Category Archives: Regulation

Checking for Conflicts on the “Legal Hotline”

As a brand-spanking-new lawyer in San Mateo, CA back in the early ’90’s, I was super-anxious to learn anything and everything about the practice of law. I defended every deposition I could. I argued mundane motions. I attended a status conference that almost turned into a fistfight.

Yes, I thought litigation was awesome – until I discovered that litigators actually spent most of their time not in court, but in dealing with pissing matches over pointless bullshit.

Which is why I’m no longer a litigator.

But I digress. Back there in the day, working for a nine-lawyer general practice law firm in San Mateo, CA (the awesome Fox, Shjeflo, Hartley & Babu), I wanted to get as much experience as a lawyer, as quickly as I could. So a couple of days a month I would work for a few hours at the San Mateo County Bar’s law clinic. Sitting at a table at the library in Redwood City, I – a newbie lawyer with all of 3-4 months’ experience – I would deal with whatever legal issues walked in.

It was awesome.

Mind you, this was pre-internet. I couldn’t just hit up Google and figure out how to file a guardianship petition, or whatever. But it was a great way to test my legal knowledge, analysis, and on-the-fly research abilities. And it really helped develop my sense of “what does the client really want to achieve?” Because it doesn’t really matter what your cold legal rights are – what matters is what outcome you’re trying to achieve. There’s a world of difference between “exact maximum revenge” and “move on happily with my life.” Ultimately, desired outcomes are most important, and I learned very early, in that library meeting room, that my mission as a lawyer wasn’t so much to “valiantly vindicate the client’s legal rights” as it was to get them to the place they needed to be in their life.

But I digress.

One of the really interesting things about working in the library legal clinic was the sheer variety of matters you’d face. I mean, sometimes there would be a dozen or more people waiting to get legal advice. It seemed crazy to me then. But I realize now how hard it is for most people to get access to legal services.

Some years after my early days working the legal clinic, the ABA adopted Model Rule 6.5, which has since been adopted by most states. Rule 6.5 attempts to make it easier for “legal advice hotlines” and other forms of quick, legal-clinic-like guidance to flourish. The rule does two important things with respect to conflicts: it effectively removes the obligation of the clinic lawyer to run a conflict check prior to providing advice, and it keeps information possessed by one hotline attorney from being imputed to another (and thus potentially conflicting the hotline out entirely from providing advice in the matter).

As you’d expect, this beneficence is not without limit. Attorneys providing such advice can’t ignore conflicts they are actually aware of, and all of the rules around conflicts spring back into play should the limited-scope guidance of the hotline turn into full-scope legal representation.

It’s also fair to ask how this rule should be squared with Rule 1.2(c), which allows for limited-scope representation but in many formulations requires procedural formalities (like written fee agreements) that are ill-suited to a brief telephonic or online advice session. One would hope that such rules would be interpreted in a way that provides maximum access to justice while preserving consumer safeguards. For example, a fee agreement (provided it isn’t larded down with regulated disclosure language) could be communicated and agreed to, verbally or electronically, at the outset of a call. 1

But Rule 6.5 also has this curiosity: it is limited to court-sponsored or nonprofit providers of legal advice hotlines. Neither the rule itself nor its included commentary offer any illumination on why this limitation is included. Rule 6.5 was added during the ABA’s “Ethics 2000” initiative, and the new rule engendered far less discussion than the other rule additions and changes. The Reporter’s Explanation of Changes offers this:

“The Commission believes that the proposed relaxation of the conflict rules does not pose a significant risk to clients when the lawyer is working in a program sponsored by a nonprofit organization or a court.”

The reasons for this belief will remain shrouded in mystery. One commentor – the Brennan Center for Justice – noted the unfairness of relaxing the ethical standards only for organizations serving the indigent, and suggested that one solution was to relax the conflict rules for all attorneys providing such services.

The minutes of the Commission’s meetings don’t reveal that these concerns were ever addressed. In my experience, that’s not unusual. My guess is that this limitation stems from nothing more than inertia: such legal advice hotlines have, historically, only been offered by court-sponsored and nonprofit organizations. The rule was drafted to apply only to such programs, and the Ethics 2000 Commission focused its attention on more contentious changes to the ethics rules.

But what if a law firm wanted to provide such a service? Or a group of enterprising solos, who pooled their marketing budgets and used it as a way to reach a broadly underserved market?

Or what if attorneys just did it themselves, powered by a technology and marketing platform that brought these limited-scope legal advice calls to them?

