The First Amendment in the Courtroom

In there a tension between the First Amendment and a judge’s right to control the courtroom? Nah. The right of a judge to control the courtroom pretty much slices through any such tension. Courtrooms – despite being government spaces – are the quintessential non-public fora. It’s not without reason that it’s been said that first amendment rights are “at their nadir” in the courtroom.

And control they do. Judges can be notoriously tetchy about stuff.  In just this last week, I’ve seen stories about judges getting butthurt over derogatory references to AOL email addresses, a big law firm sending a first-year associate to a hearing on an important case, and a lawyer refusing to remove a “Black Lives Matter” pin.

Of course these positions are stupid: taking offense over a perhaps-derogatory reference to an email address is mind-numbingly petty; many junior lawyers are better prepared than their senior partners for questions from the bench; and getting bent out of shape over a pin says more about a judge’s political beliefs than anything else.

But there’s a reason everyone laughs at a judge’s jokes. As an advocate, you’re in court represent a client. And as Megan Zavieh notes, your sole job in the courtroom is to advance the interests of your client. So laugh you do, and be sure to be prepared for a hearing, and don’t make jokes at the tech-enfeebled judge’s expense.

And you sure as hell don’t argue with the judge when he orders you to remove your politically-sloganeering button.  It beggars belief that a lawyer wouldn’t understand this; that she would let herself be shackled and taken from the courtroom – leaving her client unrepresented – in service of “standing up for her beliefs.”

While there are arguments about whether this judge’s order was appropriate, that’s beside the point when it comes to the attorney’s decision. Her beliefs? They could live to be vindicated another day. If she thinks the judge is a retrograde dinosaur, should could have fully exercised her First Amendment right to say so – at a time when the price for doing so would have been paid by her alone.

Guest Post: Why LLLTs are Needed

As readers of this blog know, I’m very interested in lawyer regulation and figuring out ways to get consumers better access to the legal help they need. To that end – and to learn more, firsthand, about how Washington State’s innovative “Limited License Technician” (LLLT) program works – Avvo is supporting the application of my paralegal, Liz Stauber, to become a “Triple L T.” Liz will be occasionally blogging here as she goes through the LLLT licensing process.

Guest Post by Liz Stauber (Avvo Senior Paralegal):

Some years ago, I had my name changed. Within days, imagine receiving a form notice from the human relations department of your employer demanding that “You must provide proof of the name change to Social Security within 5 days or you are terminated.”

Besides instant panic, what would a person with no legal education or substantive law experience do?

I was lucky I had years of legal experience as a paralegal and a husband who is an attorney. I was able to make a few telephone calls and determine that I could handle it with a quick visit to the Social Security Office.

The line was around the block at 6:00 am for their 9:00 am opening. As I was dressed professionally, several of those in line started asking me questions. Being very careful to explain that I was not an attorney and I could not give any legal advice, I did listen. One gentleman who had stood in line for over 2 hours was there to get an original copy of his social security card. From preparing for my visit, I knew he just needed to fill out a W-9, and he already had the blank form.

The problem was simple confusion – he didn’t know how to complete the form, and was waiting to ask the Social Security office whether he needed BOTH a passport and driver’s license (he only had a passport).

He said he had called Legal Aid and the Center for Legal Justice, and the first available appointments were weeks away. He had come from another state to provide health care to his mom and for some reason, he needed his Social Security card.

I read the W-9 to him and explained that he only needed one form of ID. It took all of 5 mins to explain that he could have saved 2 hours that morning, and merely dropped off the forms and received his duplicate card in the mail.

Although the help that I provided was not legal practice and advice, the questions started coming in from other people around me in line who heard me helping him. Most of the questions were straightforward and answerable by reading the documents, but a lot of the people seemed confused and wanted some comfort that they were doing things right. Questions like:

“What does this mean when they ask for certified copy?”
“Will I get more social security if I wait until 65 to retire?”
“Where do you go for food stamps?”
“What is SSI?”

Other questions were similarly simple and required only a few minutes to explain the answer, and I was happy to do it. But I couldn’t help those whose questions involved applying the law to their specific facts, as that would be the practice of law.

Obviously, these people weren’t going to hire an attorney at $300 to $500 an hour to answer these questions. And would a firm or an attorney do this kind of work pro bono?

