These days, law firms are increasingly using online tools to provide unbundled legal services for certain types of legal matters. This is because adding a virtual portal to your brick and mortar law firm offers a host of benefits, ranging from streamlining a case from start to finish and improving the client experience. Is your firm one of the firms taking advantage of virtual law firm tools? If not, is one of the reasons you haven’t yet taken the leap due to concerns about potential ethical issues? As you’ll see below, navigating those ethical issues isn’t as difficult as you might think.
Who uses unbundled legal services?
But first, let’s dive into the concept of “unbundled legal services.” As explained in the American Bar Association’s most recent Legal Technology Survey Report, unbundled legal services are “specific, stand-alone services like document preparation, offered as an alternative to full representation.”
According to the Report, 43% of law firms now offer unbundled legal services, and small law firms with 2-9 lawyers come in at 44%. The practice areas most likely to be handled this way are family law (64%), contracts (57%), and real estate (54%). Many law firms that offer unbundled legal services use an online client portal to do so, and, according to the Report, one of the top three legal-specific tools used by lawyers to do so is MyCase. 34% of law firms using client portals use the portal to share documents and 37% use it for messaging and communication.
Is it ethical to provide unbundled legal services using an online portal?
Some small firm lawyers are reluctant to provide unbundled legal services due to concerns about ethical issues. Fortunately, many jurisdictions have addressed the ethics of using online portals to provide unbundled legal services, so rest assured, there are guidelines available that will help to mitigate any ethical concerns you might have.
For example, this very issue was addressed in Washington in 2016. In Advisory Opinion 201601, the Committee on Professional Ethics considered the ethical issues that come into play when lawyers provide legal services via an online portal.
At the outset, the Committee noted that technology was changing the practice of law for small firm lawyers:
Increasing costs of doing business, including the costs associated with physical office space, have motivated lawyers to rethink how they deliver legal services. Many lawyers are choosing to do some or all of their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, and email services have allowed the development of the virtual law office, in which the lawyer does not maintain a physical office at all.
Next, the Committee explained that although providing unbundled legal services via online portals was a relatively new concept, the same ethical principles that applied offline typically applied to online conduct as well:
Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same. The core duties of diligence, loyalty, and confidentiality apply whether the office is virtual or physical. For the most part, the Rules of Professional Conduct (RPC) apply no differently in the virtual office context.
One of the primary issues considered by the Committee was whether it was ethical for lawyers to store law firm data online, such as in a legal practice management system. The Committee determined that it was ethical to do so “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.”
The Committee suggested a number of factors that lawyers must take into consideration when using cloud computing software in their virtual law firm. The Committee emphasized that lawyers must be mindful of the following when choosing client portal technology:
- The duty of general technology competence
- The obligation to thoroughly vet cloud computing vendors to ensure that data is stored securely
- The duty to ensure that there are sufficient data backup procedures in place
- The vendor agreement should include providing that lawyers area able to retrieve law firm data in a readable format
- The vendor agreement should include breach notification clauses
- Because technology can change quickly, there is continuing duty to monitor and review the adequacy of the vendor’s security procedures regularly.
Client portals are more secure than email
Finally, the Committee addressed the issue of secure communication, concluding that in light of technological advancements, email is no longer the most secure way to communicate and collaborate with clients. The Committee came to the same conclusion as the American Bar Association did last year in Opinion 477, and warned against using email in some cases:
Lawyers in virtual practices may be more likely to communicate with clients by email. As discussed in WSBA Advisory Opinion 2175 (2008), lawyers may communicate with clients by email. However, if the lawyer believes there is a significant risk that a third party will access the communications, such as when the client is using an employer-provided email account, the lawyer has an obligation to advise the clients of the risks of such communication.
So if you’ve been on the fence about whether to provide unbundled services online to supplement your brick and mortar law firm’s business, maybe it’s time to take the leap. The benefits are many and now that the technologies have improved, online portals are proving to be more secure than more traditional methods of electronic communication like email.
So what are you waiting for now that ethical issues can easily be avoided by: 1) thoroughly researching your jurisdiction’s rules, 2) investigating your software options, and 3) by choosing a reputable provider for your firm’s client portal? It’s time to expand your law firm’s practice and incorporate unbundled legal services into your law firm’s offerings. What better time than the present?