Three-For-Tuesday.

Any old radio station in your town (most probably one playing “Classic Rock”) can provide you with a Two-For-Tuesday, but where else will you find a Three-For approach to this otherwise underrated day of the week?

First, I recently let you know that Tennessee was in play with a proposed version of RPC 8.4(g) to make harassing and discriminatory conduct related to the practice of law a violation of the ethics rules.  The Tennessee Supreme Court has put that joint petition out for public comment and has set a March 21, 2018 deadline for submissions.  So, by the time we know the outcome of the joint petition, you’ll have had the chance to go see two highly-anticipated film adaptations of very good books, A Wrinkle in Time, and Ready Player One.

Second, I’ve written recently about how rare lawsuits tend to be where a lawyer or law firm sues another lawyer or law firm over marketing activities.  There are lots of reasons that firms can tend to be reluctant to file such suits, but if you are looking for various objective indications of just how harshly competitive the marketplace for legal services is getting these days – and how much lawyers perceive their futures to be at risk – the fact that such suits seem to be happening with greater frequency is one such indicator.  Here is a link to the latest example where one advertising law firm has sued another over advertising firm over the design of billboards and whether those are serving to mislead consumers into confusion over which is which.

One of the billboards says “Injured?  Results You Deserve.”  The other says “Injured?  Don’t stand alone.”  Now, neither one of them are exactly fabulous exemplars of good marketing I guess.  I mean, you might see the first one and think, I’m kind of a shiftless person and I’m not sure the accident was anyone’s fault.  I’d rather not get the result I deserve.  And the other one might strike you as tone-deaf if you were so badly injured that you can’t stand at all.

Either way though, let me say this, there is a movie out in theaters now called Three Billboards, and I think a good third one to put out on this Massachusetts interstate would be one that reads:  “Injured?  Not by my billboard.”

Third, and speaking of advertising, based on this recent headline out of Ontario, it appears pretty clear that my words of wisdom and encouragement to a throng of Canadian lawyers suggesting they chill out about advertising issues was not a butterfly-flapping-its-wings-bringing-about-global-change kind of moment, but more akin to the impact that a butterfly makes on the windshield of a moving car.  In keeping with today’s theme, while it is incredibly untimely as far as movie recommendations go, it is still true to say that if someone is going to force you to watch an Ashton Kutcher film, The Butterfly Effect is your best option.

“DoNotPay” Becomes HelpYouSue

I had another idea for a blogpost in mind at this stage of the week, but between travel and this story, this was the thing that had to be acknowledged today.  Yesterday’s big technology news for lawyers (sort of lost in the Apple event revealing a brand new version of what will likely become Ted Cruz’s new favorite device for viewing images he likes) is this story.

I’ve written a little bit in the past about the leading chatbot – DoNotPay.  This story  at The Washington Post details what will (I’m guessing) be something of a watershed moment in the development of the functionality of chatbots and what they can, and truly will, mean for lawyering in the near future.

In the wake of the Equifax data breach, the makers of DoNotPay launched a chatbot yesterday to allow people with just a few simple clicks to file suit in the small claims court in their home jurisdiction against Equifax over the data breach.

I usually like to think that I can add my own profound insight on an issue to make it worth reading over and above the underlying story.  Today though I’m going to primarily just point readers to the source material and then ask you to allow your own minds to ponder the possibilities this raises.  The Washington Post story was written at a time when the chatbot would only be available for suits in California and New York, but it was quickly modified to render availability nationwide, as explained in this Yahoo! article.

Once you’ve done that, check back in with me for just a moment or two.  I’ll wait right here.

Ok.  First, undoubtedly a lot of the people that will use this chatbot to file this suit would otherwise never take on this kind of matter at all.  For many others, if they pursued it at all, they wouldn’t ever hire a lawyer and would try to handle it themselves .  To that end, this is a net win in terms of access to justice (at least for everyone except Equifax).  (To the extent that these kinds of cases might get resolved before any class action suits that have already been filed and will be filed, they certainly might not be a net win for such class action lawyers.)

Second, the continuing development of chatbots in this direction will still leave plenty of work for lawyers (and create some work for lawyers that might not otherwise exist) – and not just in the form of lawyers who, for example, will show up to represent Equifax in thousands of small claims suits.

Part of this is because of the inherent differences that still exist from jurisdiction to jurisdiction over access to and proceedings in small claims court.

As one example, here in Tennessee our civil small claims court is called General Sessions Court.  There are a number of ways that it works differently from the general features described in the articles as to other states small claims courts.  We have a jurisdictional limit of under $25,000.  In our general sessions courts, you certainly are entitled to have a lawyer represent you in that court and, in fact, if you are a corporate or business entity of any kind seeking to pursue suit or defend suit, you have to be represented by an attorney.  Further, both parties to a general sessions judgment (even the prevailing party) have an absolute right to appeal the outcome and, if they do, it goes up to our regular state trial level court for de novo proceedings.  Thus, in a way, nothing that happens in our General Sessions court matters unless everyone involved agrees it mattered.

