Former NSW Legal Services Commissioner Steve Mark once said “If the legal profession ever thought it was immune from the “avatar lawyer”, think again. The rise and popularity of virtual law practices (or ELawyering) is today becoming an increasingly acceptable method of structuring a legal practice as the benefits to both practitioners and clients become more and more apparent.”
With the advancement of technologies that allow us to work from virtually anywhere with a decent Internet connection, lawyers are finding new ways to collaborate and deliver legal services without needing to always be strapped to a desk in an office.
Law practices providing legal services online without a physical office are becoming more common and popular. Running a virtual office gives practitioners the benefit of lowering overhead costs and allowing legal practitioners to broaden their clientele without having to travel or move to another state.
Practitioners are reminded, however, that, no matter how they wish to set up their practice, if they provide legal services in NSW or employ a solicitor with a NSW practising certificate, they should consider what obligations they have under the Legal Profession Uniform Law (NSW) (LPUL) and Uniform Rules (collectively, “NSW legal profession legislation”). This is true also for legal practitioners qualified and holding a practising certificate outside of NSW.
This article discusses the requirements under NSW legal profession legislation for establishing a virtual law practice in NSW.
LPUL provisions
There is no express provision in the LPUL which prohibits setting up a virtual law practice. In fact, the definition of “office” in the Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015 (Conduct Rules) specifically contemplates the operation of a virtual law practice without physical business premises.
Having said that, all the provisions governing physical legal practice, including maintaining client confidentiality,[1] the storage and retrieval of client files,[2] properly identifying and receiving clients’ instructions[3] and supervising staff,[4] also apply to virtual legal practice.
Practitioners are reminded that the investigatory powers of the Law Society under ss 371 (requirements – complaint investigations) and 372 (inspection and copying of documents) of the LPUL apply to a virtual law practice as it would to any physical law practice. In most cases, documents can be produced to investigators in an electronic format.
It is also important to bear in mind that, to register a law practice with the Law Society of NSW (Law Society), you need to provide a physical street address for service of documents (not a PO Box).[5]
For the public register of the Law Society, the contact details of the office of the law practice would be displayed.[6] Practitioners who provide their home address as their contact details of their office can request the Law Society not make their address publicly available.[7]
Areas to pay attention to in your virtual legal practice
Information management & cybersecurity
If you want to operate a virtual law practice, it is particularly important to pay attention to how you are protecting client information, verifying the identity of your clients and their instructions, and avoiding cyber fraud.
Just as you do with the secure storage of information in a physical office, you need to think about these issues online. While online platforms, such as communication software and cloud storage, has expanded our remote working capability, you need to be vigilant and responsive to the associated risks. The prolific data breaches that have been reported on in the past year show us how real these risks are.
To help law practices be vigilant and responsive, the Law Society and Lawcover have jointly produced cyber security resources[8] to assist practitioners avoid cyber fraud and to properly conduct their legal practice in the virtual environment. Practitioners are also encouraged to make use of Lawcover’s extensive library of cyber resources, including cyber risk podcasts and videos. Also consider registering to the Law Society’s FLIP Tech Tools, a quarterly webcast series that discusses cyber security management in the legal context.
Supervision
Another area of legal practice compliance that is considered high-risk in a virtual environment is supervision. It is the responsibility of each principal of a law practice to ensure that all legal practitioner associates of the law practice comply with their obligations under NSW legal profession legislation and their other professional obligations.[9] It is recommended that before you set up a virtual law practice that you understand the risks of remote staff supervision.
If a virtual law practice employs a solicitor whose practising certificate is subject to Condition 2 (statutory condition of Supervised Legal Practice), then the law practice principal or another authorised supervisor of the law practice will need to prepare a remote supervision plan with the supervisee for consideration by the Law Society Licensing Department. The Law Society’s guidelines for remote supervision set out the different matters that should be contemplated by practitioners who wish to set up remote supervision arrangements.
[1] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 rule 9.
[2] Ibid rule 14.
[3] Ibid rule 8.
[4] Ibid rule 37.
[5] Section 442(1)(b) of the Legal Profession Uniform Law (NSW) requires the Law Society’s Register to include an address for service for each local legal practitioner. The address for service must be a physical street address.
[6] Regulation 60(4) of the Legal Profession Uniform Law Application Regulation 2015 provides the contact details of an office are its street address, postal address(if any) and DX address(if any).
[7] Section 149(8) of the Legal Profession Uniform Law Application Act 2014 (NSW) requires the Law Society Council to make the Register publicly available for inspection. The contact details of an office will appear on the public Register, unless special circumstances warrant it not being publicly available See Regulations 60(5) and (6) of the Legal Profession Uniform Law Application Regulation 2015.
[8] The Cyber Risk Management Checklist-https://www.lawsociety.com.au/sites/default/files/2020-12/LS3477_PS_ChecklistCyber.pdf ; Cyber Fraud Flyer-https://www.lawsociety.com.au/sites/default/files/2020-12/LS3477_PS_FlierCyber.pdf
[9] Legal Profession Uniform Law (NSW) section 34.
