Sunday, April 4, 2010

The Slackoisie New Demand: "Starbuckslex"


Recently, New Jersey dropped a bomb on lawyers who chronically whine "why can't we do what we want," better known the Slackoisie.

Apparently in New Jersey, the Bar thinks lawyers should have offices. This comes as quite a disappointment to the Slackoisie, the new kids that want to practice law how they want, when they want, and absent any regulation that may hinder their cries to re-define the practice as needing nothing more than a pair of shorts, Ed Hardy shirt, Frappuchino and a laptop.

In Florida, we also like lawyers to have offices. Our Rule ruins the Starbucks dwelling lawyers day by stating that the a lawyer must have a "bona fide office," "a physical location maintained by the law firm or lawyer where the firm or lawyer furnishes or reasonably expects to furnish legal services in a substantial way on a regular and continuing basis." In Florida, a non-Starbucks office is determined by the following criteria:

Does the office have the firm's name on an outside office sign or on the building's directory?

Is the advertised location staffed by law firm employees who answer phone calls at that location from prospective clients?

Is the advertised location staffed by receptionists, secretaries, clerks, or paralegals employed by the firm on a full-time basis?

Other than client interviews and conferences, do firm attorneys furnish legal services from the advertised location?

Is the advertised location staffed by at least one firm lawyer on a regular and continuing basis?


But we provide for a little "Starbuckslex" existence:

Even though an attorney may not advertise an office location that is not a bona fide office, the attorney may nevertheless advertise that he or she is "available for consultation" at a specified location or may identify other locations as "limited service" or "satellite" offices.

My friend Carolyn Elefant, herself a lawyer (far from Slackoisie) with a former full-time office, is not happy with New Jersey's new rule, and feels that it will send the profession into a cost-prohibitive stratosphere that will only hurt clients.

AVVO's General Counsel (non-Slackoisie as well) Josh King is also not happy.

Josh wanted the New Jersey Bar to change the rule regarding bona fide offices. Why? because lawyers want to work in the "cloud?" Because lawyers don't want to pay for an office? What else don't lawyers like about the rules? Let's make a list why don't we?

Josh says New Jersey "could have easily found a more expansive definition of what constitutes a “bona fide office;” one that takes into account our present world of ubiquitous broadband connections, voicemail and mobile phones."

Josh says this is "not good for solos, and not good for consumers who will bear these increased costs."

Carolyn, and Josh, my good friends, you're wrong about the effect of this opinion, and if you were right, I disagree this is a bad thing.

Carolyn believes that the New Jersey opinion by two New Jersey judicial advisory committees finds that "virtual office arrangements, outsourced or shared receptionist services and even working outside of the office for more than a few hours violate New Jersey's bonafide office requirement." She calls the opinion "simply so moronic that it could readily be mistaken for a joke."

By way of New Jersey's bonafide office rule, Rule 1:21:

New Jersey defines a bona fide office as:

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.

The opinion holds that virtual offices, Google "Regus," where as Carolyn says "lawyers can rent space part time to meet clients or use as a mail drop - are not a bona-fide office within the meaning of Rule 1:21 because lawyers use the space part time -- they do not keep files on site or employ staff who can assist walk-in client."

Carolyn disagrees with the rule because in sum:

Email, texting or voice mail "afford a far quicker, not to mention, less expensive way to contact a lawyer to obtain a response or advice within a reasonable amount of time than a receptionist and physical office space, and;"

"Many lawyers don't keep physical files in their office, but instead house them in the cloud while storing paper files off site."

Then Carolyn goes a little "the sky is falling:"

"Many lawyers, even those with full time space, like to spend time outside of the office. Back in the day when I had full time space, I often worked at the library, on site at one of my client's offices and occasionally from home. This too, would have violated the bonafide office rule unless I had someone babysitting the office, since the opinion states that: "If the attorney is regularly out of the office during normal business hours, then a responsible person must be present at the office."

No, not even close. And I will offer to pay for the Bar defense of any New Jersey lawyer with office space who spends 3-4 hours a day at the library or working somewhere else, while having daily office hours. "Regularly out of the office" would only come to light if clients started complaining to the Bar that they can never reach the lawyer, and the Bar went to the office for a few days in a row and found no one there. Trust me.

Carolyn continues:

"Essentially, the New Jersey ruling requires full time office space and a full time receptionist. Assuming $500 a month for space, and $20,000 for staff, that's $26,000 per year compared to the $3000-$5000 cost of a virtual office. It's clients who will absorb that cost."

Again, no. Wrong. The opinion wants the lawyer to have a "bona fide" office. I know plenty of lawyers who rent space from "Regus" type offices. They are there every day or at least most days, keep their files there, and have someone answer the phone. No other staff is involved. But let's say that wasn't the case, so what? State Bars don't exist to assist lawyers that want to re-invent the practice in order to avoid paying about $2,000 a month in rent and staff. If a lawyer is charging $100 an hour, working 40 hours a week, (Slackosie ignore this part), that's $16,000 a month. Let's cut that to $10,000 a month. We should be concerned about a lawyer spending 25% on rent and staff? Most real lawyers spend 50% on overhead.