In addition to simply demonstrating how fast things are moving on these fronts, this evolution of the use of the DoNotPay bot also adds another wrinkle about how an attorney could at some point co-opt such technologies in situations where they may have a potential client with a looming timing issue in the form of a statute of limitations about to expire.  Specifically, it is not difficult to imagine a near future in which this kind of chatbot could permit the filing of suits involving other issues where a lawyer could point a brand new client -with a time sensitive matter- toward such a chatbot to get a suit filed before a statute expires and then come in, take over, and amend pleadings once the lawyer has more time to get involved.

Robot roll call …

If I had any faith that the Venn diagram showing overlap between readers of this blog and fans of Mystery Science Theater 3000 had broad, heavy shading in the overlapping areas of the circles, then I would take this joke all the way with some clever effort at following up the title with a first line “In the not-too-distant future, next Sunday A.D.,” but I don’t, so I’m not.

In fact, at this point by having dropped off the map for a bit to pursue what was, and what I should have been realized sooner was, a fool’s errand, I can’t definitively believe that I still have any readers at all.  Hoping to do better moving forward with the regular posting.

The purpose of today’s post, in addition to apologizing into what might be a void, is to very quickly reference just how quickly things are moving in a certain aspect of the legal tech space – something that is not quite AI but seems like it, the world of chatbots.

Last week there were two pretty significant stories in the legal press regarding developments in this area.  First, the maker of DoNotPay (the most well-known/most influential legal chatbot to date) announced that not only has it made legal chatbots available at present for some 1,000 areas of law but that it has made its framework available for lawyers to use to create their own chatbots for areas of law not presently provided for.  You can read more of the details at the ABA Journal online. 

The thing that I find most interesting about this sort of development is not just the role that such chatbots can play for would-be-consumers of legal services to solve their own issues without lawyers, but the potential for lawyers to use the chatbots themselves to venture into areas in which they do not otherwise have expertise to represent clients and claim the work product generated by the bot as their own.

A second story made the rounds about another software/robot offering that is more AI than chatbot that would serve as competition for paralegals in the patent marketplace and likely – quite quickly – beyond.  Again, you can read more about RoboReview a patent drafting software product at the Journal.

Beyond the obvious upside for lawyers of access to this kind of AI and machine learning to do their own job, and the work of others that might assist them, faster and perhaps better, the existence of these kinds of products could serve to prevent lawyers from being in position to make the bad choice this Texas attorney is being alleged to have made to try to keep his legal assistant in the United States.

Final thoughts for now on the Oregon report

For this last, at least for now, of the three posts I envisioned to talk about the important aspects of the Oregon State Bar Futures Task Force, I want to talk about the piece I’ve not really said anything about to date – the recommendations of the Innovations Committee of that Futures Task Force.

As the briefest of refreshers for those who may vaguely remember what that committee was intended to be about, the Executive Summary of the OSB report explained that its Futures Task Force was split into two committees and that the Legal Innovations Committee was “focused on the tools and models required for a modern legal practice.”

Now you can read the entirety of its report starting at p. 60 of the overall report, but I should warn you that right out of the gate it reads unlike most state bar work-product you may have encountered with references to products you may never have heard of and business-speak you likely never use.  Here for example is the paragraph that explains how the Innovations Committee “built” its report:

The report itself was built in Sprints, a tool that comes from the Agile project management methodology known as Scrum.  This method placed an early emphasis on “minimum viable product” for each report section, with subsections developing iteratively over the course of subsequent sprint periods.  We also conducted periodic retrospectives (another Scrum technique) to ensure that team members were feeling comfortable with the methodology.  To manage the sprints, we used the technology tool Trello and the cards for each report subsection (including items considered but not acted upon) can be found at https://trello.com/b/X7N8kKki.

Now, if that makes your head hurt, then a lot of the report probably isn’t going to be for you… unless, of course, you plan to continue to practice law for 5 or more years because then it probably is for you… whether you want that to be true or not.

The first recommendation of the Innovations committee — though numbered as 4 in the overall report — is “Embrace Data-Driven Decision Making.”  That is a recommendation that many law firms do or should adopt and that all lawyers at some level ought to as well.  As just an example, if you run your law practice taking cases on a flat fee basis but don’t know which of the types of cases you handle are the ones where you end up with the best return on investment, then you don’t exactly have the data you need to best decide where to focus your marketing efforts or which cases to be less inclined to agree to take on rather than declining on the front end.

Within this recommendation, the OSB Futures Task Force offers four subparts of the recommendation, but I only want to write a little bit about one of those:

RECOMMENDATION 4.3: The OSB and the Oregon Judiciary should adopt an Open-Data Policy.

Simply put, many of the bright ideas that focused individuals and groups can come up with to try to alleviate burdens on access to justice are made all the more difficult (if not impossible) to implement by the lack of ready access to system-wide data.