Ensuring that major or obvious conflicts don’t exist is a good idea, regardless of what the rules say. But being able to be more relaxed about it, to simply do a high-level, cursory pass before taking the call, would make it a lot easier for lawyers to get comfortable with providing legal-clinic-like advice to a whole bunch of consumers.

So here’s another thought for the expanding list of regulatory changes to enhance access to justice: take the Brennan Center’s suggestion and amend rule 6.5 so that it applies to ALL “legal hotline” programs – regardless of who is operating them.

Notes:

  1. Note that while I believe it is questionable whether the advice given on a legal hotline call is actually “the practice of law” in the first place, this doesn’t mean reasonable consumer protection regulations – like avoiding conflicts and requiring confidentiality – couldn’t apply to it.

Advice, and “the Practice of Law”

After posting about occupational licensing and the first amendment, and the Texas court decision regarding the dispensing of veterinary advice online, I’ve distilled a few thoughts on where I see the (uneasy) line between lawyer licensing and free speech rights:

  • Providing advice is a form of expression, protected by the First Amendment. The fact that someone charges to provide it does not change the analysis, or the government’s heavy burden to show that its attempts to regulate such expression can survive strict scrutiny.
  • The legal industry has drawn a very wide circle in defining “the practice of law.” It typically includes services, provided by non-lawyers, that offer advice to low-income consumers on how to fill out forms or otherwise engage with bureaucracy or the legal system.
  • Prohibitions on paid advice are typically rationalized as being necessary for consumer protection.  While this sounds good, it’s hard to see how such arguments could survive strict scrutiny. Besides the fact that the advice given in such situations is typically very straightforward, there are plenty of narrower means of regulating available, from disclosure to bonding to malpractice insurance requirements. And let’s be frank – there is at best no more than a tenuous of connection between the requirements of legal licensing and the ability to, say, advise a consumer about how to file for a name change.
  • The state can prohibit people or businesses from holding themselves out as lawyers to consumers. Any such holding out would be both deceptive and commercial, and thus easily barred under traditional commercial speech analysis.
  • The state can regulate non-expressive conduct. For example, regulations limiting to attorneys the signing of various documents would not offend the first amendment. However, given the uniquely speech-centered nature of legal practice, there is less non-expressive conduct to play with than is present with other licensed occupations such as doctors or dentists.
  • The state can regulate who is allowed to engage in traditional courtroom representation and advocacy. There are two grounds for this: the fact that courtrooms are considered non-public fora, and the fact that courtroom advocacy of the interests of others is the core function of being a lawyer, and has a long history of occupational regulation.

I suspect that a first amendment challenge to the occupational licensing of attorneys – if reviewed by a court objective enough to set aside their own lawyerly biases – would result in a sharp drawing-in of what we think of as “the practice of law” reserved for those with professional licenses.  We could well end up with a system such as that which prevails in the United Kingdom, where “the practice of law” is limited to six “reserved” areas of legal work that only lawyers can perform. You’ll notice that “legal advice” is not one of the six:

  1. Rights of Audience (appearing as an advocate in court)
  2. Conduct of Litigation  (managing a case through court processes)
  3. Reserved Instrument Activities (specific types of real estate and property transfers)
  4. Probate Activities (handling probate matters)
  5. Notarial Activities (acting as a Notary 1)
  6. Administration of Oaths (taking oaths, swearing affidavits, etc.)

My belief is that this would be an unequivocally good thing for both consumers and free speech. But would it necessarily be bad for lawyers? Outside of those areas where lawyers currently use their monopoly status to overcharge consumers for work that doesn’t require a lawyer, I don’t think so.

Much of traditional legal work would still require a lawyer. And even beyond that, clients would still want to use lawyers for a lot of work even if non-lawyer alternatives were available. That seems to be how things are working out in the UK, where plenty of London solicitors continue to make a fine living providing legal counseling and advice.

Notes:

  1. Notaries in the UK must be lawyers.

NY Ethics Opinion Whiffs on LinkedIn

I wish more authors of ethics opinions would pay attention to the Constitution. But NOOOOO – here’s yet another ethics opinion, this time from the New York County Lawyers’ Association, that completely ignores the fact that the first amendment governs how state attorney advertising rules are to be interpreted.

Instead, NYCLA takes the tack that it can just read the ethics rules and come up with commonsense interpretations of what they mean. That’s cool and all, but it’s also completely meaningless – and not just because NYCLA is a voluntary bar association, and its word on matters of legal ethics is about as authoritative as a Duane Reade shopping bag.