When I become an LLLT, I still will be restricted to only providing certain types of legal assistance, and only in the area of Family Law. The Washington State Bar is looking to expand the practice areas, so maybe in the future I will be able to help those with limited funds and limited access to legal assistance. I am looking forward to providing legal assistance, even if it is limited in scope, to those in need. And I don’t see it as taking work or potential cases away from attorneys. Rather, as my experience in the Social Security line taught me, there is huge need for straightforward legal help that I can help meet as a LLLT.

Minnesota’s No Good, Very Bad UPL Decision

Brian Faughnan has the details, but here’s the quick overview: A Colorado attorney agrees to help out his in-laws, who are dealing with a debt collector in their home state of Minnesota. Like a good son-in-law, he does it for free. He engages in a series of emails with the attorney for the creditor, who eventually (because shaking people down for small-time debts isn’t enough to satisfy his “I’ve gotta be an asshole” jones) files a bar grievance against the Colorado lawyer. Colorado lawyer ends up being disciplined by the Minnesota Bar authorities for the unlicensed practice of law, a decision which is subsequently upheld by the Minnesota Supreme Court.

(Read the decision: In Re Charges of Unprofessional Conduct.)

Where to begin? Brian and other ethics mavens have already focused on the troubling retrograde nature of this decision, applying antiquated notions of the practice of law to modern communications norms. But I want to focus on three other fundamental problems with this decision:

Defining “The Practice of Law:”  As I’ve noted before, lawyer regulation has some fundamental First Amendment problems.  This is particularly true with respect to “legal advice.” The prohibition on non-lawyers providing legal advice is a content-based speech restriction, and those almost never survive a constitutional challenge.

In this case, Minnesota had the multi-jurisdictional practice statute to rely on; that rule explicitly limits out-of-state lawyers, and thus provides a thin facade to conceal an otherwise-suspect rationale. But what if the son-in-law hadn’t been a lawyer?  More on that in a moment.

“Holding Out:”  Much is made, too, of the argument that the Colorado attorney was “holding out” as the lawyer on a Minnesota legal matter. But this doesn’t survive scrutiny. The “holding out” indictment is based solely on the fact that the Colorado lawyer stated that he “represented” his in-laws. Yet restrictions on “holding out” as a lawyer are intended to apply to a specific set of practices that are harmful to consumers (i.e., pretending to be licensed as an attorney when you are not, in an effort to solicit business) – not to whatever this was. 1

And again, what if the Colorado lawyer hadn’t been an attorney? Would the disciplinary authorities have been able to argue that his statement of representation evidenced “holding old?” As with the definition of the “practice of law,” the only thread holding this together is the fact that the son-in-law was a lawyer.  Had he NOT been a lawyer, the state would have been left with a difficult argument: that people can’t help each other out with informal legal advice and advocacy unless they are in-state-licensed attorneys.

Which, come to think of it, is actually what most attorneys believe anyway. But I’m pretty confident that proposition would lose if challenged on First Amendment grounds.

Antitrust:  The discipline in this case was imposed by a 6-member panel of the Minnesota Lawyers Professional Responsibility Board. The Board is  comprised primarily of Minnesota lawyers. The discipline was then affirmed by the Minnesota Supreme Court, using a “clearly erroneous” standard.

This is a problem for the Board. Imposing discipline on non-market participants to maintain a government-sanctioned monopoly is the definition of anti-competitive behavior. And while quasi-government boards made up of market participants used to receive antitrust immunity, they don’t anymore (thanks to the North Carolina Dental Board case) unless they are “actively supervised” by the state. Judicial review – especially judicial review based on a highly deferential standard like that used here – is not within shouting distance of “active supervision.” While this issue wasn’t brought up in this case, it’s something Minnesota should think about if it plans to keep having other attorneys handle disciplinary decisions – and particularly when those decisions involve excluding competition from the market for legal services.

Notes:

  1. Let’s call it pedantry: “The out-of-state lawyer stated that he represented an in-state party. In-state parties can only be represented by in-state attorneys. Ergo, he is “holding out” as an in-state attorney.”