The second broad recommendation of the Innovations committee — Expand the Lawyer Referral Service and Modest Means Programs — targets Oregon-specific programs that may or may not exist in your jurisdiction and that are difficult to talk about in any universal fashion.  What I do think is interesting is to contemplate a bit about what correlation there might be between Oregon’s willingness to embrace and advocate for rule changes to permit fee sharing with nonlawyers in connection with online lawyer referral services such as Avvo Legal Services and the fact that Oregon has successfully been running a referral service that, to quote the report, was changed to a “percentage-based fee model in 2012” and, since that time, “Oregon lawyers who utilize the program have earned over $22M in fees and, in 2016, returned $815,000 in revenues to the OSB.”

The third recommendation out of the Innovations committee focused on ways to “Enhance Practice Management Resources,” specifically:

RECOMMENDATION 6.1: The OSB should develop a comprehensive training curriculum to encourage and enable Oregon lawyers to adopt modern law-practice management methods, including (but not limited to) automation, outsourcing, and project management.

The details and rationale offered by the Futures Task Force on these subjects makes for a compelling and cogent read, and I’d recommend at least reading that section (p.65-68) in full.  Hopefully, you will come away from that thinking that such an approach to teaching modern practice management would be worth pursuing perhaps in your own law firm if not something you’d very much like to see made available by your state regulatory body – though in states like Tennessee where we have a bar association that is a purely voluntary membership organization, the road map offered up by the OSB task force seems tailor made for advancement by such organizations.

The fourth and final recommendation of the Innovations committee seems to me to be the most vital piece of innovation that those invested in the practice of law can hope to see come about if unemployed and underemployed lawyers are going to be able to build better careers by findings ways to deliver legal services to under-served populations and those who have unmet legal needs.

RECOMMENDATION NO. 7: Reduce Barriers to Accessibility

The recommendation is comprised of four sub-parts but I only want to point your attention to two of those because they are essentially inextricably linked and can be thought of in a way that is more readily universal.  Those recommendation sub-parts are:

7.2:  The OSB should more actively promote the use of technology as a way to increase access to justice in lower income and rural communities.

7.3:  Make legal services more accessible in rural areas.

These recommendations include a number of concrete, and thought-provoking suggestions for how technology can be embraced and leveraged not just to make life easier for lawyers as it has been but to “bring down some of the geographic barriers that constrain access to justice,” and to emulate other industries where “[t]echnological innovation” has been used to “reduce[] the cost of products and services and made them more accessible to a broader range of customers and clients.”

One specific recommendations made in Oregon that — when you think about the vast array of actions people take in the ordinary course of life now through the use of streaming video services and online resources on a daily basis — seems ripe for serious consideration by small claims courts throughout the nation is:

Encouraging the courts to provide opportunities to conduct court proceedings through video conferencing in civil procedural cases or hearings that involve few witnesses and documents.  The use of videoconferencing can reduce the costs and burdens for parties and witnesses who have difficulties personally appearing in court due to geographic distance, lack of transportation, employment needs, childcare issues, or other challenges.

A glimpse into the world of consumer-facing legal services providers

Yesterday, I had the pleasure of serving as a moderator at a CLE event in Nashville focused on developments in the world of consumer-facing legal services providers.  There are a world of companies – predominantly existing only online — that have an increasing presence in the lives of people in need of legal services and answers to their legal questions who, often otherwise, would not reach out directly to a lawyer to try to obtain help for their problems.

The full event was a 3 hour long seminar covering several topics, but the panel I moderated encompassed an hour of conversation with Bob Aicher of ZeekBeek, Matt Horn from Legal Services Link, and Dan Lear from Avvo.

Now, if you are reading this, you’re likely already familiar with the various aspects of Avvo’s footprint in the marketplace.  You may not know as much, however, about ZeekBeek or Legal Services Link.

In some ways, they do quite similar things but the approach is different.  Both operate as an online platform through which people in need of legal services can connect with lawyers who are willing to provide services.  ZeekBeek partners exclusively with state bar associations and, thus, in those states comes across as an entity that has the imprimatur of the state regulatory body and also — for a fee — provides its participating lawyers within a state a different platform for making referrals of work to other lawyers.  Legal Services Link monetizes its provision of a market place for consumers to ask questions and obtain legal advice and representation from participating lawyers by allowing lawyers to view questions for free but requiring lawyers who want to interact with the consumer by replying and answering their inquiries to pay an annual membership fee for that privilege.

While each of the three representatives had differing views on the topic of whether they versus those they compete with are able to do what they do in a way that the participating lawyers can be assured of compliance with the ethics rules, it was very interesting (though not surprising) to hear all three of them agree that the ethics rules that relate to their services are desperately in need of change.

It was a very interesting and engaging discussion.  The good news for you, if you are interested in checking it out, is that you can view the entire program by registering/purchasing it at this link from the TBA.  (As of now there is no way to just pay for the middle hour which was the program I moderated, but should that change I will update this post.)

