The Future of Legal Services – Oregon weighs in

I was given an opportunity to provide a Legislative Update piece in the Spring 2017 issue of TortSource a publication of the ABA Tort Trial & Insurance Practice Section.  The focus of the Spring 2017 issue is “Evolving Legal Markets” and, although the authorship is Tennessee-heavy, I think you will find all the articles to be worth a read if you can get access.  There is a piece on artificial intelligence, a piece on consumer-facing legal services provided by non-lawyers, a piece on predictive coding, and one on online dispute resolution.

My piece focuses on questions of UPL and responses by states to challenges posed by the companies that compete with lawyers for clients and I’ll share with you the conclusion section:

Other jurisdictions may choose to take more strident approaches, but it would appear that the best path forward for leveling the playing field for lawyers is to seek the adoption of regulations that will require companies providing such legal services to consumers to adhere to the same ethics rules as lawyers. The ABA’s Model Regulatory Objectives for the Provision of Legal Services (A.B.A. Resolution 105, Feb. 2016) provide one template for states to consider to pursue such a path forward.

That conclusion feels more prescient than it truly was because, this past week, the Oregon State Bar Futures Task Force issued its report on the Future of Legal Services in Oregon.   Oregon is often discussed a rainy part of the U.S., and the volume of materials provided as the end product of the Futures Task Force is something of a deluge — the Executive Summary alone spans 15 pages of material.  You can read the Executive Summary here.

There is so much content of note in the work the OSB Futures Task Force has performed that I foresee spending a few posts discussing aspects of it, but today I want to start with a discussion of the findings of one of the two committees that made up the task force.

But even before discussing those two items, some background about the Futures Task Force and about the structure of the report and recommendations is in order.  First, the origin of the task force itself:

In April 2016, the OSB Board of Governors convened a Futures Task Force with the following charge:

“Examine how the Oregon State Bar can best protect the public          and support lawyers’ professional development in the face of            the public evolution of the manner in which legal services are            obtained and delivered.  Such changes have been spurred by              the blurring of traditional jurisdictional borders, the                            introduction of new models for regulating legal services and              educating legal professionals, dynamic public expectations                about how to seek and obtain affordable legal services, and                technological innovations that expand the ability to offer legal          services in dramatically different and financially viable ways.”

Second, the first step that was pursued as to the Task Force once created:

The Board split the Futures Task Force into two committees: a Legal Innovations Committee, focused on the tools and models required for a modern legal practice, and a Regulatory Committee, focused on how to best regulate and protect the public in light of the changing legal services market.

The end result was that the Regulatory Committee has made three recommendations and the Legal Innovations Committee has made five recommendations.  I plan to definitely write further, and in more detail, about the Regulatory Committee recommendations.

But, as indicated, for now I just want to talk about the findings made by one of the two committees, the Regulatory Committee.  I want to focus on them because, I think, they reveal just how universal the situation is that is faced in U.S. jurisdictions and, in turn, this means that the work product of this Oregon group has obvious potential application as a road map for action just about anywhere.  The Regulatory Committee made these nine findings:

  1. Oregonians need legal advice and legal services to successfully resolve problems and to access the courts.
  2. Consumers are increasingly unwilling or unable to engage traditional full-service legal representation.
  3. A significant number of self-represented litigants choose not to hire lawyers, even though they could afford to do so.
  4. Self-help resources are crucial and must be improved, even as we take steps to make professional legal services more accessible.
  5. Subsidized and free legal services, including legal aid and pro bono representation, are a key part of solving the access-to-justice gap, but they remain inadequate to meet all of the civil legal needs of low-income Oregonians.
  6. Despite the existence of numerous under- and unemployed lawyers, the supply of legal talent is not being matched with the need.
  7. Oregonians’ lack of access to legal advice and services leads to unfair outcomes, enlarges the access-to-justice gap, and generates public distrust in the justice system.
  8. For-profit online service providers are rapidly developing new models for delivering legal services to meet consumer demand.
  9. To fully serve the Bar’s mission of promoting respect for the rule of law, improving the quality of legal services, and increasing access to justice, we must allow and encourage the development of alternate models of legal service delivery to better meet the needs of Oregonians.

The question I would leave you with today is:  any reason at all to think that the first 8 items described would be any different if the discussion was about your state and its consumers rather than Oregon and Oregonians?  And, if not, then how could you think that the item identified in 9 isn’t something that your state is going to have to pursue as well?

 

Bad blogger doubles up on topics.

I had every intention of posting twice this week, but events, including being under the weather with general ick much of the week, undermined my intent.  So, this mediocre post will briefly hit two items.  And, with any luck, tie the two together in a way that makes this seem, in hindsight, the correct way to approach these topics.

