Perfect timing.

On the heels of my posting earlier this week about my failure to understand how the Axiom law firm backed by the Axiom tech company is something that complies with California’s ethics rules (much less ethics rules in other states besides D.C. that are based on the Model Rules should it attempt to expand as it plans), news comes now at the end of the week that one of the Big 4 accounting firms is launching its first law firm in the United States.

As this ABA Journal story explains, PwC is opening ILC Legal but, importantly for my discussion purposes, it is doing so in D.C.  As noted when I discussed the Axiom deal, D.C. is currently the only U.S. jurisdiction that permits the kind of non-lawyer ownership in a law firm that is prohibited everywhere else in the country.  Now, interestingly, the PwC spokesperson quoted in the story indicates that isn’t the reason D.C. was picked.  There may be many more details in the AmLaw story referenced by the ABA Journal but I am not a subscriber to that publication so I can’t get to it to read.  Not sure what details could be in there though that would change the fact that I’m skeptical that any structural separation PwC may have come up with for this law firm will comport with any ethics rules other than D.C.’s at this moment in time.

In my Axiom post, I asked readers to envision whether if a bank were doing what the tech company was doing, anyone would have any qualms at all about saying that it didn’t appear to comply in any way with the pertinent ethics rules.  I could just have easily used an accounting firm as an example instead of a bank.

So, bottom line for this Friday is, whatever your reaction might be to the PwC news (assuming it is one of concern), you ought to have the same – and even stronger — reaction to the Axiom situation.  Axiom isn’t even starting in D.C. where it could arguably be compliant.

(And, thanks to David Carr – a California ethics attorney – for the comment he posted to my earlier story with some further thoughts about the situation in California for Axiom.  Boiled down though, those thoughts seem to me to indicate that Axiom’s approach doesn’t comply with California’s rules as I suspected and that their only hope is that their own clients won’t complain about them and, apparently, that if anyone else does it won’t gain any traction with regulators.)

 

Things I don’t understand… Atrium LLP

You may, by now, have read an article or two about the launch of a “technology-focused law firm” by the name of Atrium LLP.  Its headquarters are in California.  Having now read several articles about it – and how it has come to be and how it will operate – I simply don’t understand it.

I get what a technology-focused law firm might be, of course.  What I don’t get is how in the world any of the lawyers involved with the venture can think that they can do this and comply with the ethics rules.

I kept reading more and more about it to figure out what I was missing that would not cause this arrangement to be a violation of the rules prohibiting sharing of fees with nonlawyers and prohibiting investment by non-lawyers in law firms.  I could still be missing the explanation, but I haven’t found it yet.

Here – through a series of snippets – is the situation as it has been reported.

Let’s start with information from an ABA Journal article as a base:

With $10.5 million, serial entrepreneur Justin Kan is about to take on Big Law….Atrium LLP will compliment, but is separate from, Atrium Legal Technology Services, also operated by Kan. Atrium LTS will develop the technologies and processes that automate repetitive tasks and manage the firm’s operations….While Kan is not an attorney, the firm’s founding partners are. Augie Rakow is a former partner at Orrick, Herrington & Sutcliffe, while Bebe Chueh is an attorney and founded AttorneyFee.com, which sold to LegalZoom in 2014. The other co-founder and Atrium LTS chief technology officer, Chris Smoak, is a serial entrepreneur and software engineer. Kan is the founder of live-streaming sites Justin.tv and Twitch.tv, selling the latter to Amazon for nearly $1 billion in 2014.

[snip]

While separate entities, the financial relationship between Atrium LTS and Atrium LLP is inextricable. Atrium LTS provided the firm a loan to cover all startup costs, and Atrium attorneys are being paid through options in Atrium LTS or a salary for advising the technology company.

[snip]

In June, Atrium LTS closed a Series A funding round worth $10.5 million, which was led by General Catalyst, a venture capital firm focused on early stage investments.