Here’s a tip: if your interpretation of advertising regulations doesn’t account for the Central Hudson factors, this would be a fair criticism of your position:

Oh, and naturally, without the application of First Amendment limits on regulatory overreach, NYCLA ended up at a pretty dumb place: that LinkedIn profiles require disclaimers, that attorneys need to monitor their profiles for accuracy in content added by others, 1, and that attorneys cannot be categorized by others as “specialists.”

That’s pretty much entirely wrong. Disclaimer requirements are a form of compelled speech, enforceable only to the extent necessary to prevent deception. Federal law explicitly holds that users of websites can’t be held responsible for independent postings by third parties. And prohibitions on the use of words like “specialist” only come into play when such words are accompanied by other words stating that some third party has certified the lawyer as a specialist.

So nice opinion there, NYCLA – but you’re not exactly advancing the profession’s understanding of speech regulation.

Notes:

  1. Which they SHOULD do, but not due to any regulatory obligation.

Vet Sanctioned For Providing Online Advice

Since last week’s post regarding the the First Amendment and lawyer licensing, there’s been a development on the occupational licensing front. On Friday, the Fifth Circuit issued its decision in Hines v. Alldredge, denying a First Amendment objection to a Texas law regulating the practice of veterinary medicine.

There are some significant differences between that case and the practice of law. The most important difference is the fact that the veterinary regulation in question arguably relates only to conduct, not speech.  It requires that a vet physically inspect the animal in question, or the premises in which it lives, prior to providing veterinary care.

It’s also the case that the Texas definition of “the practice of veterinary medicine” is far more specific than the vague, amorphous concepts larded into most definitions of “the practice of law.” In Texas, the practice of veterinary medicine is defined as “the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique.” It also includes holding oneself out as a vet, or being compensated for practicing veterinary medicine.

Ronald Hines, who was disciplined in the Texas case, is an experienced vet who provided veterinary advice to pet owners, over the phone or via email, for a flat fee of $58.00. He would evaluate records and consult on conflicting diagnoses and medications, but he did not prescribe any medications – and he did not physically inspect any of these pets.

The case turned on this lack of physical inspection, which is required (by occupational regulation) in order to have a veterinary-client-patient relationship; such a relationship is in turn required in order to engage in “the practice of veterinary medicine.” The court found that this was a form of conduct regulation, and any burden on speech was incidental: Hines couldn’t lawfully provide the advice (speech) because he hadn’t carried out the prerequisite physical inspection (conduct).

Although the decision doesn’t touch on this, the fact that the defendant was a veterinarian probably played a big role – that is, the court likely thought that if Hines was going to hold himself out as a vet, he needed to meet the requirements of being a vet. It’s possible that a different result would have been reached if the case had involved a non-veterinarian – say, an experienced horse trainer – providing paid online equine health advice sessions.

Finally, the decision cites to the “broad power” states have to establish licensing standard and regulate the practice of professions. But as Paul Sherman noted, this historical precedent and deference doesn’t give states a free pass – or even a thumb on the scale – when it comes to speech regulation, except in those limited cases where there is long history of that particular type of speech being unprotected.

The conduct/speech distinction here is facially appealing; it makes sense that certain types of veterinary care cannot properly be provided in the absence of an examination. Yet it is troubling when applied broadly, as it was here. It presupposes that the state can meet the lesser burden associated with conduct regulation to foreclose whole categories of speech, the direct regulation of which would need to survive strict scrutiny.

I’m sure this case will be appealed to the Supreme Court; hopefully the court will take it, and provide some clarity to the acceptable contours of occupational licensing. I will probably post again later this week with further thoughts on what this decision means, if anything, to the viability of expansive regulation of the practice of law.

Does Licensing Lawyers Violate the First Amendment?

Like Chief Justice John Roberts, I don’t put a lot of stock in law review articles. But every now and then, one comes along – usually written by an honest-to-god practicing lawyer, and not a full-time academic – that’s worthy of notice. Case in point? Paul Sherman’s March 15 Commentary in the Harvard Law Review, “Occupational Speech and the First Amendment.”

I’m still digesting the argument, but at first blush it powerfully extends the case, on First Amendment grounds, for a substantial drawing-in of state regulatory power over the practice of law.

How so? Consider:

  • The core functions of the practice of law involve speech, much of it in the form of advocacy and advice.
  • Requiring an occupational license to carry out these functions is a content-based speech restriction.
  • Content-based speech restrictions must survive strict scrutiny in order to be found constitutional. 1
  • Outside of certain truly client-protective measures and limits on speech in government-created forums, the broad speech restrictions inherent in legal licensing would not survive strict scrutiny.

