Back to the Future … of Legal Services

So, yesterday was Back to the Future day.  And that was fun.  But today I want to go back to the future of legal services… as a topic for discussion.

I’m on record as being a fan of The Law for Lawyers Today blog, but the way they close out a recent piece exploring whether self-help legal services are a solution for members of the public who currently cannot afford to pay for legal counsel or only make the problem worse leaves me with a bad taste in my mouth.  The piece, as a whole, is a well-done op-ed of sorts inspired by, and involving a recap of, an in-person talk in Cleveland by the GC of LegalZoom.

But I couldn’t disagree more with the way in which it is wrapped up, a way which feeds into a few myths and continues to encourage what I think is a wrongheaded view of the situation that faces our profession:

[The GC] closed with a rallying cry, urging lawyers and bar regulators to be more open to the LegalZoom business model, as part of increasing access to justice for legal consumers.

But many are far from being sold on the notion.  Frank DeSantis, a co-editor of this blog, for instance, is the former chair of the Ohio Supreme Court Board of Commissioners on the Unauthorized Practice of Law.  He noted that “UPL regulations exist to protect the public, not lawyers.  LegalZoom is very dangerous because it gives its users the false impression that they have received sound legal advice,” when actually they have just selected from some drop-down menus.  Legal consumers are often not in a position to know what they need to protect their interests.  That’s where legal advice comes in.  Creating and using the wrong document from a website can be more harmful than not having a document.

Reflecting on [the GC’s] described visit to the emergency room, DeSantis commented, “Legal self-help is as pernicious as medical self-help.”

A few of my issues here are that, while it is true that some aspects of UPL regulation exist to protect consumers, the reality is that a significant amount of UPL regulation really only serves to protect lawyers.  I have problems with the GC’s rhetoric as well for conflating businesses like LegalZoom and the services they deliver with what people normally think of when we talk about “access to justice.”  Products like the services that LegalZoom offers do not really exist as an alternative to legal services that the profession should be providing pro bono but aren’t.  These kind of services are marketed toward consumers who can afford to pay for the delivery of legal services but either cannot afford to do so at the rates that a lawyer would charge them or are not willing to pay that higher cost because they do not see the value in doing so.

But, the real problem I have with the treatment of this topic is the argument about the “danger” posed by such service providers to the public, bolstered in part by quotes from Frank DeSantis, who is an excellent lawyer.  While rhetorically well-constructed, closing out the blogpost by painting the existence of such services as endangering the public more than helping them misses the mark on the reality of the kinds of services that self-help legal providers are seeking to make available.  When we’re talking about consumers who live paycheck-to-paycheck, the reality is, that in most situations, access to low-cost, self-help platforms for relatively routine legal services works a lot like (and if our profession could more proactively attempt to embrace rather than vilify could work nearly exactly like) TurboTax does for the completion of income tax returns by members of the public who can’t afford to pay for the services of a CPA.  If you changed the subject matter from Legal Zoom to Turbo Tax and tried to imagine a CPA making the allegation that someone who uses TurboTax to do their taxes is going to end up worse off than someone who goes it alone (or letting the analogy more strictly parallel the actual quote in the article, someone who doesn’t file their taxes at all (i.e. has no document), a reader would have a hard time taking the claim seriously.

My view is significantly different.  To me, the reality of the situation for our profession is that we’ve priced ourselves into a position where consumers cannot afford the services we deliver, and those consumers have turned to a wide array of entities, like Legal Zoom and others, to deliver those services.  Self-help services are not going away.  Nor for that matter are a lot of other platforms competing with lawyers in the legal marketplace that don’t involve self-help but offer what are marketed as more efficient solutions to legal problems than retaining lawyers.  If we want to help ourselves, we have to find a way to help consumers get better help.  If you really do not want to believe me when I say that, look no further than the fact that the American Bar Association is teaming up with an entity to provide answers to a discrete legal question (and a follow up!) for a nickel less per instance than what we use to pay for foot-long sandwiches during promo months from a particular sub sandwich franchise that has lately been in the news for all the wrong reasons.

I tend to believe that our profession really only has three viable choices moving forward: (1) be more willing to better tailor the expense of our services to the needs of consumers so that people, who aren’t impoverished, but who consider hiring an attorney to be beyond their financial reach can better afford to hire a lawyer; (2) embrace and co-opt these other avenues for consumers to receive services that we are not willing to make affordable otherwise; or (3) at the very least, stop trying to argue that these providers should not be permitted to exist and work instead toward solutions that involve advocating for these providers to be regulated in some coherent and cohesive fashion.

And, who knows, if the general arena is better regulated so that a consumer who has used such a service and really has made their situation worse has a viable remedy to pursue, then they might hire a lawyer to help them pursue that remedy.  Plus, the providers subjected to the regulatory framework absolutely will be retaining lawyers to defend them and help them navigate the applicable regulations.