Let’s sprinkle in a few more salient details from Bob Ambrogi’s interview and post with affiliated folks at his Law Sites blog:

What is launching today is a law firm, Atrium LLP, that is separate and apart from Kan’s technology company Atrium LTS, but that is symbiotically connected to it. Atrium’s lawyers will focus exclusively on practicing law, while Atrium LTS (the LTS is for Legal Technology Services) will handle all operations for the firm, even including marketing, and develop and operate software to streamline the firm’s workflows.

[snip]

Atrium LTS is paying all the start-up costs for the law firm, structured as a loan. Atrium attorneys receive stock or options in Atrium LTS and some receive salaries from Atrium LTS for serving as advisors.

Now, a bit more from the Atrium website itself:

To solve this, Augie teamed up with successful lawyer-turned-entrepreneur Bebe Chueh to found Atrium, a technology-first law firm. They partnered with Justin and Chris Smoak to also create Legal Technology Services, a legal technology company with a world-class engineering team to build tools for that firm.

Strikingly absent from anything I have been able to find and read about the rollout of Atrium is how it isn’t just outright flouting California’s ethics rules that prohibit non-lawyer ownership in law firms and that prohibit people who aren’t lawyers from being partners in a law firms.  Although California does not yet have rules tracking the Model Rules in many areas (so they don’t for example have all of the provisions of ABA Model Rule 5.4), it does have Rule 1-310 that pretty much tracks Model Rule 5.4(b).

Rule 1-310 Forming a partnership With a Non-Lawyer

A member shall not form a partnership with a person who is not a lawyer if any of the activities of that partnership consist of the practice of law.

Discussion:

Rule 1-310 is not intended to govern members’ activities which cannot be considered to constitute the practice of law. It is intended solely to preclude a member from being involved in the practice of law with a person who is not a lawyer.

It also has a rule that imposes other restrictions on sharing fees with nonlawyers, Rule 1-320

Now, I noticed from one of the articles the idea that Atrium LTS (the tech company) is only “loaning” the start up costs to Atrium.  I mean there are lots of places where that concept seems vulnerable to analysis, but throw in the point that the way the attorneys for the Atrium law firm are getting paid is either stock or stock options in Atrium the tech company or salaries paid by Atrium the tech company for being advisors to the tech company and … just … come on. That really doesn’t pass any laugh test.  Does it?

So, really, what am I missing about this?  Assume the things being done by Atrium the tech company as part of launching Atrium the law firm were being done by an actual bank, wouldn’t everyone immediately recognize that the lawyers involved were violating the ethics rules?

Don’t get me wrong, I’m a huge believer in the benefits of moving away from the billable hour and innovation in the delivery of legal services and embracing technology, but the Atrium model sounds very much like something that can only be done in California (or just about any other U.S. jurisdiction besides D.C.) if, first, the ethics rules are revised to permit it.

Is this just an effort by an entity with lots of resources to do it and dare someone to stop them?

“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.

New Jersey weighs in as well, reminding us the difference between “is” and “ought.”

My last two posts have focused on the pretty wide-ranging and very thought-provoking work (and work product) of the Oregon State Bar Futures Task Force.  I do plan to return to the topics because there is more in that report worth discussion, but we are taking a break from that with this post.

Let’s move from the West Coast to the East Coast and talk today about a joint opinion issued in New Jersey last week because it offers something of a juxtaposition for discussion of the future of legal ethics.

On June 21, 2017, three committees of the Supreme Court of New Jersey – the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law — issued a Joint Opinion announcing that lawyers in New Jersey can’t get involved with Avvo Legal Services, Rocket Lawyer, or LegalZoom.  In fact, you don’t actually have to read much further than the title of the Joint Opinion to get the gist of it as it is entitled:

Lawyers Participating in Impermissible Lawyer Referral Services and Providing Legal Services for Unregistered Legal Service Plans — Avvo, LegalZoom, Rocket Lawyer, and Similar Companies

As indicated, the opinion explains that there are two problems: one that plagues Avvo Legal Services under their analysis, and another that plagues LegalZoom and Rocket Lawyer.  The message New Jersey is sending reads as one that as starkly different from Oregon’s message.