 

North Carolina – Good intentions leading to a pretty seemingly bad rule.

So North Carolina has got quite a bit going on these days.  Last night UNC won the NCAA Men’s Basketball championship.  A few days ago, its general assembly kind of, sort of, repealed the bathroom bill that brought it much negative publicity and cost it some sporting events.  And, in March 2017, it adopted a first-of-its-kind ethics rule that seeks to require all lawyers — not just prosecutors — to reveal any evidence of the innocence of someone that comes into their possession after the person has been convicted.

Tennessee, I am proud to say, is among the “Sweet Sixteen” of other states that have adopted the ABA Model Rule 3.8(g) and (h) language that imposes this kind of duty upon prosecutors, but North Carolina’s act of going further to say that all attorneys have this obligation — at a mandatory level and when not doing so could somehow lead to discipline — seems very misguided to me.

Now because this is being written on the Internet, and because taking things out of context and ascribing intents and beliefs not intended to things written on the Internet is pretty much a sporting event itself these days, I feel beholden to make the point that — obviously I am not in favor of anyone being convicted of a crime they didn’t commit and I very much count myself in the category of folks who agree with the “it’s better that 10 guilty people be set free than 1 innocent person be imprisoned” line of thinking.  Also, I absolutely think that if an attorney comes across solid evidence that would indicate someone has been convicted of something they didn’t do, then an attorney ought to be encouraged to try to do something about that.

Nevertheless, I am not at all a fan of the idea of constructing an ethics rule that would require a lawyer to do so on pain of discipline.  Not even in the abstract because the architecture of such a rule would have to weigh in the balance too many other ethical obligations a lawyer might have that would compete.  I’m also not a fan of North Carolina’s specific effort to do so — North Carolina RPC 8.6 — which actually does attempt to  balance those competing obligations and in so doing, I think, actually proves the inherent pointlessness of this line of proposed rulemaking.

So, step by step, here is black-letter of North Carolina’s Rule 8.6.  The first paragraph establishes the initial scope of the duty.

(a) Subject to paragraph (b), when a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted, the lawyer shall promptly disclose that evidence or information to the prosecutorial authority for the jurisdiction in which the defendant was convicted and to North Carolina Office of Indigent Defense Services or, if appropriate, the federal public defender for the district of conviction.

So, as a starting point, this duty would override obligations of client confidentiality that would otherwise require a lawyer to remain quiet.  But obviously that creates some problems.  So, the next paragraph carves out exceptions to the obligation.

(b) Notwithstanding paragraph (a), a lawyer shall not disclose evidence or information if:

(1) the evidence or information is protected from disclosure by law, court order, or 27 N.C. Admin. Code Ch. 1B §.0129;

(2) disclosure would criminally implicate a current or former client or otherwise substantially prejudice a current or former client’s interests; or

(3) disclosure would violate the attorney-client privilege applicable to communications between the lawyer and a current or former client.

So, the exceptions still do not allow Rule 1.6 concerns to prevent disclosure (unless, I guess, breaching certain 1.6 client confidences would be considered “otherwise substantially prejudic[ing] a current… client’s interests”), but the exceptions to protect the subset of Rule 1.6 communications that would also be protected as attorney-client privilege and protect a lawyer in the event that complying with Rule 8.6(a) would require them to put one of their own clients or former clients in jeopardy of criminal prosecution.  Thus, Rule 8.6(b) essentially makes certain that Rule 8.6(a) will not apply to the most reasonably likely scenarios in which any lawyer who isn’t a prosecutor is going to learn of information indicating that someone has been wrongfully convicted.

The next paragraph, for good measure, also provides the same kind of “good faith”/exercise of professional judgment safeguard in place for private lawyers that Rule 3.8 provides for prosecutors:

(c) A lawyer who in good faith concludes that information is not subject to disclosure under this rule does not violate the rule even if that conclusion is subsequently determined to be erroneous.

The final paragraph then proceeds to make clear that no duty to disclose arises when the lawyer knows that the right people essentially already know.

(d) This rule does not require disclosure if the lawyer knows an appropriate governmental authority, the convicted defendant, or the defendant’s lawyer already possesses the information.

So, in the end, and as Professor Bruce Green is quoted as saying in a few of the news articles about the development, “it carves out so much that it’s hard to known when it will apply.”  I think that’s a kinder way of saying:  Other than whatever encouraging effect it might have on some small set of lawyers who wouldn’t otherwise step up and do the right thing to let authorities know about something if doing so wouldn’t violate their duty to another client or former client, this rule is not really going to accomplish much and is probably largely unenforceable.

And while that encouraging effect might be a laudable goal, pursuing it through this kind of rule seems the wrong way to go about it.  If you are truly going to insist on something like this in a jurisdiction, it would be better pursued as a purely aspirational rule.  We already have one of those with respect to the obligation to do pro bono.