 

A rose may be a rose but UPL does not always mean the same thing as UPL.

So, you likely have read about or stumbled into something on the web about the remarks offered by the founder of Avvo at the ABA Meeting.  If you somehow missed having that hit your radar screen at all, you can read about it (and snippets of the remarks of the other folks who gave similar Ted-talk-styled remarks at the ABA Journal online) here.  (And, you ought to read all of the comments as they are as interesting/revealing as the story itself.)

The tl:dr version is that Avvo’s founder suggested that if the legal profession wanted to “innovate” and promote access to justice it should “get rid of UPL.”  If you’ve now spent the time reading all of the comments posted on the article, you’ll see that got at least few people pretty riled up by that and don’t have much to say about any of the other talks detailed in the piece.  Unsurprisingly, analogies were quickly offered up with the practice of medicine and whether it would be seen as “innovative” to allow anyone off the street to practice medicine, etc.  Universally, it seems that the reference to  “UPL” made by the speaker is being treated as saying that we should permit non-lawyers to practice law and, perhaps it was.  But there are two separate and distinct categories of things that both fall under the terminology of “UPL,” and I think it worth remembering the distinction in this context.  In addition to referring to the practice of law by a nonlawyer as UPL, we also refer to the practice of law by a lawyer in a jurisdiction other than the one in which she is licensed as UPL as well.

These are usually situations governed by completely separate regulatory entities and approaches.  For example, in Tennessee, UPL of the first variety can be by the state Attorney General’s office and is governed by a statute that makes the commission of the offense a crime.  UPL of the second variety (though there is nothing explicitly in Tennessee statutes saying it cannot be taken up by the AG’s office) is addressed by the Tennessee Board of Professional Responsibility in the form of potential disciplinary proceedings against the person for violations of RPC 5.5.

I tend to find that lawyers generally are more attuned these days to risks regarding cross-border practice.  I know and have encountered quite a few lawyers who take a very risk-averse approach to the topic by questioning whether they can represent a client in a dispute in state Y when they are only licensed in state X or whether they can advise a client about state Z’s laws when they are only licensed in state X.  Obviously not all lawyers are attuned to the risk or risk averse as we’ve seen in two cases getting some publicity this month – the first is only in part a story about UPL as the disbarment order visited upon an attorney who served as managing partner of a Maryland law firm without being licensed in Maryland is as much about fees charged to clients when no work was performed, trust accounting violations, lack of competence, and failure to supervise others in the firm as it is about the fact that the lawyer was only licensed in jurisdictions other than Maryland.  (And, yes, a lawyer can get disbarred from a jurisdiction in which they were never licensed in the first place.  That is a thing.)   The second appears to be a purely UPL issue involving two brothers who have been running a Rhode Island firm for almost two decades without being licensed in Rhode Island.  Both of the situations though do reveal that enforcement of restrictions on UPL by lawyers is obviously not the highest priority of state bar regulators.

And, in part, that is as it should be.  The restrictions on UPL exist in order to protect the public from harm.  The now disbarred Maryland lawyer harmed the public quite a lot.  The brothers in Rhode Island ended up on the radar screen for discipline when a former client filed a complaint about a claimed blown statute of limitations.  There are likely quite a few lawyers across the country who have undertaken conduct involving cross-border practice that was arguably UPL but they provided good services to satisfied clients and no problem was ever surfaced or examined.

I think the idea that the legal profession would simply drop all opposition to the practice of law by those who are not licensed anywhere in the name of innovation is a nonstarter.  It also isn’t likely something that would be seen as advancing access to justice.  Though, as I’ve highlighted here in a number of posts, approaches such as the creation of Limited License Legal Technicians (“LLLTs”) does appear to have some momentum.   But, if we’ve reached the point that geographical restrictions on the practice of law by lawyers are causing harm to the public’s interest and that aspects of what is spoken of as the justice gap in the U.S. might be remedied by making it easier for under-served populations to secure legal services from lawyers licensed in another jurisdiction, then couldn’t that actually be an innovation worthy of real consideration?

And, for what it is worth, such an innovation might actually be better described as just more incremental change.  Many states (like Tennessee) already recognize this principle when natural disasters strike by having passed revisions of recent vintage to their rules to permit lawyers to travel to a state struck by disaster and provide legal services despite not being licensed in the state in need of the services.

 

Problems of UPL are nothing new, but UPC?

I’ve written a good bit over the last few months about a variety of issues related to problems involving unauthorized practice of law issues for lawyers licensed in at least one jurisdiction.  Tennessee still has the pending petition filed by the Board of Law Examiners that should result in some form of practice pending admission rule that will eventually lessen instances in which lawyers coming to Tennessee might unwittingly find themselves at risk of being treated as having engaged in UPL.  I look forward to providing some additional information about events impacting that proposal in the coming weeks.

