Can Utahp Arizona?

I know. I’m either: (a) such a sucker for Utah-centric wordplay; (b) a lame, repetitive sort of humorist; or (c) both a and b.

But nevertheless today’s post is really important – at least the subject matter of it is – and so it is being designed to try to be short and sweet and get you, Dear Reader, to go read the source material.

I wrote about Arizona’s efforts in reshaping the legal regulatory landscape a couple of weeks ago. I emphasized how much faster it was moving than California. But Utah has gotten to something of the “finish line” on a very bold regulatory initiative even sooner.

This week it was announced that the Utah Supreme Court unanimously voted to approve the August 2019 Report and Recommendations from the Utah Work Group on Regulatory Reform.

So, for some light reading during this holiday weekend, I offer you the link below to download the Utah report itself – which was titled “Narrowing the Access-to-Justice Gap by Reimagining Regulation.”

To try to immediately pique your interest in reading it, here is the concluding paragraph:

Decade after decade our judicial system has struggled to provide meaningful access to justice to our citizens. And if we are to be truly honest about it, we have not only failed, but failed miserably. What this report proposes is game-changing and, as a consequence, it may gore an ox or two or upend some apple carts (pick your cliché). Our proposal will certainly be criticized by some and lauded by others. But we are convinced that it brings the kind of energy, investment, and innovation necessary to seriously narrow the access-to-justice gap. Therefore, we respectfully request that the Supreme Court adopt the recommendations outlined in this report and direct their prompt implementation.

For what it is worth, I also offer for you the four most important takeaways (in my opinion) about this development:

  1. The framing of the current legal landscape using the term “Age of Disruption,” is very good. It is not only quite accurate but a compelling choice of words.
  2. The Utah report manages to adroitly articulate a number of very important points about the fact that the need for regulatory reform and the problem of the lack of true access to justice in the U.S. are both intertwined with, and independent of, each other. The need for regulatory reform exists whether it will ultimately result in true access to justice or not. The need to strive toward true access to justice exists and must be addressed even if we don’t manage true regulatory reform. The report also says out loud what is often not said — that the lack of access to justice is not the fault of lawyers because it is not a problem that can be made to go away simply by volunteering more or donating more.
  3. I don’t know, however, that it helps to move any needles to be quoting Heraclitus exactly, given that he is most famously known for cosmology. While the point about “Life is flux” is well and good in terms of making the overall point that the only constant in life is change. I think the more appropriate reference for that point in the Age of Disruption is something better than an obscure 5th Century Greek. Probably would have been better to go with a more modern approach and use a variation of the message spoken by a well-known character in Grey’s Anatomy. (I’m largely kidding about this and it really doesn’t deserve to be treated as one of four takeaways. Having only “three” most important takeaways seemed cliché.)
  4. The Utah approach does the two things that, I believe, have to be done hand-in-hand to address this problem. Both freeing up lawyers to compete by paring down certain aspects of the ethics rules, AND establishing regulation to address those who are going to be out there doing the delivery of legal services but who are not lawyers. And, I happen to think that doing so through the “regulatory sandbox” approach Utah will pursue is the path that makes the most sense for that second piece.

Okay, enough about what I think about it. Put it in your reading pile, find a relaxing spot this weekend and read it for yourself and see what you think.

Don’t sleep on Arizona

We’ve (in that creepy royal “we” sort of way) now dedicated two posts to discussing the ATILS proposal coming out of California, but California is certainly not the only state working on reform. In fact, while it may be the biggest, it is not the state offering the boldest reforms, and it also isn’t the fastest in the race by far.

While I did not manage to make my travel work to stay in California for the public hearing on the ATILS proposals, one thing I did learn (along with others in an audience) about it is that before California actually does anything with respect to rule changes there would have to be a second task force put together that would actually craft rule proposals and other specifics.

The state that – at the moment at least – appears to be proposing the boldest reforms when it comes to the future of legal ethics and is doing so at a much quicker pace is Arizona. The Arizona Supreme Court has created its own Task Force on Delivery of Legal Services. You can review as much or as little of the happenings to date of this Task Force by spending some time perusing what is available at this link.

