What Is the Remote Practice of Law?
What is the “Remote Practice of Law?” The Remote/Virtual practice of law is the act of furnishing legal services using a telephonic, email, or visual platform. The attorney’s engagement agreement should make it clear that all services will be provided remotely, except for special circumstances the attorney may detail. Regardless of where an attorney provides legal services remotely, the attorney remains limited to providing services in jurisdictions where the attorney is licensed to practice law. It is my intention to emphasize and describe how a major event affecting all aspects of society has, based upon my observations and personal activities, changed many traditional aspects of the practice of law.
The American Bar Association in its recent Opinion #498 states, in part: that there is no requirement that an attorney is required to have a brick-and-mortar location. Therefore, the traditional assumption that an attorney must have a physical office, receptionist, and secretary with clients having physical access to the attorney is not a requirement for providing legal services.
The Covid-19 Pandemic presented numerous problems related to the delivery of legal services. Law firms were faced with determining who would be permitted to work in person in their offices. How did one avoid exposure to an unfamiliar disease that was killing people all over the world with no cure in sight? Was the remote practice of law acceptable to clients? How would the firm supervise personnel? New cyber security systems had to be installed to protect confidentiality due to firm attorneys and staff delivering legal services remotely. Does the geographic location of an attorney restrict the attorney’s ability to practice law? The answer is simple. The geographic location of the attorney provides the attorney with flexibility which is beneficial for the attorney’s family and clients. The result is a new normal where the traditional access to counsel through a physical office has been replaced by the virtual access through the availability of social media.
The remote practice of law contemplates a paperless and virtual method of communication between or among clients, businesses, courts, fellow firm members, and the public. Although the virtual lawyer doesn’t have a publicly accessible physical office, the client, potentially, has 24/7 access to the lawyer. This concept was rarely considered by attorneys, judges, or law school instructors prior to recent years. However, when the threat of the Pandemic forced social distancing and the CDC recommended businesses adopt safety procedures to avoid inadvertent physical contact, law firms were forced to adjust to the health issues confronting their continued ability to deliver legal services. With little notice of the Pandemic, law firm technical support was called upon to meet the challenge. As a result, firm members were connected to their firm mainframe and each other through technologically secured computer connections with little or no interruption in providing legal services.
Upon the perceived end of the Pandemic, many firms experienced a reluctance of their attorneys and staff to return to the office. Despite the anticipated return to “the pre-pandemic normal,” firm administrators came to the realization that a majority of their attorneys preferred to continue working remotely. The mediation practice and arbitration hearings, prior to the Pandemic, were considered in-person activities but were conducted remotely during the Pandemic. As the Pandemic waned, what was thought to be an exception to the process, Zoom mediation, and arbitration has become the preferred method of these activities. Our profession has accepted the “new normal” and firms have adapted to a limited use of their physical offices and limited the requirement of their attorneys and staff being in the office full time. The remote practice of law constitutes an acceptable method to deliver legal services.
The remote practice of law provides for an efficient use of one’s time, reduces the attorney’s exposure to Covid, gives attorneys more flexibility in their practice and lifetime activities, and attorneys’ overhead can be reduced without compromising clients’ needs and confidentiality. For many older attorneys and medically compromised individuals, the remote practice of law protects against Covid exposure, provides an environment with less stress, and is a benefit to one's mental and physical health. Particularly benefited by the “New Normal” are clients with jobs that prevent in-person communication with an attorney during regular business hours. The remote practice of law gives disabled attorneys more opportunities by working remotely and provides compliance with the Americans with Disabilities Act.
The remote practice of law makes attorneys accessible to rural areas and communities with a limited number of legal counsel available to those areas. Although some local Court rules, historically authored before the Pandemic, may still require “physical in-person” conduct, there is no practical reason for “in-person” requirements where the civil practice of law can be processed remotely/virtually without any disruption of an access to justice. Consistent with Supreme Court rules encouraging the remote practice of law, discovery, court hearings, mediation conferences, arbitration proceedings, and most transactional matters may be accomplished remotely. Real estate transactions, estate planning, and general civil practice matters may be conducted remotely at a lesser expense to clients, time saving to the attorneys, and with no client adverse consequences.
In conclusion, the Remote/Virtual practice of law provides flexibility to the attorney in allocating his or her time. Family becomes as important to the attorney as his or her professional obligations. No longer is the attorney married to his or her work. Attorneys can perform their obligations without the stress that accompanies the traditional practice of law in an office environment. The elimination of daily travel requirements adds hours to the attorney’s time to relax and enjoy other activities without any prejudice to a client’s interest. From a cost/risk analysis, the remote practice of law should provide undeniable benefits to clients and permit the effective administration of law. The remote practice of law will extend an older attorney’s ability to continue to practice law, disabled attorneys will have equal opportunities to provide legal services, and those in need of legal representation who live in rural or distant locations will have a better opportunity to access legal representation from outside the community where they live.
In my opinion, the legal profession should embrace the remote practice of law, acknowledge the proliferation of virtual attorneys, and recognize the mental health advantages of their attorneys and staff working from remote locations. These objectives may be a factor in solidifying firm loyalty and creating economic advantages without any detrimental effect on the delivery of legal services. Solo practitioners who become virtual attorneys will benefit financially due to cost savings and have more flexibility in working hours. Marketing of the remote practice of law may require educating the public and members of the legal community to the advantages of the remote practice of law. With the creation of new technology and the introduction of Generative AI, the remote practice of law may continue to be expanded with little disruption to the delivery of legal services.
Stephen B. Cohen has been involved in multi-state practice of law for almost 60 years. He is licensed to practice law in Illinois and Indiana, a certified Mediator, and has been an active Arbitrator. Mr. Cohen is a graduate of Harvard College, has his JD from Vanderbilt University School of Law, and has an LL.M. and Diploma in International Law from Cambridge University. Mr. Cohen is a past Chair and current member of the ISBA ADR Section Council. He is also a past Chair of the Indiana State Bar Association ADR Committee Section Council, Litigation Committee Section Council, and a member of the Ethics Committee of the Indiana State Bar Association. Opinions expressed in this piece are solely Mr. Cohen’s and are not intended to reflect the views of the Illinois State Bar Association or the Alternative Dispute Resolution Section Council.
This article was originally published in In the Alternative (January 2025, Vol. 31, No. 4), the newsletter of ISBA’s Section on Alternative Dispute Resolution.