In the meantime, here is another reminder of the ways in which lawyers can not only find themselves running afoul of ethics rules through cross-border practice.  This lawyer’s situation is not one where the practice was at all occasional, as the record indicated that settling insurance claims for clients in Delaware was 10-15% of this practice during the periods in question.  His problem was that he was only licensed in New Jersey and Pennsylvania.  His problems are also a reminder that, through reciprocal discipline mechanics, this kind of misconduct can result in multiple hits of discipline, even including jurisdictions where you were never licensed in the first place.  The good news for this particular New Jersey-based lawyer is that he’s now been reinstated in Pennsylvania, one of two jurisdictions where his privileges to practice law were suspended as result of his unauthorized practice in Delaware.

In modern practice, wrestling with whether conduct is UPL under a jurisdiction’s version of RPC 5.5 can be tricky.  Deceptive use of UPC codes to save money on wine is an altogether different kind of tricky though.  That was part of the dishonest conduct leading to this Ohio lawyer making news for a two-year suspension arising out of stealing wine and then misleading disciplinary authorities about it.  Other than being a bit bizarre, this offers an effective reminder that RPC 8.4(b) and (c) extend in reach to acts by lawyers outside of the context of their representation of a client.  It’s also a reminder for lawyers that the reach of disciplinary proceedings can extend quite far back into your past.  In this instance, the lawyer ended up on the radar screen because, after getting arrested for the last of a series of a half-dozen incidents of swapping out the UPC codes on bottles of wine to pay much less at checkout for the product, the lawyer made a self-report about the conduct.  Unfortunately, the self-report came across as more self-serving and didn’t disclose everything the disciplinary authorities considered germane.  Thus, the order imposing the suspension the fact that the same lawyer had also eleven years earlier been arrested for just trying to shoplift 12 bottles of wine from a large grocery store chain and that the lawyer didn’t disclose this fact in making the report.

Vino?  Yes.  Veritas?  Not so much and that was the problem.

More on the BLE’s petition for rule changes

This will be the first of several more in-depth entries focused on the Board of Law Examiners’ petition seeking some changes to Tenn. Sup. Ct. R. 7, which deals with a collection of licensing issues in Tennessee.  (This will also be one of those less frequent posts where I may not adhere strictly to my commitment to tell you what you need to know in a bite-sized portion requiring 6 minutes or fewer of your time.)

One of the two headline changes proposed in the petition is the creation of a new amnesty period for in-house counsel registration.  If adopted, Section 10.04 of Rule 7 would be amended to provide that any in-house counsel not currently licensed or properly registered in Tennessee would have another 180 days from the date the rule change is adopted to put in the proper paperwork to obtain a registration license.

Some background of note: it has now been almost 13 years since the Tennessee Supreme Court made clear that a lawyer who was working as in-house counsel for a company based in Tennessee needed to be licensed to practice law in Tennessee.  Crews v. Buckman Labs, 78 S.W.3d 852 (Tenn. 2002).  Despite that state of affairs, in 2009, it was known that there were many in-house counsel not in compliance and revisions to Rule 7 and to RPC 5.5 were adopted effective Jan. 1, 2010 that would permit in-house counsel licensed in another jurisdiction to obtain a registration license under which they would only be permitted to represent the company that employed them but would not have to otherwise become fully licensed.  In order to make it easier for in-house lawyers already in Tennessee to get into compliance, those folks were given 180 days from adoption of the new rule to get their paperwork in and have their past transgressions absolved.  These new rules also provided that, for in-house counsel coming to Tennessee in the future, they would have 180 days from the date they commenced their employment to get their application papers in for the in-house registration certificate.

Well, fast forward to the present day and for a variety of reasons, there are again quite a few in-house counsel in Tennessee who did not get their registration paperwork in within 180 days of commencing employment with a company in Tennessee.  Some of the most sympathetic examples are lawyers who wanted to become full members of the bar and who submitted applications to be fully admitted by comity, not realizing that such applications were likely doomed because there was no corresponding 180-day grace period for that process.

Thus, faced with this situation in which there are quite a few in-house counsel who are gainfully employed by corporations in Tennessee that very much want these people to be their lawyers, the BLE has made this proposal that would give those folks a new 180-day window to turn in registration license paperwork and have their past transgressions absolved.  I expect that this aspect of the BLE’s petition will be met with widespread support.

This proposal also contains two further things of note.  The first is the BLE’s insistence that they will make positive efforts to educate in-house counsel on this situation and about the need to get the paperwork in within 180 days.  The second is the proposal to move existing language from Comment [17] to RPC 5.5 up into the black-letter as a new RPC 5.5(d)(3).  Simultaneously, an additional sentence is proposed that would go some distance in making clear that, for in-house counsel, there really is no other choice (if sitting for the bar examination is not desirable) than to first obtain a registration license and then, if something more is desired, to seek to get full admission by comity.