Maybe the weirdest proof of the old adage about “a lawyer who represents himself…”

Over the last year or so, I have repeatedly said in a number of contexts that with the rapid changes occurring in the modern practice of law, the lawyers who will survive and thrive will be those who can demonstrate that the value that they bring is that of the “trusted advisor.”  The lawyers who consistently demonstrate the ability to exercise very sound judgment and wisdom, provide practical answers, and leave their clients feeling like the person should be part of their “brain trust.”  I don’t claim to be unique in that viewpoint by any means, but I do hope that is what I am able to accomplish during the next decade of my practice or I fear I will have to go do something else to scratch out a living, and I have said so at least one before at this blog.

All of this is prologue to justify a brief mention of a Mississippi lawyer who managed to just demonstrate that, if my speculative musings are correct, he will not be a practicing lawyer all that much longer.  I noticed this case on the ABA Journal online today, and now that I also went and read the complaint — I think it will be hard for folks to think he’s likely to fit the bill of the wise counselor possessing sound judgment.

The gentleman filed a lawsuit, representing himself, against a popular provider of Louisiana-style cajun chicken.  If you were a  client, in the market for a probate and tax attorney which this person apparently is at the moment, here are the four paragraphs of the lawsuit that would probably be all you would need to read to know that you might want to think twice:

11.  In the drive-through line, plaintiff Newton ordered, received and paid for two chicken breasts, and [sic] order of red beans and rice, a biscuit, and a soft drink.  Newton’s order was delivered to him in a bag which included the napkins, salt and pepper, and the utensil deemed necessary for consumption of his order.

12.  Plaintiff Newton drove directly to his business office [snip] and began to consume his meal.  The sole utensil accompanying the order was a plastic “spork,” which is a combination fork and spoon, which Newton used to consume the red beans and rice.

13.  Because Newton’s order did not include a plastic knife, plaintiff Newton’s only option for consumption of the chicken breasts was to hold a chicken breast in his hands and to tear off pieces thereof with his teeth.

14.  During his consumption of his meal, plaintiff Newton became [sic] choked on a portion of chicken which lodged in his throat and other neck areas, and was unable to swallow the bite, or to spit or cough the bite out.

(emphasis added).

Whether or not you happen to “love that chicken from Popeyes,” my guess is, if you are a lawyer, you’d love to have the defense of Popeyes on this one.  And, again, if you aren’t a lawyer and you read the complaint ever, my guess is that you are also going to want a probate or tax lawyer who might be able to have recognized at least one other option in that situation.

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?

Yet another lawyer marketing network joins the fray.

It is often jokingly said that “you learn something new every day.”  I kind of like to think that I learn more than one new thing every day, but results fluctuate.  Last week, in connection with reading about the launch of a new legal marketing network that combines Martindale-Hubbell (which is also behind www.lawyers.com) and Nolo, I learned that Martindale and Nolo are owned by the same company, Internet Brands.  This same company also owns something with which I was entirely unfamiliar, Ngage Live Chat –  a live chat service for lawyers.

Nolo Press is well-known as one of the pioneers for consumers in the “do-it-yourself” approach to law.  The purchase of a pretty well-known commodity in the lawyer rating community by a company called Internet Brands and the fact of common ownership with Nolo seems like something I should have been aware of sooner, but c’est la vie, I guess.

This new marketing network, which will be called the Martindale-Nolo Legal Marketing Network, offers yet another indication of just how significant a push is being made by extremely well-funded companies further into the legal marketing and lead generation space.  Now, of course, like other networks when they have launched, this one claims that it is now that world’s largest legal marketing network.  I don’t have a good sense of whether that is true or not.

A deeper dive into the press release put out about this leaves me learning even more new things (which hopefully drives my per day average up for a while).  The same company that owns Martindale-Hubbell also owns TotalAttorneys.com and a few other services including something called DisabilitySecrets.com, something called DivorceNet.com and another something called DrivingLaws.org.  Total Attorneys is well known among legal ethics nerds such as myself, but if you haven’t paid a visit to its website in a while you might be surprised to see how much more expansive its offerings seem to be, in fact, it really seems like something that looks much more like a direct competitor with something like Martindale-Nolo but for the common ownership.  Interestingly, while the press release references it, I have a good bit of trouble finding it anywhere on the actual Martindale-Nolo website.

