Two for Thursday.

It is Thursday, right?

In a “recent” effort, I mentioned that there were recent developments I was planning to eventually write about. Today presents an effort at checking two of them off the list that have only Tennessee in common. Neither of which likely provides fodder for a full post, so they will be covered together.

The first is a recently enacted revision to Tennessee’s ethics rules regarding money held in trust accounts. Specifically, the Tennessee Supreme Court has adopted a revision to RPC 1.15 regarding trust accounts to impose requirements for dealing with “unidentified funds” held in trust.

As revised, RPC 1.15 now has a new subsection (f):

(f) A lawyer who learns of unidentified funds in an IOLTA account must make periodic
efforts to identify and return the funds to the rightful owner. If after 12 months of the discovery of the unidentified funds the lawyer determines that ascertaining the ownership or securing the return of the funds will not succeed, the lawyer must remit the funds to the Tennessee Lawyers’ Fund for Client Protection (TLFCP). No charge of ethical impropriety or other breach of professional conduct shall attend to a lawyer’s exercise of reasonable judgment under this paragraph (f).

A lawyer who either remits funds in error or later ascertains the ownership of remitted funds may make a claim to TLFCP, which after verification of the claim will return the funds to the lawyer.

I personally was opposed to this proposal because in almost all circumstances “unidentified funds” simply shouldn’t exist in a trust account in the first place and, thus, this is one of the very few places in the rules that addresses a situation which can nearly only come to pass because of lawyer misconduct. Although the rule doesn’t define “unidentified funds,” my understanding is that these are different from “unclaimed funds” because the lawyer simply has no idea to whom the funds belong at all. Comment [14] still indicates that as to “abandoned” funds those will likely have to go through the process of escheatment to the State. Thus, other than circumstances in which a lawyer purchases someone else’s law practice and then finds that the underlying records aren’t up to snuff, this rule addresses obligations of a lawyer who has already dropped the ball on a very important duty.

The Tennessee Bar Association publicly signaled support for the proposal, however. The rule revision was not accompanied by any new comment paragraphs, so perhaps a time will come in the future for the Court to give a bit more clarity about how funds might come to be “unidentified” and whether the protection for judgment extends only to whether to send funds to the TCLF or not and not also to judgments about whether funds qualify as “unidentified” or not.

The second development raises a question of judgment as well. If you’ve been following aspects of how the legal profession is trying to cope with the ongoing, and now worsening in the U.S., pandemic, you’ve likely seen a variety of approaches in various states to dealing with graduates of law school and how to provide them with an opportunity to get their law license. Some states have transitioned to having their bar exam online, some states have limited the number of people who can sit for the traditional bar exam in a socially-distanced room (and some of those states have given preference to in-state law school grads), and some states have opted instead to offer diploma privilege rights to law students and allow them to become licensed without having to sit for a bar examination.

To date, my state has gone with an approach that involves limited availability but with a twist. The traditional July bar exam would have limited spaces, but they also determined to hold an extra bar exam later in the fall.

Last month, however, a collection of law school graduates has filed an emergency petition with the Tennessee Supreme Court requesting that the Court take action to allow for diploma privilege in Tennessee because of, and in response to, the pandemic. You can go read the full petition here.

It is hard to try to argue that they don’t have a point.

Edit/update: About an hour after putting this up, the Tennessee Supreme Court posted an order cancelling the July 2020 bar examination in Tennessee. You can go read the order here … it doesn’t sound like the Court is seeing it along these lines … but having to cancel it rather than move it online seems to me to be more support for seriously considering the diploma privilege route.

Utahlking real reform? Yes, Utah absolutely is.

Infrequent readers will know this pun structure is one that I have no shame in running into the ground every time it is relevant.

Frequent readers will know I am far too willing to break the fourth wall here. So just for background I had resigned myself to writing a post on Friday about the New Jersey lawyer who could only get reinstated to practice if he could assure that his wife would not have any further access to their trust accounts and it was going to likely be unnecessarily preachy and riddled with hacky references to how hard that might be when everyone is trapped in their house. So, while you are only getting content a few days late, thanks to Utah you at least are spared that the content that could have been.)