The result? “The practice of law” would be cut back largely to courtroom representation and advocacy.

It’s a really interesting point. As I’ve long maintained, nobody is “practicing law” when they opine generally on the law or public policy, and the bars have no business trying to regulate them for doing so.

However, I’ve always rather uncritically accepted the notion that there is something fundamentally different about offering advice to a client for a fee. That doing so means you’ve crossed a line where regulation is appropriate.

But I think I’ve been wrong about that.

Why? Because Sherman notes something that is critically important to all media legal specialists. Something I tell lawyers when they get pissed off about Avvo’s publishing profiles of them:

The fact that otherwise-protected speech is “sold” doesn’t make it any less worthy of constitutional protection.

This is the principle that keeps the government from censoring the media, despite the fact that people used to actually pay for newspapers. It’s why rights of publicity can’t stop “unauthorized biographies.” It’s the very clear, often-repeated-by-the-Supreme-Court mantra that economic interest alone is not sufficient to convert free speech into commercial speech (to say nothing of speech wholly devoid of First Amendment protection).

So how can the states prevent – oftentimes on pain of criminal sanctions – nonlawyers from offering paid advice on things like filling out forms, complying with laws, negotiating agreements, and interacting with the government?

The answer seems to be that they can’t.

Notes:

  1. That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc).

Answering Legal Questions Online

I get questions from lawyers all the time about the appropriateness of answering legal questions online. Which isn’t a shock, since Avvo operates an online forum where people can ask questions about legal issues and get free answers from lawyers.

As I’ve harped on mentioned before, attorneys tend to focus on risks, and the risks of answering questions online aren’t that hard to spot – inadvertently forming an attorney-client relationship, malpractice, out-of-state practice, etc.

But are these REAL risks? Are you really putting your license (and potential clients) at danger? The short answer is no – because while all of these risks are out there, they exist in what I like to call “the margins:” that area where a risk may materialize if all of the ill-fated stars align to screw you over. Or if you’re blitheringly reckless or stupid.

And guess what? Getting out of bed every morning exposes you to risks in the margins. You could step out in front of a bus. You could give a client advice that’s 100% wrong because you’re feeling rushed and under-caffeinated.

Face it, lawyers – life offers no cure for recklessness, stupidity, or fate.

So relax and accept it. Because life – and practice – should be about growth and development. And growth and development aren’t going to be in the cards if you’re too busy fretting over minuscule risks and things that can’t be changed.

Lest you think I’m being unduly dismissive of your lawyerly concerns, let’s take a closer look at the risks of answering questions online.

Don’t Forget Your Free Speech Rights

I’m going to start with something fundamental that many lawyers overlook in their rush to fixate on risks. Here it is, and I will block-quote for emphasis:

Discussing legal issues and answering legal questions in a public forum IS NOT THE PRACTICE OF LAW.

Or to be more precise: it’s not “the practice of law” as regulated by the bars and restricted to those admitted to Bar membership. Everyone – lawyers and non-lawyers alike – has a First Amendment right to comment on legal matters.

Yes, you may regret this, as you survey your Twitter feed following any noteworthy Supreme Court decision.  But there’s nothing the attorney regulators can do to restrict anyone from writing or talking about legal matters.

Where this First Amendment right ends – and the ability of the state to start regulating expression and behavior begins – is when someone holds themselves out as a lawyer, or starts charging clients for doing work that is “legal” in nature.

I’ve written plenty lately about the issues around Bar regulation of non-lawyers.  But for lawyers, the red lights should start to go off when questions get closer to being “client-type” discussions. You know the type: private, personal, specific, and heading in the direction of actual representation. For while the “practice of law” is a vague and amorphous term, it is generally understood to be characterized as holding oneself out as a lawyer and taking on a client relationship of trust and reliance. 1

Forming an Attorney-Client Relationship

On a forum like Avvo’s, it is structurally impossible to form an attorney-client relationship. That’s not because the site very clearly points out to users that no such relationship is being established – although that, importantly, goes a very long way toward properly setting the expectations of those asking questions. Rather, it’s because all questions are asked anonymously and in an open forum.

An attorney cannot represent a client whose identity is unknown to them. I won’t belabor the reasons for this, but central among them is this: an attorney cannot deliver any of the fundamental professional obligations owed a client if they don’t know the client’s identity.