Florida’s Misguided Attempt to Modify its Lawyer Referral Service Rules

Last Friday, Avvo submitted comments to the Florida Supreme Court in response to the Florida Bar’s proposed changes to the state’s Lawyer Referral Service Rules. You can read our submission here, but here’s the backstory and highlights:

  • This isn’t the first attempt to change the LRS Rules. After the last go-round, the Florida Supreme Court instructed the Bar to go back to the drawing board and create rules that prohibited LRS entities owned by non-lawyers. The court was apparently concerned with the proliferation of such services in Florida, and in particular those that operated with cross-referrals to chiropractors and other medical professionals. 1
  • The Florida Bar apparently concluded that it couldn’t legally limit LRS to those owned only by lawyers. That’s probably right – it’s hard to see how such a limitation would survive first amendment (and antitrust) scrutiny.
  • Instead of going back to the court, the Bar decided to amend the rules. The amendments are not, remotely, what the court asked for. They are also notable for lacking any focus on either consumer harm or benefit. Rather than considering how the rules could enable Floridians to get better access to both legal services and information about legal services, the Bar simply futzed around with its rules.
  • In its futzing, the Bar managed to arrive at a particularly perverse result. The existing LRS rule – designed to protect against a particular type of marketing that is inherently deceptive – has been largely watered down. And, to make matters far worse, it’s now going to apply to virtually every company that lawyers use for marketing.

That means Florida lawyers will need to start gathering diligence materials for marketing providers. Those providers will have to submit annual lists of their Florida participants to the state bar. The ads that such providers run will need to comply with Florida’s picayune advertising rules (and, perhaps, even require pre-approval by Florida’s advertising review committee). This drives several results, none of them good:

  • The Bar is signing itself up for a massive new compliance program. Monitoring “qualifying providers” for compliance and processing all of those annual lists is going to cost the Bar a ton of money and time. Or, more likely, the Bar will simply enforce the rules in a highly haphazard and inconsistent fashion – making it unclear to lawyers and providers alike whether their marketing activities are in compliance with the Bar’s interpretation of its rules.
  • Diligent members of the Florida Bar will be even more reticent to provide consumers with information about legal services, concerned that their marketing providers – many of whom will be national or global companies serving many industries – are not technically in compliance with Florida’s rules.
  • In a similar fashion, the new rules – which attempt, via the comments, to make things like fee-splitting and pay-for-performance marketing per se against the rules (despite, naturally, any evidence that such practices are inherently bad for consumers) – will make it harder for Florida attorneys to get comfortable with innovative attempts to expand access to justice (like Avvo Legal Services).

And of course, the added irony: Florida – like all states – is suffering from an acute crisis where consumers can’t get help with their legal problems. As the Florida Bar itself notes, over 70% of civil court defendants are representing themselves. Help with even routine legal problems is out of reach of the vast majority of consumers. The system is hobbled from both ends. First, by a hidebound profession that can’t see beyond full-scope, gold-plated representation 2 And second, by a regulator so focused on the minutiae of its rules that it can’t see how its meddling is hampering the availability of information and the market for innovative legal services.

It’s not like this issue has been lost on the Florida Supreme Court. Less than two years ago, Chief Justice Jorge Labarga kicked off the Florida Commission on Access to Civil Justice.  Here’s hoping the Court is able to see, where the Bar seemingly cannot, how badly these Rules are dis-serving the needs of Floridians.

 

Notes:

  1. Note that Avvo is *not* a lawyer referral service. Such services are entities that operate in an environment lacking in consumer choice: users are typically sent to whichever attorney has paid the most, bought geographic exclusivity, or is next in the rotation. That’s why many states choose to have more extensive regulation of lawyer referral services than they do of other forms of legal marketing.
  2. And, for many, a burning desire to protect its monopoly at all cost.

Ethics Opinion Follies

Earlier this year, Avvo rolled out Avvo Legal Services, our fixed-price packages for consumers and small businesses, fulfilled by local attorneys. We put a lot of thought into this product, how it would meet consumer needs, and how it could comply with the Rules of Professional Conduct to which lawyers are bound.

Our guiding principle in building Avvo Legal Services? Making them as consumer-friendly as possible. Our thought was that by so doing, the RPC issues should take care of themselves. As the RPCs are all about consumer and client protection, they shouldn’t be implicated by practices that don’t harm those people – right?

