Honestly, transparency is all that we need.

This week I was fortunate enough to be included as part of a presentation on debating issues of regulatory reform in a Plenary at the ABA National Conference on Professional Responsibility

I recorded my 3-minute presentation a couple of months ago and spent a lot of time looking forward to how it would be received. Unfortunately, it went down in a way that “felt” less than ideal. There were some communications problems with a shift in online platforms from the prior day to the day of this content and I was lucky enough to both have mine get teed up first when people were still trying to figure out how to make things work and was one of two presenters that never managed to actually get introduced so, unless you recognized my face (if so, I’m so sorry for that) you didn’t know it was me.

So, in the interest of self-care and to possibly double the number of people who ever hear what I had to say on my subject matter, I’m taking the liberty of repackaging it here into a blogpost.

Without further dwelling in this quagmire of self-pity, here were my remarks in their entirety:

I’ve been given the opportunity to be the “pro” side of the argument on why many of the current ethics rules restricting business development should be jettisoned.

I think I can do it in 5-10 seconds, “Honestly, transparency is all that we need.”  But since I get 3 minutes, let me elaborate.

Our rules, in Rule 2.1, already require us to “exercise independent professional judgement” in representing a client.  Our rules, in Rule 7.1 already require us not to make any false statements about ourselves or our services.  Our rules, in Rule 7.3, already prohibit any solicitation that “involves coercion, duress, or harassment.”  Our rules in Rule 8.4(a) already prohibit lawyers from doing any of those things through the acts of another. 

So, given that we have consumers who aren’t finding lawyers for assistance at a price point they are willing to pay, and we have lots of lawyers without enough to do … why do we need rules – under the guise of prohibiting fee sharing or prohibiting paying people for referrals to protect consumers?

Honestly, transparency is all that we need.

Consumers care about what the total cost of a lawyer is to them.  They don’t care who the lawyer shares that money with.  If they do, transparency about the situation will let them say “no”

Honestly, transparency is all that we need.

Consumers care about whether they can find a lawyer who is willing to handle their matter.  They don’t care about the fact that a particular matching service might only be offering 3 lawyers out of 20 that might be out there and willing.  They’re happy to know about the 3.  And if they do care, then transparency about the situation and the business arrangements will let them say “no.”

If you’re with me, say it with me … Honestly, transparency is all that we need.

And, if you disagree because you are convinced that no matter what the other rules say, you believe that if we let third-parties with financial interests direct clients to particular lawyers based on a relationship rather than their qualification, then the lawyer’s exercise of independent professional judgment will be impacted … wait until you learn about insurance companies and panel counsel arrangements and billing and reporting guidelines.