But, and here’s what makes all of this both complicated, fascinating to discuss, and extremely important:  the analysis New Jersey offers is not wrong.

As to lawyer participation in services like LegalZoom and Rocket Lawyer, which offer something that New Jersey refers to as a legal services plan — and the choice to see them that way and call them that is an important one — the problem for New Jersey lawyers is described in a way that appears much less pervasive than as to other companies operating in the space – that these companies simply are not properly registered in New Jersey.  I’ve written in the past about the barrier that Tennessee’s special RPC 7.6 can create for attorney participation in programs if they can be considered an intermediary organization.  New Jersey has a particular registration requirement for companies that provide “legal service plans.”  That rule is RPC 7.3(e)(4).

The opinion walks through each of the requirements ending with the registration requirement that appears in RPC 7.3(e)(4)(vii).  The opinion indicates that, regardless of anything else, neither of those companies have registered their plans and, thus, lawyers cannot participate.  The implication is that the only obstacle standing between New Jersey lawyers and signing up for plans offered by Rocket Lawyer or LegalZoom is proper registration.  The opinion doesn’t pull back the curtain to make plain for the reader whether there is any institutional barrier that makes it impossible for Rocket Lawyer or LegalZoom to choose to register.  But, the joint opinion certainly appears to strongly imply that lack of registration is the only problem.

As to participation with Avvo Legal Services, the New Jersey joint opinion has serious problems to point out – problems that would require a change in business model altogether to be solved.  The problems voiced by the New Jersey joint opinion are ones that have been expressed before in a number of other states and, in fact, the New Jersey opinion unsurprisingly explicitly cites to those other ethics opinions from Ohio, South Carolina, and Pennsylvania.  Avvo’s marketing fee requires a lawyer to improperly share fees with a nonlawyer in violation of New Jersey Rule 5.4.  The opinion, in a way that when truly contemplated seems like piling on, also goes after the same payment as being the payment of impermissible referral fees in violation of New Jersey’s Rules 7.2(c) and 7.3(d).

Back in February 2016, I wrote a lengthy post that was a barely-veiled critique of the arguments Avvo kept making in terms of their efforts to defend their business model over how they were trying to blur the distinction between what is, and what ought to be, when it comes to whether participating lawyers were complying with the ethics rules.

The difference between the message being sent in New Jersey and developments in Oregon may be just as simply summed up though.

Perhaps, the gap between the two approaches is only as big as the difference between what is and what ought to be.

More of me weighing in on Oregon weighing in on the future

For those that missed my post earlier this week on the release of the Oregon State Bar Futures Task Force report, you can read that post here and get caught up.

Today, I want to offer some thoughts on one of the three Recommendations made by the Regulatory Committee of the Futures Task Force.  It is likely the most important of the Recommendations but certain to be the most controversial as well.

Recommendation 2: Revise Rules of Professional Conduct to Remove Barriers to Innovation.

This recommendation is comprised of four parts.  I’ll list them in the order they are presented, even though that is not the order in which I want to discuss them.

2.1  Amend current advertising rules to allow in-person or real-time electronic solicitation, with limited exceptions.

2.2  Amend current fee-sharing rules to allow fee sharing between lawyers and lawyer referral services, with appropriate disclosure to clients.

2.3  Amend current fee-sharing and partnership rules to allow participation by licensed paraprofessionals.

2.4  Clarify that providing access to web-based intelligent software that allows consumers to create custom legal documents is not the practice of law.

Now, that third sub-part creates a spoiler for another of the three Regulatory Committee recommendations – Implement Legal Paraprofessional Licensure.  Given the way those programs have played out to date in a number of other jurisdictions, I don’t think that is going to do much to turn any tides, so for now I’m going to pass on discussing it.  (If you want to delve into it, you can read all of thoughts of the Futures Task Force on that subject and the entirety of the 90+ page report behind the Executive Summary here.)

