1850.

ANALYSIS
Virtual law offices involve issues that are present in all types of law offices —
confidentiality, communication with clients, and supervision of employees — but that manifest
themselves in a new way in this context. See also LEO 1850 (exploring similar concerns in context
of outsourcing legal support services).
A lawyer must always act competently to protect the confidentiality of clients' information,
regardless of how that information is stored/transmitted, but this task may be more difficult when
the information is being transmitted and/or stored electronically through third-party software and
storage providers. The lawyer is not required, of course, to absolutely guarantee that a breach of
confidentiality cannot occur when using an outside service provider. Rule 1.6 only requires the
lawyer to act with reasonable care to protect information relating to the representation of a client.
See Rule 1.6(d). When a lawyer is using cloud computing or any other technology that involves the
use of a third party for the storage or transmission of data, the lawyer must follow Rule 1.6(b)(6)
and exercise care in the selection of the vendor, have a reasonable expectation that the vendor will
keep the data confidential and inaccessible by others, and instruct the vendor to preserve the
confidentiality of the information. The lawyer will have to examine the third party provider's use
of technology and terms of service in order to know whether it adequately safeguards client
information, and if the lawyer is not able to make this assessment on her own, she will have to
consult with someone qualified to make that determination.

Similarly, although the method of communication does not affect the lawyer's duty to
communicate with the client, if the communication will be conducted primarily or entirely
electronically, the lawyer may need to take extra precautions to ensure that communication is
adequate and that it is received and understood by the client. The Committee previously concluded
in LEO 1791 that a lawyer could permissibly represent clients with whom he had no in-person
contact, because Rule 1.4 "in no way dictates whether the lawyer should provide that information
in a meeting, in writing, in a phone call, or in any particular form of communication. In
determining whether a particular attorney has met this obligation with respect to a particular client,
what is critical is what information was transmitted, not how." On the other hand, one of the
aspects of communication required by Rule 1.4 is that a lawyer must "explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the representation."
Use of the word "explain" necessarily implies that the lawyer must take some steps beyond merely
providing information to make sure that the client actually is in a position to make informed
decisions. A lawyer may not simply upload information to an Internet portal and assume that her
duty of communication is fulfilled without some confirmation from the client that he has received
and understands the information provided.
Finally, the technology that enables a lawyer to practice "virtually" without any face-to-face contact with clients can also allow lawyers and their staff to work in separate locations rather
than together in centralized offices. As with other issues discussed in this opinion, a partner or
other managing lawyer in a firm always has the same responsibility to take reasonable steps to
supervise subordinate lawyers and nonlawyer assistants, but the meaning of "reasonable" steps
may vary depending upon the structure of the law firm and its practice. Additional measures may
be necessary to supervise staff who are not physically present where the lawyer works.

The use of an executive office/suite rental or any other kind of shared, non-exclusive space,
either in conjunction with a virtual law practice or as an addition to a "traditional" office-based
practice, raises a separate issue. A non-exclusive office space or virtual law office that is advertised
as a location of the firm must be an office where the lawyer provides legal services. A lawyer may
not list alternative or rented office spaces in public communications for the purpose of misleading
prospective clients into believing that the lawyer has a more geographically diverse practice and/or
more firm resources than is actually the case. See Rule 7.1. As discussed above in the context of
Internet-based service providers, a lawyer must also pay careful attention to protecting
confidentiality if any client information is stored or received in a shared space staffed by
nonlawyers who are not employees of the law firm and may not be aware of the nature or extent of
the duty of confidentiality.