That task force meets again on August 14, 2019 but a review of the minutes of some of their prior meetings will tell you that the Task Force has already approved two revisions that it would be a bit of an understatement to simply call bold:

  • Included within a series of changes to the Arizona advertising rules spurred to some extent by the original APRL proposal for advertising reform and the recent ABA Model Rules revisions, the Arizona Task Force has approved the deletion of RPC 7.2 in its entirety.
  • The Task Force also appears to have approved the deletion of RPC 5.4 altogether (what the various minutes refer to as “Option 3”) so as to open wide the doors to partnerships between lawyers and nonlawyers and financial investment in law firms. In order to make certain that the requirements for lawyers to maintain professional independence are not lost, however, revisions are being made to other rules including comments to RPC 1.7 to highlight the issues.

The Task Force is also moving forward with a proposal to allow nonlawyers to provide certain limited legal services in a fashion that is similar to the concept of LLLTs adopted in a few other jurisdictions.

The Arizona Task Force is also working on evaluating what form of entity regulation may be required or desirable to address the fact that the regulators with jurisdiction to preside over complaints against lawyers and enforce the ethics rules against lawyers would not otherwise have authority over those not licensed to practice law.

So, at the pace Arizona is moving along, it is quite possible that, by as soon as early 2020, there could be a state out there in which there are no limitations on financial investment in law firms (or solo lawyer shops), no limits on what can be accomplished through lawyers partnering with people from other disciplines and backgrounds, and no restrictions on the ability of a lawyer to share compensation received from a client with someone who assisted in delivering that client to that lawyer so that the lawyer could serve the client’s legal needs.

California dreaming.

As promised, I’m not done writing about the ATILS initial recommendations that have been put out for public comment in California.

In fact, I’m here in San Francisco for the next few days at the APRL meeting where there will also be a public forum about the recommendations on August 10.

The public comment period continues until September 23, but if the sentiment that gets expressed at the hearing is anything like the feedback during the public comment period, there may be pitchforks and torches.

It should come as no surprise to those paying attention but California lawyers are scared and uninterested in embracing reform of the way legal services are delivered. While I cannot find anywhere online to actually read the comments that have been submitted so far, you can access something of a spreadsheet here that is a tally of favorable or opposed submissions. People so far even have overwhelmingly commented against doing the easy stuff I mentioned in my prior post.

Nevertheless, let’s talk about a piece of the ATILS recommendation because I still think reform has to happen … one way or another.

The piece I want to talk about today is the proposed recommendation about changing RPC 5.4 in terms of prohibiting partnerships between lawyers and non-lawyers. This is an issue that the APRL Future of Lawyering project is also tackling but California has more quickly made tangible proposals. They’ve done so in the alternative offering a proposed recommendation 3.1 and an alternative proposed recommendation 3.2.

3.1 – Adoption of a proposed amended rule 5.4 [Alternative 1] “Financial and Similar Arrangements with Nonlawyers” which imposes a general prohibition against forming a partnership with, or sharing a legal fee with, a nonlawyer. The Alternative 1 amendments would: (1) expand the existing exception for fee sharing with a nonlawyer that allows a lawyer to pay a court awarded legal fee to a nonprofit organization that employed, retained, recommended, or facilitated employment of the lawyer in the matter; and (2) add a new exception that a lawyer may share legal fees with a nonlawyer and may be a part of a firm in which a nonlawyer holds a financial interest, provided that the lawyer or law firm complies with certain requirements including among other requirements, that: the firm’s sole purpose is providing legal services to clients; the nonlawyers provide services that assist the lawyer or law firm in providing legal services to clients; and the nonlawyers have no power to direct or control the professional judgment of a lawyer.

3.2 – Adoption of an amended rule 5.4 [Alternative 2] “Financial and Similar Arrangements with Nonlawyers” which imposes a general prohibition against forming a partnership with, or sharing a legal fee with, a nonlawyer. Unlike Recommendation 3.1, the Alternative 2 approach would largely eliminate the longstanding general prohibition and substitute a permissive rule broadly permitting fee sharing with a nonlawyer provided that the lawyer or law firm complies with requirements intended to ensure that a client provides informed written consent to the lawyer’s fee sharing arrangement with a nonlawyer.