The fourth one – making clear that certain software programs that let someone through self-help generate customized legal documents — is a perfectly fine idea and, in this day and age, seems very difficult to argue against.  With each passing day, the notion that there are certain legal problems that states cannot allow be served through software programs that do for certain legal problems what tax return software programs do for income taxes seems harder and harder to justify.  But, I’m not sure that such a clarification is what is standing between better access to legal services for consumers and where things are today.  I tend to think that, in part, because those services already exist and are in pretty wide use because companies already make them available and consumers already use them.

The first one about changes to the advertising rules is most certainly a provision I would support (and have supported in past posts).  Virginia has just done something similar with its recent rule revisions.  But again, I don’t know that this change would be something that, as a response or solution to trying to improve public access to legal services, will make any real difference.  Why do I say that?  It is currently not at all very difficult to create an online platform in which it is the consumers that make the first communication effort so that lawyers can respond to it rather than initiate it.  As long as that is true, then lawyer advertising rules prohibiting solicitation do not present any barrier at all to getting consumers in need of legal services and lawyers with the time and ability to provide the services together.

That leaves the second subpart.  And that is the one where I suggest, respectfully, all the marbles are located for lawyers.

The notion of changing the ethics rules to allow lawyers to share fees in a particular matter with nonlawyers, as long as there is full, appropriate disclosure to the consumer of what is taking place.

The specific proposal Oregon’s Task Force has offered is for its current RPC 5.4(a)(5) that only references bar-sponsored or not-for-profit referral services to be revised to read instead as follows:

(a)  A lawyer or law firm shall not share legal fees with a nonlawyer, except that

***

(5) a lawyer may pay the usual charges of a lawyer-referral service, including sharing legal fees with the service, only if:

(i) the lawyer communicates to the client in writing at the outset of the representation the amount of the charge and the manner of its calculation, and

(ii) the total fee for legal services rendered to the client combined with the amount of the charge would not be a clearly excessive fee pursuant to Rule 1.5 if it were solely a fee for legal services, including fees calculated as a percentage of legal fees received by the lawyer from a referral.

That is an action that would, overnight, make pretty much every technological innovation already available (or even conceivable) viable for lawyers to participate in as a way of delivering legal services to consumers and businesses.  It would also allow many existing operators in the legal space to spend less time on trying to come up with workarounds about not being engaged in making referrals in their business model to try to assuage concerns that lawyers who use their platforms will be the subject of disciplinary complaints.

In short, that recommendation appears to me to the one that must be discussed and debated and decided on before any evaluation can be made about what any of the other ones might mean or accomplish.

If Oregon follows through, it seems difficult to speculate that one or more other states won’t follow.  And, if the experience of those states shows that full disclosure of the sharing arrangement, plus compliance with the other ethics rules requiring exercise of independent professional judgment and not allowing interference with that judgment, then it will seem very difficult for any jurisdiction to argue against doing the same.

It is inherently a controversial topic because the prohibition against fee sharing with nonlawyers is viewed by many as a bedrock principle of our profession.  But — if the underlying premise of that bedrock principle is restated as preserving the independent professional judgment of lawyers from undue influence by others — then the Oregon proposal that would allow fee sharing, require fulsome disclosure to the consumer involved about that arrangement could still readily be expected to serve that bedrock principle and protect consumers while benefiting consumers because – though not highlighted in the Report, RPC 5.4(c) would still be in force as well.

(c) A lawyer shall not permit a person who
recommends, employs, or pays the lawyer to render
legal services for another to direct or regulate the
lawyer’s professional judgment in rendering such legal
services.

Existing models of the online approach to pairing lawyers and consumers in need of legal services could almost all be placed into this bucket and, thus, lawyers using these services would still have maintain their independent professional judgment and refuse and resist efforts to compromise it.