Carolyn also claims this is bad for women lawyers:

"Moreover, the added cost of complying with the bonafide office rule is even higher if a lawyer has children. There, the lawyer will have to pay for child care so she can spend time at her physical location. And while the New Jersey ruling does allow a home office to meet the "bonafide office" requirement, most lawyers (particularly women) who work from home are loathe to use that address for security reasons, a point I made in this article.

So let me get this straight. You can work from home, but because women may not want to give out their address, it's a bad opinion? This is what I call "you can't make everyone happy all the time." What's left out, is that plenty of law firms have P.O. Box addresses for mail. If the female lawyer is concerned beyond that about having clients in the home, then yes, an office is required.

Carolyn believes this opinion is nothing more than "throwing up barriers to the burgeoning number of unemployed lawyers who may want to rent a virtual office to test the waters of starting a law firm. No offense Carolyn (I know, none taken), but state Bars are not in the business of making it easy for lawyers to define law practice just because a bunch of unemployed whiners want to practice while sipping mocha lattes at Starbucks.

What about the clients? Don't they have the right to have their files kept in a safe place? I feel much better having my file, my real file, with real documents, kept in a real office with insurance and security, than in the trunk of a car, or a den in a home with 4 kids, 2 dogs, and people visiting that I don't know.

Carolyn asks that the lawyers banking (no pun intended) on the virtual practice of law contact the New Jersey Bar and help "bring the New Jersey bar into the 21st century."

I say call all you want, my clients will always have the benefit of a meeting in a real office, where their files physically sit, in file folders, where a receptionist asks them if they want a cup of coffee, just not a Vente Mocha Latte with a shot of caramel, with room for cream.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.

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48 comments:

Gideon said...

I enjoyed this post very much. I shall bookmark it for later use.

Jewish Marksman said...

You got in 15 years ago when the wheel was spinning and there were 2 fewer Florida law schools spewing out thousands of JDs.

Dave! said...

I'm not sure about this type of rule. I do think any lawyer seeing clients in a coffee shop is bonkers. Hello, confidentiality?!

However, I have a "VLO". My client files are kept in a very safe place: with my clients. On intake, I scan everything into searchable (OCR) PDFs. Which are encrypted and stored on my computer--and backed up (also encrypted) to a physically off-site secure location. I think that's actually safer than paper files; if someone breaks into an office, they can easily take and read paper files. They break into my office and steal my computer, they still have to break the encryption. And I have my off site backups. Do most lawyers who keep paper files also keep "backups"? How do they protect against fire or water damage?

Additionally, as far as "meeting with clients" I do use Regus for conference rooms when necessary. But more often I *go* to my client's place of business. I hope (and so far this has been true) that my clients see this as a convenience for them, not as cheapness on my part. Granted, this might not work for all practice areas, but for business and IP law, my clients seem to appreciate not having to take time out of their also busy schedules to huff it to my office. And I get the added bonus of learning more about my client's businesses in the process.

I think (for certain practice areas) it's actually possible to have a better level of client service without having the overhead of an office, and I'm not sure why the Bar should force someone to have an office as defined in the days of yore...

venkat said...

Totally unpersuaded by your reasoning.

Brian Tannebaum said...

Venkat,

I don't expect any lawyer that doesn't have a full time office to be persuaded by my reasoning. Lawyers today expect the Bar to be in lock step with every desire of every lawyer that wants the profession to operate to their convenience. I'm a traditionalist. I still see this as a profession, as I know you do. I appreciate that rental car agencies and fedex and UPS have wireless hand held devices so customers don't have to stand in line, but I think lawyers should offer their clients a confidential place to meet, like doctors.

Jewish Marksman said...

Brian-
Don't you think the client should be the one to decide? I understand your perspective as a criminal lawyer. But for many civil matters, confidentiality is not such an important issue, and clients could care less who overhears them in a starbucks.

I grew up in the days when doctors made house calls. Not sure why its a problem for lawyers to do the same.

Brian Tannebaum said...

Mr. Marksman, do I think the practice off law should be regulated by clients? No. House calls are great, I've made them. I trust when doctors make and made house calls, they were followed up by an office visit.

Jewish Marksman said...

"... the practice off law should be regulated by clients?"

1. That's not what I said. Don't be a smart-ass.
2. Yes, in part. As you know, non-lawyers serve on many Bar committees, including ethics-related ones.

Plenty of people hire lawyers over the phone, meet them in them in their own home or office, and never set foot in the lawyer's office. I once hired a lawyer to do collection work for me and it was the best work and result I ever had--the guy worked out of a home office where he could puff his pipe and play with his dogs.

