Sunday, April 4, 2010
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.
"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.