The Future of Legal Services – Oregon weighs in

I was given an opportunity to provide a Legislative Update piece in the Spring 2017 issue of TortSource a publication of the ABA Tort Trial & Insurance Practice Section.  The focus of the Spring 2017 issue is “Evolving Legal Markets” and, although the authorship is Tennessee-heavy, I think you will find all the articles to be worth a read if you can get access.  There is a piece on artificial intelligence, a piece on consumer-facing legal services provided by non-lawyers, a piece on predictive coding, and one on online dispute resolution.

My piece focuses on questions of UPL and responses by states to challenges posed by the companies that compete with lawyers for clients and I’ll share with you the conclusion section:

Other jurisdictions may choose to take more strident approaches, but it would appear that the best path forward for leveling the playing field for lawyers is to seek the adoption of regulations that will require companies providing such legal services to consumers to adhere to the same ethics rules as lawyers. The ABA’s Model Regulatory Objectives for the Provision of Legal Services (A.B.A. Resolution 105, Feb. 2016) provide one template for states to consider to pursue such a path forward.

That conclusion feels more prescient than it truly was because, this past week, the Oregon State Bar Futures Task Force issued its report on the Future of Legal Services in Oregon.   Oregon is often discussed a rainy part of the U.S., and the volume of materials provided as the end product of the Futures Task Force is something of a deluge — the Executive Summary alone spans 15 pages of material.  You can read the Executive Summary here.

There is so much content of note in the work the OSB Futures Task Force has performed that I foresee spending a few posts discussing aspects of it, but today I want to start with a discussion of the findings of one of the two committees that made up the task force.

But even before discussing those two items, some background about the Futures Task Force and about the structure of the report and recommendations is in order.  First, the origin of the task force itself:

In April 2016, the OSB Board of Governors convened a Futures Task Force with the following charge:

“Examine how the Oregon State Bar can best protect the public          and support lawyers’ professional development in the face of            the public evolution of the manner in which legal services are            obtained and delivered.  Such changes have been spurred by              the blurring of traditional jurisdictional borders, the                            introduction of new models for regulating legal services and              educating legal professionals, dynamic public expectations                about how to seek and obtain affordable legal services, and                technological innovations that expand the ability to offer legal          services in dramatically different and financially viable ways.”

Second, the first step that was pursued as to the Task Force once created:

The Board split the Futures Task Force into two committees: a Legal Innovations Committee, focused on the tools and models required for a modern legal practice, and a Regulatory Committee, focused on how to best regulate and protect the public in light of the changing legal services market.

The end result was that the Regulatory Committee has made three recommendations and the Legal Innovations Committee has made five recommendations.  I plan to definitely write further, and in more detail, about the Regulatory Committee recommendations.

But, as indicated, for now I just want to talk about the findings made by one of the two committees, the Regulatory Committee.  I want to focus on them because, I think, they reveal just how universal the situation is that is faced in U.S. jurisdictions and, in turn, this means that the work product of this Oregon group has obvious potential application as a road map for action just about anywhere.  The Regulatory Committee made these nine findings:

  1. Oregonians need legal advice and legal services to successfully resolve problems and to access the courts.
  2. Consumers are increasingly unwilling or unable to engage traditional full-service legal representation.
  3. A significant number of self-represented litigants choose not to hire lawyers, even though they could afford to do so.
  4. Self-help resources are crucial and must be improved, even as we take steps to make professional legal services more accessible.
  5. Subsidized and free legal services, including legal aid and pro bono representation, are a key part of solving the access-to-justice gap, but they remain inadequate to meet all of the civil legal needs of low-income Oregonians.
  6. Despite the existence of numerous under- and unemployed lawyers, the supply of legal talent is not being matched with the need.
  7. Oregonians’ lack of access to legal advice and services leads to unfair outcomes, enlarges the access-to-justice gap, and generates public distrust in the justice system.
  8. For-profit online service providers are rapidly developing new models for delivering legal services to meet consumer demand.
  9. To fully serve the Bar’s mission of promoting respect for the rule of law, improving the quality of legal services, and increasing access to justice, we must allow and encourage the development of alternate models of legal service delivery to better meet the needs of Oregonians.