Last Friday, Utah released for public comment the final version of its work product for an overhaul of significant parts of its ethics rules. If you need to get back up to speed on that issue and the pre-pandemic discussions of it, you can find prior posts about the rapid work of Utah’s task force here.

If you’d rather read the source materials put out for public comment on April 24, 2020 yourself, you can get to them all through this link.

If you’ll allow me to describe them to you in all of their relative glory, I’ll do so now.

I’d like to start with what ought to be the least controversial piece but a part that still really ought to be cherished for the elegant thing that it is, reducing the rules on lawyer advertising down to the core and nothing but the core.

  • The Utah Supreme Court’s proposal would eliminate RPCs 7.2, 7.3, 7.4, and 7.5 and, instead, revise RPC 7.1 to address the terrain by (a) prohibiting lawyers from making false and misleading claims about themselves or their services and (b) prohibiting lawyers from going about dealing with people in ways that involve coercion, duress, or harassment.

If any state were proposing to do this to their advertising rules, and only just this, it would be an exciting development toward important regulatory reform. But wait … there’s so much more to Utah’s proposal. As a result, comprehensive reform of the advertising rules is nearly just the icing.

The centerpiece of Utah’s proposed rule revisions though involves an overhaul of RPC 5.4 in the form of the creation of two rules, one 5.4A that will look a good bit like the current rule with one very significant change and another 5.4B that will look like nothing that has been actually implemented so far in the United States.

Under the proposal, RPC 5.4A will apply to lawyers who continue to operate in the traditional fashion (read, at least in its pre-pandemic context to mean working in a law firm owned and operated only by lawyers). That rule would carry forward existing restrictions on partnerships with non-lawyers and on operating in the form of any entity in which someone who is a not a lawyer has a financial interest but would permit lawyers in such conventional settings to be able to share fees with people other than lawyers as long as sufficient disclosure is made to the client (and anyone other than the client who is paying the fee) about the fact that such sharing is occurring/going to occur and with whom. The rule though is also refashioned to make clear that lawyers still can only do these things as long as there is no interference with their independent professional judgment, maintaining their loyalty to their client, and protecting client confidences.

(One other seemingly pedestrian item in its package of revisions is to remove the current restrictions on fee sharing between lawyers not in the same firm by deleting RPC 1.5(e) altogether. This makes a lot of sense on a standalone basis as a variety of jurisdictions already permit “naked” referrals between lawyers not in the same firm as long as there is a certain amount of disclosure, but if you are going to open the doors for lawyers to share fees with people who aren’t lawyers then you certainly have to drop the RPC 1.5(e) approach.)

RPC 5.4B would be a new thing altogether and would govern the conduct of lawyers that choose to practice in nontraditional structures as part of a legal regulatory Sandbox to be launched Utah. This proposed rule establishes an ability for lawyers to practice in ways that RPC 5.4A would prohibit as long as there is no interference with any of the lawyers duties that are also stressed in RPC 5.4A (independent professional judgment, loyalty, and confidentiality). Specifically, what it permits is best described using the proposed rule itself:

(b) A lawyer may practice law with nonlawyers, or in an organization, including a partnership, in which a financial interest is held or managerial authority is exercised by one or more persons who are nonlawyers, provided that the lawyer shall:

(1) before accepting a representation, provide written notice to a prospective client that one or more nonlawyers holds a financial interest in the organization in which the lawyer practices or that one or more nonlawyers exercises managerial authority over the lawyer; and

(2) set forth in writing to a client the financial and managerial structure of the organization in which the lawyer practices.

And to implement the Sandbox concept that RPC 5.4B will permit lawyers to participate in, and to make sure that there exists an entity that will have regulatory authority over those participants in the Sandbox who are not lawyers, the Utah Supreme Court has released a proposed Standing Order that would be the foundational document for establishing the relevant regulatory entity and the regulatory principles that will govern its work.

The relevant regulatory entity will be the Office of Legal Services Innovation and, for a pilot period of two years from whenever the effective date of the Standing Order comes to pass, this Innovation Office will “establish and administer a pilot legal regulatory sandbox (Sandbox) through which individuals and entities may be approved to offer nontraditional legal services to the public by nontraditional providers or traditional providers using novel approaches and means, including options not permitted by the Rules of Professional Conduct and other applicable rules.”