Friday follow-up: Puff, puff, PA’s overreach

Couple of quick hits (pun wasn’t really intended but just sort of happened) for this Friday.

A little more than a month ago, I wrote about an ethics opinion out of Ohio that created a real dilemma for lawyers looking to advise businesses related to the medical marijuana industry that was going to become legal in Ohio on September 8, 2016.  Under the analysis in the ethics opinion, Ohio’s RPC 1.2(d) prohibited lawyers from assisting people with such business endeavors.

Moving with what seemed like an unusual amount of speed when it comes to rule-making endeavors (and entirely contrary to the conventional wisdom that pot slows things down), the Ohio Supreme Court has adopted a revision to its RPC 1.2(d) to specifically address the situation and permit Ohio attorneys to assist clients in this industry.  The new rule language reads:

(d)(1)  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent.  A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law.

(2)  A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act.  In these circumstances, the lawyer shall advise the client regarding related federal law.

Now, I totally understand the addition of (d)(2), though it is the kind of hyper-specific revision to the language of a rule that makes me cringe on the inside.  But, I don’t quite understand why the Ohio court changed the language of (d)(1) to replace “criminal” with “illegal.”  Wonder what that is all about exactly and what they would articulate to be the difference in those two terms?

About a week before I wrote about the Ohio marijuana opinion, I wrote at length about a South Carolina ethics opinion that served as an exemplar of the kind of ethics opinion I anticipated a number of other states might write about the problems with  Avvo Legal Services.  Well, this month another state has added its voice with an ethics opinion pointing out ethical dilemmas for lawyers that might look to do business with that service and similar services. Pennsylvania has issued Formal Op. 2016-200: Ethical Considerations Relating to Participation in Fixed Fee Limited Scope Legal Services Referral Programs.  Ironically though, I can’t help reading the Pennsylvania opinion as being a bit more of an indictment of certain kinds of thinking in our profession than it is an indictment of the ethics problems with Avvo Legal Services.

I plan to write about this Pennsylvania opinion in more detail later — and can’t give you a link to go read it yourself because Pennsylvania still tries to keep its ethics opinions limited to members-eyes only in the online world.  (That is, in and of itself, a weird and outdated way of thinking altogether but that too would be a topic for another day.)

For today, I’ll simply preview that the fundamental problem I currently have with the Pennsylvania opinion is that it overreaches and comes across as indicative of a line of inflexible thinking that seems to be entirely out of touch with what is actually going on in the marketplace and that is mostly antithetical to innovation altogether.

Let me offer one example to hopefully pique your curiosity if not whet your appetite, it comes from Section IX of the opinion, titled “Access to Legal Services” —

Operators of FFLS programs argue that “unbundling” legal services reduces the cost to clients, thereby making legal services more accessible.  Expanding access to legal services is, of course, an important goal that all lawyers, and the organized Bar, should support.  However, the manner in which these FFLS programs currently operate raises concerns about whether they advance the goal of expanding access to legal services.  Further, compliance with the RPCs should not be considered inconsistent with the goal of facilitating greater access to legal services.  Any lawyer can offer “unbundled” or “limited scope” legal services at, or even below, the rates described by an FFLS program, provided the lawyer can do so in a manner that complies with his or her professional and ethical obligations, including the obligation of competence (see RPC 1.1) and full disclosure of and informed consent to any limitations on the scope of the legal services rendered.  If a lawyer cannot fulfill those obligations working outside the scope of an FFLS program, he or she almost certainly would not be able to do so working within such a program.

Really?

Two developments from the ABA Annual Meeting – which one will have the bigger impact?

The 2016 ABA Annual Meeting continues today and tomorrow but the two actions for which it likely will be most remembered have already transpired.  One happened Monday when, after much public discussion and multiple revisions to the proposal along the way, a final set of proposed revisions to ABA Model Rule 8.4 was approved in a voice vote by the ABA House of Delegates.   As this short article at The ABA Journal makes clear, after all of the criticism over many months, no one requested time to speak against the final version of the proposal.  You can see the full, final version of Revised Resolution 109 that passed here.

I’ve written twice before about earlier versions of the proposal here and here.  The action adds a new RPC 8.4(g) designed to make harassment and discriminatory conduct by lawyers connected to their law practice unethical.  A last set of revisions were made to the proposal in just the last month to change the triggering conduct from potential strict liability of “harass or discriminate on the basis of,” to a more favorable mens rea standard of “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of” and to clarify that “legitimate advice or advocacy consistent with these Rules” would not be prohibited by moving the language protecting such conduct from the comment up into the black-letter rule itself.

It is certainly a significant and historic event for the ABA to have passed this rule revision, and I don’t mean to downplay the significance from the standpoint of the ABA as the largest lawyer organization in the United States.  But, what will be the impact exactly of this action?  The ABA Model Rules do not, of course, actually govern anyone anywhere.  They are, however, a standard setter and often result over time in adoption and implementation in other U.S. jurisdictions.