On other sites – say, Facebook or Twitter – this may be of slightly more concern, as those asking the questions are often not anonymous. However, to the extent that questions are asked publicly – as opposed to a direct message via a social media platform – the lack of confidentiality strongly weighs against the possibility that any reasonable person would think an attorney-client relationship had been formed. 2

However, and more fundamentally, this is where it’s important to remember the first rule of professional use of social media: treat it like a real-life encounter with a real person.

If someone asked you a legal question at a social event, would you provide them some general guidance, and invite them to contact you directly and privately if they wanted to get into more detail? Great! Do the same thing online. You may find, however, that it’s useful – particularly if the person asking the question is someone you don’t know – to take pains to point out at the beginning that you aren’t their attorney and can only provide general information.

One overarching point: I wish I didn’t have to recommend that attorneys clearly call out at the beginning that their answers are general and they aren’t representing the person asking the question. However, I’ve seen a number of well-intentioned lawyers run into people – typically blog commenters with questions – who get confused about this and think that the attorney has agreed to represent them going forward.

It’s best to just keep things clear, even if you know that the public nature of the forum and the general tenor of your guidance isn’t going to risk the creation of an attorney-client relationship. Be direct and upfront; it’s far better than trying to point to fine-print disclaimers on your blog or social media profile. Our experience at Avvo is instructive on this point – we’ve had millions of answers to millions of legal questions, and I’ve yet to encounter a situation where a consumer thought they had formed an attorney-client relationship via our forum.

Legal Malpractice

Legal malpractice isn’t a risk where there’s no attorney-client relationship. Avoid that, and you’ve got a two-fer.

But let’s say you DO form an attorney-client relationship with someone asking a question online. What about that?

My answer would simply be this – there’s nothing special about interacting online. If you’re actually offering legal services online (which can be done, although I’d recommend getting paid to do it, and not doing it through a public social media forum), you should do so with the same level of competency that you bring to bear whenever you provide legal services.

And if you’re worried about that  . . . you should probably pursue an occupation other than the law.

Multi-Jurisdictional Practice

What of people who ask questions from other jurisdictions? Could you be engaging in the unlicensed practice of law?

The lawyerly answer is that the rules of professional conduct speak to where the lawyer is located, not the client. 3  ABA Model Rule 5.5(b) proscribes holding oneself out as a lawyer in a state where the lawyer is not licensed, or “establish[ing] an office or other systematic and continuous presence” in such a state. Such concerns are clearly not implicated by simply answering the question of someone online who claims to be from another state. 4

However, one caution: I am talking about simply answering general legal questions online, without compensation or the confidentiality that marks the provision of legal services. These nuances of the multi-jurisdictional practice rules would be thin reeds indeed to rely on if you were selling online legal services without regard for state boundaries.

________

Remember: just because you’re a lawyer doesn’t mean you’ve checked all of your First Amendment rights at the door. You’ve got every right to sound off on the law. You’re also perfectly entitled to give people general legal guidance, and it doesn’t matter whether that interaction takes place online or off.

In many ways, this is how legal business development has always occurred. General questions move to specifics, and a lawyer is hired to help resolve a problem, start a business, or handle a lawsuit. And just as it has always been, it’s important to keep your lawyer-senses attuned for when these discussions need to move behind closed office doors – or end.

Notes:

  1. Washington, D.C. has the best definition I’ve seen:  “’Practice of Law’” means the provision of professional legal advice or services where there is a client relationship of trust or reliance.” D.C. Rule 49(b)(2).
  2. And see comment [2] to the Comments on ABA Model Rule 1.18 for more detail on the conditions that must be met before an actual attorney consultation will have occurred.
  3. See ABA Model Rule 5.5.
  4. There’s also the “on the internet no one knows you’re a dog” issue – how do you know that an asker – particularly an anonymous asker – is actually from the state they claim to be in?

Bars May Lose Antitrust Immunity

The Supreme Court is out today with a really important decision in North Carolina Board of Dental Examiners v. Federal Trade Commission. I wrote about the case back in October when it was argued – it involves the question of whether the North Carolina Board of Dental Examiners enjoys antitrust immunity for its actions excluding non-dentist competition.

Understandably, the case was followed closely by the state attorney regulators – the parallels between dentists excluding commercial tooth whitening outfits and lawyers excluding, say, commercial document preparation outfits being uncomfortably close.

