The Law Society and virtual firms
A non-traditional setting does not change the professional and ethical duties lawyers owe their clients.
Dave Bilinsky, a Practice Management Advisor at the Law Society and founder and Chair of the Pacific Legal Technology Conference, believes “technology is pushing the envelope on practice in ways that may not always be compatible with the traditional professional conduct attributes of the profession, which were really developed in a paper, ink and physical desk environment.” Bilinsky advises lawyers who are considering moving into the world of cyberlaw to contact the Practice Advice Department if they have concerns or questions about how to meet their obligations to their clients.
It is important for any lawyer considering a virtual law firm to recognize that the standards and risks surrounding virtual firms are evolving, as is the technology that enables them. The attractions of virtual firms must be balanced by consideration of their limitations. Lawyers must ensure they are meeting their obligations in accordance with the Law Society Rules, Professional Conduct Handbook and the law. Some important considerations include:
- lawyers should apply the same scrutiny to the risks they manage in a physical office and recognize the heightened risks of connecting to a network;
- as with traditional firms, client information must be secure and confidentiality maintained (see Chapter 5 of the Professional Conduct Handbook, regarding confidentiality):
- if clients are logging onto the firm’s website to exchange information with their lawyers, then the site’s security, among other things, needs to be scrutinized;
- the site needs to be protected from hackers and fraudsters;
- the server should ideally be in the lawyer’s office, and if not, it should be with a major provider in Canada with an air tight confidentiality agreement that also covers such matters as who owns the stored data, data backup and destruction, etc.;
- if the server is an American one there is a significant risk to the security of the clients’ information, as the US government could invoke the USA PATRIOT Act;
- consider the impact of privacy legislation, generally;
- the client identification and verification rules require meeting with the client in person to verify identity, if there is a financial transaction (see Law Society Rules 3-91 to 3-102);
- you must discharge your obligation to ensure the client has the mental capacity to instruct and has not been the subject of undue influence; and
- trust accounting rules require lawyers to store records at their chief place of practice (Rule 3-68).
The Law Society is examining certain aspects of practice that would generally apply to a virtual firm.
Many virtual firms use what’s called cloud computing, which involves accessing data processing and storage applications via the internet. Multi-member virtual firms may use cloud computing to, for example, share documents among lawyers.
On September 16, 2010, the Law Society’s Executive Committee struck a working group to:
- look into what rules and policy the Law Society will need for BC lawyers who are using cloud computing and/or remote processing and storing of business records; and
- consider BC lawyers’ use of electronic storage, both in and outside of the province.
Drafting wills virtually
On September 1, 2010 the Ethics Committee approved an opinion on whether it is proper for a lawyer to draft a will for a client without meeting with the client. The committee stated:
In spite of the fact that a lawyer who drafts a will for a client has significant responsibility for ensuring the validity of the will, it was the committee’s view that the question of whether a lawyer has a duty in all circumstances to meet personally with the client is an issue that relates to the standard of care a lawyer must follow in the drafting and execution of wills, not to the lawyer’s ethical obligations. While a practice of meeting personally with a client in these circumstances is highly desirable and may be required at law, the committee declined to say that a failure to do so in every circumstance necessarily amounts to professional misconduct.
The committee’s full opinion will be published online in the annotated Professional Conduct Handbook, but before its publication, it can be obtained from Jack Olsen, staff lawyer for the Ethics Committee, by emailing him at firstname.lastname@example.org.