And, as for the relevant regulatory principles? Those will be as follows:

  1. Regulation should be based on the evaluation of risk to the consumer.
  2. Risk to the consumer should be evaluated relative to the current legal services options available.
  3. Regulation should establish probabilistic thresholds for acceptable levels of harm.
  4. Regulation should be empirically driven.
  5. Regulation should be guided by a market-based approach.

There is a 90-day comment period on the proposal which ends on July 23, 2020. That comment period is not only for Utahns. (And, yes, according to the Standing Order that is how to refer to a collection of residents of Utah. College football fans likely believed, and My Cousin Vinny fanatics would likely have been demanding, that Utes to be the official term.)

Change seems like it never comes … right up until it does.

So, I’m not a public health expert and I try to pride myself on not talking too much about conversations to which I am unable to meaningfully contribute. Thus, I’m not going to purport to speak directly to how to be dealing with the pandemic looming over everything. I’ve been doing what little I can to try to help “flatten the curve,” because I’m economically privileged enough and have robust access to technology to be able to do so. If you are in a similar situation, I hope you will do the same.

I’m going to instead focus on something much smaller … the disappointing news out of California yesterday that goes a long way toward kneecapping the efforts of the California ATILS task force. As mentioned in an earlier post, the ATILS task force itself had already scaled down its efforts but the California State Bar voted down significant aspects of even the watered-down proposal.

If you’d like to read the details, you can do so at this The American Lawyer article. If you’d like a sense of what comes next, you can read this Twitter thread from Andrew Arruda, a very irked member of the task force.

All I want to say for today is that I don’t think the California State Bar is going to have the last word on this, not by a long shot.

Beyond the fact that the post-pandemic world is going to be different, I’m not prepared to predict what different exactly looks like. But it seems clear already that, at least in the United States, we are learning quickly that a lot of things people have been told weren’t possible actually are.

Your job likely can be done remotely through telecommuting. The for-profit health system can make allowance to discount costs. A quality legal education can be obtained through online classes. Courts do not have to have as many in-person hearings in order to dispense justice.

The list is much, much longer.

It is hard not to think that there are going to be a variety of businesses, large and small (including law firms), that will not be able to survive in an environment where large swaths of the population do not venture out of their house for much of a 30 or 60 day period. It won’t all be businesses in the food and beverage delivery industry and businesses that otherwise require large groups to gather. Yet, given the legalistic nature of U.S. society today, the demand for people to be helped with their legal and contractual rights likely only increases.

Whether that translates to an increased demand for lawyers to do those things though is a lot less clear.

Innovations will likely happen out of necessity.

In the meantime, stay safe out there.

PDA: If you’re going to get disbarred in TN, get it done before July 1, 2020.

Because if you can get it finalized by June 30, then you might still have the chance to be reinstated starting July 1, 2025. In this instance, PDA is short for “public disservice announcement,” not “public display of affection.” You might remember back last year I wrote about a proposed revision to the rules of disciplinary enforcement in Tennessee and my reasons for thinking it was not a necessary change.

On Friday, the Court entered an order adopting the revisions as proposed. The order mentions that in addition to comments filed by the Tennessee Bar Association, the Board of Professional Responsibility, and the Knoxville Bar Association, there were comments filed by two individual lawyers. It should probably come as no surprise to anyone reading this that all of the comments, except for the BPR’s comment, voiced opposition to the proposed changes. You can read all of the comments that were submitted here.

The Court’s order offers no explanation for why the Court thought the revision to be necessary in the first place, nor does it undertake any explanation of why it disagreed with the majority of the comments or what about the Board’s position it found persuasive, if anything. (The most effort that the Board put into its response was actually to talk at length about the Hughes case that already demonstrates that the Court had the power and willingness under the current system to refuse to reinstate a disbarred lawyer who it doesn’t feel should be reinstated.) So … disbarment in Tennessee is about to become a “forever” punishment, putting Tennessee into a very small group of states that embrace such an approach, and we still don’t know “why” the Court thought the change was needed.

Thus, on the present record, there seem to be only two possible conclusions to draw: (1) the Court simply thinks that disbarment under the current system is not sufficiently severe in terms of a penalty because it provides for a second-chance; or (2) the Court thinks that disbarment should truly be reserved only for the worst-of-the-worst offenses and that most lawyers who get disbarred should actually be hit instead with a suspension of somewhere between 6 and 10 years in length.

