Keith Lee has an excellent post breaking down the “legal consultations” offered through Fiverr, a website that offers all sorts of services, provided by marketplace sellers, for a flat five dollars apiece.[ref]I’ve actually used Fiverr in the past, for some graphic design and data entry tasks, and the results were uniformly piss-poor. But what do you expect for five bucks, amirite?[/ref]
Anyway, Keith identifies a number of problematics with Fiverr’s “legal consultations,” for both lawyers, potential clients, and Fiverr itself. You should read Keith’s post – he does some excellent detective work into what are some obviously false-and-deceptive offerings – but as some of the conclusions he comes to are right in the wheelhouse of my work, I feel compelled to comment on them.
Unauthorized Practice of Law
There’s no question that the people pretending to be lawyers on Fiverr could get in trouble for the unauthorized practice of law or false advertising – there’s no escape hatch for “holding out” as a lawyer when you aren’t one.
But what about people offering “legal consultations” without pretending to be lawyers? There’s a good argument (albeit one not likely to be accepted by any attorney regulators and , except at the point of a court order) that such offerings aren’t “the practice of law.”
Americans have a first amendment right to express themselves on all manner of topics – including legal topics – and to do so for money. To the extent the state is going to regulate that expression, particularly by monopolizing the field to state licensees, it’s got to have a good reason.[ref]And technically, a regulation that can survive at least intermediate scrutiny.[/ref] It’s not hard to see how the core functions of being a lawyer fall under the Bar’s regulatory umbrella – that’s the basis of the long-standing regulation of the profession, and there’s little question that the state has an interest in governing how people can represent others, appear before tribunals, and call themselves “lawyers.” But people who are clearly non-lawyers offering consultations on things related to the law? It’s a stretch for the Bar to show it’s got a substantial and legitimate interest in monopolizing that kind of activity.
If you’re reading this blog, you’re probably a lawyer, and that last sentence likely sounds very weird. But try to think about it objectively – what’s the problem with admittedly non-lawyers offering advice on, say, how to fill out a name change form?[ref]And even if you think it IS a problem, limiting this activity to only licensed lawyers seems a highly imperfect way of solving it. I could start giving advice on California or Washington estate planning tomorrow and I would be squarely within the law – despite the fact that I am spectacularly unqualified to opine on such matters.[/ref]
Keith notes that some of those offering advice on Fiverr proclaim themselves “experts” and that this runs afoul of the Bar advertising regulations.
This certainly isn’t the case for non-lawyers – who aren’t subject to the Bar advertising rules – but frankly, it’s not even true with respect to lawyers. Lawyers can’t advertise that they are certified as specialists or experts. Just saying they “specialize” in an area, or have “expertise” in another? That’s just a straightforward statement (or at worst, plain ol’ puffery – kind of like saying you’ve got the “world’s best cup of coffee“). Not that the bars will be the first to acknowledge this distinction – although courts (federal) are beginning to remind them.
God, I real feel like I’m picking on Keith now, for what was a really good post, and some great detective work to boot. There’s no question there’s some shady business going on via Fiverr. But I’ve gotta press on to the big issue: what’s Fiverr’s responsibility for all this?
Keith concludes that Fiverr can’t take advantage of the protection offered by 47 USC 230(c)(1) – the “law that makes the internet go” – because it profits from each of the $5 micro-transactions.
That’s certainly wrong; if profit were an out from the application of CDA 230, Google – as well as a whole lot of other online companies – would be in a world of hurt.[ref]Google profits from each click on an AdWords listing; such listings are often alleged to run afoul of a wide variety of laws.[/ref] The issue isn’t profiting; it’s whether the website materially contributed to the creation of the content.
This “create or develop” issue has been heavily litigated (see Hill v. Stubhub for a good discussion), and the only argument likely to get traction here would be that the creation of a “Legal Consultation” category is effectively inviting the unlicensed practice of law.
However, as consultations can – and surely are – provided in this category in ways that fully comply with local regulations on the practice of law (and because Fiverr runs an international business, and because there is a legitimate question as to whether most $5 “legal consultations” should even be considered “the practice of law”), it’s hard to imagine a court finding that Fiverr loses CDA 230 immunity simply because some assholes pretend to be lawyers when offering this service.
There’s also the instructive and coincidental example of Amazon, which has just concluded a sting operation and filed lawsuits against some 1,000 Fiverr “merchants” for allegedly offering to write bogus online reviews. Notably, Amazon hasn’t sued Fiverr – and it’s not just because Fiverr is saying the right things about how it tries to root this kind of behavior out of its system: it’s because Amazon’s lawyers know that CDA 230 stops such a suit dead in its tracks.
One more thing: if you’re an attorney, and you’re thinking about partaking of some of that sweet Fiverr goodness, one thing to consider is the fee-splitting angle. Fiverr is splitting your fees with you, taking a buck out of each five-spot you earn with your intrepid legal advice.
Now, my take is that this should be a non-issue. Fee-splitting prohibitions are designed to prevent interference with an attorney’s independent professional judgment. Like if your doctor friend refers you a big brain injury case for a 20% of the fee, suddenly feels the weight of college tuition bills, and calls you saying “it would be great, just great, if that case could settle – quickly!” That kind of pressure isn’t an issue with Fiverr; they care about as much about the outcome and timing of your consult as your credit card processor does (and a credit card processor’s fee split has the bar’s sanction, although I’ll grant that it took a lot of agonizing and hand-wringing to get there).
But I can’t imagine a lot of lawyers wanting to test that for
five four bucks.