The same Martindale-Nolo press release also explains what is contemplated by this particular marketing network in terms of the three “core services” it will deliver, and these clearly include things that are quite likely to be scrutinized under ethics rules referencing payments for referrals versus advertising expenses and lead generation services… which likely means that participating lawyers, at least under current ethics rules like Model Rule 7.2, will need to make sure to pay close attention to terms and conditions.  (And in Tennessee it will be interesting to see if this arrangement finds its way into the basket covered by our special RPC 7.6.)

  • Highlytargeted lead generation, delivered through Martindale-Nolo’s business unit in Pleasanton, Calif., connecting more than 100,000 consumers to attorneys each month from its network of websites. These sites include the high-trafficked domains of Nolo.com, Attorneys.com, AllLaw.com, TotalAttorneys.com, DisabilitySecrets.com, DivorceNet.com, DrivingLaws.org, and a variety of other practice-specific sites. Nolo.com is also highly recognized by consumers for its extensive library of legal resources.
  • Professional websites and online profiles, delivered through Martindale-Hubbell’s flagship websites Martindale.com and Lawyers.com. These established websites display more than 1 million Martindale-Hubbell Peer Review Ratings and Client Review Ratings, as well as educational content to inform visitors about legal issues and processes. The New Providence, N.J.-based business unit has also built and hosted professional websites for more than 40,000 attorneys.
  • Ngage Live Chat, providing 24/7 live chat service for law firm websites. Based in Austin, Texas, Ngage Live Chat uses advanced conversion techniques to deliver twice as many leads to lawyers versus standard website forms or competing chat providers.

You can go take a look yourself at this new offering here, or if you really just want to marvel at how far and fast things have changed in terms of what you think about when you think about Martindale-Hubbell, just read the lead generation portion of the site – here.

“Troubling and counterproductive” – yep

One of the more archaic aspects of lawyer regulation is the heavy-handed approach to UPL.  And, I’m not referring to UPL in the sense of something done that involves the practice of law by a person who isn’t a lawyer anywhere.  I’m referring to regulatory efforts involving UPL that are brandished against someone who is a lawyer somewhere but not licensed in the jurisdiction that happens to be doing the regulating.

Admittedly, a heavy-handed approach almost inevitably follows from the fact that our profession continues to embrace a model in which each state’s law is treated as being of such unique character in all respects that a lawyer in Wyoming cannot be considered competent to practice law in Wisconsin absent obtaining a Wisconsin law license in addition to the Wyoming law license.

The adoption of ABA Model Rule 5.5 — which has been embraced by many U.S. jurisdictions — was supposed to go a long way toward making the realities of cross-border practice a safer proposition for modern-day lawyers.  Unfortunately, a recent private admonition imposed in Minnesota on a Colorado lawyer offers a pretty good example of just how archaic and heavy handed the regulation of UPL continues to be despite such efforts.  Almost the only positive that I can bring myself to say about the matter at all is that Minnesota, at least, has truly private discipline and, therefore, the name of the lawyer disciplined is not obvious and public, which is why the case is styled In re Charges of Unprofessional Conduct.

Here’s the quick and dirty description of the scenario:  son-in-law, a Colorado lawyer, is contacted by his mother-in-law and father-in-law about a small judgment (less than $2500) entered against them and trying to help negotiate a better outcome as to its satisfaction.  In-laws live in Minnesota, owe money to a creditor who got the judgment in Minnesota, and the creditor is being represented by a Minnesota lawyer.  Colorado lawyer agrees to handle and then proceeds to have relatively extensive email communication with the Minnesota lawyer for the judgment holder.

Eventually, that Minnesota lawyer filed a bar complaint against the Colorado lawyer, and the Colorado lawyer was found to have engaged in the unauthorized practice of law in violation of Minnesota RPC 5.5(a).  Minnesota’s version of that rule looks pretty much like the ABA Model so the explanation doesn’t lie in some local variation.  Instead the explanation is mostly that this was regulation for regulation’s sake.

If you want to read the rationale of the Minnesota court, you can read the full opinion, at the link above.  There was a dissent – which is the source of the quoted language in the title of the post.  I can find fault with much of what the majority opinion offers as analysis, but what I’d rather talk for a moment about is how this outcome feels emblematic of a much larger problem in terms of the approach to regulation of this issue.

The Colorado lawyer argued that a number of the various exceptions set out in Minnesota’s RPC 5.5 ought to serve to protect what he did from being a violation but he also, quite understandably, argued that he was not practicing law in Minnesota at all because he was sitting in Colorado at all times.  The Minnesota court was having none of it as to that argument because the clients being represented were in Minnesota, and the matter was characterized as a Minnesota matter.  And there is some logic to that conclusion.