Now, my quibbles with either proposed amendment to RPC 5.4 would be at the margins. I think what is missing from the second alternative is that also there would need to be protection that the nonlawyer have no power to direct or control the professional judgment of a lawyer. As to the first alternative, my only real quibble is that I think the second alternative is better on substance.

I understand why a lot of lawyers would get queasy at the second alternative, but I’m at something of a loss to see how – other than based purely on either pure self-interest or “guild” protection – lawyers can wield torches in response to the first alternative. Very weirdly there has (so far) been more opposition to 3.1 than to 3.2.

To some extent recommendation 3.1 is not strikingly different than what D.C. already permits and it embraces the reality of what is (or at least with respect to Avvo “was”) already happening online when it comes to business providing marketplaces to pair willing attorneys with interested clients.

Loosing a big (maybe?) idea into the world.

I had originally promised myself that the articulation of this thought would debut here at my blog. I almost managed it but I raised this notion in the real world lately among some very bright lawyers. So, before I do it again somewhere other than the Internet, I’m following through to put this idea out through this platform for anyone who wishes to chew on it to chew on it.

The only background that I think you need (even if you are not a regular reader of this space) is that there is much activity going on across the country in terms of real efforts at proposed change to the way lawyer ethics rules address certain topics that are largely viewed as barriers to information about the availability of legal services.

Two of the potentially most important, and relatively fast-moving, endeavors are the work of the California Task Force on Access Through Innovation of Legal Services, the APRL Future of Lawyering project. But there is movement happening in a number of different states to propose changes to the ethics rules to loosen, if not outright delete, restrictions on monetary and other arrangements between lawyers and people who are not lawyers, that are currently placed in rules patterned after ABA Model Rule 5.4 (generally prohibiting fee-sharing with people who are not lawyers) and 7.2 (restricting the ability of lawyers to make payments to others for referrals to, or recommendations of the lawyer).

It is anticipated that there will be some significant level of outcry over any such proposed changes on the grounds that removal of such rules erodes the protection against lawyers having their exercise of independent professional judgment interfered with. Most every time I engage with anyone on that topic, I find myself making the point that, even without those provisions, the rules still require lawyers to maintain their independent professional judgment.

But, here’s the idea I am letting loose into the world: perhaps we should make that obligation more prominent. At present, outside of any particular context, the only rule that plainly starts down this path is the first sentence of Rule 2.1 which reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Should we, as part of the coming necessary reform of the ethics rules, revise the first rule? Perhaps like this?

Rule 1.1: Competence and Independence

(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer representing a client shall not permit any person to direct, regulate, or otherwise interfere with the lawyer’s exercise of independent professional judgment.

If that rule existed, then in all places in which restrictions considered to be barriers to access to legal information but which are justified because of the risk to lawyer independence could be replaced with a pointer back to the lawyer’s obligation under Rule 1.1(b).

New Lunar Year, New Lunar Rule?

Okay, the title is something of a stretch to acknowledge that today marks the beginning of a new lunar year, the Year of the Pig. Nothing about what I have to say relates to the moon or anything Lunar.

But I did want to continue one part of the discussion begun in Las Vegas last month, and truly follow through on my insistence about how what happens in Vegas shouldn’t just stay in Vegas this time, by sharing the text of a proposed new Model Rule that I drafted and that we kicked around during a panel discussion at the APRL Mid-Year Meeting.

The general topic is what to do with the rules, if anything, to address the reality of online lawyer matching services and other similar platforms that are benefiting consumers by helping connect consumers who are willing to pay a certain price point for legal services and lawyers who are willing and able to deliver those services at that price point but that are always in tension with the current ethics rules because of restrictions on lawyers providing compensation for referrals or recommendations and related restrictions on fee sharing.

