By Jim Calloway

Many lawyers learned to use new technology tools in 2020, and many learned to better use the technology tools they had at their disposal. While we all look forward to society returning to normal in 2021, some of the changes we have experienced will no doubt become permanent fixtures in business operations, with increased videoconferencing being one.

Most would not describe it this way, but law firms have been operating on a part-virtual, part-physical service delivery model for some time now. It is almost certain secure videoconferencing will now be a part of the virtual delivery of legal services. I recognize many of us are dealing with some version of “Zoom fatigue” and are ready to get back to increased face-to-face meetings. Representing clients who are not physically present is not new. Before the internet, lawyers represented out-of-state clients and service members on deployment without their physical presence in the law office.

We had been seeing developments leading to law practices being less tied to a physical location over the last decades. In the olden days of law practice, documents appeared in the law office because someone carried them in – a postal worker, a client or a courier. The only instantaneous electronic communication method was the telephone, attached firmly in place by a cord. Today, while lawyers are still regular users of the U.S. Postal Service, most documents and communications today arrive in law offices via the internet.

The emergence of cell phones freed a lawyer from having to wait for a call next to a phone tethered to the wall. Then word processing tools and email changed the meaning of document itself to something digital, digitally created and reviewed, even though we often still printed and legal matters sometimes required a physical document. Today, our smartphones are used for email and (pun intended) virtually everything else.

WHAT IS A VIRTUAL LAW PRACTICE?

I’ll use this definition of virtual for the moment: “occurring or existing primarily online.”

One of the great things about attending ABA TECHSHOW is meeting so many smart people. At ABA TECHSHOW 2018, I was paired to speak with Brooke Moore, a lawyer from Arkansas who operates a virtual law practice. Her Twitter account is @virtuallawgirl. In Brooke’s law practice, legal services are not delivered face-to-face, but virtually. There is a physical location where mail is received, clients can pick up or leave documents, sign documents and get a signature notarized. But appointments with one of the firm’s lawyers are all online. Clients who have challenges taking off time from their employment are pleased it is easy to schedule an appointment in the evening or early morning.

By the way, ABA TECHSHOW is virtual this year, the week of March 8 to 12, and the registration fees are discounted this year. OBA members can use event promoters code EP 2109 for a discount on full registration.

After speaking with Brooke at ABA TECHSHOW and being very impressed, I invited her to speak at the OBA Solo & Small Firm Conference in 2018. There was quite a response to her presentation on operating a virtual law practice. She fielded lots of questions. I recall one lawyer saying to me after the program, “This is the way I want to practice law.”

A completely virtual law practice is not something I recommend to lawyers right out of law school. I think you need some real-world experience doing it the traditional way to round out your legal education first. But the main reason is solo practice can be isolating, and a virtual law practice is even more so because court appearances are rare. I think to succeed, you need a network of lawyers to talk things over with and meet for lunch regularly.

Brooke has since done presentations at other legal events about virtual law practice, including Clio Virtual Cloud Conference 2020. But as the pandemic hit, her business model was positioned well to serve clients concerned with limiting contact.

WHY SHOULD I BE A VIRTUAL LAWYER?

As we look at our profession today, with many legal professionals still surrounded by stacks of physical files and paper documents, why would I say we are all virtual lawyers now? One big reason is consumer preferences. More people are shopping and purchasing goods and services online. A tradition-steeped lawyer might view online legal service delivery as something unusual. But for many consumers, making purchases and purchasing decisions online is familiar and commonplace. They have no reason to view legal services, particularly “routine” services, as different from other online consumer shopping. Convenience is also a major factor for today’s consumer, whether it is not having to take off work for an appointment or just logging into the client portal during the evening after the children have gone to bed to review the legal documents and answer or ask questions.

What about the lawyer’s goals and career plans? Whether you grew up watching Perry Mason, Matlock or The Practice, the idea of spending time hitting send on an email or uploading documents to a client portal may not be your idea of a law practice. Although traditional practice settings already involve a fair amount of those digital daily tasks. But whatever fictional lawyer you may have read about or watched on the screen, the truth remains that lawyers help their clients and attempt to solve their legal problems. It is just that some commercial activities have been changed by technology. Just ask the travel agents!

Despite Brooke’s example, this need not be an all-or-none decision. Many small firm lawyers representing primarily consumer clients may decide to add a virtual services component to their law practice.

WHO MIGHT CONSIDER OFFERING VIRTUAL LEGAL SERVICES?

Here are a few scenarios:

• A lawyer who has moved across the state after living in one county for a long time. It may be a good business decision to offer virtual services in a place where many know the lawyer and the lawyer knows the lay of the land. A regular ad in the local newspaper with the lawyer’s name, now offering virtual legal services, the phone number and the website address may spark a lot of interest.
• A lawyer who has to have a more flexible schedule because of a family member’s medical needs or another situation. One’s schedule can be very flexible in a virtual practice.
• A lawyer who loves his or her hometown and isn’t leaving but has noted a shrinking local population and few new businesses opening. It may be time to consider expanding into a broader geographical area with marketing and virtual legal service delivery.
• An experienced family law practitioner who has decided they have fought their last courtroom battle, weary of the emotions of that practice setting. Instead of never using that experience again, maybe a restyled practice includes being an expert witness, being a paid strategic consultant to a lawyer building their family law practice and doing several uncontested waiver divorces under a limited scope legal services model. Not all virtual law practices will offer limited scope services, but many will as we note below.