Brian Tannebaum said...

Mr. Marksman,

The luxury of having your own blog is that you can be a smart ass without having to bow to the demands of your readers. That being said, I invite you to become one-starting with the post to which you are responding, where I made it clear a home office is A-ok with me.

Jewish Marksman said...

"I made it clear a home office is A-ok with me."

Really?

"I feel much better having my file, my real file, with real documents, kept in a real office with insurance and security, than in the trunk of a car, or a den in a home with 4 kids, 2 dogs, and people visiting that I don't know."

Oh, a home office is OK, but as a client, you'd "feel better" with a traditional lawyer's office (and presumably a traditionally higher fee to pay for that overhead).

Seems to me you're saying exactly what I said, that clients should decide for themselves what is appropriate.

P.S. Your silence on the role of non-lawyers in ethical regulation did not go unnoticed.

Brian Tannebaum said...

Mr. Marksman,

Let me begin with the PS on your comment. I am well aware non-lawyers serve on Bar committees. I serve on them. Non-lawyers are the minority, so they can't make policy. I understand your only role here is to tell me I'm wrong, that I didn't say what I said, and that your view is oh so much more professional. You're welcome to continue to come here and anonymously think your opinion matters, but unless you put your name, your type of practice, and your office location, your opinion is about as relevant as a 12 year old.

Let's try again-I have no problem with a home office as being within the rules and I would defend a lawyer who was speciously accused of having no office because its a home office.

Its just not my preference. Is that something you can live with?

Jennifer A. Stiller said...

I've been a solo practitioner, working out of my home, for close to 9 years. I have a B2B practice; my only individual clients are healthcare practitioners with regulatory issues. I do most of my work by phone and internet and maintain virtually all my files electronically, in an environment designed to meet strict HIPAA patient-privacy standards (which are at least as stringent as Bar confidentiality requirements). When I need to meet a client in person, I have the use of a conference room at a friendly law firm. My home office is a dedicated room, and although I do not see clients there, it is locked with a deadbolt when there is any possibility that anyone else might be in the house.

My state (Pennsylvania) does not have a "bona fide office" ethics rule. I tend to view New Jersey's from the jaundiced perspective of one who was once a partner in a large Philadelphia firm that had to jump through all kinds of silly hoops because we maintained an office (a real one, in an office building, with staff and everything)in a New Jersey suburb.

I am hardly a member of the "Slackosie" (heck, I'm at least two generations too old for that), but I do think the New Jersey rule, at least as applied in the recent opinion, is painfully out of step with 21st century technology. (I have no opinion on the Florida rule, having just learned from your post that there is one.)

Solo practices of my kind - experienced lawyers well supported by a good computer couldn't even have existed before the 1990s, because this kind of practice relies heavily on technology for legal research, communications, production of documents and (for those involved in litigation) on-line court filings.

Rules that do not recognize the significance of the enormous changes computer technology and the internet have brought to the practice of law are practically as outdated as one would be that required me to have a hitching post outside my office where a client could tie up his horse.

FYI, you may find my address and other particulars at http://www.healthregs.com.

Brian Tannebaum said...

Jennifer, thanks for your perspective. I'm at a loss to understand how people think my take on this means a home office is not appropriate. I know a couple outstanding lawyers whom I immensely respect that work out of their home. Nothing wrong with that. It's just not my preference.

I also believe a home office is a bona fide office under any Bar regulation.

I disagree that the New Jersey rule is "painfully out of step with 21st century technology." There's nothing wrong with requiring that the legal profession maintain some semblance of tradition.

What seems to be missing from the debate though is that I would never advocate for this rule. I think if clients want to hire a lawyer that works out of the trunk of their car, they should be able to do that.

My position is clear - I don't have a problem if a state Bar wants to have a rule requiring an office.

While I appear to be a traditionalist in some areas, I have some wild ideas about the practice of law and Bar regulation that would surprise many.

Jamison said...

I have to agree with Caroiyn Elefant on this one. It seems to me that New Jersey and any other state considering such a requirement should focus on the objective (e.g., preserving client confidentiality, keeping costs low), not on the means for achieving that objective (e.g, requiring the lawyer to maintain a full-time office). A lawyer with a full time office and assistant can commit all sorts of ethical violations. A lawyer working out of his/her home can be the paragon of professional and ethical behavior.

Jamison said...

And frankly (and respectfully), I don't know what the "slackoisie" has to do with any of this other than to confuse the issue.

Brian Tannebaum said...

Jamison, maybe I need to say this 20 times for someone to verify that I said it l a home office is not a violation. Period. A bona fide office can be a permanent tent in the backyard or a shed somewhere, it doesn't matter, and it doesn't matter to me. As far as the Slackoisie, they have everything to do with this. They are the ones who want Bar regulation to comply with their vision of the practice of law.

Perhaps we should allow lawyers to wear shorts and t-shirts to court because they're more comfortable for the Slackoisie?

shg said...

