Go Virtual or Go Home: Lawyers increasing productivity while decreasing costs with Virtual Law Clerk
- Tree of Knowledge Research
- Jan 18, 2017
- 6 min read
Almost every law firm -- from solo-practitioners to large national firms -- is practicing law virtually to some extent. Using snail mail and filing pleadings in person at the courthouse have given way to electronic filing and e-mail, while social networking and blogging has changed how the legal industry generates business. The extent to which law firms have moved their practice into the virtual world varies across the entire industry, spanning from completely virtual practices that have no fixed office to practices that solely use web-based tools such as email for client communications.[i] Regardless of the extent attorneys are moving their practice to the virtual world, most attorneys agree on the simple notion that if a process can be done more efficiently for less money - it’s just good business. For this reason, firms are consistently exploring new ways to increase value in the delivery of legal services to clients by increasingly implementing more virtual processes including hiring outside virtual help for task-based assignments.
Hiring virtual assistants is a practice that law firms have done for years now.[ii] Virtual assistants work out of office and online, but represent an extension of a law firm, creating work product tailored to an attorney’s practice and specifications. For attorneys wary of overhead costs, hiring a virtual assistant is an intelligent way for existing and emerging law firms to save on costs. Expenses related to employing a virtual assistants’ services are predictable and finite and many virtual assistants can be contracted with on a per-project basis to meet the demands of a fluctuating workload, making the hiring of virtual assistants extremely practical for busy attorneys. In the past, virtual assistants were limited to mailing and record services or phone receptionists; however, on the forefront of the virtual revolution are legal research providers -- i.e. virtual law clerks.
Many attorneys, including solos and those working in a small-firm setting, have capitalized on the significant benefits associated with hiring a virtual law clerk.[iii] In 2008, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 08-451, acknowledging the advantageous aspects of hiring legal service providers including virtual law clerks, by describing how virtual help reduces costs and empowers smaller law firms to provide “labor-intensive legal services” that otherwise might not be possible.[iv] Virtual law clerks allow attorneys to offload legal research projects from in-house employees, allowing them to reallocate energy toward higher profit-margin activities -- e.g. going to trial, settling cases, and generating new business. No doubt exists that every attorney has the skills necessary to complete their own legal research needs; however, offloading time-consuming legal research tasks to a virtual law clerk who specializes in legal research and writing sets the attorney’s practice up for a comparative advantage.
In addition, hiring a virtual law clerk can provide significant cost savings for a law firm as the expense for virtual assistants are fixed based on the particular project as compared to paying a full-time employee. A law firm may also save on exorbitant costs derived from using expensive legal databases. One particularly unique benefit of transferring legal research projects to a virtual law clerk is the second-set of objective eyes that helps a deeply invested attorney hone in on the crux of the issues for that particular project. More often than not, legal research assignments delegated to in-house staff tend to be open-ended, increasing expenses and cutting into billable hours. Hiring independent help for research and writing tasks promotes comprehensive results as the incentives for virtual law clerks are two-fold: producing high-quality work-product and earning the trust of their hiring attorneys for long-term business relationships.
Despite the fact that hiring virtual law clerks has enabled law firms to increase profit margins while decreasing certain costs, these gains do not come without risks. Many lawyers are reluctant to take the leap into the virtual assistant world fearing that hiring outside help will violate professional rules leading to private/public reprimand, suspension, or even disbarment. To mitigate these risks, the ABA adopted Formal Op. 08-451 to clarify how the rules of professional responsibility operate within the context of hiring a virtual lawyer or nonlawyer to provide legal support services.[v] Aside from the ABA, during the past decade at least half a dozen Bar Association Ethics Committees, the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, and the American Bar Association Standing Committee on Ethics and Professional Responsibility have released opinions endorsing the employment of outside legal support services including virtual law clerks.[vi] The advisory opinions fleshed out most of the issues associated with sending work to a legal service provider,[vii] focusing primarily on the following ethical mandates:
(1) The duty to avoid aiding in the unauthorized practice of law;
(2) The duty to supervise;
(3) The duty to obtain client consent;
(4) The duty to preserve client confidences;
(5) The duty to check conflicts; and,
(6) The duty to bill appropriately.
Essentially, these opinions have concluded that a lawyer can satisfy all of the above ethical obligations when working with virtual assistants as long as: “the lawyer remains ultimately responsible for rendering competent legal services to the client . . .”[viii] It all boils down to adequate supervision and communication between the hiring attorney and the virtual assistants.[ix] Adequate supervision over a virtual law clerk is judged on a ‘reasonableness standard’ and the extent of supervision required “depend[s] on the circumstances, including the education, experience, and reputation of the non-lawyer [and] the nature of the services involved.”[x]
None of the ethical rules should discourage lawyers from hiring a virtual law clerk. The ABA Ethics Opinion and various state bar association opinions explicitly endorse the use of virtual legal assistance as a method to extend in-house capacity and reduce law-firm costs and sets forth guidelines for how to do so while still maintaining all ethical standards. Still, to be safe, an attorney must consider the credentials of the provider, nature of the services, how client’s information will be protected, and the legal and ethical rules that apply in jurisdictions where the work is performed. Hiring a virtual law clerk for time-consuming tasks is an effective means of increasing efficiency and profitability. While caution must be exercised to protect the security of confidential client information and a variety of privileges, every attorney interested in running a successful law practice should explore virtual legal service providers as a means of improving the operations of their law practice.
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[i] G.M. Filisko, Lawyers’ definitions of virtual practice vary, but not when it comes to finding success, ABA Journal, 4/1/2014 available at http://www.abajournal.com/magazine/article/lawyers_definitions_of_virtual_practice_vary_but_not_when_it_comes/
[ii] Edward Poll, Virtual Help: An Outsourcing Relationship With a Virtual Assistant Can Complete Your Team, ABA Law Practice Today (April 2006), available at: http://apps.americanbar.org/lpm/lpt/articles/mgt04062.shtml
[iii] J. Liz Saunders-McManus and Erica L. James, The Virtual Assistant: Every Lawyer Needs One!, ABA Law Practice Management Section (July 2007), available at: http://apps.americanbar.org/lpm/lpt/articles/tch07071.shtml
[iv] ABA Comm on Ethics & Prof’l Responsibility, Formal Op. 08-451 (2008) (Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services), available at http://www.aapipara.org/File/Main%20Page/ABA%20Outsourcing%20Opinion.pdf
[v] Id.
[vi] The Association of the Bar of the City of New York Commission on Professional & Judicial Ethics, Formal Opinion 2006-3 (2006); Los Angeles County Bar Association, Opinion 518 (2006); North Carolina State Bar, Formal Ethics Opinion 12 (2007); San Diego County Bar Association Legal Ethics Opinion 2007-1 (2007); Florida Bar Opinion 07-2 (2008); ABA Committee on Ethics and Professional Responsibility Formal Opinion 08-451 (2008).
[vii] Prof’l Ethics of Fla. Bar, Formal Op. 88-6 (1988); Model Rules of Prof’l Conduct R. 5.5, Unauthorized Practice of Law (1983) (“When lawyers outsource work to lawyers and nonlawyers, it is important to ensure that those lawyers and nonlawyers are not engaging in the unauthorized practice of law.”); See also Florida Op. 07-2; Florida Op. 73041 and 68-49 (approving the employment of law school graduates who are not admitted to the Florida Bar only for work that does not constitute the practice of law.)
[viii]ABA Comm on Ethics & Prof’l Responsibility, Formal Op. 08-451 (2008) (Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services), available at http://www.aapipara.org/File/Main%20Page/ABA%20Outsourcing%20Opinion.pdf
[ix] See, e.g. Florida Op. 07-2; Florida Op. 73041 and 68-49 (The Florida Bar committee is not authorized to make the determination whether proposed activities constitute the unlicensed practice of law; however, the hiring attorney has the obligation to determine whether activities (legal work) being undertaken or assigned to others might violate any applicable rule of law.); Offshore Legal Outsourcing: the Ethical Implications. (LawScribe MCLE Course handout) Glendale, CA: LawScribe, Inc, 2007.
[x] ABA, Formal Op. 08-451.