The court made no bones about it, siding with the FTC: the regulatory bodies of self-regulated professions (like dentistry and the law) only get immunity from antitrust liability if they are “actively supervised” by the State.  As the court pointed out:

States, furthermore, can ensure Parker immunity is available to agencies by adopting clear policies to displace competition; and, if agencies controlled by active market participants interpret or enforce those policies, the States may provide active supervision.

Boom.

As I’ve harped on before, states have very unclear policies to displace competition in the legal marketplace. The definition of “the practice of law” is incredibly vague, and is often used to exclude non-lawyers from doing activities that remotely smell of being “legal.” This is a wake-up call that this definition needs to be clarified and refined – right now – if the state bars want to preserve antitrust immunity.

As for state bar advertising review committees – such as those employed in Florida and Nevada – I’d say this decision marks the end of them. The Court noted that “active supervision” requires, among other things, that:

The supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it.

Maybe the states want to interject more active supervision over the decisions these committees make, but I doubt it.  Good riddance.

 

Non-Lawyer Ownership of Law Firms

Despite the grand vision implied by the title of the ABA “Future of Legal Services” Commission, the Commission’s scope is modest. It might be summed up as trying to address this question: are there incremental ways that the practice of law could be tweaked – whether in practice or via regulation – such that access to justice might be improved?

There’s certainly work to be done on that front. Getting access to legal services is far from ideal for most folks. And, paradoxically, it’s worst for those who need it the most – those seeking help or government benefits must navigate an increasingly-complex bureaucracy.

Amidst the comments submitted to the commission are many solid ideas. Some, like allowing a measure of non-lawyer ownership of law firms, or eliminating most of the restrictions on attorney advertising, will be seen by many attorneys as massive changes. But these suggestions are really just in line with a simple idea: that the business of providing legal services to consumers could be handled a lot more like other types of services, without any meaningful reduction in quality.

This requires acknowledging some truths that most lawyers, if they are being honest and objective with themselves, would be hard pressed to deny.

Non-Lawyer Ownership

The limitation on ownership of law firms is supposed to preserve the professional independence of lawyers. This regulation presumes that lawyers answer to a higher calling than the cool logic of business.

We’d really, really love to believe that. It’s probably even true sometimes.

But the reality is that law firms are businesses. And even if it is only lawyers at the helm, these are lawyers who must take business considerations into account when making decisions. There are bills to be paid, payrolls to be made, reputations to be preserved. It’s delusional to think that lawyers running law firms are somehow magically above the tradeoffs and calculations that are inherent in running any business.

Businesses and Client Protection

OK, so lawyers face “business” pressures too. But they’re still better about protecting client rights than a faceless corporation would be, right?

Not necessarily.

Yes, attorneys have a fiduciary obligation to clients. But frankly, that’s not that important for a whole lot of routine consumer matters. We’ve got this paradigm of the adversarial system, or the lone individual fighting to speak truth to power, but let’s face it: a whole lot of legal issues involve people just trying to plow through the bureaucracy to get shit done. Get a visa, change a name, establish paternal rights, start a business – the list goes on and on.

Banking, insurance, real estate, finance – all involve similar consumer issues that are capably met by businesses. For many legal issues, people just need to get something dealt with, get the right boxes ticked, predictably, properly and on time, and know that they can move on with life.

And frankly, these types of client interests are going to be better protected by the business virtues of consistent, easy-to-use processes, than by a poorly-run law practice that’s barely scraping by.

Business Ownership and Unpopular Causes

The criminal defense lawyer lined up against the government, the consumer lawyer taking on big business, the civil rights lawyer representing a deeply unpopular cause – so much of our lawyerly identity is tied up in these sorts of “heroic” cases.

It’s a fair objection that most business-owned law firms would stay away from these sorts of cases. But again – the vast majority of legal matters don’t present this sort of stress test of a lawyer’s independence. 1

We shouldn’t let this idealized vision of independence keep businesses from being able to invest in enhancing consumer access to legal services. And remember – just because businesses can do so in this scenario, that doesn’t mean such firms are the only game in town. Just as with banking, or medicine, or a host of other occupations, specialist practices – probably owned exclusively by lawyers, as they are today – would exist to handle the truly tricky, high-stakes work.

Ultimately, improving access to justice is going to take one of three things: attorneys reinventing their businesses to better serve consumers; the definition of “the practice of law” being scaled back; or the regulators permitting businesses to participate in the legal industry.

I would love to see #1 come to pass, but it may be the case that such reinvention can’t happen at scale until businesspeople can truly partner with lawyers.

