Limits on Virtual Presence in a Jurisdiction

Limits on Virtual Presence in a Jurisdiction

Virtual presence is a big deal with just about any business — big or small. Search Twitter, Facebook, or any other social media website and you’ll find a company has presence across almost all of these sites and through out the country.  However, unlike these companies, lawyers have rules that govern how and to what extent a lawyer can participate on these online forums.

The ABA Commission 20/20 recently released an issues paper about just this.

The commission released a draft proposal to address the ambiguity in Comment 4 in Rule 5.5:

For example, a lawyer may direct electronic or other forms of communications to potential clients in this jurisdiction and consequently establish a substantial practice representing clients in this jurisdiction, but without a physical presence here. At some point, such a virtual presence in this jurisdiction may be come systematic and continuous within the meaning of Rule 5.5(b)(1).

Some of the factors that the ABA considers to be relevant to determining whether the lawyer’s online presence has become sufficiently systematic and continuous to trigger Rule 5.5(b)’s requirement include:

  • the nature and volume of communications directed to potential clients in the jurisdiction;
  • whether the purpose of the communications is to obtain new clients in the jurisdiction;
  • the number of the lawyer’s clients in the jurisdiction;
  • the proportion of the lawyer’s clients in the jurisdiction;
  • the frequency of representing clients in the jurisdiction;
  • the extent to which the legal services have their predominant effect in the jurisdiction; and
  • the extent to which the representation of clients in the jurisdiction arises out of, or is reasonably related to, the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

To read the whole memorandum, click here.