The first, which is a potentially really big deal with respect to lawyer ethics rules and confidentiality, is a California decision expressly concluding that Sarbanes-Oxley preempts California’s ethics rule on confidentiality to the extent that California’s rule would prohibit an in-house counsel from disclosing confidential client information to pursue a wrongful discharge/retaliation claim.  California’s ethics rule on confidentiality is admittedly something of an odd duck as it is much more stringent than other jurisdictions and often appears to make it seem like California lawyers have to deal with disputes with their clients while having both hands tied behind their back.

The Bio-Rad Laboratories decision has fortunately been written about extensively already by a more prominent blogger who focuses on privilege issues.  You can read the discussion of Bio-Rad put together at Presnell on Privileges here.

Given all of the ways in which the corporate client had already waived privilege and confidentiality as discussed in the first 30 or so pages of the Bio-Rad opinion, the California court really didn’t need to weigh in on the preemption question, but the SEC filed an amicus to make clear its position and, being a district court decision, it isn’t surprising that the judge would offer up all the grounds to support its ruling.

The second is an Ohio advisory ethics opinion from early December 2016 that addressed issues associated with interpretation of RPC 5.5 and correctly explains why a lawyer not admitted in Ohio is not engaged in UPL, even if they are officed in Ohio, if pursuing an exclusively federal practice.  You can read Ohio Advisory Opinion 2016-9 here.  The Ohio opinion recognizes that the application of supremacy principles requires this conclusion.  There are, of course, a limited number of areas of law that a lawyer can practice that are exclusively federal, but they do exist.

The way these two items go together?  I’m not going to hold my breath, but Congress could address, through federal legislation, the problems associated with many aspects of the antiquated way in which various state bar or state regulatory entities address temporary practice in, or handling of matters touching on other state laws, under RPC 5.5 by treating things as unethical that really shouldn’t be in modern law practice — remember, for example, the silliness of the reprimand issued against a Colorado attorney by the Minnesota Supreme Court.

Administrative suspensions -another far too often route to UPL problems.

I’ve long been torn about lawyers losing their license and ability to practice law through administrative suspensions.

In Tennessee, for example, this can happen to a lawyer through failing to get your required CLE hours (TN requires 15 annually), or failing to pay your registration fees, or failing to turn in the necessary forms about compliance with certain trust accounting requirements.   There are other ways, but you get the drift; they almost all involve failures that are primarily about not keeping up with paperwork or missing repeated deadlines.  Thus, at some level, it seems like a harsh result to lose the right to practice for a petty offense.

Yet, in most situations, a lawyer has to be really, really delinquent, forgetful, or careless and miss multiple opportunities to correct the oversights before an administrative suspension actually comes to pass.  So, given that you are talking about a profession in which compliance with administrative details and deadlines is a pretty fundamental skill set and can make or break a client’s case, then it can be hard to argue against administrative suspensions as being fair.

Where it really becomes unfortunate is when the lawyer subject to the administrative suspension either does not know or does not care he is suspended and continues to handle client matters and places not only himself but his clients in jeopardy.  The jeopardy for the lawyer is disciplinary charges in the nature of engaging in UPL can be heaped on top of the administrative suspension.  The jeopardy for the client can be questions about whether the actions taken by the suspended lawyer are null and void, and potential questions about whether the privilege applies to dealings or not.

An instance (though admittedly a pretty extreme one) of a lawyer ending up disciplined for UPL while administratively suspended caught my attention thanks to a write-up earlier this month by the folks at the Legal Profession Blog.  The New Jersey Supreme Court on October 7 accepted the recommended decision from the Disciplinary Review Board and issued a reprimand against a lawyer for representing a New Jersey business 8 years after having her New Jersey license administratively revoked.

The May 31, 2016 decision of the DRB, involving a lawyer named French, can be found here.  It caught my fancy not only as an example of the time delays often involved before an administrative suspension kicks in but also because it offers parallels to a recent bad Minnesota UPL decision I wrote about earlier this year.

French, also licensed in New York where she apparently has been working in house for an accounting firm for almost 20 years without incident, was licensed in New Jersey back in 1991.  It is possible she never actually paid the required annual registration/assessment fees in New Jersey, but eventually her law license in New Jersey administratively revoked in 2005 on the basis that she had failed to pay the annual assessment for seven consecutive years.

French testified she was unaware of the revocation and actually unaware of the need to pay an assessment — she says her original law firm never told her.

This disciplinary mess came about when she proceeded to do a favor for a friend in a budding unfair competition/breach of non-compete matter involving two salons.  Interestingly, she went to the trouble of creating her own separate private letterhead for purposes of sending a cease and desist letter for the company owned by her friend, and (unsurprisingly) it was counsel for the other salon that brought to French’s attention the fact that her New Jersey license had been revoked.