Notes:

  1. And it’s not as if traditional law firms are immune from having difficulty representing unpopular clients.

Legal Services – The Quality Myth

I’ve recently explored a thought experiment relating to what a more practical, consumer-focused license to practice law would look like.

One major objection that attorneys invariably raise – if they can keep from going apoplectic and engage the idea on its merits – is the risk to consumers in getting “legal” help from non-lawyers.

Sure, there are risks. But how serious are they?

First of all, plenty of plenty of people want to pay less for something that’s not fully-custom, with all of the risks and tradeoffs that entails. That’s an important element of consumer choice.

However, there’s a bigger issue: while lawyers are quick to play up the tradeoffs between custom and mass-market services – trotting out the scare tactics about “cookie cutter” services and lack of accountability whenever non-lawyer services are discussed – many consumers may actually prefer such services for reasons beyond just price.

Custom products may win the “spec” battle,  but mass-market solutions are not inferior across the board. There is a high degree of variability among the providers of custom legal services. Not just in competence, but in all of the things that go into the customer experience: timeliness, responsiveness, predictability, etc. One of the things large-scale businesses do well? Solve for these sorts of consumer needs in a consistent way.

Why does this matter? Back to my fashion metaphor: if you have a custom suit made, there’s a lot of potential for individual variation. It may very well make you look fabulous . . . but the process may also be a train wreck, marked by endless delays, lack of communication, rework, etc. Those factors may end up being more important than the ultimate cut of the clothing.

On the other hand, you know you can go into Nordstrom, buy something off the rack, have some in-house tailoring done, and end up with clothes that look pretty damn good. And they’ll be delivered on-time, with a smile.

For most consumers, that combination of predictability and price point makes purchasing off-the-rack the right decision – even if it means foregoing an element of fashion-wonderful upside that’s only attainable by going fully custom. It’s plenty good enough – and the predictability of the outcome makes the process lower risk than going custom. 1

In the legal world, imagine customers knowing they could call, anytime, and get an update on their status. Imagine having a clean web interface and all documents stored in the cloud. Imagine any of the myriad ways that a responsive, predictable, and transparently priced experience could be delivered to customers. THAT’s what a larger-scale business could deliver – and it’s what a whole lot of consumers are clamoring for. 2

This obviously doesn’t work for every legal issue or practice area. Getting custom help is critical when your freedom is on the line, or the matter is complex, high-stakes, and adversarial. But for many types of legal services, there may actually be more risk in the custom solution than the off-the-rack choice.

If only such options were available.

 

Notes:

  1. It may even make it lower legal risk than custom in some areas, as businesses can build in process and quality assurance in a systematic way that few law practices invest in, particularly for lower-value consumer work.
  2. This isn’t to say that lawyers couldn’t deliver services this way. It’s just that they haven’t done so, and don’t seem to have much interest in starting.

What Would A Meaningful Law License Look Like?

A couple of weeks ago, I asked the question of whether occupational licensing for lawyers really benefits consumers. While I’m convinced that the license requirement makes it likelier that people will get competent legal help, it also adds a powerful level of cost, by foreclosing other options that consumers might legitimately want to choose.

In Avvo’s comments to the ABA Future of Law Commission, I observed that if we were to analogize the legal industry to the fashion industry, we have given consumers a choice between only two, starkly different options: haute couture or making their own clothes.

Just as we’d all look a little better if we could walk around in custom-tailored clothes, we would all be better-served – at least insofar as the contours of our legal solutions would tightly hug the curves of our specific situations – if given the luxury of custom legal work.

But just as with custom tailoring, most people can’t afford that level of fit and quality. And most people are OK with the tradeoffs between full legal representation and something a little more, shall we say, off-the-rack – at least for a whole range of straightforward and relatively low-risk matters.

Take, for example, “Legal Docs By Me,” which offered, for a flat fee, professional help completing basic forms like change of name applications. For that, the company’s owner, Derek Distenfield, was prosecuted for practicing law without a license.

Was the complaint against Legal Docs By Me filed by a customer unhappy with the service provided? Of course not – it was filed by the local bar association.

As Tom Gordon points out in this recent WSJ editorial, the definition of “the practice of law” is quite vague. It’s been left up to the courts to define, and has largely been used, by lawyers, to try to define within the exclusively cartel of the lawyers any work remotely related to legal matters.

Like help filling out forms, or basic guidance.

Look, I respect lawyers. In fact, I respect them enough to say that we should rise above this pettiness – our education, judgment and experience is worth more than simply helping consumers fill out forms. Let’s preserve a shred of dignity and cede some ground that it’s petty and pointless to fight over.

