Clickwrap Agreements in a Virtual Law Practice

I've been doing more blogging for the VLOTech website. A lot of my material is coming from the CLE manuscript that I'm drafting for a presentation this summer on security/ethics issues with virtual law practices. The legality and enforceability of clickwrap agreements in a vlo is a question I've gotten from other attorneys.

In my virtual practice, I don't soley rely on the clickwrap agreement that my clients are required to accept before registering for their own homepage. I more specifically define the scope of legal representation (or non-representation as the case may be) with each individual client that registers. That is handled on each client's secure homepage and depends on the legal work they are seeking. As more attorneys go online with their law practices, the use of the clickwrap agreement will probably be standard on the vlo, but I suspect each individual solo or small firm practitioner will want to use an additional retainer agreement or other contracting method with clients after registration.

Here's my post from the VLOTech website on this subject:

Solo and small firm practitioners operating a VLO require that their online clients accept a clickwrap agreement before registering for a homepage on the virtual law office. This agreement contains the terms and conditions of the attorney’s representation to the client, explains the nature of unbundled legal services, defines the scope of representation and may contain other provisions tailored to the attorney’s virtual law practice.

While retainer fees, payment arrangements and further definition of the scope of legal representation is communicated with the client through the client’s secure homepage on a case by case basis, the standard clickwrap agreement for the VLO serves as the legal contract between the attorney and his or her online client. Some attorneys may chose to require that their clients download and sign a separate written agreement following registration similar to a traditional retainer agreement. The business method depends on the individual virtual law practice. However, an online agreement during client registration with the terms and conditions for use of the VLO is standard.

The ABA Committee on Cyberspace Law during a panel discussion at the ABA’s Annual Meeting last year provided a practical reminder of the steps to follow when creating an online agreement. Blogger, Jason Haislmaier, in his blog ThinkingOpen, provides a great blog post regarding the drafting of enforceable online agreements and the Cyberspace Law Committee’s recommendations.

Haislmaier writes, “In particular, the panel indicated that the working group had identified four “bottom line” steps for forming legally binding online agreements:

1. The user must have adequate notice that the proposed terms exist;

2. The user must have a meaningful opportunity to review the terms;

3. The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and

4. The user must, in fact, take that action.

Among these four steps, adequate notice of the existence of the proposed terms is among the most important.”

VLOTech attorneys draft their own terms and conditions for use with their virtual law offices. The ABA Cyberspace Law website has a searchable archive for members which contains many good resources to assist attorneys in researching this topic and drafting their VLO online agreements.