Will this change to RPC 8.4 work its way through the states?  Well, it is kind of hard to say because one of the big advocacy points of the ABA change was the assertion that 20 states already had a form of the anti-discrimination provision in their version of the rule, so as a starting point this is a change that only targets 30 states.  As a lawyer who practices in the deep South, I will simply state my skepticism about how quickly my own state and the various bright red states around me will move to revise a version of RPC 8.4 not already prohibiting harassment and discrimination.  I’d love to be proven wrong about that though.

The second potentially historic development was the final work product from the ABA Commission on the Future of Legal Services – The Report on the Future of Legal Services in The United States, and the establishment of the Center on Innovation.  In the words of the Commission, the Center on Innovation will be something like an R&D division for the legal industry.  The creation of the Center has already been approved by the Board of Governors, but what will it do — and what will be off-limits to it?  According to the piece at The ABA Journal, the Center’s “primary tasks will include assisting law firms interested in introducing new approaches to their practices, studying innovations in legal services delivery in other countries, and developing training programs for law students interested in innovative law practice.”

But, given the ABA’s problematic history over the years with efforts at exploring nonlawyer ownership of law firms, it is hard to figure out how “studying innovations in legal services delivery in other countries,”  truly leads to anything other than yet another obvious conclusion that the innovations in the delivery of legal services occurring in other countries pretty much involve nonlawyer ownership of law firms.  It doesn’t require much additional study to grasp that point.

Lest I end up sounding completely like Eeyore today, the creation of the Center does not have to be the sole lasting legacy of the ABA Commission on the Future of Legal Services, one of the other recommendations the final report encourages should be implemented — involving making courts more accessible by doing things such as embracing online dispute resolution and self-service kiosk centers — might actually have the most significant potential to assist with perceived, and real, access to justice gaps in the United States, even though it might not be of any benefit to the legal profession.

Here, for those who don’t necessarily have a moment right now to read the full 100+ page report are the 12 recommendations made by the Commission:

RECOMMENDATION 1. The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.

RECOMMENDATION 2. Courts should consider regulatory innovations in the area of legal services delivery. 2.1. Courts should consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Services. 2.2. Courts should examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially-authorized-and-regulated legal services providers. 2.3. States should explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services. 2.4. Continued exploration of alternative business structures (ABS) will be useful, and where ABS is allowed, evidence and data regarding the risks and benefits associated with these entities should be developed and assessed.

RECOMMENDATION 3. All members of the legal profession should keep abreast of relevant technologies.

RECOMMENDATION 4. Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.

RECOMMENDATION 5. Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process. 5.1. Physical and virtual access to courts should be expanded. 5.2. Courts should consider streamlining litigation processes through uniform, plainlanguage forms and, where appropriate, expedited litigation procedures. 5.3 Multilingual written materials should be adopted by courts, and the availability of qualified translators and interpreters should be expanded. 5.4. Court-annexed online dispute resolution systems should be piloted and, as appropriate, expanded.

RECOMMENDATION 6. The ABA should establish a Center for Innovation.

RECOMMENDATION 7. The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services. 7.1. Increased collaboration with other disciplines can help to improve access to legal services. 7.2. Law schools and bar associations, including the ABA, should offer more continuing legal education and other opportunities for lawyers to study entrepreneurship, innovation, the business and economics of law practice, and other relevant disciplines.

RECOMMENDATION 8. The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.

RECOMMENDATION 9. The criminal justice system should be reformed. 9.1. The Commission endorses reforms proposed by the ABA Justice Kennedy Commission and others. 9.2. Administrative fines and fees should be adjusted to avoid a disproportionate impact on the poor and to avoid incarceration due to nonpayment of fines and fees. 9.3. Courts should encourage the creation of programs to provide training and mentoring for those who are incarcerated with a goal of easing re-entry into society as productive and law-abiding citizens.9.4. Minor offenses should be decriminalized to help alleviate racial discrepancies and over-incarceration. 9.5. Public defender offices must be funded at levels that ensure appropriate caseloads.

RECOMMENDATION 10. Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services. 10.1. Legal aid and pro bono efforts must be expanded, fully-funded, and better-promoted. 10.2. Public education about how to access legal services should be widely offered by the ABA, bar associations, courts, lawyers, legal services providers, and law schools.

RECOMMENDATION 11. Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.

RECOMMENDATION 12. The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.

 

“Cases Without Counsel” study confirms the obvious but also raises more subtle dilemmas

If all you manage to do was read the headline from the ABA Journal online story today — “Self-represented litigants perceive bias and disadvantage in court process, report finds,” your reaction will likely be limited to “Duh.”  But, there is much more that can be gleaned from this “Cases Without Counsel” study and report that the Institute for the Advancement of the American Legal System has put out than confirmation of obvious suspicions.  The report includes findings and recommendations learned from the experiences of more than 125 self-represented litigants in family law matters in four different states, including my own state of Tennessee.  The group also interviewed nearly 50 other players in the systems (judicial and non-judicial) who regularly interact with self-represented litigants, but not any opposing counsel.

