When Should Attorneys Be in the Office?

When and how long should an attorney be in his or her office each week? The question goes beyond personal preferences and lifestyles. The answer differs for each of us, of course, but how we respond is influenced by our law firm management and culture, client service needs, career advancement objectives, family and personal commitments and other factors. This two-part article addresses how we attorneys conduct our business “in” or “away from” the office. In Part One herein, we identify the basic concept of what exactly “an office” is, in a world of telecommuting, working at home, “virtual” law offices (VLOs), “limited service” and “satellite” law offices, and long client meetings offsite (conducted at your local Starbucks or other neutral turf).

In Part Two, to be published next month, we discuss how long, when, and why you should be in “the office” (whatever your office is).

What Is 'an Office'?

Before we can answer when a lawyer should be in his office, the question for some is, “exactly what and where is my office?” Like many questions involving the ethical and professional aspects of law practice, the answer to that question may differ in each of the jurisdictions (state, county, city and District of Columbia) that license and regulate attorneys and/or have courts or bar associations that opine on law practice. The question can have ramifications on state licensure, unauthorized practice of law and improper advertising by attorneys. The location of one's office(s) can in certain cases trigger multi-state tax reporting requirements with potential multi-state tax liability, for those who are deemed to practice law in more than one state. It also can be the grounds for sanctions under a jurisdiction's rules of conduct if an attorney misleads the public by listing on his or her letterhead, business cards or website an office or offices when he is not deemed to be so located.

This author has not undertaken an exhaustive (and exhausting!) search of all the jurisdictions' rules as to or what constitutes a law office. Most states reportedly do not require every licensed attorney to have a “bona fide office” in that jurisdiction. See Debra Cassens Weiss, “Virtual Offices May Violate Ethics Rules, New Jersey Opinion Says,” www.abajournal.com (posted April 6, 2010). However, we know of at least two states that require a “bona fide office” ' New Jersey and Florida ' where guidance has recently been issued in identifying what is or is not an attorney's office. That guidance is informative and somewhat controversial.

Most attorneys know where their firm's office(s) is(are) located in each jurisdiction (single or multi-state) where they practice law. However, the lines have become more blurry over the last five years as technology offers attorneys and clients more flexibility than the traditional law office model. The Joint Opinion of New Jersey's Advisory Committee on Professional Ethics (Opinion 718) and Committee on Attorney Advertising (Opinion 41), issued March 25, 2010, gives guidance to telecommuters, home office practitioners and others inquiring about “virtual” and satellite law offices. New Jersey Court Rule 1:21-1(a) requires a New Jersey attorney to maintain a bona fide office for the practice of law. Rule 1:21-1(a) states in relevant part that 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” (emphasis added).

The purpose of the bona fide office rule is to ensure that attorneys are available and can be found by clients, courts, and adversaries. See N.J. Committee on Attorney Advertising Opinion 19, 138 N.J.L.J. 286, 3 N.J.L. 1821 (Sept. 19, 1994). The rule is intended to ensure that lawyers have a place to keep client records secure and separate, a place where clients can meet the lawyer in privacy and a place where someone is available to take a message if the lawyer is absent. Henry Gottlieb, “N.J. State Bar Likes 'Virtual Office' Ban But Women Lawyers Raise Bias Concern,” N.J.L.J. (April 1, 2010), law.com.

'Virtual' and 'Home' Offices

The New Jersey Joint Opinion states that a so-called “virtual office” does not qualify as a bona fide office. A “virtual office” is not any place where one can plug in his or her computer, re-charge the PDA, flop onto a comfortable couch and work in the “cloud.” Instead, a “virtual office,” as described in the Joint Opinion, refers to a type of time-share arrangement whereby one leases the right to reserve space in an office building on an hourly or daily basis. Accordingly, an attorney's use of a “virtual office” is by appointment only. The office building ordinarily has a receptionist with a list of all lessees, who directs visitors to the appropriate room at the appointed time. Depending on the terms of the lease, the receptionist may also receive and forward mail addressed to lessees, or receive and forward telephone calls.

