Can an Ohio lawyer run a virtual law office, and what office address must the lawyer list if there is no traditional physical office?

Plain-English summary

The Board addressed whether a lawyer may serve clients almost exclusively through a virtual law office (VLO), meaning a practice that communicates with clients through secure internet portals, email, or other electronic messaging rather than a traditional staffed office. It concluded that the Rules of Professional Conduct apply equally to traditional and virtual practices, and a VLO is permissible, but the VLO model puts particular weight on the rules governing competence, communication, confidentiality, and supervision of nonlawyer vendors (Prof.Cond.R. 1.1, 1.4, 1.6, and 5.3).

On competence, the Board held that a VLO lawyer must competently manage the technology used to run the practice and keep abreast of its benefits and risks (Prof.Cond.R. 1.1, cmt. [8]), either possessing general knowledge of the security safeguards or associating with people who can advise the lawyer. The opinion states the lawyer should discuss the office technology with the client at the outset and determine whether additional client-specific safeguards are needed. On communication, the Board held that reliance on technology does not diminish the duty to communicate; the lawyer must verify client identity, ensure electronic communications are understood well enough for the client to make informed decisions, and change the mode of communication if the client does not comprehend it (Prof.Cond.R. 1.4). On confidentiality, when using cloud computing or third-party transmission the lawyer must take reasonable efforts to prevent inadvertent or unauthorized disclosure (Prof.Cond.R. 1.6(c)), and when buying internet, email, and cloud services the lawyer must investigate the vendor's safeguards (Prof.Cond.R. 5.3(a)).

On the office-address question, the Board interpreted the "office address" required by Prof.Cond.R. 7.2(c) to not require a physical office matching a street location. A VLO lawyer satisfies the requirement by providing an address corresponding to the lawyer's home or physical office, shared office space, or a registered post office box. The lawyer must avoid false or misleading communications about the practice (Prof.Cond.R. 7.1), including implying that the lawyer regularly works from a physical office when that is not the case. The opinion noted that this analysis does not interpret the separate "office address" requirement in Gov.Bar R. VI, Sec. 4(B). Finally, the Board concluded a VLO lawyer may use shared, nonexclusive office space with lawyers or nonlawyers if client confidentiality is protected from inadvertent disclosure to other tenants and staff (Prof.Cond.R. 1.6(c)).

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct as they stood at the time of the opinion, operating a virtual law office is permitted when the lawyer competently manages the technology, takes reasonable efforts to prevent inadvertent disclosure of client information, investigates technology vendors' safeguards, and maintains adequate client communication. Per the opinion, the "office address" required in lawyer communications may be a home or physical office, shared office space, or a registered post office box, and the lawyer may not imply or misrepresent that the lawyer works from a physical office when that is not the case. The opinion also permits shared, nonexclusive office space with lawyers or nonlawyers when client confidentiality is safeguarded.

Common questions

Q: Can an Ohio lawyer practice entirely through a virtual law office?

A: The opinion concluded yes; the Rules of Professional Conduct apply equally to traditional and virtual offices, and a lawyer may operate a VLO so long as the rules on competence, communication, confidentiality, and vendor supervision are observed (Prof.Cond.R. 1.1, 1.4, 1.6, 5.3).

Q: What office address must a virtual lawyer list in communications?

A: The opinion interpreted the "office address" requirement of Prof.Cond.R. 7.2(c) to allow the lawyer's home or physical office, the address of shared office space, or a registered post office box; a physical street office is not required.

Q: Can a virtual lawyer say the office is available "by appointment only"?

A: The opinion concluded yes; stating that the lawyer meets clients by appointment only, or operates virtually and can arrange to meet through technology or in person at the client's request, complies with Prof.Cond.R. 7.1 because it is not misleading.

Q: What does the opinion require when a virtual lawyer uses cloud or vendor services?

A: The opinion holds the lawyer must take reasonable efforts to prevent inadvertent or unauthorized disclosure (Prof.Cond.R. 1.6(c)) and must investigate that the vendor maintains and secures data consistent with the duty of confidentiality, backs up files, and gives notice of subpoenas, breaches, or termination (Prof.Cond.R. 5.3(a)).

Q: Can a virtual lawyer share office space with nonlawyers?

A: The opinion concluded a lawyer may use shared, nonexclusive office space with lawyers or nonlawyers if the lawyer ensures client confidentiality is maintained and information is protected from inadvertent disclosure to other tenants and staff (Prof.Cond.R. 1.6(c)).