But, here’s the thing, I suspect Minnesota pursues a “cake and eat it too” approach on this issue.  When the facts are flipped around a bit, I worry that Minnesota wouldn’t hesitate to also conclude that a Colorado lawyer would be engaged in unauthorized practice in Minnesota if, while working out of an office in Minnesota, the Colorado lawyer only engaged in representation of Colorado clients in Colorado litigation.  Now, if it were just a temporary situation, like say a week-long vacation to the Mall of America or to visit his in-laws, then there probably would be no problem for the Colorado lawyer.

But, if the Colorado lawyer had moved to Minnesota because his spouse got a new job there because she wanted to be closer to her parents, then I’d venture a guess that Minnesota regulatory bodies would be willing to impose discipline against the Colorado lawyer premised on the notion the Colorado lawyer could not have that kind of systematic, continuous presence in Minnesota for the practice of law and that it would not matter that the Colorado lawyer was only handling matters remotely in a jurisdiction in which he fully licensed.

And that, at least to me, is emblematic of the scope of the problem.  I tend to think that neither situation should be treated as unethical UPL.  I acknowledge reasonable minds can differ on that opinion.  I’m not as inclined to offer up a reasonable minds can disagree approach though to the idea that a state should be able to conclude that both versions are a problem.  At most, a state should have to choose only one of them as being out of bounds.

Friday follow-up – more proof that it’s risky for lawyers to work with Avvo Legal Services

I’ve written about this topic several times (some might say probably too many times) now, but here is the first example of people who — unlike me — actually matter reaching a very familiar sounding set of conclusions about something that quite obviously is the Avvo Legal Services program.

South Carolina put out an advisory ethics opinion back in the middle of July.  I don’t exactly know how I missed it before yesterday, but thanks to an ABA Journal online story about it, I’ve now learned about it.  It hits exactly the two issues that, outside of jurisdiction like Tennessee that have a separate barrier like RPC 7.6, I tried not-too-subtly to emphasize in one of my earlier posts present a real problem for any lawyer thinking about signing up with Avvo Legal Services.  The two issues that, amount to something of a Schylla and Charybdis scenario, are the rule against fee sharing with non lawyers – RPC 5.4(a) — and the rule against paying people for giving people something of value in exchange for recommending your services – RPC 7.2(c).

The South Carolina opinion, quite succinctly, walks through why the arrangement about which it was asked manages to sound like both a fee sharing problem and alternatively a payment for referral problem.  As to fee sharing:

[T]he service collects the entire fee and transmits it to the attorney at the conclusion of the case.  In a separate transaction, the service receives a fee for its efforts, which is apparently directly related to the amount of the fee earned in the case.  The fact that there is a separate transaction in which the service is paid does not mean that the arrangement is not fee splitting as described in the Rules of Professional Conduct.

A lawyer cannot do indirectly what would be prohibited if done directly.  Allowing the service to indirectly take a portion of the attorney’s fee by disguising it in two separate transactions does not negate the fact that the service is claiming a certain portion of the fee earned by the lawyer as its “per service marketing fee.”

As to the lawyer giving Avvo Legal Services money in exchange for a recommendation or referral of the lawyer’s services and whether the “marketing fee” can be considered the “reasonable costs of an advertisement”:

The service, however, purports to charge the lawyer a fee based on the type of service the lawyer has performed rather than a fixed fee for the advertisement, or a fee per inquiry or “click.”  In essence, the service’s charges amount to a contingency advertising fee arrangement rather than a cost that can be assessed for reasonableness by looking a market rate or comparable services.

Presumably, it does not cost the service any more to advertise online for a family law matter than for the preparation of corporate documents.  There does not seem to be any rational basis for charging the attorney more for the advertising of one type of case versus another.  For example, a newspaper or radio ad would cost the same whether a lawyer was advertising his services as a criminal defense lawyer or a family law attorney.  The cost of the ad may vary from publication to publication, but the ad cost would not be dependent on the type of legal service offered.

As the ABA Journal story indicates, Avvo continues to argue against this kind of result on the basis of things that maybe “ought” to be true but just aren’t “actually” true at the moment with respect to pretty much any state’s ethics rules.   Avvo also has in a variety of online spots advanced the argument that it is not even making referrals but just offering a marketplace.  All of this is extremely intellectually interesting from a distance of course because there are models for providing a “marketplace” that actually do work within the existing ethics rules, even ones where the company charges the attorneys for the privilege of getting to be in the marketplace.  But the approach in that regard doesn’t involve charging a fee that is only tied to successful outcomes – i.e., transactions where legal services are provided and fees paid.  (Although even that kind of approach can be made to work if the consumer is the one that pays the freight to the entity hosting the marketplace.)  A much less controversial approach along those lines would be like the eBay model of providing a marketplace, where the participants are paying a fee associated with being involved and they pay it whether they end up getting to a successful transaction or not.

