Archive for the ‘Ethics’ Category
The New Jersey Supreme Court has edited its Bona Fide Office rule, which was seen as a barrier to virtual law practice for NJ lawyers. The new rule went into effect February 1, 2013.
The Old Rule
Previously, New Jersey lawyers were required to maintain a “bona fide office” in order to practice NJ law. Rule 1:21-1 defines a bona fide office as being a place where:
- “clients are met,
- files are kept,
- the telephone is answered,
- mail is received, and
- the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.”
- “a bona fide office may be located in this [NJ] or any other state, territory of the United States, Puerto Rico, or the District of Columbia.”
The NJ bona fide office rule previously required that every New Jersey lawyer have a place to call its “bona fide office.” This rule did not actually prevent NJ attorneys from running a virtual law office. Most attorneys practicing through a VLO maintain a home office, where clients are met (albeit via Skype and other technologies), they keep client files, the telephone is answered, mail is received and the attorney (or someone on their behalf) can be reached in person and during normal business hours. For many NJ attorneys their home office would qualify as a bona fide office, even if (like for me) it wasn’t actually located in NJ. Virtual law practice would have only been impossible for those lawyers that don’t have a home office that complies with the rule and instead work from coffee shops, co-working spaces and the like.
The NJ bona fide office rule presented another issue for virtual law offices because coupled with New Jersey’s Attorney Advertising Guideline 1 that requires use of the lawyer’s “bona fide street address” (not PO box exclusively) on all advertisement including business cards and letterhead, lawyers practicing from home were required to put their home address on their letterhead, business cards, website, etc. For some lawyers, this is not a big concern particularly if you are practicing an area of law where you are dealing with businesses rather than consumers. But in certain practice areas, such as family law, giving a client or opposing client your home address is the last thing you want do.
As Carolyn Elefant previously pointed out, this rule had a disproportionate affect on women solos; many of whom are working from home with young children. Having young children in the house is a further reason why advertising with your home address may not be an option for some solos.
Thankfully, the New Jersey Supreme Court has come to its senses about the way lawyers practice today … well, somewhat.
The new rule no longer requires attorneys to have a “bona fide” or physical office. Instead, the new rule now states that:
An attorney need not maintain a fixed physical location, but must structure his or her practice in such a manner as to assure, as set forth in RPC 1.4, prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice, provided that an attorney must designate one or more fixed physical locations where client files and the attorney’s business and financial records may be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served on the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto (emphasis mine).
So what does this mean? Well, it means that virtual law offices have finally received the NJ Supreme Court’s “blessing.” It also means that you can run your law office without a physical location provided that you meet the other requirements including:
- having a means of prompt and reliable communication
- have one or more fixed physical locations where business and financial records are kept, where mail and hand deliveries can be made and where process may be served
The rule states in Rule 1:21-1(a)(3) that phone service, voicemail service that is frequently checked and email will suffice to enable prompt, reliable communication. As well as other means which are “demonstrably likely” to meet the requirements of the rule. I imagine a client portal would comply with this rule as a secure, reliable, prompt means to communicate with clients.
Also, under this new rule, a home office would meet the “fixed physical location” requirement. However, you could maintain your records in a home office (most VLOs probably maintain records on their laptops and in “the cloud” which the rule does not address) and have a separate address for service of process, mail and other deliveries, which is something that wouldn’t have been permitted under the old rule. I think this is a realistic benefit to lawyers who use “virtual office” space for a business address and mail service but don’t maintain workspace or files there.
There are two other requirements of the rule. One is that
“an attorney shall be reasonably available for in-person consultations requested by clients at mutually convenient times and places.”
I imagine if you set the expectation with clients and potential clients at the outset that you are not available for in-person consultations (and include that point in your engagement agreement), then none will be requested and you would have complied with this portion of the rule.
Lastly, the rule states that
An attorney who does not maintain a fixed physical location for the practice of law in this State, but who meets all other qualifications for the practice of law set forth herein must designate the Clerk of the Supreme Court as agent upon whom service of process may be made for the purposes set forth in subsection (a)(1) of this rule, in the event that service cannot otherwise be effectuated pursuant to the appropriate Rules of Court. The designation of the Clerk as agent shall be made on a
form approved by the Supreme Court.
From my reading of this aspect of the new rule it seems that all NJ virtual law offices that do not maintain a “fixed physical location” will be required to designate the Clerk of the NJ Supreme Court as an agent upon whom service of process can be made in the event the attorney cannot otherwise be reached. The form to designate the Clerk of the NJ Supreme Court as agent can be found here (PDF). I imagine this form will be updated soon to reflect the new rule.
How will this affect the address NJ virtual law offices use on their websites, business cards and other marketing materials?
I spoke with the NJ Office of Attorney Ethics today and asked this very question. I was informed that this is a question that is on the agenda for the next professional responsibility committee meeting which will take place on Feb. 11. At that meeting Attorney Advertising Guideline 1 will be reviewed and hopefully some changes reflecting the way attorneys actually practice today will be proposed.
From our conversation it sounded like there are many more updates to come related to this rule and it how it will play out has not been fully clarified yet.
So for now, using your “bona fide street address” continues to be a requirement in NJ. The attorney at the NJ Office of Attorney Ethics that I spoke with, reiterated that its important that NJ attorneys not hold a mailing address or “virtual office” address out as a physical location of your firm.
If you have questions about this rule (or any other NJ professional responsibility rule) and are wondering how to apply it to your practice, contact the NJ Office of Attorney Ethics. They always seem to respond promptly and courteously.
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