Which one is it? Only time will tell I guess.

My favorite post of 2019

For the second straight year, I’m ending the year with an homage to a concept (ripping off an idea) pursued by Nate DiMeo the writer and performer of The Memory Palace podcast. I’m going to re-post what was my favorite post from the past year.

Deciding what to put out there again this year was fairly easy as it is a post that (I think) offers the most solid and original idea about anything related to ethics that I offered up this year. It also continues something of a theme of last year’s repeat offering as it focuses on what the profession should be moving toward and, thus, also is a nice way to usher in a new year — particularly a new year where the numbering offers plenty of opportunities for puns about vision.

Of course, as often happens when I think I have offered up a solid and original idea, it ends up pretty much entirely ignored. So, let’s give this one another chance to gain relevance.

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).

Rule revision roundup.

That title is probably a thing somewhere else on the interwebs already, but I’m just lazy enough to not look it up at the moment.

So, it’s been a minute since I have written anything about the progress (or lack thereof) of jurisdictions adopting ABA Model Rule 8.4(g) and since I have written anything (other than indirectly) about whether any progress has been made on adopting the revised, modernized approach to lawyer advertising rules seen in the APRL-inspired, ABA Model Rules revision from last year.

In overlooking those stories in favor of writing about more radical proposed changes to the ethics landscape (some of which have thrown modernized advertising proposals into the stew), I’ve been highlighting a lot of activity in the western United States. But spending a bit of time on these other two topics, gives me a chance to write about happenings in the New England region of the United States.

Specifically, earlier this year (more than five months ago in fact), Maine became the second U.S. jurisdiction to adopt a version of ABA Model Rule 8.4(g) to seek to address harassment and discrimination related to the practice of law. A neighboring state, Vermont, is the only other state to have done so. Unlike Vermont, however, Maine did not adopt an exact version of the ABA Model Rule. Instead, Maine tweaked it in a few significant ways: (1) the Maine version does not include “marital” or “socioeconomic” status among the grounds for which discrimination is off-limits; (2) the Maine version does not include bar activities or professional social functions within what counts as “related to the practice of law,” and (3) it provides more detailed examples of what amounts to “harassment” and what amounts to “discrimination” under the rule. You may recall that an effort to adopt a modified version of Rule 8.4(g) here in my state of Tennessee failed miserably in 2018.

A bit more recently (only just three months ago), Connecticut became the first state to adopt the ABA revisions to the Model Rules related to lawyer advertising. You may recall that Virginia actually overhauled its rules even before the ABA took action by adopting the original APRL proposal back in 2017. In so doing, Connecticut (for the most part) has stripped its advertising regulations down to just three rules — patterned on ABA Model Rules 7.1, 7.2, and 7.3. Connecticut does still keep a couple of its additional bells and whistles (though it can be hard at first blush to know for certain because they used [brackets] to indicate deletions rather than strike-through text). One deviation that it kept was its 40-day off limits provision for people involved in accidents. Another deviation is that they have a three-year record retention requirement in their version of these rules. A few other deviations made it through as well.

If I could take issue with one choice Connecticut has made (well, technically two — seriously, don’t do the brackets thing ever again), it would be the level of unnecessary detail in the following provision about record retention:

An electronic communication regarding the lawyer’s services shall be copied once every three months on a compact disc or similar technology and kept for three years after its last dissemination.

The problem with this is … well there are several. In 2019, a whole lot of computers don’t even have CD-ROM drives any longer, but also the level of specificity and detail is both micromanagement of an unneeded degree and entirely unlikely to actually accomplish anything. As to micromanagement, just require that an electronic record be retained for the three year period – if they want to store it in a server or in the cloud or wherever, it won’t matter as long as they retain it so that if you ever need to examine it you get it from them.

And also, every three months? Both micromanagement and ineffectual, a lawyer who wants to game that system just changes an electronic communication to be shady in the middle of the three month window and changes it back in time to make the every three-month copy.