As to the headline, of course someone who seeks to represent themselves is going to see the way the system is set up as putting them at a disadvantage, and, of course, they are going to think that the deck is stacked against them in favor of an adversary who has a lawyer.  The lawyer (hopefully) knows what they are doing and, thus, speaks the language of the court and, more likely than not, will at least appear to have a cordial, professional relationship with the presiding judge.  All of those factors are discussed by interviewees in the report and all of them, not surprisingly, affect the perception of whether the result was fair and just.  One study participant explains quite vividly how even what likely is intended by judges to be an effort at being helpful — encouraging a self-represented litigant at a disadvantage to go get a lawyer — can be perceived as discouraging if not insidious:

She [the judge] actually told me twice that I needed to get a lawyer….She made it sound like that was her ruling — that I had to get a lawyer or they weren’t going to welcome me back into court.  She sided with him and I felt like it was because he had the lawyer, because she told me twice I needed to get one.

I’ve a timely example of this from my own life.  As I know I’ve mentioned before, Tennessee’s bar is not unified and the Tennessee Bar Association is just a voluntary membership organization.  I get telephone calls and emails from people who are unhappy with a lawyer and find on the web that I am the Chair of the TBA Standing Committee on Ethics and Professional Responsibility.  They reach out to me thinking I’m in the business of disciplining lawyers – I end up explaining to them that I’m not, that I actually represent lawyers and law firms – but I let them know how to get in touch with the Tennessee Board of Professional Responsibility, if they want to, which is the regulatory/disciplinary arm in our state.  Yesterday I received such a call, but the complaint – which the caller managed to communicate before I could truly suss out the situation and cut them off politely to point them in the right direction — was that opposing counsel in their case had information but was waiting to turn it over until the court-established deadline for doing so.  The caller wanted to know whether opposing counsel could get in trouble for that since surely the lawyer is supposed to tell any one who is self-represented information learned it or documents gathered as soon as the opposing lawyer learned it.  This person may not end up calling the BPR after hearing me say, “no, generally speaking, the lawyer on the other side of your case owes most of their duties to their client, some more to the court, but a very small number to you as their client’s adversary,” (or probably words to that effect but that weren’t nearly as well-articulated).

The report generated from the study sheds a good bit of light on the complexities involved in how people end up having to (or choosing to) navigate the court system on their own in family law cases.  It clearly confirms another piece of information that is obvious — while not the “only” factor, actual (or perceived) lack of ability to afford a lawyer is beyond question the primary factor that leaves people to navigate the court system on their own.

But, that non the “only” factor still deserves real discussion.  Almost 25% percent of the participants in the study actually “expressed a preference to handle the matter without attorney representation.”  And nearly 20% of the participants in the study also indicated that past bad experiences with attorneys influenced their decision to not hire a lawyer for their family law matter.

This report is another data point helping make clear that trying to “solve” the problem of self-representation, which is often described as an access to justice problem but is really a second-level version of what is traditionally thought of as the original access-to-justice problem — delivering legal services to people who are truly indigent — is not something for which there is going to be one “silver bullet” solution in the form of changes to the ethics rules.

The full report is absolutely worth adding to your reading pile and you can get it here.  Digesting the full report does leave me, for the first time, questioning whether the absolute prohibition on contingent fee representation in divorce cases set out in Model Rule 1.5(d)(1) ought to be reevaluated.

Independence of professional judgment, and other thoughts spurred by the ABA Commission on the Future of Legal Services

April 2016 has brought another iteration of a seemingly, endless, (yet kind of potentially pointless unless you think the politics of the situation will somehow play out differently from the past) debate: whether some entity within the ABA is attempting to usher into reality a world in which people other than lawyers will be allowed to have ownership interests in law firms?

The raising of the mere possibility of outside investment in law firms by people who are not lawyers incites debate and inflames passion among lawyers immediately.  Not all lawyers of course.  Some just go to work, represent their clients, get stuff done, go home, lather, rinse & repeat.  But lawyers who are active in state bar associations certainly get pretty revved up, as do many ethics nerds like me.

The ABA Commission on the Future of Legal Services put out an issues paper on April 8, 2016 for comment that has stirred this topic up again.  You can read it here.  The deadline for comments (if you are so inclined) is tomorrow.  About a week before putting out the paper discussing Alternative Business Structures, the same Commission put out an issues paper focused on the world of “unregulated” entities operating as legal service providers.  That issues paper also makes for interesting reading and you can get it here.

It should be no surprise that these two topics are being addressed in close proximity by the ABA Commission because they are relatively intertwined in the minds of many people.  (And, for clarity, I have put “unregulated” in quotes because what the ABA Commission means when it uses that term is not regulated by courts in the way that lawyers practicing law are regulated.  Entities that provide legal services but that are owned and operated by people other than lawyers are, of course, regulated to some extent by agencies such as the Federal Trade Commission.)

