This post (which is not the post referred to in the title) is inspired entirely by something that is done by Nate DiMeo, the wonderful and talented force behind The Memory Palace podcast. (If you’ve never heard it, you are missing out and should grab a few episodes from wherever you download podcasts.)
At the end of the year, he rebroadcasts what is his favorite episode of his podcast performed in the prior year. He manages to do it in a way that is likely much less heavy-handed than I will and also manages to come across entirely self-effacing in evaluating his own content.
I wasn’t entirely sure I could pull something like that off – and still am not so sure — but thanks to the ABA Journal Web 100 recognition this year, there are undoubtedly some new eyeballs at this site that likely didn’t read everything I wrote before that development.
So, with many of the same caveats that Nate offers, here goes. This is not necessarily the best thing I wrote this year or even the thing that sparked the most views or interest, but it is (for a variety of reasons) my favorite post from 2018. It was written in June and was titled: “Time to choose: are you Illinois or New Jersey?” So, in case you missed it the first time, I’m putting it right down below these words without any further editing or re-writing [i.e. warts and all], which might be the hardest part of re-publishing it.
Blackhawks or Devils?
Bulls or Nets?
Barack Obama or Chris Christie?
Northwestern or Rutgers?
Kanye or Wu-Tang Clan?
Wilco or Bruce Springsteen?
Some of those are easy calls; some are harder decisions to make. What they all have in common though is that one comes out of Illinois and the other comes out of New Jersey.
As to the future of legal ethics, we now face a similar decision that has to be made. Are you down with what is coming out of Illinois or will you choose what New Jersey has to offer?
I’ll explain further. Avid readers of this space will be well aware that I have devoted quite a few bits and bytes to discussions of the evolving market for legal services and the push/pull in place between companies that push the envelope of what lawyers can do under existing ethics rules and various ethics opinions that have been released explaining how lawyers can or cannot do business with such companies. In order to avoid spamming this post with about 10-15 links to previous posts of mine, I’ll just say that if you are just getting here for the first time (welcome!), then look through the older posts for ones with the tag “Future of Legal Ethics” and you are sure to find one pretty quickly that discusses these topics.
Within the last couple of weeks, these have been the two developments that pretty nicely identify the choice that lawyers (and the legal profession) face.
First there is the Illinois development. The Illinois ARDC — which is Illinois’s regulatory and disciplinary agency [Attorney Registration and Disciplinary Committee] — issued a more than 100-page report making the case for why the ethics rules need to be overhauled to permit lawyers to ethically participate in “lawyer-matching services” such as Avvo and other platforms but that, along with such changes, there need to be regulations adopted to impose certain requirements on such companies and platforms for lawyers to be able to participate.
In large part, much of what Illinois describes sounds a bit like a subtle variation on RPC 7.6 in Tennessee that I have written about in the past. But it still also requires fundamental changes to other pieces of the ethics rules addressing financial arrangements between lawyers and those not licensed to practice law.
By way of juxtaposition, the New Jersey Supreme Court, asked to review a joint opinion issued by its legal ethics regulatory body, its advertising regulatory body, and its body focused on UPL aligned with other jurisdictions that have issued ethics opinions prohibiting lawyers from participating in programs like Avvo Legal Services, declined to review the opinion or otherwise disagree with its conclusions.
For my part, I think the choice is an easy one to make.
But, the most important thing for today (IMO) is for people to understand that there really is not a middle ground position here — you are going to have to make a choice and you are going to have to decide that you are either on board with the Illinois approach or the New Jersey approach to this topic.