The Joint Opinion states that a “virtual office” cannot be a bona fide office since the attorney generally is not present during normal business hours but will only be present when he or she has reserved the space. Moreover, the receptionist at a “virtual office” does not qualify as a “responsible person acting on the attorney's behalf” who can “answer questions posed by the courts, clients or adversaries.” Presumably, the receptionist can redirect a telephone call to the attorney lessee of the “virtual office” much like an answering service, but would not be privy to legal matters being handled by the attorney and so would be unable to “act[] on the attorney's behalf” in any matter.

The Joint Opinion concludes there is no prohibition on use of one's home as a bona fide office for the practice of law provided that the home office meets the requirements of Rule 1.21-1(a). An attorney who practices law from a home office should take appropriate steps to preserve confidentiality of client information. Accordingly, client meetings must be in private, files should be secure, and the attorney's computer, telephone, answering machine, fax machine, and the like should not be accessible to persons not associated with the law practice so that there is no inadvertent disclosure of confidential information.

Rule 1:21-1(a) does not prohibit an attorney from meeting clients in a location other than the office. Attorneys are permitted, for example, to meet clients at the clients' homes or offices, or at another location that may be more convenient to the client. As long as the bona fide law office is in fact the place where the attorney can be found, and clients could be met there, an attorney's decision to meet clients at a location outside that office does not render the office noncompliant with Rule 1:21-1(a).

The Joint Opinion recognizes that many solo practitioners do not have support staff and so when they are in court, meeting clients, filing papers, or otherwise not in the office, no one is there during normal business hours. Attorneys who are out of their offices generally are accessible by telephone, as calls to the office can readily be routed to a cell phone or other hand-held device. But Rule 1:21-1(a) also requires regular physical presence by the attorney at the office during business hours. 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, e-mail, 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.

The Joint Opinion observes that an attorney who has a bona fide office may also have a satellite office that is a “virtual office.” The attorney may list that “virtual office” satellite location on attorney or law firm letterhead, websites, or other advertisements, but the communication must state that the “virtual office” location is “by appointment only.”

A “virtual office” location is not a place where a client can meet with the attorney unannounced. An attorney is not routinely found at a “virtual office” location and would need to make arrangements to reserve the space. Accordingly, while “virtual office” locations may be listed on attorney or law firm letterhead, websites, or other advertisements, the communication must state that the location is “by appointment only.”

Thus, the conclusion reached by the New Jersey Committees is that a home office can qualify as a bona fide office for the practice of law under Rule 1:21-1(a), but a “virtual office” does not.

'Bona Fide' Offices in Florida

Florida is another state where attorneys are required to have a “bona fide office.” Florida Rule 4-7.2(a)(2) defines “bona fide office” as “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.” The Florida Standing Committee on Advertising (SCA) has found that an advertisement is misleading if it lists law firm offices in several cities when, in fact, there are no bona fide firm offices in those cities. The SCA has developed the following criteria for determining whether an advertised location is a bona fide office:

• 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?

Even though an attorney engaged in practice in Florida may not advertise an office location that is not a bona fide office, he or she 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. See The Florida Bar, www.floridabar.org, “Bona Fide Offices [Revised: 06-06-2011]. ”

Conclusion

As one might expect, the desirability of bar association opinions and rules mandating a real (as opposed to virtual) law office is the subject of some debate. Some proponents of VLOs want virtual offices (and virtual reality) where there are no hard copy client files (everything being stored in the cloud) and with flexibility to meet clients whenever it's convenient, without full service staff and meaningful monthly rent. Others, while acknowledging that we live in a world where the “office” is a laptop or iPad, and one could advertise exclusively on the Web, have no issue with the Bar issuing rules that require an office where clients can find and meet their lawyer and have their files kept. Most “bricks and mortar” attorneys similarly did not object.

In next month's issue, we will discuss how long, when and why an attorney should be “in the office.”

Sheldon I. Banoff, a member of this newsletter's Board of Editors, is a Partner in the Chicago office of Katten Muchin Rosenman LLP. He can be reached at [email protected].