Importantly, Avvo’s response to developments like this SC opinion also makes clear that it plans to carry on full speed ahead, as you’d expect it would given its size, its capital, and its investment in its approach.  That kind of reaction to regulatory barriers is very similar to other market disruptors in other industries who sort of take a “we’re so big and we’re so influential, we dare you to try to stop us” approach.  Uber would be a fine example, but as to Uber there is very little risk to the users or the drivers in being affiliated with the entity when regulators come calling.

As to Avvo Legal Services there are real, and potentially really serious consequences for participating lawyers.  Individual lawyers will make their own decisions, but South Carolina lawyers will have to be extremely reticent about doing business with Avvo Legal Services in light of this opinion.  And I don’t think the SC opinion will be the last to come out and to reach similar conclusions.  My guess is that this will be the first of several jurisdictions that will put out similar opinions.

Thus, if you are a lawyer that is thinking about participating in this kind of arrangement, or continuing to participate if you are already doing so, you know, of course, that no matter what Avvo won’t be the one getting reprimanded and they can’t serve your suspension for you, but it would be a pretty reasonable conversation to pursue to see if Avvo is willing to pay for the costs of your defense if you end up facing disciplinary proceedings over your participation.

 

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.

 

Traps for the Unwary – Avvo Legal Services Comes to Tennessee

I’ve written previously about the maelstrom of issues presented by Avvo’s expansion from its original core business as a lawyer rating service into new things such as Avvo Legal Services — an arrangement where it makes clients, who will have already paid Avvo for the legal services they want, available directly to lawyers to perform certain limited duration, flat rate services.  This is not lead generation, which finds blessing in a Comment to ABA Model Rule 7.2.  Avvo’s own marketing materials make this perfectly clear:

Get paying clients, not leads.

With more than 8 million visits to Avvo each month, we can connect you with clients who have already paid for limited-scope legal services.  There’s no chasing leads.

Earlier this week, Avvo Legal Services launched in 4 more states, including Tennessee.  Right around the beginning of 2016, I wrote a post about why I don’t think anyone can do business with Avvo Legal Services in my state unless they can show compliance with RPC 7.6.  From the best I can tell, Avvo Legal Services hasn’t registered appropriately — they are not listed here — and that’s no surprise because back when its General Counsel was kind enough to interact on my site with a comment, he stated that it wouldn’t be registering as an intermediary organization.

Fundamentally, as I hinted at in the second post I wrote about the ALS rollout, the problem for any lawyer trying to decide whether to take on the risk of working with Avvo Legal Services is that ALS continues to largely ignore the gap between what perhaps “ought” to be and what actually “is” when it comes to various attorney ethics rules.

It is hard to blame Avvo for that approach, of course, as it, and the folks behind it, are in the business of making money and aren’t going to be the people who are going to get in trouble if their business model is ruled not to comply with the attorney ethics rules.  The people at risk of getting into trouble in those circumstances are the lawyers that decide to do business with Avvo Legal Services.

I can’t find anything that would involve any changes to the Avvo Legal Services business model that would change my initial conclusion that Avvo is likely to be treated as an intermediary organization under RPC 7.6 in Tennessee.

Of course, even if I’m wrong about that, the second layer of risk for Tennessee lawyers is that the most likely routes that might exist for trying to categorize what is going on as something not regulated by RPC 7.6 will only strengthen concern that the “marketing fee” that the lawyer pays Avvo is really fee-sharing with a nonlawyer.

And, Avvo Legal Services certainly does its case against the idea that it is sharing fees no favors when its General Counsel tackles the issue with a statement (appearing in the Frequently Asked Questions part of this link) such as:

Fee splits are not inherently unethical.  They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment.

 

Now, I have no personal beef with Josh King.  He has been kind enough to post comments at my blog before and. like me, he’s an active member of the Association of Professional Responsibility Lawyers, and he’s advocating for his client’s position.  But the assertion that fee splitting is not inherently unethical and that a fee split is only a problem if might compromise professional independence of judgment is simply not a correct statement of the law.  It perhaps ought to be how the ethics rules are set up and perhaps ought to be how lawyers are regulated, but it isn’t how things currently are.