We have a rule here in Tennessee which I believe to be substantively bad, but the architecture of the rule is pretty good if you change its goals. Sort of like an old house with really good bones but simply god-awful interior decorations. That rule is RPC 7.6 and imposes certain registration requirements and limitations on things denominated as “intermediary organizations.” Long time readers of this blog, might remember this post about how I believed RPC 7.6 applied to Avvo Legal Services back when that was still in operation.

The rule I have drafted as a conversation starter uses the architecture of the Tennessee rule but is designed to provide a more permissive and more flexible approach to the topic.

Implementation of such a rule would likely also require changes to Model Rules 5.4 and 7.2 to make clear that payments to intermediary organizations are not prohibited as fee sharing or prohibited by the restrictions on payment for referrals, and the accompanying Comment would likely need a paragraph to make clear certain things that are not intended to be swept up as an intermediary organization, but carts and horses and all of that.

The draft is posted below, all feedback is most welcome.


Proposed Model Rule 7.7:  Intermediary Organizations
(a)  An intermediary organization is a lawyer referral service, lawyer matching service, or other similar organization which engages in referring consumers of legal services to lawyers or facilitating the creation of attorney-client relationships between consumers of legal services and lawyers willing to provide assistance.


(b)  A lawyer may make a payment to an intermediary organization, including a payment that would be considered sharing of an attorney fee with an intermediary organization, in connection with any referral or facilitation of a relationship with a client as long as:


                (1)  The relationship between the lawyer and intermediary organization is fully disclosed to the client including, if requested by the client, the amount of any payment made by lawyer to the intermediary organization;
                (2)  The cost to the lawyer of any payment to the intermediary organization is not passed on to the client; and
                (3)  The lawyer does not permit the intermediary organization to direct or regulate the lawyer’s professional judgment in rendering legal services to the client.

The end of Avvo Legal Services should not be the end of the discussion.

A lot of the time, saying something seemed “inevitable,” only makes sense to say when you’ve had the benefit of hindsight.  At some level, every outcome can be justified as having been inevitable when you are doing the justifying after the event has already happened.

I say that to make clear that I understand the problem with making the following assertion:  As soon as the news came out that the same company that owned Martindale Hubbell was buying Avvo, it seemed inevitable that Avvo Legal Services was on the road to being scrapped/shut down.

Further, if the mere news that a much larger, much more “conservative” company was taking over didn’t signal for you how things would shake out ( a company that also owned other significant legal marketing products that might “compete” with or be intended to compete with Avvo), the news that quickly followed — all the key people at Avvo (the founder and CEO, the General Counsel, the marketing person who was to some extent the “face” of Avvo) were cashing out and moving on — should have left no doubt that large change was coming.

This week Internet Brands, that new owner of Avvo, let the cat out of the bag in perhaps the weirdest way possible that Avvo Legal Services would be shut down.  As this ABA Journal article reports, an unauthorized practice of law committee of the North Carolina Bar had sent an inquiry letter, apparently, to continue or begin an evaluation of whether Avvo Legal Services somehow involved the unauthorized practice of law.

In response, the General Counsel of Internet Brands sent the North Carolina committee a letter advising that Avvo Legal Services was going to be shut down imminently.  That’s a weird way for the news to come out because, of all the problems that Avvo Legal Services’s business model had, unauthorized practice of law simply wasn’t one.

If you follow this space, then you are likely well-versed on what those problems were: the business-model required participating lawyers to take on all of the risk that participation would involve them in one or more violations of their state’s ethics rules, including rules against sharing fees with people who aren’t lawyers or paying someone something of a value for a referral of legal work.

The end of Avvo Legal Services, however, should not mean that the legal profession should stop efforts to determine how the ethics rules need to be revised in order to facilitate the existence of things similar to Avvo Legal Services.  Consumers who have grown accustomed to using that kind of platform to get assistance with their legal needs are just going to look around the Internet for a new option.

One of the folks behind Avvo has been promoting the existence of one such new option pretty vigorously of late.  But there are all kinds of others out there and likely new ones waiting in the wings.  Very few, if any, of them can truly be described as providing any sort of service that is likely to hurt consumers seeking legal services.  Real-world transactions have demonstrated that the kind of approach to pairing consumers in need of help with lawyers with time on their hands and a willingness to assist at a desirable price point can take place without hurting the consumers of legal services.  The fact that those business models are currently prohibited by the ethics rules simply means that slavish devotion to those prohibitions based on theoretical concerns rather than how things truly are is an untenable position for the profession to try to maintain.

