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?