Ultimately, the DRB decided only a reprimand (which is a lesser sanction in NJ than a censure) should be imposed despite being “troubled that respondent made no effort, for over fourteen years, to ensure her compliance with [assessment] obligations, and no effort, for over twenty years, to verify her status as a New Jersey attorney.”  French was certainly helped by the finding that her testimony was credible on her actual mens rea of just not knowing.  And the credibility of her testimony was helped by the fact that she had always kept her New Jersey CLE obligations up to date over the years.

Interestingly, two of the members of the DRB voted to impose a three-month suspension against the lawyer, which loyal readers (or NJ lawyers) will remember is the kind of suspension you get in New Jersey for acts of violence.

“Troubling and counterproductive” – yep

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

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

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

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

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

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

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

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

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

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

Redefining what it means to be a “nonlawyer.”

I’ve written (quite a long time ago now it seems, but it was only just last Spring) about the unfortunate nature of lawyers calling people who aren’t lawyers “nonlawyers” – rather than referring to them in a less condescending fashion such as “regular people,” for example.  But, I still do it all the time, so I’m little more than a hypocrite at the moment on this particular issue.  I will admit that usually the context of the discussion — especially if it is about legal ethics where the ethics rules repeatedly make reference to that term — can make it harder to avoid saying/writing it, but that’s not really the best of excuses.

Thus, the best way to eradicate the mildly offensive use of the terms would be to repurpose the word with a new definition.

Nonlawyer: n. someone who pretends to be a lawyer but actually isn’t one.

There would be two substrata of nonlawyers under this new definition: (1) a person who used to be allowed to practice law (see also “lawyer”), but who lost that right, and then continued to act as if they were still a lawyer; and (2) a person who was never actually licensed to practice law at all but have acted as if they were in dealing with other people.

In my reading pile from March, I find an instance of each of these two types.

Coming in the first category would be this New York nonlawyer who might be a real-life spoiler alert for fans of Better Call Saul (though can’t really say a true “spoiler” alert as much as speculation; I’m just guessing how/why James McGill ultimately has to take on the name Saul Goodman).  Most recently, Jay Lipis was disbarred in New York in March 2016 after he admitted that, during a time that he was suspended from the practice of law in Massachusetts, he continued to practice law but did so under a fake name – Jeffrey Kriger.  While still serving his suspension in Massachusetts, he went to work for his old personal injury firm:

as an unpaid “settlement consultant” reviewing files, valuing cases, determining demand amounts, negotiating settlements with insurance adjusters, and communicating with clients about settlement offers, without adequate supervision. Moreover, in conversations with insurance adjusters, the respondent at times falsely identified himself in order to conceal his identity as a suspended attorney, and at other times falsely identified himself as an attorney or failed to correct any misunderstanding that he was an attorney at the law firm

This summary of the 2015 order suspending him in Massachusetts provides more of the details and also makes clear that there were quite a few other issues of unethical conduct.  (For those that are interested in what, if anything, happened to the lawyers employing him at that personal injury firm, you can read about that over at the Legal Profession Blog.

Fitting into the second category would be Kimberly Kitchen.  Although her name actually sounds like a pseudonym, she wasn’t lying about her name… just about being a lawyer … for a decade.  In addition, to “practicing law” for almost 10 years before being caught, she also managed to serve as the president of a county bar association in Pennsylvania before being found out.  In March 2016, she was convicted of forgery, unauthorized practice of law, and felony records tampering.

There are, actually, a surprising number of people falling into this second category, and their existence (and short-to-medium term success) often says more about how lax law firms can be about doing background checks on the lawyers they hire than about why someone — with a seemingly infinite number of possible things to pretend to be — would choose being a lawyer.

Ms. Kitchen’s case, however, does not seem to be one where it is obvious that the law firm that hired her (at least the last one to do so and that was making her partner in April 2014 when the fraud came to light) failed to do sufficient due diligence, as NBC News reported back when the criminal charges were brought against her that she:

allegedly forged numerous documents attesting that she was a licensed attorney, including an attorney’s license for 2014, supposed bar examination results, supposed records of her law school attendance and a check purporting to show she’d paid her registration fees.

While there may seem like there were a number of available avenues where her deception could have been ferreted out given that she didn’t go about fabricating a nondescript background:

According to her resumé, she graduated summa cum laude from Duquesne University School of Law in Pittsburgh and had taught trust and taxation law at the Columbia University School of Law.

Yet, as the CBS news report on her conviction makes clear, she even forged an email from Duquesne to make it appear she had attended there.