When and how long should an attorney be in his or her office each week? The question goes beyond personal preferences and lifestyles. The answer differs for each of us, of course, but how we respond is influenced by our law firm management and culture, client service needs, career advancement objectives, family and personal commitments and other factors. This two-part article addresses how we attorneys conduct our business “in” or “away from” the office. In Part One herein, we identify the basic concept of what exactly “an office” is, in a world of telecommuting, working at home, “virtual” law offices (VLOs), “limited service” and “satellite” law offices, and long client meetings offsite (conducted at your local Starbucks or other neutral turf).

In Part Two, to be published next month, we discuss how long, when, and why you should be in “the office” (whatever your office is).

What Is 'an Office'?

Before we can answer when a lawyer should be in his office, the question for some is, “exactly what and where is my office?” Like many questions involving the ethical and professional aspects of law practice, the answer to that question may differ in each of the jurisdictions (state, county, city and District of Columbia) that license and regulate attorneys and/or have courts or bar associations that opine on law practice. The question can have ramifications on state licensure, unauthorized practice of law and improper advertising by attorneys. The location of one's office(s) can in certain cases trigger multi-state tax reporting requirements with potential multi-state tax liability, for those who are deemed to practice law in more than one state. It also can be the grounds for sanctions under a jurisdiction's rules of conduct if an attorney misleads the public by listing on his or her letterhead, business cards or website an office or offices when he is not deemed to be so located.

This author has not undertaken an exhaustive (and exhausting!) search of all the jurisdictions' rules as to or what constitutes a law office. Most states reportedly do not require every licensed attorney to have a “bona fide office” in that jurisdiction. See Debra Cassens Weiss, “Virtual Offices May Violate Ethics Rules, New Jersey Opinion Says,” www.abajournal.com (posted April 6, 2010). However, we know of at least two states that require a “bona fide office” ' New Jersey and Florida ' where guidance has recently been issued in identifying what is or is not an attorney's office. That guidance is informative and somewhat controversial.

Most attorneys know where their firm's office(s) is(are) located in each jurisdiction (single or multi-state) where they practice law. However, the lines have become more blurry over the last five years as technology offers attorneys and clients more flexibility than the traditional law office model. The Joint Opinion of New Jersey's Advisory Committee on Professional Ethics (Opinion 718) and Committee on Attorney Advertising (Opinion 41), issued March 25, 2010, gives guidance to telecommuters, home office practitioners and others inquiring about “virtual” and satellite law offices. New Jersey Court Rule 1:21-1(a) requires a New Jersey attorney to maintain a bona fide office for the practice of law. Rule 1:21-1(a) states in relevant part that 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” (emphasis added).

The purpose of the bona fide office rule is to ensure that attorneys are available and can be found by clients, courts, and adversaries. See N.J. Committee on Attorney Advertising Opinion 19, 138 N.J.L.J. 286, 3 N.J.L. 1821 (Sept. 19, 1994). The rule is intended to ensure that lawyers have a place to keep client records secure and separate, a place where clients can meet the lawyer in privacy and a place where someone is available to take a message if the lawyer is absent. Henry Gottlieb, “N.J. State Bar Likes 'Virtual Office' Ban But Women Lawyers Raise Bias Concern,” N.J.L.J. (April 1, 2010), law.com.

'Virtual' and 'Home' Offices

The New Jersey Joint Opinion states that a so-called “virtual office” does not qualify as a bona fide office. A “virtual office” is not any place where one can plug in his or her computer, re-charge the PDA, flop onto a comfortable couch and work in the “cloud.” Instead, a “virtual office,” as described in the Joint Opinion, refers to a type of time-share arrangement whereby one leases the right to reserve space in an office building on an hourly or daily basis. Accordingly, an attorney's use of a “virtual office” is by appointment only. The office building ordinarily has a receptionist with a list of all lessees, who directs visitors to the appropriate room at the appointed time. Depending on the terms of the lease, the receptionist may also receive and forward mail addressed to lessees, or receive and forward telephone calls.