Right.

But one obstacle to this approach is a pervasive mindset of “rigid” or “mechanical” compliance that persists with the RPCs. Many attorneys want “safe harbor” guidance from the Bars on what complies with the rules. To respond to this need, many state Bars provide ethics opinions upon request. Such opinions are typically non-binding, but can carry some weight in a subsequent disciplinary proceeding.

Little surprise, then, that such opinions typically take the most conservative viewpoint possible. In most cases, the bars will broadly apply the rules, with no regard whatsoever for the first amendment implications or whether their interpretation is materially advancing the interests of consumers.

Indeed, in some cases the regulators explicitly state that their opinion does not take into account any first amendment factors. See, e.g., the last line of South Carolina Ethics Opinion 09-10. 1

If the Bars are serious about expanding access to legal services and information, one change they could make right away is to get out of the ethics opinion business – at least with respect to lawyer advertising. By discouraging new legal service offerings and disseminating information about legal services, the Bars are gravely mistreating the public they are ostensibly charged with serving and protecting.

And it’s not just me railing about this. The Supreme Court addressed a very similar system – that used by the Federal Election Commission – in the landmark 2010 Citizens United case. 2  Remarkably, the words chosen by the Court in Citizens United to describe the FEC’s advisory opinion process could just as easily apply to the process used by many state attorney regulators:

“Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U.S. 51, 57-58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” [citations omitted]. Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 5885 S.Ct. 734.

Despite the approach of some Bars, there’s simply no way to interpret the rules regarding attorney speech without considering the first amendment.  Those bars that explicitly fail to do so are exacerbating the censor’s veto, hurting consumers, lawyers and the interests of free expression. There’s no question that such opinions cause many attorneys to simply abstain from providing information about the services they offer, preventing the consumers the Bar is supposed to serve from receiving information that may be vitally important to them.

Until and unless the Bars start doing away with the advisory opinion practice, attorneys who wish to really honor their commitment to serving the public should disregard these opinions. By understanding how the commercial speech doctrine works, such attorneys can confidently determine for themselves, independent of Bar input, where the rules apply and where they don’t.

Notes:

  1. And let’s keep picking on South Carolina, since they just issued an ethics opinion that seems to take aim at Avvo Legal Services: sometimes these opinions directly contradict one another. Compare the treatment of Rule 5.4 fee-sharing in South Carolina ethics opinion 11-05 vs. the new opinion 16-06
  2. Citizens United v. Federal Election Commission, 588 U.S. 310 (2010).

California Issues Broad Opinion on Lawyer Confidentiality

As someone who has been hiring lawyers for over 20 years, I love the idea of lawyerly confidentiality. I don’t want my lawyers talking about my cases unless they’ve got my permission to do so.

And from a lawyer’s perspective, getting it right when it comes to confidentiality isn’t hard: if it’s a close call, if it makes you think at all, then keep your yap shut. Period. That’s both good legal ethics and good business. Why? Because prospective clients aren’t going to give a rip about your nuanced arguments for why your embarrassing disclosures about former clients don’t violate the ethics rules. They just aren’t going to want to be the next one you blab about, which means you won’t be hired.

In issuing the latest opinion on lawyer confidentiality, California notes that a lawyer’s obligation of confidentiality extends beyond merely client secrets and confidences. Rather, it properly covers “all information relating to the representation, whatever its
source,” and may include information that is otherwise publicly available.

From the perspective of a client, I like that: I don’t want my lawyers talking about stuff they’ve worked on for me, even if it IS public. Or worse, doing as one of Donald Trump’s lawyers recently did, using the fact of the former attorney-client relationship to add greater credibility to comments that I might find embarrassing.

And yet . . . should this concept of “public confidentiality” really exist on pain of sanctions? I’m all for calling such loose-lipped attorneys out as being bad for clients, for not exercising their obligation of loyalty to the fullest, etc., but should they be legally prohibited from talking about stuff that every other member of the public is free to discuss?

This is but one of many areas in which attorney regulation has a First Amendment problem.  One of the few court decisions to actually address the issue of attorneys being prohibited from communicating publicly-available information about their clients’ cases  (Hunter v. Virginia State Bar) concluded that the constitutional considerations trumped the regulatory reach of RPC 1.6:

State action that punishes the publication of truthful information can rarely survive constitutional scrutiny . . . To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.