Maybe part of the problem is the conflation of a virtual office with a home office. Some see the two as the same thing, whereas you don't.

If I understand correctly, you see a home office as every bit as much an office as any other. A virtual office, on the other hand, isn't necessarily an office at all, but rather the digital appearance of existence without any brick and mortar existence.

For many who function out of a home office (meaning that their primary physical office location happens to be in their residence), they also create the appearance of a more substantive existence by employing a virtual existence (a website, a blog, a good URL for their email, etc.) to create the impression (and I do not use this word in the sense of suggesting falsity, but rather like a nicely crafted business card) that will better appeal to clients. This type of virtual office complements a home office rather than substitutes for one. So it's not really the virtual office that bothers you, but the lack of any office other than a virtual one.

As for the Slackoisie, its inclusion may have been confusing since so many people with virtual offices don't do so merely because they want the profession to turn on its axis to accomodate their every desire, but because it's the most functional way to accomodate all their needs while still allowing them to practice law. There may well be a Slackoisie component in the attitude of many who want virtual reality simply because they see it as an entitlement, but that is only a portion of those involved.

Have I understood you correctly?

Brian Tannebaum said...

SHG,

Yes.

One of my favorite TV shows was "Ed," the story of a lawyer with an office in a bowling alley. I personally don't care if a lawyer has an office in a 100 story building, their home, or a tent in someone's backyard. My concern, as is the NJ Bar, is that lawyers have a place where they practice law. I understand we live in a world where the "office" is a laptop, or iPad (not to offend the Mac Fan Boys), but I have no issue with the Bar regulating some semblence of an "office" where clients can meet their lawyer and have their file kept.

I am disturbed by the "sky is falling on stay at home moms," argument. It's just plain wrong. The Bar will not be buying a van to drive around and examine offices. Everything will be fine.

My inclusion of the Slackoisie is based on their entitlement beliefs. I sense a great deal of the argument comes from those that believe the practice of law should be what they want it to be, in order for them to do what they want, when they want.

Jamison said...

One of my favorite TV shows was "Mr. Ed." But then I am dating myself.

I did in fact misunderstand part of your argument. You mentioned a den with four children and visitors. From that, I assumed you were referring to every office arrangement other than a formal office setup with leather chairs, fancy legal books, and an assistant or two.

As for the "slackoisie," Scott is familiar with my views on that. I think that, at the very least, use of the label here distracts from what is otherwise a very interesting discussion. More generally, and I am trying my best not to sound too sanctimonious here, I don't think labeling and name-calling have ever advanced any discussion.

I know, I know. I just failed with the sanctimony thing.

David Fuller said...

I'm - demographically speaking - a member of the slackoise. I graduated in '07, couldn't get a "Big Law" job but didn't really try either, and run my own law practice. In fact, it's sort of virtual in the sense that I use cloud computing and Microsoft Exchange Server to work from where ever I want.

Personally, a virtual office is not for me. Neither is a home office. In both cases, I'd just be playing with my German Shepherd. My bricks and mortar office focuses me and allows me to concentrate all of my reams of paper in one place. Unless Mt. Rainier erupts, my files are safe.

The Florida Rule does not require that you have to have your office in a downtown sky scraper. I looked at offices in Seattle and I'd never want that kind of overhead, also clients don't like to pay for parking. So I went to Kent, less fancy, but much cheaper and ultimately a better location.

If you can't afford $500 - $700 per month for rent during your start-up phase, you really need to examine your start-up capital, your business plan, and your budget. An under capitalized start-up is bad business and its ethically risky. If you can't afford to keep your doors open, what happens when you can no longer service your clients? Perhaps that is part of the consideration behind the rule.

Even though I advertise exclusively on the web, practically sleep with my iPhone, and like to talk about cloud computing, I'm still a legal traditionalist. We're here to serve clients, not start business "revolutions." If you want a business revolution, become a consultant. The law is not the place to experiment with whatever business fad comes along, i.e. social networking, meeting clients in Starbucks, etc.

Why? Clients put everything in our hands and trust us to get it right. Incremental change protects those clients. Sticking with the tried and true, even in the face of the shiny and new, may not be what we want. Then again what we want does not outweigh what our clients expect and deserve.

Brian Tannebaum said...

David,

One point on which you are wholly incorrect - you are not Slackoisie. If you were, you'd be at your parents house or living in the apartment they pay for and complaining that no one would give you a job.

JR said...

This is an interesting article, however, like this and some of what Scott Greenfield writes, the interesting arguments found herein are overshadowed by the inane bashing of a younger generation.

Most of the so-called Slackoisie are much too young to contemplate their own home office, so including them in this post is a lame potshot.

People have been criticizing the generation which follows them forever; you would think in a profession as sophisticated as law, it would have manifested itself beyond pointless name-calling.

Brian Tannebaum said...