The Joint Opinion states that a “virtual office” cannot be a bona fide office since the attorney generally is not present during normal business hours but will only be present when he or she has reserved the space. Moreover, the receptionist at a “virtual office” does not qualify as a “responsible person acting on the attorney's behalf” who can “answer questions posed by the courts, clients or adversaries.” Presumably, the receptionist can redirect a telephone call to the attorney lessee of the “virtual office” much like an answering service, but would not be privy to legal matters being handled by the attorney and so would be unable to “act[] on the attorney's behalf” in any matter.

The Joint Opinion concludes there is no prohibition on use of one's home as a bona fide office for the practice of law provided that the home office meets the requirements of Rule 1.21-1(a). An attorney who practices law from a home office should take appropriate steps to preserve confidentiality of client information. Accordingly, client meetings must be in private, files should be secure, and the attorney's computer, telephone, answering machine, fax machine, and the like should not be accessible to persons not associated with the law practice so that there is no inadvertent disclosure of confidential information.

Rule 1:21-1(a) does not prohibit an attorney from meeting clients in a location other than the office. Attorneys are permitted, for example, to meet clients at the clients' homes or offices, or at another location that may be more convenient to the client. As long as the bona fide law office is in fact the place where the attorney can be found, and clients could be met there, an attorney's decision to meet clients at a location outside that office does not render the office noncompliant with Rule 1:21-1(a).

The Joint Opinion recognizes that many solo practitioners do not have support staff and so when they are in court, meeting clients, filing papers, or otherwise not in the office, no one is there during normal business hours. Attorneys who are out of their offices generally are accessible by telephone, as calls to the office can readily be routed to a cell phone or other hand-held device. But Rule 1:21-1(a) also requires regular physical presence by the attorney at the office during business hours. 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, e-mail, 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.

The Joint Opinion observes that an attorney who has a bona fide office may also have a satellite office that is a “virtual office.” The attorney may list that “virtual office” satellite location on attorney or law firm letterhead, websites, or other advertisements, but the communication must state that the “virtual office” location is “by appointment only.”

A “virtual office” location is not a place where a client can meet with the attorney unannounced. An attorney is not routinely found at a “virtual office” location and would need to make arrangements to reserve the space. Accordingly, while “virtual office” locations may be listed on attorney or law firm letterhead, websites, or other advertisements, the communication must state that the location is “by appointment only.”

Thus, the conclusion reached by the New Jersey Committees is that a home office can qualify as a bona fide office for the practice of law under Rule 1:21-1(a), but a “virtual office” does not.

'Bona Fide' Offices in Florida

Florida is another state where attorneys are required to have a “bona fide office.” Florida Rule 4-7.2(a)(2) defines “bona fide office” as “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.” The Florida Standing Committee on Advertising (SCA) has found that an advertisement is misleading if it lists law firm offices in several cities when, in fact, there are no bona fide firm offices in those cities. The SCA has developed the following criteria for determining whether an advertised location is a bona fide office:

• 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?

Even though an attorney engaged in practice in Florida may not advertise an office location that is not a bona fide office, he or she 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. See The Florida Bar, www.floridabar.org, “Bona Fide Offices [Revised: 06-06-2011]. ”

Conclusion

As one might expect, the desirability of bar association opinions and rules mandating a real (as opposed to virtual) law office is the subject of some debate. Some proponents of VLOs want virtual offices (and virtual reality) where there are no hard copy client files (everything being stored in the cloud) and with flexibility to meet clients whenever it's convenient, without full service staff and meaningful monthly rent. Others, while acknowledging that we live in a world where the “office” is a laptop or iPad, and one could advertise exclusively on the Web, have no issue with the Bar issuing rules that require an office where clients can find and meet their lawyer and have their files kept. Most “bricks and mortar” attorneys similarly did not object.

In next month's issue, we will discuss how long, when and why an attorney should be “in the office.”

Sheldon I. Banoff, a member of this newsletter's Board of Editors, is a Partner in the Chicago office of Katten Muchin Rosenman LLP. He can be reached at [email protected].