New Jersey and Virtual Offices

I know that I am late to this party, but I have been watching the debate over the joint opinion from New Jersey’s Advisory Committee on Professional Ethics and Committee on Attorney Advertising (note that this link is to a PDF copy of the opinion). I have read the opinion and, in all honesty, it doesn’t make much sense to me. I understand the idea behind having a “bona fide” office. However, I find the arguments advanced in the opinion to be very unpersuasive.

For example, one of the arguments is:

A “virtual office” location is not a place where a client can meet with the attorney unannounced. An attorney is not routinely found at a “virtual office” location and would need to make arrangements to reserve the space. Accordingly, while “virtual office” locations may be listed on attorney or law firm letterhead, websites, or other advertisements, the communication must state that the location is “by appointment only.”

Strangely enough, although I have always maintained an office in a commercial building, I have never considered my office as a “place where a client can meet with the attorney unannounced.” Is this something that happens regularly in New Jersey that just does not happen in Illinois? I mean my doctor maintains a physical office (2 or 3 actually), but I have never just dropped in to see him unannounced. I am not quite sure what the concern is here.

Similarly, the opinion asserts that the receptionist in a virtual office space does not qualify as a responsible person:

A “virtual office” cannot be a bona fide office since the attorney generally is not present during normal business hours but will only be present when he or she has reserved the space. Moreover, the receptionist at a “virtual office” does not qualify as a “responsible person acting on the attorney’s behalf” who can “answer questions posed by the courts, clients or adversaries.” Presumably, the receptionist can redirect a telephone call to the attorney lessee of the “virtual office” much like an answering service, but would not be privy to legal matters being handled by the attorney and so would be unable to “act[] on the attorney’s behalf” in any matter.

The ACPE notes that, in general, an attorney should not permit the receptionist of a “virtual office” to field telephone calls to the attorney. Prospective clients calling an attorney or law firm assume that they are reaching an employee and may disclose confidential and sensitive information.

No offense, but this simply ridiculous. How is contracting with a receptionist to maintain information confidential any different from contracting with a secretary to maintain confidential information. I just don’t understand this argument. The person answering your telephone can handle your calls only to the extent that they have been properly trained to handle the calls. That is true whether the person answering the phone is an employee or a contracted receptionist.

Similarly, by the argument made here, I would conclude that if you are not regularly in the office, your office is no longer a bona fide office if your receptionist is sick or goes on vacation. Even if you hire a temp, the reality is that the temp will not be able to answer questions posed by” courts, clients, or adversaries.” Similarly, there is nothing that would prevent “clients calling an attorney or law firm assume that they are reaching an employee and may disclose confidential and sensitive information.”

Without question, attorneys have a duty to maintain confidentiality, protect client files, remain accessible,  and to ensure that they do not mislead their clients. However, this opinion does not ensure that any of these objectives are achieved. Instead, it simply ensures that good attorneys are limited in the options they can use to best serve themselves and their clients.

Electronically Archiving Your Client Files

ABAAre you considering archiving your closed client files only in an electronic format? If so, you should check out this article from the ABA. The article discusses the rules that apply in specific states, such as Maine, New York, and Missouri. This is good reading for anyone thinking about ditching those paper files permanently.

Additional information from the ABA about file retention can be found here.

This Will Save on Business Card Expenses

I know that this really has nothing to do with technology, but I could not pass on commenting on this. Susan Cartier Liebel of Build a Solo Practice LLC posted a few days ago about a proposed North Carolina ethics opinion that (and no I am not making this up) prohibits an attorney from giving a client,a non-client, a fellow attorney or an allied professional more than one business card or one firm brochure. As quoted by Susan, the examples state:

If a client, non-client, fellow attorney, or allied professional requests one or more business cards or firm brochures from the estate-planning attorney, may the estate-planning attorney oblige the request?
The attorney may give a third party one of his business cards or one brochure in response to a request. The attorney may not give the third party multiple cards or brochures because of the risk of in-person solicitation by the third party on the attorney’s behalf.
Along with a thank-you letter from the attorney to a client for the client’s having allowed the attorney to provide services to that client, may the attorney include a business card and/or firm brochure with the suggestion that the client, if so willing, pass it along to someone who the client thinks might need similar services?
No, because of the risk of in-person solicitation by the third party on the attorney’s behalf.
The actual proposals can be found on the North Carolina Bar’s website, about halfway down this page.
This is one of the most ridiculous things I have seen. Chuck Newton has similar thoughts on the “merits” of this proposal.