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 1.1 (competence, Model Rule 1.1), 1.4 (communication, Model Rule 1.4), 1.6 (confidentiality, Model Rule 1.6), 5.3 (supervision of nonlawyer assistants and vendors, Model Rule 5.3), 7.1 (communications about a lawyer's services, Model Rule 7.1), and 7.2 (advertising, including the office-address requirement in 7.2(c), Model Rule 7.2). It applies the "reasonable efforts" factors in Prof.Cond.R. 1.6(c), cmt. [18] to the use of cloud and third-party technology.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.1 (competence), incl. cmt. [8] (Model Rule 1.1)
• Ohio Prof.Cond.R. 1.4 (communication) (Model Rule 1.4)
• Ohio Prof.Cond.R. 1.6 (confidentiality), incl. 1.6(c) and cmt. [18] (Model Rule 1.6)
• Ohio Prof.Cond.R. 5.3 (supervision of nonlawyer vendors), incl. 5.3(a) and cmt. [3] (Model Rule 5.3)
• Ohio Prof.Cond.R. 7.1 (false, misleading, or nonverifiable communications) (Model Rule 7.1)
• Ohio Prof.Cond.R. 7.2 (advertising), incl. 7.2(c) office-address requirement (Model Rule 7.2)
• Ohio Prof.Cond.R. 1.2(c) (limited scope representation)

Other opinions cited:

• Ohio BPC Adv. Op. 1999-9: providing legal advice online by email for a fee
• ABA Formal Op. 477 (2017): securing communication of protected client information
• Fla. Bar Op. 10-2 (2010); N.C. Ethics Ops. 2005-10 and 2012-6; Pa. Ethics Op. 2010-200; Wash. Adv. Ops. 2215 (2012) and 2016-1 (2016): virtual practice and cloud technology
• Ohio BPC Adv. Op. 1990-9: office sharing with a nonlawyer business

See also

• Ohio BPC Op. 1999-009: Online Legal Advice by Email for a Fee
• CA COPRAC Op. 2012-184: Virtual Law Office and Cloud Computing
• CA COPRAC Op. 2023-208: Remote Practice of Law
• CA COPRAC Op. 2010-179: Confidentiality and Competence Using Technology

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Adv.-Op.-2017-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION 2017-05
Issued June 9, 2017

                                Virtual Law Office

SYLLABUS: An Ohio lawyer may provide legal services via a virtual law office through
the use of available technology. When establishing and operating a virtual law office, a
lawyer must maintain the requisite competence regarding the technology he or she
employs and use reasonable efforts to prevent the inadvertent disclosure of information
related to the representation of the client. A lawyer operating a virtual law office must
maintain adequate communication with his or her client, regardless of the type of
technology used.

The “office address” of a lawyer required in a lawyer’s written and electronic
communications must include the address of the lawyer’s home or physical office, the
address of shared office space, or a registered post office box.

A lawyer operating a virtual law office may utilize shared, nonexclusive office space with
lawyers or nonlawyers, within certain guidelines.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

DAVID L. DINGWELL RICHARD A. DOVE
CHAIR DIRECTOR
SANFORD E. WATSON D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL

                                  OPINION 2017-5
                                 Issued June 9, 2017

                                 Virtual Law Office

SYLLABUS: An Ohio lawyer may provide legal services via a virtual law office through
the use of available technology. When establishing and operating a virtual law office, a
lawyer must maintain the requisite competence regarding the technology he or she
employs and use reasonable efforts to prevent the inadvertent disclosure of information
related to the representation of the client. A lawyer operating a virtual law office must
maintain adequate communication with his or her client, regardless of the type of
technology used.

The “office address” of a lawyer required in a lawyer’s written and electronic
communications must include the address of the lawyer’s home or physical office, the
address of shared office space, or a registered post office box.

A lawyer operating a virtual law office may utilize shared, nonexclusive office space with
lawyers or nonlawyers, within certain guidelines.

QUESTIONS PRESENTED: 1) Is it proper for a lawyer to provide legal services
exclusively, or almost exclusively, via a “virtual law office?” 2) Is it proper for a lawyer
operating primarily as a “virtual law office” to lease a shared, nonexclusive office space
for purpose of occasional face-to-face meetings with clients, or receiving mail?

APPLICABLE RULES: Prof.Cond.R. 1.1, 1.4, 1.6, 5.3, 7.1, and 7.2.
Op. 2017-5 2

OPINION: A virtual law office “VLO” typically involves a lawyer communicating with
clients almost exclusively through secure Internet portals, emails, or other electronic
messaging.1 See also Adv. Op. 1999-9. A VLO permits lawyers to work remotely, offers
clients and lawyers the ability to discuss matters electronically without meeting in
person, affords clients the opportunity to review their client file online, and reduces or
eliminates the overhead typically associated with traditional offices. A VLO is uniquely
situated to provide limited scope representation or “unbundled legal services” through
electronic means, including “document drafting assistance, document review,
representation in dispute resolution, legal advice, case evaluation, negotiation
counseling, and litigation coaching.” N.C. Ethics Op. 2005-10. See also Prof.Cond.R.
1.2(c).