JR,

Most of the Slackoisie are waiting for the job they will never get. This is not about bashing a younger generation. I meet with great young energetic lawyers all the time that are doing their best in this economy to make a go of it after their BigLaw dream collapsed. Slakoisie is a portion of this generation, not all young lawyers are members.

David Nieporent said...

What seems to be missing from the debate though is that I would never advocate for this rule. I think if clients want to hire a lawyer that works out of the trunk of their car, they should be able to do that.

My position is clear - I don't have a problem if a state Bar wants to have a rule requiring an office.

The second paragraph appears to contradict the first. If Bars have a rule requiring an office -- which you "don't have a problem with" -- then clients cannot do what you think they "should be able to do."


In any case, what your comments ignore about the rule is that it doesn't merely require that one have a place to securely keep one's files and meet clients when necessary, but that this office be staffed if one is "regularly out of the office." You hand-wavingly dismiss this, but the actual ruling does not support your notion that this is a trivial requirement that only applies if the clients can "never reach the lawyer." (The ruling explicitly says, after all, that even a full-time receptionist at a virtual office is insufficient because the lawyer isn't there.)

David Nieporent said...

I should add as a disclaimer that this rule does not personally impact me, as my firm has a real office with multiple lawyers and a full-time receptionist. So I am not complaining out of self-interest, but rather out of annoyance with bar rules which are designed not to protect clients, but to protect lawyers from competition.

Brian Tannebaum said...

David, my comments are consistent with my opinion. I would never advocate for this rule. I think if clients want to hire a lawyer that works out of the trunk of their car, they should be able to do that, but I don't have a problem if a state Bar wants to have a rule requiring an office. I just wouldn't advocate for it. It's like a dress code in certain circumstances. I may not have a problem with it, but I may not necessarily advocate for it.

I commented clearly on the "regularly out of the office" clause. I can't see the Bar driving around in a van looking to see if the attorney is present. This is a rule meant to be enforced upon those lawyers who truly have no office, at all. A full-time receptionist at a virtual office is insufficient not because the lawyer isn't there, but because of confidentiality issues. When the lawyer is not there, transferring calls to his or her cell phone, maintains confidentiality.

Anonymous said...

"[U]nemployed whiners"? Seriously? Been awhile since you've been out of work, I take it.

Brian Tannebaum said...

Anonymous,

I have no idea what point you were trying to make with your comment, but I posted it so you could tell all your friends you got to post a comment anonymously on my blog. Be well.

Josh King said...

Goddamn it, Brian, what IS your problem with home offices??

Seriously, the problem with rules like this one (and all state bar advertising rules) is that they act as a tax on innovation in the law. Sure, the Bar isn't going to have "bona fide office police" in little white vans, but you know a fair number of attorneys will wring their hands about that prospect, and not drive efficiencies in their practices that might make them more cost-effective or better lawyers.

It's just another example of the inherent conservatism in the law. While the rule may not have a big impact, I'd much rather see the Bars actively pushing and supporting their members to innovate - and saving their punitive firepower for meaningful rule-breaking.

Anonymous said...

Florida does not have a rule requiring the use of any type of office or precluding virtual offices. Rule 4-7.1(a)(2) requires that all advertising include a bona fide office location. The rule defines such a location as follows: "For the purposes of this rule, a bona fide office is defined as a physical location maintained by the lawyer or law firm where the lawyer or law firm reasonably expects to furnish legal services in a substantial way on a regular and continuing basis."

The Standing Committe on Advertisement has stated what it believes is necessary to comply with this advertising rule. In my opinion, the SCA's interpretation greatly exceeds the requirements of the rule. For example, what part of the rule (quoted above) states or implies that merely meeting your clients at a particular location is not sufficient. What part of the rule states that a bona fide location must be "staffed by receptionists, secretaries, clerks, or paralegals employed by the firm on a full-time basis?" For that matter, how come an attorney that rents office space by the month "maintains' a bona fide location but one who rents on an as needed basis fails to comply.

The SCA has reasoned that failure to meet its requirements has the effect of misleading clients about your office. This does not strike me as believeable, and has no place in an interpretation of a rule about advertising (as opposed to a rule about being misleading). Regardless of whether or not you agree with my critism of the SCA's rule, it is clear tht the rule only precludes advertising a location as an office.

In my opinion, the SCA did not intend to prohibit those who only practice in virtual offices from advertising. (If they did, that would be constitutionally suspect.) In my opinion, the SCA only means to prohibit out of state lawyers from falsely claiming to have an office in Florida and advertising here.

Brian Tannebaum said...

I'm not sure I agree that Florida does not have a rule requiring the use of any type of office or precluding virtual offices.

Yes, Rule 4-7.1(a)(2) requires that all advertising include a bona fide office location. But when you define it as a physical location maintained by the lawyer or law firm where the lawyer or law firm reasonably expects to furnish legal services in a substantial way on a regular and continuing basis, how is that not an "office?"