Except, of course not really, because the stories about Connecticut’s adoption of the ABA Model Rules on advertising, including this story, all buried the lede — Connecticut still requires lawyers who advertise in public media to file a copy of the advertisement in the form it is distributed with the Statewide Grievance Committee. Sigh. While this is not a “prior restraint,” it is a “prior pain-in-the-ass” (TM, TM, TM, TM) that serves little to no purpose other than imposing additional expenses and red tape on lawyer advertising.

To have both such a filing requirement and a three-year record retention requirement is among the worst sort of “belt and suspenders” arrangements.

In the end, I guess that’s part of why it took so long to actually write this post. Between reading the headlines and being a bit excited and actually studying what Connecticut did, I ended up feeling like I just got nutmegged.

But why though?

This past week the Tennessee Supreme Court proposed revisions to the rules of disciplinary enforcement that would transform disbarment into an irrevocable form of discipline in Tennessee and that would extend the potential length of a suspension from 5 years maximum to 10 years maximum.

Which leads me to the highly-technical title of this post: But why though?

Under Tennessee’s current approach, the maximum length of suspension is 5 years, and the only harsher punishment is disbarment. At present, in Tennessee, if you are disbarred it is not a “death penalty” as to your license because you can apply for reinstatement after 5 years has passed.

What is going on that would make anyone think this was a needed change in Tennessee?

I assume that if this change were enacted what it would mean is that some percentage of lawyers who are presently finding themselves disbarred might now instead just end up receiving suspensions in the 6-10 year range and some other percentage of lawyers who are already going to end up disbarred will still be disbarred but will have it be a new “disbarment is forever” standard.

But … why? I admittedly do not have access to all information about what is going on in the world of discipline in Tennessee, but I have some decent insight, and I’m simply not attuned to what the problem is that this seeks to fix.

Lawyers who get disbarred do not just get automatically reinstated after spending 5 years disbarred. They have to apply for reinstatement. They have the burden of proving that being permitted to return to the practice of law will not be detrimental to the public and the profession. Disciplinary counsel has the opportunity to zealously advocate against the requested reinstatement and marshal whatever evidence they can get their hands on to demonstrate why the person involved has not changed sufficiently to be given the privilege to practice law once again.

By the way, that is also how it works if you get a 5-year suspension (or a 3-year suspension or a 1-year suspension). You have to apply to be reinstated; you have to prove the required elements to demonstrate why you should be reinstated. If you can’t, you stay suspended for 6 or 7 or 8 or even 10 years until you can prove you should be able to practice law again. Based on other revisions to the rules not too long ago, that is also how it works even if you only get suspended for 30 days. You still have to get yourself reinstated by way of a petition.

Why doesn’t that work? Why does Tennessee need to add itself to the list of a handful or so other states to have permanent, irrevocable disbarment? Why does Tennessee need to double the length of available periods of suspension up to 10 years?

It has now been more than 10 years since our Court issued its decision in Hughes v. BPR but it certainly knows that it already has the precedent to deny a lawyer reinstatement if it thinks it should not happen even in the face of significant evidence of rehabilitation.

The statistics that are easily accessible also do not seem to indicate anything is horribly awry with the current approach. If you look at the most recent annual report from the TBPR, there were 21 lawyers disbarred, 18 lawyers receiving disciplinary suspensions (which would be anywhere between the 30-day minimum and the 5-year maximum), and 7 lawyers reinstated. If you look at the report for the year before that, there were 23 lawyers disbarred, 28 lawyers receiving suspensions, and 14 lawyers reinstated. The year before that, 23 disbarments, 18 suspensions, and only 5 lawyers managed to get reinstated.

And, also, while I think that what I’ve discussed above is the big and truly weighty question at play here, even if one decided there should be a change, why in the world would it ever make sense to pick a future date when disbarments would become permanent and not indicate that it is for disbarments arising from disciplinary proceedings commenced on or after that date?

The proposed revision would change Section 30.2 of Tenn. Sup. Ct. R. 9 to read as follows:

30.2. Individuals disbarred on or after July 1, 2020, are not eligible for reinstatement. Individuals disbarred under Rule 9 prior to July 1, 2020, may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.

Why inject a questionable level of due process deficiency into this situation by proposing to revise the rule so that people who already have cases in the system would have a different meaning for the outcome of disbarment depending on whether it was complete by June 30, 2020? Lawyers on their way to disbarment are admittedly not sympathetic characters, but if they have begun being investigated and prosecuted under one set of rules, there seems no really good reason to change those rules on them in the middle of the process.

One possible answer: Radical transparency in design for legal services?

So, this post isn’t exactly about legal ethics. Of course, it isn’t exactly not about legal ethics. I’ve written a bit here recently about various jurisdictions launching increasingly bolder initiatives to try to reform the regulatory landscape when it comes to the delivery of legal services.

Many critical voices of these initiatives demand evidence that any changes to the ethics rules will result in better access to justice; others wonder what it is that technology companies or others who aren’t lawyers might be able to bring to the legal services marketplace that lawyers can’t afford to or are not interested in.

I certainly can’t provide a great answer to the first question. And I’m not sure I’m the definitive authority for answers to the second question. But I do have a thought that hit me yesterday while listening to the latest episode of one of my favorite podcasts – 99% Invisible.

If you aren’t familiar with it (and you really should be), it is a design podcast. Its most recent episode is entirely about the condition of waiting and how, as technology has advanced, people have designed ways to deal with people’s expectations as to waiting and how to manipulate them to have people feel better about their experience.

The episode is entirely worth your time in its entirety, but without giving too much away it focuses on things like changes over time to how you interact with Internet websites and how where once there was just a spinning hourglass that did not tell you anything about how long you might expect to have to continue waiting to the way the travel deal website, Kayak.com, shows you in a fully transparent fashion what is being searched while you are waiting.

One of the examples of the steady change in the direction of transparency the episode discusses is one of my favorite things online — something where I never really had previously thought about the “why” of its existence – the Domino’s pizza tracker.

The episode of the podcast talked about research and other studies measuring the effect of transparency, even “radical transparency,” on customer satisfaction. Examples of situations where a customer is happier with an online experience that involves an extended wait – but with flowing information about work being done in the meantime made transparent – than with a non-transparent but “instant” result. And, not all examples involved online interactions. One example was a restaurant that changed its design so that diners could see what was going on in the kitchen to make their food and that resulted in survey responses about how much better the food tasted than before.

My mind quickly moved to the experience for clients of hiring and relying upon lawyers and ways it could be made more transparent that are somewhat similar to the pizza tracker and other situations detailed in the episode. Anthony Davis of Hinshaw once explained to an audience (which included me) about how important it was for lawyers to be more communicative as to their billing because hiring a lawyer was like riding in a taxicab but with the windows blacked out. All you could see was the meter continuing to increase but had no idea how much closer to your destination you were.

Now the analogy is still a great one, even though fewer people experience cab rides now and opt instead for shared rides with prepaid fares.

In fact, the analogy is an even better one now because we live in a world where shared ride companies are putting cab companies out of business. Not only do you know on the front end how much you are agreeing to pay for the ride, but you also, through the app, can monitor your progress toward your destination the whole time (and can even track where your driver is when they are on the way to you).

Now, lawyers could try to be as descriptive as possible in the bills they send their clients, but those still only go out once a month or so. And lawyers could try to communicate more frequently to clients about what they are, or are not, doing on their case, but in an hourly billing scenario each of those communications just drives up the price for the client.

Thus, it seems logical that someone could harness technology and understanding of the life cycle of legal matters to provide a web portal that a firm (or a lawyer) could make available to clients where they could log in at any time of day and “see” something that would tell them what is going on in the life cycle of their matter.

It could be as simple as something that would tell them what the last significant event in their matter was and what the next upcoming significant event is. Or it could be as robust as something that not only gives immediate access to the big picture but would also tell them exactly when the last time was that the lawyer had “touched” their file and what work had been done and when the lawyer has calendared to next do something on the matter. Legal ethics would play a role in restricting certain parts of what could be done because some of the “manipulation” that occurs in terms of managing expectations would be quite risky given ethical restrictions on deceptive or misleading conduct of all kinds.

After those thoughts hit me and I was done with the first level of wondering if an approach surrounding “radical transparency” would work when applied to practicing law to improve the experience for clients and perhaps make people more willing to spend their money on acquiring the assistance of legal professionals, I almost immediately, and instinctively, brushed it off as something that would require too much investment and infrastructure to ever even try it.

And, that’s the real point. Isn’t it?

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.