That sounds right to me. Attorneys shouldn’t be subject to legal sanction for talking about truthful, public information, even if so doing embarrasses their clients.

Now, whether those clients (or any potential clients) should want to continue working with such loose-lipped lawyers is another matter entirely.

Becoming an LLLT – Part 2

As readers of this blog know, I’m very interested in lawyer regulation and figuring out ways to get consumers better access to the legal help they need. To that end – and to learn more, firsthand, about how Washington State’s innovative “Limited License Technician” (LLLT) program works – Avvo is supporting the application of my paralegal, Liz Stauber, to become a “Triple L T.” This is Liz’s second guest post documenting this process; you can read Part 1 here.

Guest Post by Liz Stauber (Avvo Senior Paralegal):

I can’t believe it’s been nearly 6 months since I wrote my first post. The process to become an LLLT is a long one, but I am moving along.  Here’s where I’m at so far:

1. I’ve provided the Bar with a certified copy of my undergraduate transcript.

2. I’ve submitted declarations from supervising attorneys ( my current and former employer) which totaled more than the 10 years of required supervised paralegal work within the past 15 years.

3. I’ve joined both NALA and NFPA (it’s a prerequisite that LLLT applicants join one of these organizations).

4. I’ve applied to take the Paralegal Advanced Certification Exam (PACE), which will occur in September 2016.

At the end of last week, I received my provisional acceptance into the LLLT program, pending a passing score on the PACE exam.

I am currently awaiting my packet from University of Washington to register for the three required Family Law Courses. Those courses begin at the end of this September, and run through June of 2017.

After completing and passing those courses, I will register to take my LLLT exam – it will be offered by the Bar in the fall of next year.

Seems like a lot, but I’m keeping my eyes on the goal. And in other good news, the Bar has suggested amendments to the LLLT program that would modestly expand the scope of the work LLLTs can do. It’s good to see that the state is actively looking to ensure that LLLTs don’t have their hands unduly tied as they try to help consumers who would otherwise be left to fend for themselves.

On Information Bubbles

I went to college, in the 1980’s, at the University of Oregon. The campus stood out, even among generally-left-wing institutions of higher learning, as a very, very liberal place. And unsurprisingly, I held a lot of very liberal ideas. Now, this wasn’t entirely due to the University. My background could work well as a parody “origin story” for a tie-dyed action hero: conceived during the Summer of Love by very young (and soon to split) parents living in the Haight-Ashbury. Grew up in the woods in rural Oregon, brought up on a lot of permissive and progressive ideas. You get the idea.

However, my mother had always raised me to have an open mind. And so, in the midst of my sophomore year at Oregon, I began reading The National Review and The Economist, in an attempt to gain some alternate perspective on the philosophy and political science classes I was taking.

This didn’t seem like a particularly important step at the time. I just felt – like many a “question authority” youngster – that I might not be getting the full picture from my lefty professors. And thinking back, my reading didn’t really change my mind on much. Sure, I wasn’t down with the socialism silliness that too many of my classmates went in for, but I was on board for a whole lot of progressive ideas. Because while the reading sometimes moderated my views – or even changed my mind – on many more occasions it exposed the shallowness of whatever counter-arguments existed to the material I was learning in class.

In the 30 years since, I’ve tried to retain this habit of mind. I continue to seek out a diversity of points of view, whether in terms of news and analysis or conversational partners. It feels natural, like the only way to really understand the world, and to feel solid in one’s views.

Maybe I’m approaching this too rationally, but how can you feel confident that your views are sound, if all you hear is the echo chamber?

To this point, Keith Lee recently wrote about “choice architecture:” how the choices we make about the information we consume deeply impacts the interpretations of events were are exposed to. Keith’s post calls to mind Scott Alexander’s “I Can Tolerate Anything Except the Outgroup,” which notes (among A LOT of other things) our culture’s descent into tribalism, and how we increasingly surround ourselves with tribes (and the tribal voices of social media) that speak only to our own, narrow, perspectives. We only consume information from news outlets tuned to our bias, to say nothing of perspective – opinion pieces – which also come exclusively from our tribe’s outlets.