I still think a big choice has to be made in our profession, and I continue to think that choice is clear.

Time to choose: are you Illinois or New Jersey?

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.

Choose wisely.

A tale of two ethics opinions.

So, I’ve made something of a habit of writing about ethics opinions.  Bad ones and good ones.  Mostly bad ones though.

As the trite – almost hackish – title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from a well done ethics opinion on the kind of issue that cries out for guidance in the form of an ethics opinion and the harm that can come from the kind of ethics opinion that likely should not be issued at all.

First, the good – an opinion issued out of Texas (which Karen Rubin has already written some about) that tackles a thorny problem that can confront a lawyer who has been retained by an insurance company to represent one of the company’s insureds in a piece of litigation.

The particular question addressed in Texas Opinion 669 is this:

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer retained by an insurance company notify the insurance company that the insured client he was assigned to represent is not cooperating in the defense of the client’s lawsuit?

The answer the Texas opinion provides, as difficult as it might be for insurance defense lawyers to hear, is “no.”  And, that answer is the correct one in any jurisdiction where the way the “tripartite” relationship is structured is that the lawyer’s only client is the insured and the insurance company is merely someone who is permitted to pay the lawyer’s bills as long as the lawyer complies with the state’s version of Model Rules 1.8(f) and 5.4(c).

In Tennessee, for example, RPC 1.8(f) specifically states one of the requirements for permitting the lawyer to accept compensation or direction from someone other than the client as being that “information relating to representation of a client is protected as required by RPC 1.6.” (Interestingly, the Texas opinion makes no mention of, or reference to, any of those kinds of rules but simply uses only its confidentiality rule to justify its analysis.)

The unfortunate opinion comes out of Virginia.  Virginia, you might recall, recently made a great leap forward in streamlining its rules on attorney advertising by revising its rules to look very much like the proposal circulated by APRL.  After adoption of those revisions, which became effective on July 1, 2017, Virginia’s ethical restrictions on advertising were largely capable of being described as simply prohibiting false or misleading communications.

Unfortunately, with the issuance of Legal Ethics Opinion 1750, Virginia manages less than a year later to undermine much of its progress by simply re-issuing and updating a lengthy opinion it has released on multiple past occasions that attempts, in advance and not in response to evaluating any particular real advertisement, to provide “guidance” about what kinds of advertising practices should still be avoided because of the potential to be considered to be misleading.

Unlike the Texas opinion, which answered a real dilemma that lawyers can face and for which definitive guidance can be provided, the Virginia opinion is the kind of ethics opinion designed almost exclusively to chill commercial speech.  Even if the guidance it gave on all of the topics it unilaterally decided to address were correct, it would still be the type of opinion that ought not be issued.

Certainly, it says some things that are undoubtedly true and fun to read about ways that a lawyer could engage in truthful advertising that would still be a problem because it would be misleading by omission.  I’ve spoken at seminars before where I’ve tried to make this point by saying that a lawyer whose ad truthfully proclaimed “I’ve never lost a jury trial,” but fails to also mention, for context, that they’ve never actually been involved in a jury trial is going to be at risk under any fair set of ethics rules.  The Virginia opinion grabs a slightly different version of this rich vein by explaining that a lawyer truthfully crowing that “They secured a $1 million jury verdict in case,” but not mentioning that it came only after turning down a $2 million settlement offer before trial would have disseminated a misleading advertisement.

But, even that guidance is something that really ought not be opined about unless there were an actual lawyer seeking actual guidance about just that sort of advertisement.

So many other pieces of the opinion are even worse, however.   Cautions about using actors in ads, hand-wringing over “no recovery, no fee” statements, and subtle digs at the use of testimonials by actual clients in the opinion appear to be rolled back out for no real reason other than to undermine the progress on lawyer regulation of advertising that had appeared to be achieved by streamlining the rules themselves.

