Legal Cloud Computing Association Publishes Response RE: ABA Commission on Ethics 20/20 Issues Paper Concerning VLOs
July 30, 2011
ABA Center for Professional Responsibility
321 North Clark Street
Chicago, IL 60654-7598
RE: Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits of Virtual Presence in a Jurisdiction
To whom it may concern,
On June 19, 2012, the ABA Commission on Ethics 20/20 (“Commission”) released a request for comments on its “Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits of Virtual Presence in a Jurisdiction” (“Issue Paper”). We thank for providing us with the opportunity to comment on this Issue Paper.
The Legal Cloud Computing Association (“LCCA”), formed in December 2010, is the collective voice of the leading cloud computing software providers for the legal profession. Consisting of Clio (Themis Solutions, Inc.), DiaLawg, LLC, DirectLaw, Inc., NetDocuments, Nextpoint, RealPractice, Inc., Rocket Matter, LLC, and Total Attorneys, LLC, the LCCA strongly supports the Commission’s efforts to provide clarity to the legal profession with respect to the ethical implications raised by the use of technology available via the internet, such as cloud computing.
Of the options tabled by the Commission, we recommend the third suggested approach, which would be to create a report to educate the legal profession about security and confidentiality issues related to the use of technology in law practice. This report might cover ethics issues that arise from virtual practice and multijurisdictional virtual practice.
It is our opinion that the proposed Comment  to Rule 5.5 would raise more questions for lawyers than it would provide guidance. Of the three possible approaches suggested by the Commission in its Issues Paper, we are concerned that identifying factors for the lawyers and disciplinary authorities to consider when determining systematic and continuous presence would deter lawyers from embarking on different structures of virtual delivery for lack of clarity. The proposed factors are too broad and there is the danger that such limitations would become outdated as legal technology expands our definition of online delivery and the virtual law firm model. For example, if a virtual law firm provides legal services that are based on federal law and not state law, if the firm provides online delivery of legal services in multiple states under the proposed factors, the firm’s virtual presence would become “systematic and continuous” to evoke 5.5(b). How has the firm committed the unauthorized practice of law? The firm has provided federal law-based legal services to clients across the country. The firm should not need to be licensed in each state where those clients are residents.
We also do not recommend the second proposal to refer the issue to the Standing Committee on Ethics and Professional Responsibility for a specific “opinion” on what constitutes a systematic and continuous virtual presence. The definition of virtual will continue to change as the technology and other practice management trends in our profession innovate to adapt to a changed legal marketplace and global economy.
Instead, we recommend the third suggested approach which would be to create a report to educate the legal profession about security and confidentiality issues related to the use of technology in law practice. This report might cover ethics issues that arise from virtual practice and multijurisdictional virtual practice.
The Legal Cloud Computing Association
Jack Newton, Co-founder and Chief Executive Officer, Clio (Themis Solutions Inc.)
Jeff Goens, Co-founder, President & General Counsel, Dialawg, LLC
Richard Granat, Founder and Chief Executive Officer, DirectLaw Inc.
Leonard Johnson, VP Marketing, NetDocuments
Rakesh Madhava, Chief Executive Officer, Nextpoint, Inc.
Carey Ransom, Chief Executive Officer, RealPractice, Inc.
Larry Port, Founding Partner and Chief Software Architect, Rocket Matter LLC
David Dahl, Chief Technology Officer, Total Attorneys, LLC
Stephanie Kimbro, Total Attorneys, LLC