      The Rules of Professional Conduct apply equally to lawyers who operate in a

traditional office setting or a VLO. However, a lawyer’s establishment of a VLO requires
close scrutiny of the rules regarding competence, communication with clients,
confidentiality, and the supervision of nonlawyers vendors, Prof.Cond.R. 1.1, 1.4, 1.6, and
5.3. This opinion is limited to addressing the obligations of an Ohio lawyer who
establishes and operates a VLO.

Question One

      Because of the nature of a VLO, a lawyer who chooses to maintain a virtual office

must competently manage and maintain the technology used to run the practice and
”keep abreast of . . . the benefits and risks associated with relevant technology.”
Prof.Cond.R. 1.1, cmt. [8]. Consequently, a VLO lawyer should possess a general
knowledge of the security safeguards for the technology used in the lawyer's practice, or
in the alternate hire or associate with persons who properly can advise and inform the
lawyer. Fl. Bar Op. 10-2 (2010). At the outset of representation, a lawyer should discuss
the office technology he or she employs with the client and determine if the client requires
the implementation of additional technological safeguards. ABA Formal Op. 477 (2017);
Prof.Cond.R. 1.4(a)(2). The use of technology and any additional client-specific
safeguards can be addressed in the client fee agreement.

1
Kimbro, Practicing Law Without an Office Address: How the Bona Fide Office Requirement Affects Virtual Law
Practice. 36 Dayton Law Rev 1. (2010).
Op. 2017-5 3

Client communication

   A VLO lawyer’s professional obligation to maintain adequate communication

with the client is not diminished because of the use of technology. Reliance on electronic
communication by a VLO lawyer can have obvious limitations when compared to
traditional voice or face-to-face communication with a client. For example, a lawyer
relying exclusively on technology to meet and communicate with a client must take extra
precautions to verify the identity of a client, especially at the outset of the representation.
Pa. Ethics. Op. 2010-200. Consequently, a VLO lawyer must take steps to ensure that all
electronic communications are adequately understood by the client to a degree that the
client is able to make informed decisions regarding the representation. Prof.Cond.R.
1.4(a)(1). Additional steps that should be taken by a VLO lawyer may include a standing
offer to meet in person at the client’s reasonable request or to communicate by telephone.
If the lawyer is unsure whether the client comprehends a particular communication, the
lawyer is obligated to change the mode of communication to ensure the client is
adequately informed under the rules. Prof.Cond.R. 1.4.

   A lawyer operating a VLO must ensure the client is kept reasonably informed

about the status of a matter. Prof.Cond.R. 1.4(a)(3). Given the nature of a VLO, the
available means of technology to keep the client informed are nearly endless, but a lawyer
should carefully consider the best mode of communication, e.g, texting, emailing, online
chat, or voice that will work best for each individual client. Based on the individual
client's access to or familiarity with technology, some clients may require more traditional
modes of communication. VLO lawyers are advised to consult with the client about the
preferred method of communication at the beginning of the representation and address
the issue in the fee agreement.

“Reasonable efforts”

   When a lawyer utilizes cloud computing, email, or other technology that relies on

a third-party for the storage or transmission of data, the lawyer must take “reasonable
efforts” to prevent the inadvertent or unauthorized disclosure of or unauthorized access
to information related to the representation of the client. Prof.Cond.R. 1.6(c).
“Reasonable efforts” can be determined through the analysis of several nonexclusive
Op. 2017-5 4

factors including 1) the sensitivity of the information, 2) the likelihood of disclosure if
additional safeguards are not employed, 3) the cost of employing additional safeguards,
4) the difficulty of implementing the safeguards, and 5) the extent to which the safeguards
adversely affect the lawyer’s ability to represent clients. Prof.Cond.R. 1.6(c), cmt. [18].

Third-party technology vendors

   In addition, when purchasing internet, email communication and cloud-based

services, a lawyer must undertake reasonable efforts to ensure that the services are
provided “in a manner compatible with the lawyer’s professional obligations.”
Prof.Cond.R. 5.3(a). This requires the lawyer to diligently investigate the measures
undertaken by the vendor to ensure its operations are compatible with the lawyer’s
professional obligations. See Prof.Cond.R. 5.3, cmt. [3]. Specifically, the lawyer should:

      Determine that the vendor understands and agrees to maintain and
       secure stored data consistent with the lawyer’s duty of confidentiality;
      Ensure that client files and data will be maintained and regularly backed
       up;
      Require that the vendor give the lawyer notice of subpoenas for client
       data, nonauthorized access to the stored data, or other breach of
       security, and a reliable means of retrieving the data if the agreement is
       terminated or the vendor goes out of business.