This seems odd to me, as I’ve grown up with family members who hold a diversity of views, and I’ve internalized the habit of seeking out contrary opinion. And yet, there’s something to Alexander’s amazement that he cannot, in his circle of friends and acquaintances, find anyone who identifies with traditional conservative/religious notions:

According to Gallup polls, about 46% of Americans are creationists. Not just in the sense of believing God helped guide evolution. I mean they think evolution is a vile atheist lie and God created humans exactly as they exist right now. That’s half the country.

And I don’t have a single one of those people in my social circle. It’s not because I’m deliberately avoiding them; I’m pretty live-and-let-live politically, I wouldn’t ostracize someone just for some weird beliefs. And yet, even though I probably know about a hundred fifty people, I am pretty confident that not one of them is creationist. Odds of this happening by chance? 1/2^150 = 1/10^45 = approximately the chance of picking a particular atom if you are randomly selecting among all the atoms on Earth.

About forty percent of Americans want to ban gay marriage. I think if I really stretch it, maybe ten of my top hundred fifty friends might fall into this group. This is less astronomically unlikely; the odds are a mere one to one hundred quintillion against.

People like to talk about social bubbles, but that doesn’t even begin to cover one hundred quintillion. The only metaphor that seems really appropriate is the bizarre dark matter world.

I live in a Republican congressional district in a state with a Republican governor. The conservatives are definitely out there. They drive on the same roads as I do, live in the same neighborhoods. But they might as well be made of dark matter. I never meet them.

I feel like I inhabit less of a bubble than Alexander does, but only slightly less. Working in technology, in a western coastal city, it’s exceedingly rare to run across people who would hold themselves out as creationists, or inveigh against gay marriage (hell, many people in my circle probably consider me an outlier because I like guns, dislike regulation, and have friends who are Republicans). So even with a purposeful approach to information choice architecture, it’s really hard to avoid getting drawn into a form of limited-perspective monoculture just by virtue of work environment and lived geography.

Short of seeking out radically new activities or joining a church, I’m unlikely to add much viewpoint diversity to my circle. And there’s this as well: much as I like engaging with people who have heterodox views, the signal-to-noise ratio in seeking out such perspectives can be depressingly high. There’s far too much position-staking; not nearly enough willingness to engage with and consider evidence. That can make the investment in avoiding the bubble – particularly with respect to actual humans, as opposed to books and articles – seem hardly worth the return.

Which is a shame, because engaging with different views and defending our own is how we grow and improve. There’s also little question that the rigidity of our “bubbles” exacerbates political polarization. I’d like to think that if we all worked a little harder, and regularly challenged ourselves by drawing from a broader range of information sources, we’d be closer as a culture. Unfortunately, the proliferation of sources and customization online are, if anything, making our bubbles even more insular and permanent.

What the Bars Need

No, not more liquor – though that might help, too.

I’ve been talking with quite a few state bar leaders recently, and there’s a lot of angst out there: concern about the growing inability of consumers and small business to afford what the legal industry is selling. Concern about the rapid pace of change in communications technology, and how legal services are marketed and sold. And concern about the future of the legal profession in general, and whether it can propel itself forward in the face of these changes, and others (like the lowering quality of new entrants to the Bar, as a rapidly shrinking applicant pool competes for a near-record number of law school slots).

So what’s a bar to do? I can’t promise to have all of the answers, but here’s one answer I know is wrong: sticking one’s head in the sand, applying the industry-protective rules as broadly as possible, and protecting the legal monopoly at all costs. To do so is to defend a bygone notion of the profession that doesn’t fit with the realities of our modern bureaucratic state, developing technology – or the law.

I will develop these points much more fully in later work, but at a very high level, here’s my prescription for what the Bars need to do:

  •  Narrow What’s Included in the Legal Monopoly

The definition of “the practice of law” – all the work that is swept in within the monopoly enjoyed by lawyers – is hopelessly vague and overbroad. It’s practically begging for a challenge on both First Amendment and antitrust grounds. Rather than fight and lose those battles, the Bars would be better served (as would the public they ostensibly exist to protect) if they proactively got back to the core of the practice. That’s trial and other advocacy work, for the most part, and it’s where the benefits of legal training and experience are most relevant. Attorneys could, of course, offer other services in competition with non-lawyer providers, and many consumers would choose them for their training and experience. But there’s no benefit to the public in casting such a wide net that non-lawyers (many with substantial subject matter expertise) are excluded from offering advisory services on “legal” matters.