In Tennessee and many other states, the sharing of legal fees with a nonlawyer is inherently not okay and only ethical if it can be shown to fit one of the exceptions in RPC 5.4(a).  Maybe those rules should be changed, but any lawyer agreeing to participate in an arrangement that runs afoul of them until any such change occurs is running a real risk.

Is it a risk worth taking for any particular individual lawyer?  Not my call to make, of course, but you’d have to be extremely desperate to take on that kind of risk for say the $109 you would get, after Avvo takes its $40 marketing fee, for doing a document review.

Shameless self promotion – 2016 Ethics Roadshow update

Big news … well, the size of the news may be subject to differing opinions, but news.

Believe it or not, this year will be the 12th year that I have had the opportunity to do the Ethics Roadshow for lawyers throughout Tennessee.  Since this is my 12th go round at doing three hours of just me talking about ethics, the theme of this year’s Roadshow will be the “12 Most Important Developments of 2016 Impacting Ethics and Lawyering.”

Those of you are in the intersecting portion of the circles on the Venn diagram of Roadshow attendees and blog readers will likely be able to predict many of the topics we end up talking about in December 2016.

Because I don’t like to be completely predictable, however, it is possible,  especially given my full-on case of Hamilaria, that I’ll end up performing a 3-hr groundbreaking musical adaptation of the Second Edition of Professional Responsibility in LitigationAfter all, why should I throw away my shot?

I don’t think the TBA has the pages up and running yet to register to attend for any of the stops, but once they do I’ll put the links up at the Seminars page of the site.  In the meantime, here are the city-specific details:

The 2016 Ethics Roadshow: More Ethical by the Dozen?

Memphis – December 6, 2016

Nashville – December 7, 2016

Jackson – December 12, 2016

Chattanooga – December 14, 2016

Knoxville – December 15, 2016

Johnson City – December 16, 2016

 

Wait for it.

Bad blogger – please accept this potpourri like sprinkling of items

The week feels like it is getting away from me, some travel, some work, some personal life, but may be able to write about something more substantive I’ve been meaning to tackle for later this week.  For today, here is a scattershot of stories all of which involve something previously found to be worthwhile enough to have written about.

First, just a very short period of time after the Baker Hostetler announcement of its use of Ross in its bankruptcy practice, we get the announcement that DLA Piper will be using a competing AI software program known as Kira for document review in its mergers and acquisitions practice.  You can read the short ABA Journal story online here.  More indications that this is a fast-moving area and that there will likely be more such announcements coming with regularity.

Second, the availability to consumers of an array of other choices for the delivery of legal services has been a frequent topic here.  The FTC has long been willing to speak out when state bars go too far down regulatory paths that have the potential to really impact consumers — lawyer advertising being an area that they have, in the past, been not at all shy about weighing in on — and the FTC (in conjunction this time with the Antitrust Division of the US Justice Department) has done so again earlier this month with respect to companies operating in the legal service provider sphere and how the services they offer online are beneficial to consumers.  The context involves a North Carolina state senator who requested their input on potential legislation in that state that would address the scope of the definition of the practice of law to carve out certain interactive websites.  Specifically, there is apparently pending in North Carolina a bill that, as the FTC/DOJ describes it would:

amend North Carolina General Statutes Section 84-2.1 to exclude from the statutory definition of the practice of law the operation of interactive websites that generate legal documents based on a consumer’s answers to questions presented by the software.27 A website would have to satisfy several conditions in order to be excluded from the definition of the practice of law, and thus for its provider not to be subject to prosecution for the unauthorized practice of law. These conditions include providing a disclosure that the forms are not a substitute for attorney advice or services, and disclosing the provider’s legal name and physical location and address.

The comment of the combined agencies appears to view the bill, as it stands, as being pro-competitive but also provided some further guidance:

The Agencies recommend that the North Carolina General Assembly not adopt restrictions on such software products unless there is credible evidence that they harm consumers, any restriction is narrowly tailored to address that harm, and the benefits of the restriction will outweigh the harm that will likely result to competition. Should the General Assembly receive any claims of consumer harm from interactive websites or similar products, the Agencies urge the legislature to consider whether the evidence substantiates any such actual or predicted harm.

The full comment of the FTC/DOJ is worth a read and you can get it here.

Last, Karen Rubin and the folks at her firm’s fine blog bring you an update on the latest travails of the lawyer I wrote about here in my Drunk and Disorderly is No Way to Attend a CLE piece.  You can read there latest well done post here.

“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.