The part of the rule that states or implies that merely meeting your clients at a particular location is not sufficient is the part quoted above. I understand you interpret it differently, but I interpret to mean an office - even if it's a home office or a parking space somewhere.

I don't see it as requiring staff

You ask how come an attorney that rents office space by the month "maintains' a bona fide location but one who rents on an as needed basis fails to comply? I think that is answered in the word "maintained." Personally, I have no problem with the arrangement where a lawyer works at home and has rental space available to have conferences.

You may be right that the purpose of the Rule is to prohibit out of state lawyers from falsely claiming to have an office in Florida and advertising here. I think the hysteria in NJ about working-at-home-moms is unfounded.

Eric Cooperstein said...

Brian,

One of my problems with these “bona fide office” rules, as with many Bar rules, is that they set up artificial barriers to entry into the practice of law that are not related to whether a lawyer is competent, provides good service, or is likely to act unethically. There is no evidence that I have ever seen that indicates that lawyers with “bona fide offices” never fail to return their clients' calls, neglect cases, steal money, etc. In fact, it's probably fair to say that most lawyers who are disciplined had “bona fide offices.”

So, if a physical office location is not related to client protection, what is its purpose? Well, it certainly protects the lawyers who are already established in the state, sets up a financial barrier to lawyers who would “hang out a shingle,” and helps prevent out-of-state lawyers from practicing in the state, even if they are licensed in more than one jurisdiction. Less competition, higher cost, and (as another commenter noted) less innovation. None of these things are in the public interest.

I happen to have a “bona fide office” because I believe I can get more work done that way. But I don't really have to have one to serve my clients. My clients almost never see my office, I only ever meet with them in conference rooms, I do not have “walk-in” clients, when I'm not there I forward my phone (which I answer myself) to my cell, and I have few physical files because (like you) my practice is paperless. My clients don't need a lawyer with a physical office, they need a lawyer who can get them out of trouble.

What is disturbing about the NJ opinions is that they are spending their time figuring out how to protect an anachronism, instead of figuring out what protections clients really need as we all move into new ways of delivering legal services.

ETC

EdinMiami said...

"David, my comments are consistent with my opinion. I would never advocate for this rule. I think if clients want to hire a lawyer that works out of the trunk of their car, they should be able to do that, but I don't have a problem if a state Bar wants to have a rule requiring an office. I just wouldn't advocate for it. It's like a dress code in certain circumstances. I may not have a problem with it, but I may not necessarily advocate for it."

You wouldn't advocate, but isn't your silence acquiescence and acquiescence a contradiction on your stance that clients should be able to hire attorneys where they find them? Not that I'm trying to assign a value judgment. I'm just trying to understand the distinction.

Personally, I like the pageantry that comes with the profession. Peacocks are dull in comparison. However, not having the option available seems to strike a few fundamental chords.

Jeffrey Rosenberg said...

And I will offer to pay for the Bar defense of any New Jersey lawyer with office space who spends 3-4 hours a day at the library or working somewhere else, while having daily office hours. "Regularly out of the office" would only come to light if clients started complaining to the Bar that they can never reach the lawyer, and the Bar went to the office for a few days in a row and found no one there. Trust me.

I don't disagree with your opinion of how the rule will likely be enforced in practical terms, but your opinion amounts to saying that running a red light is OK unless a police officer is at the intersection. Also, an attorney using a "Regus" set-up as you describe it (i.e., maintaining office hours there several hours each day), is not using it as a "virtual office" under the NJ opinion. The opinion comes out against those who merely use a "Regus"-type space for renting a conference room on an ad-hoc basis.

I am admitted in both NJ and NY, and I work in a "bona-fide" office in Manhattan. My firm has full-time and part-time attorneys and support staff. However, office policy prevents the support staff from assisting clients or interacting with court personnel without first consulting with the attorneys. We also have a "by appointment only" policy for seeing clients. There are weeks when the attorneys are not in the office for days at a time during business hours (trials, closings etc.). Our office clearly satisfies the letter of the NJ rule, but the points fleshed out in the opinion are not necessarily met. Ironically, the spirit of the rule, as revealed by the opinion, may be better satisfied by an attorney who has a home office where files and work space are segregated from the living areas, is accessible by mobile phone between 9 and 5 wherever he/she may be, and sees clients in a "Regus" conference room. However, this arrangement is simply not allowed by the opinion.

I share Mr. Cooperstein’s disturbance about the approach taken by the authors of the NJ opinion.

Anonymous said...

With NJ, it seems like the rule there as quoted actually would rule out most home offices unless one had employees there to answer the phone etc. I totally understand that Mr. Tannebaum, the author of this blog, is not against home offices; but from reading the rule, it seems NJ is.

The Florida rule linked to, however, seems reasonable to me. There is NO prohibition in FLA from being or practicing as a lawyer without a "real office" (Not a legal opinion! I am not a FLA nor NJ lawyer nor did I read anything beyond the link! Don't rely on this!). The prohibition in FLA is on ADVERTISING TO THE PUBLIC that you have an office when you don't, in fact, have one. Seems fine to me as at least some measure of protection for the public.

Note that I don't have a "real" office either, I only practice law part-time and with clients who want my specialized skill-set and are okay with my not having a "real" office - I don't mislead them into thinking I have a "real" office.

Brian Tannebaum said...

Ed,

No, I haven't been silent. I guess the best way to clarify is that I wouldn't propose a rule like this, and I'd probably vote "no," but I'm not jumping up and down and screaming and yelling about it either.

Brian Tannebaum said...

Jeffrey,

You're right, it does sound like my opinion amounts to saying that running a red light is OK unless a police officer is at the intersection. Funny thing is, at least in Florida, it is legal to not use a turn signal if there is no other traffic. I am saying that all the rules have an intent. I don't think it's ok to violate the rules, but I also think the Bar would say this is not a rule intended to bust stay at home working mom lawyers.

You are right, an attorney using a "Regus" set-up is not using it as a "virtual office" under the NJ opinion. I thought I had made the distinction between "maintaining "Regus" space and using it ad-hoc.

Timo said...

Mr. Tannebaum,
Stumbled onto your blog for the first time. Very nice. I would point out that according to the Florida rules you support, your friends who rent a "Regus" style office are in violation. You conveniently leave out the fact that the "someone" they have to answer the phone is not employed by the firm, as explicitly required by the rules. The person answering the phone is employed by Regus, and has no duty (of confidentiality or anything else) to the client. Why are you not a traditionalist when it comes to that rule? Aren't your friends just ignoring the rules they don't like? It seems that the position you've taken would require you to disapprove of the permanent Regus office as well, as it doesn't conform to the bona fide office rules, no?
Best,
Tim
Chicago

"Is the advertised location staffed by law firm employees who answer phone calls at that location from prospective clients?

Is the advertised location staffed by receptionists, secretaries, clerks, or paralegals employed by the firm on a full-time basis?"

UmDecided said...

Brian, you overlook the fact that being a criminal lawyer is a completely different career from, say, being a business lawyer or being an estate planning lawyer. Declare all you want that all three are part of the same profession -- and perhaps, technically, that's true -- but, as a practical matter, that absolutely is not the case. And their clients, and the expectations and needs of their clients, are completely different.

I'm a business lawyer in my mid-50's. I spent most of my career in a large law firm in Tampa. But for a while I worked from a legitimate home office, later through a virtual office, and now in my own small firm with partners, a physical office and staff. Through it all, my clients have been well served, their information safe, their expectations and needs met. But that's because of the nature of the work that I do, and it would not be true were I a criminal lawyer.

I have absolutely no paper files. All my information is stored electronically, in multiple locations, accessible wherever I am. My phone number rings multiple locations, including wherever I am. My e-mail is accessible wherever I am. I have conference call ability wherever I am. 99% of my work is either phone, or reviewing/drafting documents, which I do wherever I am. The other 1% is meeting, which usually is at the client's location.

We have staff at my office, but I don’t use them. They are not permitted to answer my line, nor do they handle my e-mail or calendar. I do that myself. All my clients know that, and in fact prefer it that way, because they would rather deal with me.

My clients preferred things when I was working from my house because, from their perspective, everything was the same except that my rates were lower. They see no difference now that I’ve linked up with partners and gotten staff and an office, except that when we meet I try to get them to drive to my nice office rather than me drive where they are – which they see as an inconvenience – and I charge more.

So tell me ... why should the rule you love apply to me? What advantage does it provide to anyone?

Jeffrey Rosenberg said...

Brian:

I agree that the rule and opinion are not discriminatory against stay at home working mom lawyers per se. My feeling is that the rule, opinion and those who created them are trying to keep practitioners mired in the 1970s, to clients' detriment. The opinion really boils down to defining a bona-fide office as one which, when the attorney is not in the office between 9 and 5, must be staffed by an employee of the attorney. Per the opinion, even if the attorney sublets an office from another firm, but has no employees, the attorney can't stay out of the office for long without keeping his/her own employee there. The fact that the "landlord" firm may have its own staff between 9 and 5 is not enough to satisfy the requirement. If the attorney makes him/herself accessible by mobile phone for the majority of business hours he/she is out of the office, why should the state force him/her to hire someone, which will only increase client costs?

There are ethics opinions about overcharging clients for such things as copies and online research. Forcing an attorney to hire someone seems to me to go against that grain.

Iain Jacobs, The Contract Centre said...

It is interesting to see that the Luddites are alive and well in New Jersey and sunning themselves in Florida too. The provision of legal services needs to be regulated for real issues of quality. However, the legal profession, particularly in the U.S. is over-regulated, and as someone recently put it, adept at finding solutions in search of a problem. Electronic storage of documents can nowadays be as secure, or more secure, than a dust-filled file storage room, which can be flooded or burnt. As a former General Counsel, I used to hate visiting lawyers' offices, usually filled with obviously expensive art of often questionable taste. Tear down those physical walls - at least we, the clients, won't have to pay for the paintings that used to be hanging from them.

Brian Tannebaum said...

Timo,

Thanks for visiting, commenting, and accusing.

My friends who rent a "Regus" style office are not in violation, unless you think every lawyer who has an answering service is in violation. Remember, this is an opinion, not a rule.

They are renting space and services. Perhaps the person answering the phone should be instructed to state upon answering the phone that they are like an answering service and do not work directly for the attorney and therefore any information given them is not confidential and therefore the caller should only give a name and phone number.

Brian Tannebaum said...

UmDecided,

I agree thatbeing a criminal lawyer is a completely different career from, a business lawyer or estate planning lawyer.

While you're clients "have been well served, their information safe, their expectations and needs met." that doesn't mean the Bar shouldn't have the right to issue opinions on practice formats, even if I disagree with them. If lawyers don't want the Bars making these rules and issuing these opinions, they need to get involved in Bar leadership instead of screaming from their couches.

You ask "why should the rule you love apply to me?" I never said I love the rule. I said, way too many times that I would not advocate for this rule, but don't have a problem with it.

What advantage does it provide to anyone? For one, it prevents lawyers from puffing their credentials online when there is no physical way of verifying the truth. You may run your practice in an ethical way, but others use the virtual office situation to create impressions of themselves that are not what they virtually appear to be. Re: "our team," and other language like that.

Brian Tannebaum said...

Jeff,

You may not be far off that the opinion and those who created them are trying to keep practitioners mired in the 1970s. This is again, why I believe the new generation of virtual practitioners need to get involved in state Bar leadership.

I'm not sure about the "hiring" issue. I again think this is an issue of the Bar wanting to regulate those that say they have an office, and really don't. I think we'll need to see how this opinion is implemented.

Brian Tannebaum said...

Iain,

I can't diagree - the legal profession, particularly in the U.S. is over-regulated. The problem is, those with your opinion, are not involved in Bar regulation. I can't count how many times during a Bar committee meeting, I've yelled out "oh who gives a crap?"

Timo said...

Mr. Tannebaum,

I did not "accuse" in my post. I posed a reasonable question, politely, regarding the office "employing" its staff. I even complimented your site. If I had known how sensitive you are, I would have couched my language on even softer pillows of agreement.

Timo
Attorney at Law
Chicago
In a "Regus-style" office

vanderlt said...

Upon further research... the bona fide office rule is NOT an issue for out-of-staters. The rule states "For the purpose of this section, 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. For the purpose of this section, a bona fide office may be located in this or any other state, territory of the United States, Puerto Rico, or the District of Columbia (hereinafter "a United States jurisdiction"). An attorney who practices law in this state and fails to maintain a bona fide office shall be deemed to be in violation of RPC 5.5(a). An attorney who is not domiciled in this State and does not have a bona fide office in this State, but who meets all the 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 all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, 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."

UmDecided said...

My practice is 100% paperless, 100%phone based. I have zero paper files, I don't meet with clients in the office (even though my firm has very nice conference rooms and I have a well appointed office). I don't even have a computer at the office any more, since my last one broke. My partners spend every day at the office, but I work from home, spending all day on e-mail and phone. I use zero staff support (that's been true for about 15 years), as I'm much faster with DragonDictate and my keyboard. However, I pay my partner's share of our firm's expenses ... rent, staff, supplies, etc. Why do I still have partners? Well, I'm just waiting two more years until our lease runs out.

In two years, I'll be asking the Florida Bar about just working from home, with no office. If the Bar says ok, then I'll save about $75,000 per year in overhead, and that entire savings will be passed through to my clients in the form of lower rates. If the says no, I've got to maintain a bona fide office, then I'll stay where I am, and my rates will stay where they are. Where I am now, somebody else manages the office and staff. I won't take on that hassle myself.

I'm not a slacker. I work hard, have a technical practice, have good relationships with my clients, tell my clients what I want to make, and set my rates accordingly. It's that simple. My clients trust me and aren't going anywhere. If I can get rid of my office, my clients will save money and I'll still make the same. If I have to keep my office, then the dollars are what they are.

Sometime in the past, business was required to be done in person, on paper. But that's simply no longer true. In many cases, working face-to-face is not required, not advantageous, and perhaps even disadvantageous. But then, for a Bar Association to be governed by outdated, confusing, ineffective, inefficient, impractical rules that somehow manage to miss both the client's best interests AND the individual lawyer's best interests AND the profession's best interests AND the consuming public's best interests ... well, that simply reflects the state of the legal "profession" today.