Yes, I know that threatens some lawyers’ livelihoods. But I’m also confident those folks can move on to something that makes better use of their talents.

So what would a meaningful license for the practice of law look like? It would start with a better, more limited definition of what, exactly, the “practice of law” really is.

Courtroom Advocacy

Representing clients in court – that’s what a lot of people think of when they think of “the practice of law,” and it strikes me as the sort of thing that should go to the heart of what it means to practice law. It’s the combination of zealous advocacy and preservation of the clients’ interest above all else. It doesn’t take much to make the case that this should constitute “the practice of law.”

Advice and Counsel

This is where it gets a bit trickier. Advice and counsel may be the biggest single area of legal work present today. It includes a wide swath of activities: advising clients in putting contracts together, working to comply with government regulations, to form business entities and combinations, to shape company direction, and to prepare for litigation.  Much of this work is what we would think of as “the practice of law.” It involves both the application of specialized legal training and the presence of a client relationship of trust and reliance.

But then there’s all of the day to day-to-day stuff.

Should it really be considered “the practice of law” for someone to help another person out with the bureaucratic paperwork required to facilitate a no-fault divorce or guardianship paperwork? Or to do a name change, or to apply for disability benefits?

Our increasingly bureaucratic world requires more and more paperwork. And ironically, the impact of all this red tape falls most heavily on those least able to pay for professional help in dealing with it. Those with steady incomes, stable marriages, and reasonably trouble-free children have little, if any, exposure to this world – while those going through a flood of troubles end up encountering it at every turn.

But should they want help – of any kind – in dealing with it, their choices are limited to dealing with it themselves or choosing the black box of professional legal services. It’s back to do-it-yourself or haute couture.

Limit the License

Given the expansiveness of field-claiming by the legal profession, I propose a rather radical adjustment: limit the definition of “the practice of law” – and, correspondingly, the activities for which a lawyer is required – to those situations where third party representation is involved. That’s mostly going to be courtroom and administrative agency advocacy.

Anything else that smells “legal?” Anyone can do it.

Stifle the gasps; this wouldn’t be the end of the world for lawyers. Sophisticated users of legal services would go right on insisting that their transactional and counseling services be rendered by people with specialized legal training and credentials. The bars could go right on limiting their membership exactly the way they do today. Their members could use that as a marketing/quality advantage.

Of course, business would quickly dry up for attorneys operating in areas where there is little need for legal training. People who are paying for a lawyer only because no alternatives are available would swiftly migrate to lower cost services.  But for those offering services really involving the application of legal skill and training? Most people who currently pay licensed attorneys to do this work would continue to do so (although attorneys would probably have to work a little harder to market WHY it’s important to choose a licensed attorney).

Geographic Silliness

Limiting what’s included within the definition of “the practice of law” (for which a license would be required) would also largely solve for the rigid geographic licensing rules. Today, lawyers bend their minds around whether they can telecommute from a neighboring state, or live in one state where they aren’t licensed while operating a law practice in the state where they are.

It’s the height on inanity that anyone burns any brain cells whatsoever thinking about this, but the bar rules are what they are, and there have been plenty of cases of bar regulators mechanically interpreting the rules in ways that would prevent such practices.

Taking such a stance requires going WAY down the hyper-regulatory rat hole. First, you’ve got to assume that licensing in one state somehow evidences a level of competence and familiarity with that state’s law and procedure that a lawyer licensed in another state would not possess. That’s a huge assumption, given how expansive and specialized the law has become. A Washington-licensed divorce lawyer would be far more competent to handle a California divorce than I would be, but guess which one of us is authorized by the regulatory authorities to handle that matter?

Second, you’ve got to blind yourself to the question of consumer harm. Telecommuting lawyers? Lawyers living in one state and working in another? There is zero impact on consumers; it’s the logic of grocery clerks and bureaucrats that has anyone worried about such matters.

If, however, we limit the definition of “the practice of law” to representation for courtroom advocacy, there’s no need to worry about these demarcations – and we’re back to dealing with a distinction that actually means something. In the courtroom, local knowledge – particularly of state procedural rules – matters a lot. And a lawyer wouldn’t be able to appear in a state’s courtrooms without being licensed there (or, perhaps, getting authorization to appear pro hoc vice). It’s a simple, bright-line test. For anything else – whether counseling or telecommuting – it wouldn’t matter where the lawyer might be licensed, as those activities are not “the practice of law.”

What do you think? Why not just take licensing back to the core of what it means to be a lawyer?