Wa. Adv. Op. 2215 (2012)

Question Two

   The most obvious feature of a VLO is the lack of a physical office where the lawyer

works, meets with clients, and stores client files. A VLO practice is often combined with
a shared office arrangement, where a lawyer reserves access to a shared office suite or
conference room. The space can be used to receive mail, meet clients, conduct
depositions, or provide other legal services on an infrequent basis. The space may be
staffed by an employee of the building owner who provides basic office support services
(mail handling, reception, etc.) to all users of the space. The office suite and conference
Op. 2017-5 5

rooms are available to all other “tenants.” The use of a shared office arrangement as part
of a VLO is permissible under the Rules of Professional Conduct when the following
guidelines are observed.

“Office address” requirement 2

    Prof.Cond.R. 7.2(c) requires that “[a]ny communication made pursuant to this rule

shall include the name and office address of at least one lawyer or law firm responsible
for its content.” The Board interprets the term “office address” in Prof.Cond.R. 7.2(c) to
include situations other than when a lawyer works from a physical office.3 Several
jurisdictions analyzing the permissibility of VLOs under Model Rule 7.2(c) have
concluded that the rule does not require a lawyer to provide an address that matches a
physical office location. N.C. Ethics Op. 2012-6, Wa. Adv. Op. 20161 (2016). Based on the
foregoing, the Board advises that in order for a VLO lawyer to satisfy the office address
requirement in Prof.Cond.R. 7.2(c), a VLO lawyer must provide an office address in all
communications that corresponds to the lawyer’s home or physical office, the address of
shared office space, or a registered post office box.

    A lawyer operating a VLO also must be careful to avoid making a false,

misleading, or nonverifiable communication about the lawyer's practice, including the
office address and nature of the practice. Prof.Cond.R. 7.1. In addition to providing an
office address, the lawyer should be transparent about the nature of the VLO in all
communications, including office letterhead. Conveying or implying that the lawyer
regularly works from a physical office, when it is not the case, implicates the prohibitions
contained in Prof.Cond.R. 7.1. A VLO lawyer providing an office address in compliance
with Prof.Cond.R. 7.2(c) complies with Prof.Cond.R. 7.1 by stating that the lawyer is able
to meet in person with clients "by appointment only" or that the lawyer operates a virtual
office and can arrange to meet with clients through the use of available technology, or in
person at the client's request.

2
This opinion does not interpret or address the “office address” requirement contained in Gov.Bar R. VI, Sec. 4(B).
Given the likely proliferation of virtual law offices in the future, a clarifying amendment to the Rules for the
Government of the Bar concerning the “office address” of VLO lawyers may be warranted.
3
Many jurisdictions have a “bona fide office requirement” that requires an admitted lawyer to maintain a traditional
office. The Board does not interpret Prof.Cond.R. 7.2(c) as a bona fide office requirement. See Kimbro, supra at 9.
Op. 2017-5 6

Client confidentiality in shared offices

   Lawyers entering into a shared, nonexclusive office arrangement with lawyers or

nonlawyers must ensure that client confidentiality is maintained at all times and that all
information related to the representation is protected from inadvertent disclosure to third
parties. Prof.Cond.R. 1.6(c). This may require consultation with the leasing agent or
owner to take the steps necessary to inform other tenants and staff of the facility of the
nature of your business and the lawyer's professional responsibilities. See Adv. Op. 1990-
9 (office sharing with non-lawyer business). The use of a shared office environment
inevitably will require the VLO lawyer to consider the use of a private Wi-Fi network,
virtual private networks, firewalls, and other technology to protect client information and
communications.

CONCLUSION: The Rules of Professional Conduct permit a lawyer to operate a VLO.
Given the inherent nature of a VLO, a lawyer must ensure that he or she understands the
technology being employed and stays abreast of developments concerning the
underlying security of the technology. The use of technology raises unique issues about
client confidentiality and requires a lawyer to undertake reasonable efforts to avoid the
inadvertent disclosure of client information. The hiring of vendors to assist in the
provision of technology requires the lawyer to ensure that the vendor’s services are
provided in a manner consistent with the lawyer's professional obligations.

   Although a physical office is not required for a lawyer to comply with the “office

address” mandate in Prof.Cond.R. 7.2(c), an office address provided in a lawyer
communication can reflect a lawyer’s home or physical office, the address of shared office
space, or a registered post office box. A VLO lawyer must avoid the implication or
misrepresentation that the lawyer works from a physical office when it is not the case.
Additionally, the use of a shared office arrangement with lawyers or nonlawyers is
permissible so long as the lawyer ensures that client confidentiality and communications
are adequately safeguarded.