Mission Statement of the New Jersey CourtsWe are an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State.
The crisis of legal services - the high cost of legal representation - is perhaps most widely felt in matrimonial law. With house values often underwater and the unemployment rate at 10% - and higher for males 20 -50 - more people cannot afford lawyers. One response is limited scope representation, often called "unbundling legal services". Such efforts are designed to cut costs. One way is for lawyers to cut overhead - such as via a "virtual office". There you can rent space by the hour to meet a client by appointment, perhaps receive mail and phone calls for forwarding, where a receptionist could take a message.
But in response to an inquiry the New Jersey Supreme Court's Advisory Committee on Professional Ethics and its Attorney Advertising Committee have found in Opinion 718 that a virtual office is verboten if it is the lawyer's only office. The Committee had little choice. It doesn't make the rules. The Supreme Court does. And it has spoken. The Court requires that a New Jersey attorney maintain a bona fide office for the practice of law:
a bona fide office is 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. [R. 1:21-1(a).]
The Committees sought to ease the way for the traditional sole practitioner, saying an
"attorney who is out of the office during normal business hours does not violate the bona fide office rule provided the absence from the office is occasional and the attorney is otherwise reachable by telephone, email, or the like. If the attorney is regularly out of the office during normal business hours, then a responsible person must be present at the office."
A lawyer who practices from his or her home - even occasionally such as full-time academic or one in another line of work might do - can be found there - at least at night. But there would be no one present during normal business hours. The requirement that "responsible person must be present at the office" is a roadblock to the unbundling of legal services.
The Committees explain that the purpose of the bona fide office rule is "to ensure that attorneys are available and can be found by clients, courts, and adversaries." True. But a fuller dose of candor would acknowledge that the Rule is more fully explained by the determined effort of the organized bar in New Jersey - and a compliant Supreme Court - to retard the invasion of New Jersey practice by New York and Philadelphia-based law firms with only "virtual" presences in New Jersey.
The New Jersey Supreme Court is very protectionist. It has refused New York's standing offer to admit New Jersey attorneys in good standing without taking the bar exam - if only New Jersey will reciprocate. Until the New Jersey Supreme Court changes its tune and its rules its advisory committees will be unable to adapt the rules of practice to the emerging world of unbundled legal services, and attorneys available via iPhone 24/7.
I meet the bonafide office rule, but my files are all electronic and I'm taking my laptop and voice over IP phone to New York for a week. Nothing will remain in my current office but a few papers on my desk. Does that mean I've moved my bonafide office?
ReplyDeleteI started my own sole practice in northern NJ a few months ago using the sort of virtual office that now (as you say) appears to be verboten. I did so precisely because it is a LOT cheaper than even the cheapest office space that I could find (even in this real estate market). I even have it set up so that calls to the virtual office are piped into a dedicated line in my home and my cellphone. Alas, that by itself is not sufficient. I had every intention of obtaining a "real" office as soon as I had the cash flow to pay for it, but this is a real kick in the teeth for everyone (not just attorneys who only have virtual offices but also customers w/ limited means who may not be able to pay for the lawyer's overhead in a "real" office).
ReplyDeleteAs for stemming an invasion of NYC and Philly attorneys (which I agree is the root cause for the NJ Bar taking its hardline protectionist stance): this opinion really won't do that as far as I can tell since under this opinion as long as you have a real office ANYWHERE (in or out of NJ) then it's OK to also have an NJ virtual office. And I know quite a few large NY firms that have a virtual office presence in my virtual office suite.
This opinion seems to be driven by two factors -- a desire to restrict the growing number of solo practitioners and out-of-state attorneys opening offices in New Jersey and a desire to boost the floundering real estate market.
ReplyDeleteThe idea that an individual, even a client, can walk into a law firm without an appointment and immediately speak to their attorney is a quaint fiction. Virtually all meetings with an attorney are by appointment only these days.
Moreover, the concern that a client might disclose privileged information to a receptionist or require information about their representation that the receptionist at a virtual office is not equiped to provide is ill-founded. The receptionists at major law firms are no more acquainted with an individual client's case than a receptionist at a virtual office. Further, if the arrangement includes email and phone call forwarding, then the receptionist will not be speaking with the client in the first place.
Given the frequency of court appearances, client meetings, and client development activities, many attorneys are not available at their office during most of the day. The idea that an attorney with a physical space is somehow more available than an attorney with a virtual office sounds more like an opinion in search of a reason rather than a reason in support of an opinion.
Finally, what about the "campus" office or "cubby" office? If this opinion is meant to ensure attorney availability, then it doesn't go far enough. Suppose an attorney rents a kiosk and locker at an office, stops in there when he or she is not in court or with clients, and has mail and phone calls forwarded to a home address. Is this also forbidden by the bona fide office requirement, or does the locked locker make this a bona fide office?
At the end of the day, this opinion helps big law firms that have had to compete with experienced, senior attorneys who either left or were laid off over the past few years, especially where those attorneys are able to offer clients lower priced legal services because of their reduced overhead. This opinion also helps the many New Jersey realtors desparate to fill their unleased office space. The one group this opinion doesn't seem to help are the people who actually use attorneys' services and have an interest in higher quality services at a lower price. You would think the New Jersey Ethics Committee would have been most concerned about them.
It is time that NJ Ethics practice entered the 21st Century, it seems to be hardly out of the 19th. Yes I qualify under the rule, but I think it does not take into account the realities of modern practice.
ReplyDeleteWhen I started in practice over 40 years ago, it was almost unheard of, anywhere in the world, for a patent attorney to practice out of a major city.
Today everything is electronic. Sure, there has to be a place for mail to be secured and the attorney reachable. But needing to be there is pointless. My best client, whom I have represented for over 30 years, has never been in my office. another major client came to my office just by chance after another 30 year relationship. For years I ran a flourishing foreign patent practice which constituted a major part of my income. The clients never came to my office since they were across the atlantic and the pacific.
Today, only very important documents pass through the mails, virtually all client correspondence is electronic.
All NJ attorneys file papers designating not only their offices but also their home address and phone number. No client has ever not been able to reach me. The committee has clearly done its best, perhaps a petition to the Supreme Court should be filed to modernize our practice. Anyone on for this?
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