  • Shorten and Simplify the Advertising Rules

The Association of Professional Responsibility Lawyers (who know a thing or two about lawyer regulation) have persuasively argued for a simplification of the attorney advertising rules. As they point out, the current rules are outdated, overly broad, and often at odds with the First Amendment rights of lawyers to express themselves and consumers to get access to information about legal services. There’s little that’s special about lawyer advertising (with the possible exception of in-person solicitation) to merit the extensive, detailed regulations that too many lawyers labor under. Replacing them with a simple prohibition on false and misleading advertising – of the sort every other industry seems to deal with just fine – would greatly enhance the flow of information and new services for consumers.

  • Permit Sharing of Fees with Non-Lawyers

So many in the Bars hate this idea, but the prohibition on fee sharing is significantly holding us back. It keeps our practices from being able to get the full benefit of non-lawyer professionals, and it forecloses all sorts of innovative services that lawyers could provide in concert with business enterprises far more versed in marketing, operations, and customer support. The prohibition also rests on two extremely dubious assumptions: that our fellow lawyers are intrinsically above influencing our independent professional judgment over matters as trivial as mere money; and that at the same time we as lawyers are incapable of resisting such influence when it comes from non-lawyers. There’s no reason it couldn’t be done away with, tomorrow, and replaced with flexible rules that permit sharing but censure any form of professional interference that might result.

There’s work to be done, to be sure, to make sure that regulatory changes such as I’m proposing don’t leave a consumer-harming vacuum in their wake. But we’ve enough experience with other industries to know that there are myriad ways to protect the public short of the byzantine, rigid accretion of rules we’ve allowed to build up over the last century or more. It’s time to take these changes seriously, rather than persisting – as we as a profession have done for far too long – with business as usual.

FTC Comment on North Carolina’s “LegalZoom Law”

In June of 2016, the Federal Trade Commission and the Department of Justice sent a detailed letter in response to an inquiry from North Carolina Senator Bill Cook. The subject? The impending enactment of North Carolina House Bill 436, legislation that would exclude online interactive legal forms from the definition of “the practice of law.” Providers of such forms would be required to meet a number of regulatory requirements, including extensive disclaimer and disclosure terms. 1

These federal agencies have no small amount of consumer protection expertise. The FTC also has a long history of calling out state attorney regulators for employing overreaching advertising rules to hamper the free flow of information about legal services.

In the letter, the FTC and DOJ quickly emphasized their point:

The Agencies recommend that any consumer protections, such as requiring disclosures, be narrowly tailored to avoid unnecessarily inhibiting competition and new ways of delivering legal services that may benefit consumers.

The message here is clear: don’t create regulatory requirements just to create regulatory requirements. Or without carefully considering the costs and benefits of such requirements, and whether there might be less-intrusive alternatives.

Why is this lesson so hard to learn? Why do we continue to grapple with rigid, mechanically-applied regulation, rather than flexibly determining whether the desired outcome – consumer protection – could still be met while enabling new and innovative ways of delivering information and services?

Here’s the FTC and DOJ again:

The Agencies recognize the important role of state legislatures, courts, and bar associations in protecting consumers of legal services from harm. The Agencies have previously noted, however, that unnecessarily broad [regulatory interpretations] can impose significant competitive costs on consumers of legal services, restrict access to legal services, and inhibit the development of innovative ways to deliver legal services to consumers.

It’s time to stop just reading the rules and thinking that slavish obedience is the path to consumer protection. The current approach is both overbroad and underprotective: it discourages innovation, scares away the ethical, and provides safe harbor for those willing to cloak consumer deception in the cloth of technical compliance. Let’s move past it, as our brethren in the UK have, and start focusing on the outcomes we want to achieve rather than the sterile minutiae of our rules and regulations.

Notes:

  1. HB 436 shouldn’t be seen as a recognition by North Carolina that a narrower definition of the practice of law would be useful to attorneys and beneficial to consumers; rather, it was the product of the settlement of a lawsuit filed against the state by LegalZoom.

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