MANY LEGAL SERVICES CANNOT BE DELIVERED VIRTUALLY

I will concede that is true, but I’ll also note a year ago, most lawyers would have thought holding virtual court hearings was an impossibility.

Lawyers must be willing to innovate. Every study indicates there are large numbers of consumers who do not consult with lawyers because of a number of factors, including not recognizing they have a legal problem where a lawyer can help (i.e., this paycheck garnishment is a financial problem, not a legal one), don’t know how to look for a lawyer or believe lawyers are unaffordable. Instead of focusing on the competition the internet brings, it may be time to look at expanding your services to serve more of those individuals.

Let’s look at one legal service most lawyers would say should not be delivered virtually – the execution of a will and other estate planning documents.

First, let me acknowledge the outstanding effort put forth by the OBA Estate Planning, Probate and Trust Section in 2020. When lawyers were considering how to accomplish the execution of these important documents in the age of COVID-19, the section responded with a number of virtual discussions and numerous CLE programs for its members. Even if you have already paid your 2021 bar dues, it is not too late to join the section.

Lawyers appreciate that will executions need to go perfectly. So, a part of the service the lawyer provides is the execution ceremony in the law office, where a notary is available, and the lawyer could make certain everyone signs in the right places, and other formalities are observed. Letting a client execute estate planning documents on their own would be considered very risky. The lawyer receiving their copy and noting a serious mistake in execution at the same time they learn the client has unexpectedly died sounds like a nightmare law school hypothetical on liability and professional responsibility. But more importantly, it could mean the lawyer failed to deliver the service the client required. If only there were a way a lawyer could supervise a will execution remotely. Maybe using some device everyone carries.

Yes, a lawyer remotely viewing a will execution over FaceTime or any phone videoconferencing solution can make certain the legal requirements are observed, and the lawyer can review the executed document virtually before anyone leaves the room. Of course, there’s still the notary issue, and in the event the documents are executed at a client’s home, a copy machine may not be available. An innovation-minded lawyer might contract with a local notary to handle these tasks, providing the phone video link for the lawyer to observe, notarizing and either bringing a small portable copier or taking pictures of each page of the finalized documents and converting those to a PDF. Or, maybe one of the law firm staff becomes the will execution road trip warrior. Some lawyers may think this is still a risky idea. Innovation entails some form of risk-taking, and some of these ideas are certainly not for everyone.

HOW DO LIMITED SCOPE LEGAL SERVICES FIT IN?

In June 2017, the Oklahoma Supreme Court adopted District Court Rule 33, which sets forth the procedure for attorneys to use when drafting pleadings or other documents for self-represented litigants to present to a district court, without the lawyer entering an appearance. The rule requires attorneys to disclose the drafting assistance by indicating “their name, address, bar number, telephone number, other contact information and, optionally, a signature” along with a statement the attorney is not appearing as the counsel of record.

The OBA Management Assistance Program maintains an Oklahoma Limited Scope Legal Services Resources page with sample agreements and processes and other helpful information.

This court rule and the OBA-provided materials outline a process where agreed orders, degrees and other simple litigation processes can be handled by a client appearing without the lawyer physically being present but empowered by the lawyer’s instructions and the paperwork the lawyer has prepared. Many lawyers wanting to deliver virtual legal services will make use of this procedure. Simply put, if you’re a family lawyer practicing in Oklahoma City and your cousin needs an agreed waiver divorce in Atoka, it is no longer necessary for you to take a road trip to Atoka or recruit a local lawyer to help your cousin out. We are seeing more lawyers utilizing this rule – and not just to help out a cousin.

BUT WAIT, THERE’S MORE!

If you will be delivering virtual services, whether as a small or large part of your law practice, it is important to have an attractive internet presence that clearly explains your services. This site will most likely need to be promoted through social media. People familiar with online shopping are used to seeing fixed prices. Many of us have years of experience passing over websites that want you to set up a meeting for a quote. So, to the extent a lawyer offers fixed fees and list the amount of the fees (with appropriate disclaimers) on the website, there will be an advantage over others who do not.

A method for efficiently receiving and processing electronic payments is required. For those that offer a telephone, videoconference or in-office consultation as a part of their service delivery, there needs to be a way for new prospects to schedule an appointment online without waiting for the law office to open.

CONCLUSION

Maybe we aren’t all virtual lawyers yet, but we are all using more virtual tools today. No one thinks a videoconference meeting is novel now. Lawyers who primarily deliver legal services to individual consumers will see more opportunities ahead to deliver their services virtually. We’ve seen a lot of changes with both our profession and the delivery of all types of services by businesses over the last few decades. For some, being a virtual lawyer will be an opportunity to expand or redesign their business model.

Mr. Calloway is OBA Management Assistance Program director. Need a quick answer to a tech problem or help solving a management dilemma? Contact him at 405-416-7008, 800-522-8060, jimcatokbar.org. It’s a free member benefit.

Originally published in the Oklahoma Bar Journal — January, 2021 — Vol. 92, No. 1