ABA Ethics 20/20 Commission Seeking Comments on Lawyers Having Virtual Presence in Another Jurisdiction

The ABA Commission on Ethics 20/20 is seeking comments on a newly released Issues Paper entitled “Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits on Virtual Presence in a Jurisdiction.” They are seeking comments to assist their consideration of the issues that come up when lawyers establish a presence and practice virtually in a jurisdiction that is away from their physical location. Responses are requested by July 31, 2012. See the above link for instructions on where to send them.

Remote virtual practices raise all sorts of interesting questions:

  • How do you ensure the competence lawyers offering virtual services?
  • Who is responsible for doing this?
  • Should lawyers have to be formally admitted or licenced in a jurisdiction they will have only a virtual presence in?
  • Should this be the full admissions process or should there be some kind of reciprocity arrangement or perhaps an adaptation of mobility rules (Like the mobility rules we have here in Canada for lawyers who want to temporarily go to another province)?
  • Do the virtual jurisdiction’s ethics rules apply?
  • Who has disciplinary authority over a virtual lawyer?
  • What issues do virtual practices raise with respect to malpractice insurance? What if the virtual state requires it and the physical state does not? Or, vice versa? (Noting that here in Canada insurance is mandatory and our mobility rules have dealt with this issue for physical presences.)
  • What issues do virtual practices raise with respect to client compensation funds?
  • Would ethics complaints or malpractice claims be handled in the virtual jurisdiction?
  • Are there types of legal advice or services that should not be offered virtually?
  • Can you properly assess the capacity of a testator when taking instructions on a will virtually?
  • Under the Ontario Rules of Civil Procedure, you have to bring a motion where opposing counsel practices – How would this be dealt with when opposing counsel has only a virtual presence?
  • Can you legally or practically swear or notarize a document virtually?

Am I missing other legal or practical issues that could arise when a lawyer has a virtual presence and no physical presence in a jurisdiction?


  1. A list of good questions, some of them harder to answer than others. I suppose one might want to distinguish for some of them the lawyer who has a generally accessible online presence (like a web site) and who accepts clients by electronic communications from anywhere, compared to a lawyer who targets a particular jurisdiction other than the one in which he or she is formally admitted to practice. A separate category (less difficult) would be the virtual practice aimed at jurisdictions in both/all of which the lawyer has been formally admitted.

    I suggest that your third-last question (and maybe fourth-last) are of a different type than the others, since they are not about jurisdiction, they are about competent practice even if the client is next door. Still good questions, but they mix awkwardly with all the others that involve more than one potential place of regulation or liability.

  2. Stephanie Kimbro

    Dan, I have addressed most of the ethics questions you pose above in my Virtual Law Practice book published by the ABA LPM or on my blog and in other scholarly writing. I have practiced with a web-based office and unbundled services online in NC for six years as well as worked with lawyers and law firms in the States who are engaged in many forms of virtual practice, some completely web-based and others hyrid. There are no direct answers to some of these questions here in the States because not all of the jurisdictions have addressed them. However, there are basic best practices for responsibly operating a virtual practice that can address the underlying concerns behind each of your questions above. The ABA LPM eLawyering Task Force published Suggested Minimum Requirements for Lawyers Delivering Legal Services Online which is a good starting point for any lawyer considering a virtual practice.

    My initial reaction to reading the Commission’s call for comments was that they should not propose any further clarification or guidance on what constitutes a virtual presence under Rule 5.5. The proposed factors they provide are good, but they only raise additional questions about proportion of work handled virtually, frequency, etc. that would just raise even more questions that can’t be answered and shouldn’t be in order to ensure innovation in future virtual delivery models.

  3. m. diane kindree

    Dan, I am curious to know how the courts would deal with the intangible legal problems associated with some of the inter-jurisdictional legal issues raised in your questions.
    As a potential virtual client, I would be concerned about the bottom-line and what discount, if any, I might receive on legal fees if I retained a lawyer operating a virtual law practice. What factors should apply in determining a fair and reasonable fee for an online legal service? What rules, in what jurisdiction, would govern online advertising and who would monitor these websites? Maybe a monthly special on preparing online wills would save many families $$$ and mega stress guesstimating the final wishes of a loved one.
    I agree with J.G. that the questions are good but may flow better divided into categories such as: legal practice licencing: character, competence and ethics, duties and limits to client, court and profession; scope, roles and rules on virtual services and fees, responsibility and regulation, malpractice and compensation, etc.
    I definitely feel a caveat regarding “innovation in future virtual delivery models” is warranted and that is, it should not harm the client’s rights to be fairly and justly heard in any jurisdiction recognizing web-based or other hybrid legal services.
    In this electronic age of fast deliveries, my virtual reality includes a ‘caveat emptor”.