TIKD off my list.

Some day I’m going to get tired of having pun with TIKD titles, and you’ve probably already gotten tired of me doing it, but today is not that day for me.  I was looking to find something to be able to easily write about today before scrambling out of town for some speaking engagements and meetings and Roy Simon has come through for me again.  Roy kindly pointed me this morning to the latest development in the saga down in Florida over the traffic ticket app, TIKD, and its fight with the Florida Bar.

If you are not a Law360 subscriber, you can only read part of the story at this link.  Roy was kind enough to send me the full article, so I’ll summarize the key points of the development for you and then leave you with the only potentially relevant thought I can manage today.

The story explains that the Florida Supreme Court has issued a show cause order to TIKD to require it to respond to the Florida Bar’s petition over UPL allegations and to show cause why the Florida Supreme Court should not enter an order barring its services.

The article contains a very confident sounding quote from the owner of TIKD, likely more confident than he should be under the circumstances that reads as follows:

“What a stunning waste of time and resources,” Riley said. “For nearly a year we have been asking the bar to tell us what aspects of our business they find objectionable, so we could work to address
their concerns. Rather than having a conversation, they chose this route and now have filed a vague complaint, lacking any basis in case law.”

“Nonetheless, we’re glad the issue is out of the bar’s hands, and into a realm where actual facts matter. We remain confident Tikd and its affiliated lawyers are fully in compliance with Florida law,
and are hopeful we can finally resolve this and move on,” he added.

I remain skeptical that TIKD itself is truly engaged in the unauthorized practice of law, though I suspect the Florida Supreme Court may find otherwise.  I’m as confident as Mr. Riley sounds above that what they are is a referral service that violates the current version of the Florida Bar’s ethics rules and that lawyers doing business with TIKD simply cannot do so and comply with the current Florida rules.

I’ve written in the past about my thoughts in general about being open to taking hard looks at revising existing ethics rules that touch on these issues, but for now the rules say what they say.

What I’m puzzling over is this:  is there a way of describing what this traffic ticket app company does that is sufficiently analogous enough to what insurance companies do to justify its existence even under current ethics rules?

At some level, isn’t what this company is offering in the equivalent of ticket insurance without a deductible?  They select the lawyer to represent you, they pay the lawyer to represent you, and if a “judgment” goes down against you for which you are liable – a fine for violation of the traffic laws — they pay it.

If we let insurance companies do something very much like that, then what’s the difference here?

Change is hard. Even where it appears to be wanted.

I have been meaning to do this and am long overdue in getting to it, but you might recall back in the summer of 2017 when I wrote pretty extensively about the contents of the Oregon Futures Task Force Report, and its positive proposed changes to the ethics rules.  If you don’t, you can read those posts here and here.

In November 2017, the chair of the Legal Ethics Committee in Oregon who also was a member of the Futures Task Force was kind enough to drop me a line and update on how those proposed rules revisions were progressing.

Initially the Board of Governors of the Oregon State Bar approved the proposed revisions to RPC 5.4, 7.2, and 7.3 for discussion and voting by its House of Delegates.

After the process in the House of Delegates, in which there was quite a significant amount of debate and discussion as I am told, the proposed revisions to RPC 5.4 and 7.2 were referred back to the Board of Governors to a study committee, but the proposed revision to RPC 7.3 was passed and has been submitted to the Oregon Supreme Court so it can decide whether to adopt it or not.

While in my prior postings I discussed the RPC 5.4 proposed revision at some length, I did not provide any real detail of the RPC 7.3 change Oregon was considering beyond the fact that it would involve allowing in-person or real-time electronic solicitation, with limited exceptions.  For the record, this is what the Oregon Supreme Court now has in front of it for consideration:

RULE 7.3 SOLICITATION OF CLIENTS
A lawyer shall not solicit professional employment by any means if:

(a) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person who is the target of the solicitation is such that the person could not exercise reasonable judgment in employing a lawyer;
(b) the [person who is the] target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(c) the solicitation involves coercion, duress or harassment.

Now, you know what I know on this topic.