The question I would leave you with today is:  any reason at all to think that the first 8 items described would be any different if the discussion was about your state and its consumers rather than Oregon and Oregonians?  And, if not, then how could you think that the item identified in 9 isn’t something that your state is going to have to pursue as well?

 

Go read this other stuff.

In a little over 2 years and out of 244 prior posts, this is only the second time I have done this, so I don’t feel incredibly bad.  Though I admittedly do feel somewhat bad.  But try as I have to find something this week that I had to say that was worth writing about and on-topic, I’ve been unable to do so.

Thus, if you happen to be checking here for worthwhile content, let me point you to 4 pieces written by other very intelligent folks that are truly worth your time.

First, following very quickly on the heels of Ravel Law’s announcement about one of its new offerings (which I did write about), it was announced that LexisNexis is buying Ravel Law.  Bob Ambrogi has written about how significant a development this is and you can read that here.

Second, although it is now a two-week old piece, the fine folks at The Law for Lawyers Today  have a really good post on yet another instance of a litigator crossing lines during a deposition into obstruction and why that continues to be such a bad idea for litigators.

Third, a circumstance in Tennessee has gotten a high-enough profile to be written about on Above The Law and you can go read about it here.  I don’t want to say too much about it at the moment, not because I have any involvement in the matter, but because a petition seeking a rule change has also been filed with the Tennessee Supreme Court and the TBA Ethics Committee that I chair will likely be looking that over and offering input.  (If you happen to be a subscriber to The Nashville Post, you can read article about the rule petition here.)

And, finally, Mike McCabe over at his blog has a very nice piece up reminding IP lawyers about how important it is to abide by protective orders in IP cases – though the reminder is just as valid to lawyers in other litigation practice areas.

Something to chew on during your holiday weekend.

I am nowhere near the most plugged in when it comes to lawyers on the forefront of tracking the ways in which rapid developments in technology are changing the practice of law.  I’m a bit more aware than likely most lawyers, in part because I’m constantly looking for things worth writing about here, but also because I’ve been fortunate enough over the last two years to be a members of the Tennessee Bar Association’s Special Committee on the Evolving Legal Market.

For a combination of those reasons, I’ve been reading a bit about the latest tool that Ravel Law has unleashed on the world, “Firm Analytics.”  Among other selling points that Ravel Law touts, and the one I want to leave you to think about over the weekend is:

In another first, Firm Analytics also provides rankings of firms across key variables including practice area, case volume, venue experience, and motion win rates. These leaderboards allow comparisons across substantive performance metrics, a significant innovation to traditional revenue and size rankings. As part of this launch, we are releasing rankings of the top five law firms across employment, securities, antitrust, administrative law, and bankruptcy (more below).

This is, of course, excellent information to be made available in the marketplace and with the constant creation of new ways to better, and more quickly, aggregate and synthesize data it is also inevitable for it to come into existence.

The thought I want to leave you with though is this — how crazy is it that, in many U.S. jurisdictions, if a lawyer or law firm wanted to advertise themselves using this same kind of data (win rates, success history, etc.), they would likely be opening themselves up to a disciplinary complaint under state advertising rules that prohibit lawyers from touting past successful outcomes in matters?

For example, let me pick a state at random and not a state that has any reason at all to be in the news, Montana.  If a law firm in Montana or a lawyer there decided to aggregate this data and tout their win percentages, they’d likely be at risk of seeing bar regulators accuse them of violating either or both of these provisions in Rule 7.1 prohibiting communications about a lawyer’s services that:

(b) is likely to create an unjustified expectation about results the lawyer can achieve;

(c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits.