Something TIKD this way comes.

So, about a week ago, the Florida Bar and The Ticket Clinic (a Florida law firm that somehow can manage to keep the lights on by specializing in representing people regarding traffic tickets) were sued in federal district court by something called TIKD.  TIKD is, at heart, an app for your smart phone.

The lawsuit alleges that the bar and the law firm have combined to damage TIKD in its business endeavors in violation of antitrust law and other unfair competition law.  Others have already written a bit about this development, but I still cannot resist chiming in because, though the litigation will likely end up amounting to nothing truly impactful, the underlying substance (or lack thereof) of the area of law being battled over with potentially such high stakes for the profession could easily be made into the stuff of a dark fantasy novel.

While others have written about this new federal court lawsuit where TIKD is the plaintiff, and there is some decent media coverage of it at The Washington Post and in some Florida news outlets, I want to just flag for your attention the existence of another lawsuit in Florida involving TIKD, but that was brought against TIKD seven months earlier in state court by one of the defendants in the TIKD suit, The Ticket Clinic.

You can read that full lawsuit at this link.  The gist of it though is also one for unfair competition.  The law firm, Gold & Associates d/b/a as The Ticket Clinic sued TIKD and its two owners claiming TIKD engages in false and deceptive advertising and is itself engaged in the unauthorized practice of law.  You can judge for yourself, but those particular claims to me seem dubious at best.  TIKD seems to do exactly what it advertises it will do and hires lawyers rather than tries to practice law.  But in the midst of those questionable claims, the suit still finds the nub of a true problem: unfair competition for lawyers trying to compete with (rather than work with) TIKD.

While it is the suit TIKD has filed pursuing the Florida Bar and The Ticket Clinic for antitrust violations that is currently getting all the media attention — folks who want to be “disruptors” in the legal industry are certainly using it as an opportunity to attack the entire concept of the regulation of the practice of law — the lawsuit filed by The Ticket Clinic as plaintiff forces a reader to think about the flip side of that problem by pointing out that what TIKD is doing to market its service, and convince people to use it, is making guarantees and promises that lawyers are prohibited from making under the ethics rules.

Specifically, paragraph 12 of the complaint points out a number of aspects of the TIKD business model that allow for unfair competition, which includes TIKD:

b) making guarantees to pay financial penalties imposed by courts and/or the “full cost of their ticket”;

[snip]

g) promising to “cover the full cost of your ticket no matter the price – even if the cost is higher than what you paid us;”

Paragraph 28 of the complaint further drives the point home:

In promising to pay a fine if they lose at no additional cost, TIKD, RILEY and BERTHOLD make a promise that a lawyer or law firm cannot possibly make, and they essentially “rob Peter (those persons whose cases are dismissed with no fine or court cost after
paying TIKD 75-80% of the fine stated in the citation) to pay Paul (those persons who are directed to pay the fine in full or greater, with costs)” which is a “house of cards” that will eventually fall, leaving clients with no remedy.

The story in The Washington Post also helpfully reinforces that these are important aspects of what makes TIKD a desirable service for which to pay:

TIKD, which launched in February, works this way in Florida: A driver who gets a traffic ticket can contact the company on a cellphone and be offered a one-time charge below the amount of the ticket. TIKD connects the driver with an independent attorney for no additional costs or fees, and the attorney handles the case without the driver having to appear in court.

If the ticket is not dismissed, TIKD pays any fines, and if the driver gets points on his or her license, TIKD will fully refund the one-time charge.

It is undeniably correct that the ethics rules would never let a lawyer make the same arrangements with a client.  It also seems pretty clear that without the ability to make those financial guarantees the app would lose pretty much all of its luster.  Thus, regardless of what you may think about the merits of any claim that The Florida Bar and The Ticket Clinic are engaged in some coordinated effort to hurt TIKD, it appears undeniably correct that there is a fundamentally unfair competitive advantage to being able to make the kind of financial guarantees that the app is making and which any lawyer would have to risk their license to match.

A reckoning in the legal industry is going to have to take place at some point relatively soon, but part of that reckoning absolutely has to be a level playing field in the area of providing legal services.  Either the same rules and restrictions will have to apply to all those operating in the space or those rules ought to apply to no one operating in the space.

The notion that the reckoning could be ushered along more quickly because of a fight over an area of legal representation that most firms have first-year associates handle for free as a perk for clients (i.e. getting speeding tickets dismissed) and involves a firm run by a lawyer who has been embroiled in litigation over a nearly $20,000 tab at a strip club and whose firm is being investigated for taking money to falsify traffic school certificates is just absurd enough to fit in with the rest of the fundamental absurdity that plagues 2017.

An open letter to Avvo

Dear Mark or Josh or Dan (or others at Avvo):

I am a lawyer of little relative influence but I know you are likely familiar with me because I have, time and time again here on my small platform written about the travails your business model is enduring as state after state issues ethics opinions warning lawyers who do business with you that they are acting unethically.  (And Josh has been kind enough to post comments here from time to time as well.)

It, of course, has happened again with the latest Virginia ethics opinion that has just been put out.  I won’t belabor anyone reading this with the breakdown of that opinion other than to say that it hits on many of the same problems that have been hit on by other states over the last couple of years (and a couple that come up less frequently as well).  I also know that you were actively engaged in trying to convince the powers-that-be in Virginia to not issue that opinion.  I’ve even read Dan’s oral remarks published online.

I also won’t do as I normally do and break down the analysis offered in this latest ethics opinion other than to say that this one – yet again – is correct in its interpretation and application of Virginia’s rules.  (At least it is correct as to the big, universally applicable rules impacting your current business model related to fee-sharing, payments for referrals, and the like.)  Of course it is.  These opinions keep coming out because the existing rules are pretty clear about the problems and why lawyers are prohibited from participating.

I’m also writing this as an open letter to urge Avvo – if it really is interested at heart in doing the things for the profession and consumers that it says it is interested in doing – to change its focus from trying to fight the issuance of ethics opinions in states or to then engage in criticism of those opinions as somehow incorrect or “part of the problem.”  Instead, your time and money should be shifted — if those are your real goals — to pursuing efforts to have the rules that currently prohibit lawyers from being involved with your business model changed.

You are fighting a losing battle in trying to change the outcomes of ethics opinions.  You could, however, be fighting a winning battle if you made active efforts to file petitions with the appropriate bodies in various states to propose revisions to the ethics rules that would permit participation with your service and other companies doing similar things.

For example, just about anyone who wants to in my state could file a Petition with the Tennessee Supreme Court and propose changes to the ethics rules which here are housed in Supreme Court Rule 8.  There are pretty similar processes in many jurisdictions.  (I would have thought y’all might have worked this notion out by now given how differently you’ve watched things appear to go in North Carolina where you’ve been participating in efforts to change the rules rather than efforts to try to get someone to issue an opinion that would pretend the rules don’ say what they say.)

I can’t guarantee how successful you would be in obtaining satisfactory rule revisions in jurisdictions but I’d bet a shiny quarter or two that your batting average will be greatly improved upon how you are doing in terms of favorable ethics opinions versus unfavorable ethics opinions.

I reckon that this open letter will likely have the same effect of most open letters written by human beings, but . . . at least I’ll still feel better for having said it.

About last week… (and some actual content too)

So, I didn’t manage to post last week and this is something of an apology to those of you loyal readers who kept coming to the site last week each day looking for content.  (Rest assured, there’s also some substantive discussion of a live ethics issue in the post as well.)

I don’t have any real great excuse as there is always work, sometimes travel, and other commitments to overcome to keep this blog going, but the only new piece of the puzzle last week that played a role in my failure to come through was my 44th birthday last Tuesday.

It was a weird one as thinking about it caught me up and resulted in more melancholy than joy.  Thinking about it statistically, 44 signaled that was likely through 2/3 of my life and only had 1/3 to go.  In that context, and I’m certain likely many others in the legal profession, I kept ruminating on my belief that I haven’t been as successful professionally as I would have hoped I’d be at this stage of my life.  I know this sounds like one of those Facebook posts from people pursuing an indirect “woe is me” cry for attention but it isn’t meant that way at all, just an explanation for last week’s radio silence.

Speaking of Facebook, Florida continues to dedicate far too may judicial resources to the resolution of a question that — if you set technology aside ought to be easily answerable — can judges and lawyers be “friends” on Facebook.

Karen Rubin over at The Law For Lawyers Today provided a good run down last week of the history of the Florida case, so I won’t retread that ground and instead am going to take the opportunity to repeat (though I don’t believe I’ve ever stated them here on my blog) my views on the absurdity of the underlying “debate” about the issue.

Judges are human beings.  Human beings, even awful ones, are still going to manage to have a few friends.  The judicial ethics rules do not prohibit judges from having friends who are lawyers.  Thus, there is no rational way the judicial ethics rules can be said to prohibit judges from being friends with lawyers on Facebook.  The judicial ethics rules do contemplate that a friendship between a judge and a lawyer can, if close enough, result in a judge needing to recuse herself from a case involving the lawyer.  Thus, whether a judge and a lawyer are friends on Facebook should simply be one factor in evaluating whether the nature of the friendship is close enough that the judge needs to recuse.  Actual real-world interactions between the lawyer and the judge though should be a more important factor.  The analysis of this issue in any jurisdiction, including Florida, should be as simple as that.

In fact, I believe that judges using Facebook and being friends with lawyers actually does the public a service because it provides litigants and their counsel with a level of transparency they might not otherwise obtain to evaluate whether a judge has a real-world friendship with a lawyer that merits the bringing of a motion to disqualify the judge.  On Facebook, even if a judge has all of her privacy settings as locked down as possible, you can still view a list of the judge’s friends.  Armed with that information, a litigant or a lawyer can then raise the issue and may come to learn of a true, deep friendship between lawyer and judge that might not have otherwise been discovered.

An ethics opinion from the Coinhusker state

Answering the question that was undoubtedly on the minds of every lawyer practicing in that state, the Lawyer’s Advisory Committee of the Nebraska Supreme Court issued Ethics Advisory Opinion for Lawyers No. 17-03 making clear that, yes, lawyers can accept payment from clients in the form of Bitcoin or other similar digital currencies.

I don’t exactly know what to make of this opinion.  I’m not normally a list maker, but here’s a quick pros and cons lists to label my feelings.

Pros:

  1.  It offers a pretty good explanation of what Bitcoin is and how it works.
  2. If you are a Nebraska lawyer interested in the answer to the question it definitely gives you a definitive answer.
  3. It is well written.
  4. It demonstrates how adaptable ethics rules for lawyers are that they don’t have to be changed simply because new technology arises that didn’t exist when the rule was first created.  (But see con #3.)

Cons:

  1.  I don’t know who this opinion is really for in terms of usefulness.
  2. Nebraska? Surely that wasn’t the state with a pressing need to be the first to issue an opinion on this topic.
  3. It incorrectly treats using property to pay an attorney fee differently than when the property involved isn’t Bitcoin.
  4. It entirely overlooks the most important aspect of lack of confidentiality in terms of impact on such a payment arrangement.

Since expanding on the “cons” is always a bit more fun as a writer, let me do that.

Who is the opinion for?  Why would any lawyer today be willing to accept Bitcoin as a form of payment?  Most answers to that question that I can come up with require the lawyer to be something of a believer in its use as a financial system.  If the lawyer in question happens to practice in Nebraska, that seems a pretty solid bet.  If that is true, then to some extent the opinion gives with one hand but takes away with the other by saying that a lawyer can accept payment in Bitcoin but then has to immediately convert the payment back into dollars.  If a lawyer is willing to put his or her faith into the Bitcoin currency system (and obviously the client must already have faith in that system), then why require them to immediately convert that client’s payment to dollars?

The answer to that – according to the opinion — is that Bitcoin is classified as property under the law and not as a currency and has the potential for rapid fluctuation in value.  But… shifting to the third con on the list… why should accepting this kind of property with fluctuating value as payment for services be treated so differently than other forms of property?

While we likely wouldn’t need a regulatory body to issue an ethics opinion on whether lawyers can accept payment in the form of gold or silver (of course they can), would we be comfortable with such an opinion declaring the lawyer has to immediately sell that property to turn it into cash?  If gold and silver seem too unwieldy for the thought exercise, then how about shares of stock or stock options.  (Let’s assume those would be otherwise done in compliance with restrictions such as Model Rule 1.8(a) and (i).)  Stocks can certainly fluctuate significantly in value and always have the potential to do so very rapidly.

Would you agree with an opinion that says a lawyer would have to immediately trade shares of stock for dollars because of the risk of rapid increase in value or decrease in value?  Why can’t two or more grown-ups negotiate an agreement for compensation in the form of property with a fluctuating value just because one or more of them is an attorney?  Why wouldn’t the lawyer taking on the risk of decrease in value play a role in evaluating reasonableness of the fee?

And, finally, the opinion talks a bit about confidentiality issues involved in payment via Bitcoin from a third party rather than the client, but completely overlooks the fundamental risk to client confidentiality created by accepting payment in Bitcoin from a client.  Such a transaction — necessarily because of the very architecture upon which Bitcoin is founded as the opinion does explain — is an open transaction for which confidentiality cannot be reasonably expected much less guaranteed.

Somehow the opinion  doesn’t manage to advise lawyers to make sure the client understands that – unlike cash or checks or wire transfers or even credit card payments — the fact of the client’s payment of money to a particular lawyer and all of the implications that payment entails is available to anyone sophisticated enough to understand how to delve into the Bitcoin ledger system.

So, in the end, sure the opinion says that a lawyer can accept payment in Bitcoin, but under this framework why would anyone ever do so?

Perfect timing.

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

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

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

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

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

 

Things I don’t understand… Atrium LLP

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

[snip]

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

Now, a bit more from the Atrium website itself:

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

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

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

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

Discussion:

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

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

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

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

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

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

A patchwork post for your Friday

Today’s content will be an original recipe of (1) part shameless self-promotion; (2) two parts serious recommendations to read the writings of others; and (3) pop culture recommendations for your downtime this weekend.

First, the shameless.  I am pleased to announce the plan for this year’s Ethics Roadshow.  Here’s the promotional piece you will soon see making the rounds to explain this year’s endeavor.

This is the 13th year that Brian Faughnan is performing the Ethics Roadshow for the TBA, but that is NOT actually the reason for the “13 Reasons Why” title.  This year’s program “Ethics Roadshow 2017 The Mixtape:  Thirteen Reasons Why Ethics Issues are More Complicated Than Ever.” is so-titled because of the presenter’s slavish devotion to being influenced by pop culture.

This past year, a highly controversial show largely about teen suicide and its consequences aired on Netflix.  “13 Reasons Why,” was based on a much less controversial book but the series was heavily criticized for – among other things – violating the “rules” in the world of television for how (and how not) suicide is to be depicted.  Questions, of course, exist about whether such rules are outdated in a day and age when it is as easy as surfing the Web for someone, even a teenager, to find such information.

Questions also exist in modern law practice about whether certain ethics rules are outdated, and we will spend some time talking about that issue and related topics.  We will also discuss the problems with substance abuse, stress, and mental health issues that plague our profession and put our members at risk of self-harm at rates much higher than the general population and other professions.)  The outdated technology of audiotape also plays a significant role in the Netflix series.  (It is also making something of a comeback in the music industry.)  We will spend time talking about the ethical obligations of lawyers when it comes to use of technology and whether some of those obligations and the risks of modern technology might create an incentive for lawyers to make use of some outdated technology in the future as a way of better protecting client information.

And, we will cover it all in a format that had its heyday when cassette tapes were king – the “mixtape.”  Your presenter will curate the order of topics for you with any eye toward your three-hour listening experience.

If you are a Tennessee lawyer (or a lawyer who practices in a nearby state) interested in attending, all of the stops will take place in December 2017 and you can find them and register for them at these links: Memphis, Nashville, Knoxville, and Chattanooga. You can also register for video broadcasts of the program in Jackson and Johnson City.

In terms of reading recommendations, go check out yesterday’s post from Karen Rubin over at The Law for Lawyers Today on a follow up to an issue I’ve written about – the problems with protecting client confidentiality in a world in which border agents are demanding access to electronic devices and their contents.  Karen writes about a lawsuit filed by an organization near and dear to me that is challenging the practice.  Also go check out the latest blogpost from Avvo’s General Counsel, Josh King, about the intersection of First Amendment issues and the issuance of ethics opinions.  While I don’t know the details of the discussion at a New York event he references, I do know some of the players that were there and I can’t help but wonder if what Josh is interpreting as a bad take on the issue of constitutional challenges and certain concepts being settled actually stems from a more fundamental disagreement about whether saying lawyers cannot pay referral fees to non-lawyers is actually a restriction on commercial speech at all.  If not, then it doesn’t require intermediate scrutiny in terms of any First Amendment challenge but is merely reviewed on a rational review basis.  And, I’m guessing the point someone was trying to make was that others have tried and readily failed to say that states don’t have a sufficient interest in regulating the practice of law to prevent letting lawyers pay non-lawyers for making referrals.

Finally, recommendations for a more pleasurable way to spend your weekend. If you happen to have Netflix, I actually do (albeit sheepishly) recommend checking out the 13 Reasons Why series.  Less sheepishly, as to the efforts to bring the mixtape concept back, I wholeheartedly recommend exploring some of the online mixtapes that Lin Manuel Miranda, the creator of Hamilton has curated.  You can grab one of them at this link.

“DoNotPay” Becomes HelpYouSue

I had another idea for a blogpost in mind at this stage of the week, but between travel and this story, this was the thing that had to be acknowledged today.  Yesterday’s big technology news for lawyers (sort of lost in the Apple event revealing a brand new version of what will likely become Ted Cruz’s new favorite device for viewing images he likes) is this story.

I’ve written a little bit in the past about the leading chatbot – DoNotPay.  This story  at The Washington Post details what will (I’m guessing) be something of a watershed moment in the development of the functionality of chatbots and what they can, and truly will, mean for lawyering in the near future.

In the wake of the Equifax data breach, the makers of DoNotPay launched a chatbot yesterday to allow people with just a few simple clicks to file suit in the small claims court in their home jurisdiction against Equifax over the data breach.

I usually like to think that I can add my own profound insight on an issue to make it worth reading over and above the underlying story.  Today though I’m going to primarily just point readers to the source material and then ask you to allow your own minds to ponder the possibilities this raises.  The Washington Post story was written at a time when the chatbot would only be available for suits in California and New York, but it was quickly modified to render availability nationwide, as explained in this Yahoo! article.

Once you’ve done that, check back in with me for just a moment or two.  I’ll wait right here.

Ok.  First, undoubtedly a lot of the people that will use this chatbot to file this suit would otherwise never take on this kind of matter at all.  For many others, if they pursued it at all, they wouldn’t ever hire a lawyer and would try to handle it themselves .  To that end, this is a net win in terms of access to justice (at least for everyone except Equifax).  (To the extent that these kinds of cases might get resolved before any class action suits that have already been filed and will be filed, they certainly might not be a net win for such class action lawyers.)

Second, the continuing development of chatbots in this direction will still leave plenty of work for lawyers (and create some work for lawyers that might not otherwise exist) – and not just in the form of lawyers who, for example, will show up to represent Equifax in thousands of small claims suits.

Part of this is because of the inherent differences that still exist from jurisdiction to jurisdiction over access to and proceedings in small claims court.

As one example, here in Tennessee our civil small claims court is called General Sessions Court.  There are a number of ways that it works differently from the general features described in the articles as to other states small claims courts.  We have a jurisdictional limit of under $25,000.  In our general sessions courts, you certainly are entitled to have a lawyer represent you in that court and, in fact, if you are a corporate or business entity of any kind seeking to pursue suit or defend suit, you have to be represented by an attorney.  Further, both parties to a general sessions judgment (even the prevailing party) have an absolute right to appeal the outcome and, if they do, it goes up to our regular state trial level court for de novo proceedings.  Thus, in a way, nothing that happens in our General Sessions court matters unless everyone involved agrees it mattered.

In addition to simply demonstrating how fast things are moving on these fronts, this evolution of the use of the DoNotPay bot also adds another wrinkle about how an attorney could at some point co-opt such technologies in situations where they may have a potential client with a looming timing issue in the form of a statute of limitations about to expire.  Specifically, it is not difficult to imagine a near future in which this kind of chatbot could permit the filing of suits involving other issues where a lawyer could point a brand new client -with a time sensitive matter- toward such a chatbot to get a suit filed before a statute expires and then come in, take over, and amend pleadings once the lawyer has more time to get involved.

A rare example of the perfect application of RPC 8.4(c)

I’ve written in the past about issues associated with RPC 8.4(c) and how its potential application to any act of dishonesty on the part of a lawyer — no matter how trivial or unrelated to the practice of law it might be — makes it a problematic ethics rule.  A disciplinary proceeding presently being pursued against an Illinois lawyer offers an example of a situation to which RPC 8.4(c) applies perfectly.

The Illinois lawyer has been in the news within the last few weeks for the repercussions of his harassment of a fellow Illinois lawyer.  The primary focus of the media coverage has been on the creation of a fake Match.com profile for the purpose of embarrassing and disparaging a female lawyer.  It was that conduct that got the lawyer — Drew Quitschau — fired from the law firm in Illinois where he had been a partner since 2012.  A Law.com story dipped its toe into the waters of some of the other online misconduct involved, mentioning that he signed the other lawyer up for a membership in the Obesity Action Coalition and in Pig International..  The ABA Journal story was a bit more comprehensive in identifying the multiple membership or subscription organizations involved in Quitschau’s abuse which also included registrations/unwanted signups for Diabetic Living and Auto Trader.

But, the full picture of the extent of Quitschau’s attack occurring from June 2016 to December 2016 is best taken in through a read of the petition for discipline filed against him last month by the Illinois Attorney Registration and Disciplinary Commission.  There also were other acts of deception and fraudulent online activity that went beyond personal attacks into professional attacks as well.

The petition explains that Quitschau created a false negative review of the female lawyer on each of www.martindale.com and www.lawyers.com, and created a false Facebook account for the sole purpose of then using that persona to post a negative review of the female lawyer’s law firm.

Based on the timing of events, it appears to be efforts at professional harm was what Quitschau first tried against the female lawyer and only thereafter did he move on to harassment that was purely personal in nature.  That conduct isn’t “worse” in any true sense of the word as the other purely personal attacks are pretty vile, but the expanded activity that focused the deception and harassment on the female lawyer’s own reputation as a lawyer certainly comes closer to being conduct that might actually also be prosecuted as violations of other ethics rules and not just RPC 8.4(c) because the female lawyer and Quitschau had been opposing counsel in seven matters during an 8-month stretch of time during his course of conduct.  .

If the Illinois board could prove any connection between this conduct and Quitschau’s representation of any of those clients, then a rule like RPC 4.4(a) — which declares that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person” — could also come into play.

Regardless, the ability to pursue inexcusable conduct of the sort Mr. Quitschau undertook should be universally agreed to be a fitting use of RPC 8.4(c).

Practicing law like it’s espionage. NYC Bar Formal Op. 2017-5

This week the New York City Bar has put out a very important, and I think very helpful, ethics opinion to address a real, practical concern for lawyers: what, if anything, can be done to protect confidential client information when traveling and crossing the border into the U.S.?

NY City Bar Formal Op. 2017-5 lays out the issue as follows:

An attorney traveling abroad with an electronic device (such as a smartphone, portable hard drive, USB “thumb drive,” or laptop) that contains clients’ confidential information plans to travel through a U.S. customs checkpoint or border crossing. During the crossing, a U.S. Customs and Border Protection (“CBP”) agent claiming lawful authority demands that the attorney “unlock” the
device and hand it to the agent so that it may be searched. The attorney has not obtained informed consent from each client whose information may be disclosed in this situation.

The opinion makes the point that with the change of administration such searches of travelers and their data has increased exponentially:

In recent years, searches of cell phones, laptop computers, and other electronic devices at border crossings into the U.S. have become increasingly frequent. According to the Department of Homeland Security, more than 5,000 devices were searched by
CBP agents in February 2017 alone. By way of comparison, that is about as many U.S. border searches of electronic devices as were undertaken in all of 2015, and just under a quarter of the
approximately 23,877 U.S. border searches of such devices undertaken in 2016.

The entirety of the opinion is worth a read to see how it offers its guidance about things a lawyer might do at the time of demanded search to protect client confidential information, and to hear its additional important message that lawyers have an obligation under RPC 1.4 to contact all affected clients after such a search takes place.

The aspect of it that I want to focus on, however, is to expand on some of the practical advice it offers as to things a lawyer could do before going through customs at the border to lower risk of disclosure.  Particularly, this passage:

The simplest option with the lowest risk is not to carry any confidential information across the border. One method of avoiding the electronic transportation of clients’ confidences involves using a blank “burner” phone or laptop, or otherwise removing confidential information from one’s carried device by deleting confidential files using software designed to securely delete information, turning off syncing of cloud services, signing out of web-based services, and/or uninstalling applications that provide local or remote access to confidential information prior
crossing to the border.  This is not to say that attorneys traveling with electronic devices must remove all electronically stored information. Some electronic information, including many
work-related emails, may contain no confidential information protected by Rule 1.6(a). Even when emails contain confidential information, the obligation to remove these emails from the
portable device before crossing the border depends on what is reasonable. As previously discussed, this turns on the ease or inconvenience of avoiding possession of confidential
information; the need to maintain access to the particular information and its sensitivity; the risk of a border inspection; and any other relevant considerations.

Now, as to that sentence about some work-related emails may not contain confidential information protected by RPC 1.6(a), it is worth remembering that New York has a different RPC 1.6(a) than most jurisdictions as it comes closer to retaining the old “confidences and secrets” regime.  In most other jurisdictions, where RPC 1.6(a) covers any information related to representation of a client, then it is difficult to imagine any work-related email involving client matters that wouldn’t be protected as confidential under RPC 1.6(a).

And, for that reason, when I’ve had to help people try to work through this question, my advice has been consistent with what the New York City opinion is saying albeit perhaps stated more succinctly – delete the mail application from your smart phone until you get through the border.  Then reinstall it.  As long as your work email is stored on a server somewhere, then you should have no loss of data at all.

The only inconvenience caused is that for the time between deleting it and crossing through the border, you will have no access to email. Using the balancing factors compared to the risk of the violation of client confidences, this seems like a small inconvenience.  Simply deleting the mail application for a period of time also has the benefit of not placing the lawyer in the position of trying to “reason” with customs officials and argue with them over whether they need to be doing what they are doing.

As to other kinds of electronic data, the solutions are not as simple as with email.  Text messages are particularly concerning as deleting those or removing access to those from your device for even a short period of time would result in the loss of that data.  Generally speaking, the New York City opinion does a good job at explaining some of a lawyer’s options.  One option that the opinion doesn’t exactly spend a lot of time discussing is obtaining the consent of clients in advance.  One potential way of doing so could be standardizing provisions into engagement letters with clients to address this topic.

This unfortunately appears to be a topic that will only become more difficult to deal with for lawyers who travel frequently.  As an example, within the last month there have been stories in the media that Homeland Security is contemplating requiring all reading material be removed from carry on and put in bins for the purpose of potential review by TSA agents.  Travel is already a stressful endeavor, but as a lawyer if that were to come to pass there would be almost no way to take anything on a flight to have or review without running a real risk of loss of client confidentiality.