Unlike the comment deadline on the Alternative Business Structures paper, the comment deadline on the paper regarding what to do about unregulated LSPs has passed.  I’ve spent a bit of time reading some but not all of the comments, and you can find links to all of the comments here.

For those who don’t want to go read all of the original source material, I think a fair description/takeaway/summary of the two ABA issues papers is:

  1.  The ABA Commission is likely thinking pretty strongly about trying to propose that courts, through entity regulation and using the Model Regulatory Objectives approved by the ABA House of Delegates in Resolution 105, attempt to exert some control over entities such as Legal Zoom and Avvo and others that provide services that would certainly be treated as the practice of law if performed by a lawyer.
  2. The ABA Commission is certainly trying to spur another conversation about whether business models presently prohibited because of RPC 5.4 throughout the U.S. (other than Washington, D.C.) might be a worthwhile endeavor.  And, the Commission’s issues paper has managed to lay out the potential benefits and risks of doing so in a pretty fair, even-handed manner.

For those that cannot remember off the top of their head, ABA Model Rule 5.4 is the ethics rule which (a) generally prevents lawyers from sharing fees with those who are not lawyers; (b) prohibits lawyers from being in partnerships with nonlawyers if any of the partnership’s activities involve the practice of law; (c) mandates that a lawyer who is letting someone other than their client pay them cannot let that other person “direct or regulate the lawyer’s professional judgment in rendering such legal services,” and (d) prevents lawyers from practicing law in certain business entity forms if a nonlawyer has an ownership interest or serves in certain roles.   [N.B. – sorry, I tried.  Once I started talking about this specific rule, “nonlawyer” as a term became unavoidable.]

I’m not sure that my thoughts on these issues are fully-baked as of yet, but I think that each of the following six positions are reasonable ones to have:

  1.  Maintaining independence of professional judgment is a core principle of the legal profession, but that doesn’t mean that the conditions in which lawyers work have to be sanitized so as to try to free lawyers from temptations.  We already allow quite a few things under the ethics rules that can create temptations for lawyers to allow others to control or interfere with their professional judgment or that, at minimum, place severe negative economic pressure on the exercise of independent professional judgment.  We let lawyers be hired by, and paid by, insurance companies for the purpose of representing policyholders.  Those insurance companies establish guidelines for how those lawyers are supposed to go about handling the litigation; they scrutinize and reject bills if the right billing codes are not used by the lawyers; and they ultimately place the pressure on lawyers who think the guidelines and restrictions go too far to exercise their independent professional judgment to do what is necessary to represent the client’s interests even if it sometimes means they end up not getting paid for time and effort that needed to be done.  Our ethics rules have no problem with lawyers being employed as in-house counsel even though they are constantly at risk of having their employer (and only client) potentially pressure them to set aside their professional judgment and do things that help drive profits.  Our ethics rules have long allowed lawyers to handle cases on a contingent fee basis.  Our ethics rules do not prohibit law firms from imposing requirements on how many billable hours must be logged to stay employed. Sometimes the strongest principles are those that survive despite temptations.
  2. Allowing people other than lawyers to invest in law firms or otherwise be owners or stakeholders in law firms is not going to increase access to justice among those who cannot afford legal services.  It’s just not, and people should just stop already with the effort to claim that the reason it should be considered is because of how it will help as an access to justice initiative.
  3. Expanding on the Washington, D.C. approach to allow people other than lawyers to be partners in law firms or to have a minority ownership interest in the firm as long as they agree to abide by the lawyer ethics rules will neither create Armageddon, nor create any more economic pressure on lawyers than already exists from items discussed in point #1.
  4. If you aren’t a lawyer, there is a fairly compelling logic to the notion that the limit of regulation that should be imposed by courts or by lawyers as officers of courts on “unregulated” LSPs should be that such entities and the people involved with them cannot hold themselves out as if they were a lawyer.
  5. On the other hand, if you are a lawyer, it is reasonable to believe that the restriction identified in #4 alone is not sufficient.  There has to be some line over which LSPs cannot cross.  This is true if for no other reason than that the regulations lawyers have to endure are significantly more restrictive than the regulations imposed by agencies like the FTC and similar state regulatory agencies, and those more restrictive regulations render competition in certain legal services entirely unfair.
  6. It is silly for RPC 5.4(d)(2) to only allow someone who is not a lawyer to be an officer or have a position of similar responsibility (i.e. Chief Marketing Officer, or CFO, or COO) in a law firm if the law firm is organized as a corporation.  I cannot think of any legitimate reason that a law firm organized as a PLLC or an LLP can’t have an accountant serving as CFO but a law firm organized as a Professional Corporation should.  (And, for this last thought I owe Lynda Shely thanks for reminding me while we were in Austin that the rule actually says this.)

What do you think?  Are any of these six positions above not reasonable ones to have?  I almost never solicit input in the comments, but have at me if I’ve lost the plot.