Author: Josh King

Vet Sanctioned For Providing Online Advice

Josh King

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?

Josh King5 Comments
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.[ref]That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc).[/ref]
  • 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.

Ethics of “Better Call Saul”

Josh King

The character of Saul Goodman brought a new level of sleaze to the on-screen depictions of lawyers in Breaking Bad – along with memorable ads, an inflatable lady liberty and a mock lawyer website that fooled more than one gullible ethics lawyer.  The masterful spin-off, Better Call Saul, shows us Saul’s origins, and offers a more darkly-comic, less violent vision than the original show.

And it’s also got lots (lots!) of lawyer advertising and ethics issues. Heck, there’s even an explicit reference to Bates v. Arizona! For more on that, go read my friend Nicole Hyland’s musings on the numerous ethical mishaps that Saul has run into only partway through Season One.

Lawyer Commoditization

Josh King

Check out these posts from earlier today:

Ron Friedmann –  “Big Law, Fast Food, and Lawyer Exceptionalism.”

Mark Herrmann – “Be Afraid. Be Very Afraid.”

Friedmann is speaking to Big Law, and Herrmann to in-house lawyers, but the message is the same: commoditization is coming, and there’s nothing special about the law that’s going to keep the forces of automation and progress from sweeping up a whole lot of the legal work that lawyers are beavering away on these days.

And while that’s bad for those who get run over by this trend, it is potentially great for consumers of legal services, who still face an industry that overwhelmingly offers nothing but bespoke options – with prices to match.

Foodies may look down their snoots at the super-sized sameness of McDonalds, but for a whole lot of people, the combination of price, quality, consistency, and quick service makes it a compelling choice. Think consumers wouldn’t flock to the equivalent in law?

There’s even a silver lining for attorneys in areas ripe for commoditization: instead of ignoring this trend, embrace it head-on. Create packaged, price-transparent offers for frequently-used services. Build the systems and processes to handle a higher volume of clients a whole lot more efficiently. Start giving the market what it can’t get today, but desperately wants.

Even in commoditized industries, lots of businesses can grow and thrive. But it takes recognizing and adapting to the changes that are occurring around them.

NY Crushes Anti-Negative-Review Agreements

Josh King

So there’s this outfit called “Medical Justice.”  They purport to help doctors and dentists stave off malpractice lawsuits and reputational damage.

One of the products Medical Justice used to offer, except for lawsuit settlement, was something called a “Consent and Mutual Agreement to Maintain Privacy.” It was a nasty bit of work, really: slipped into the pile of papers patients signed on intake, the early versions of the form basically said that the doctor agreed to honor the privacy obligations of HIPAA if the patient agreed to not write any negative reviews of the doctor.

It didn’t take too long for Medical Justice to realize that this agreement might have a few flaws. As the Department of Health & Human Services noted in slapping a doctor for using the Medical Justice form,

A covered entity’s obligation to comply with all requirements of the [HIPAA] Privacy Rule cannot be conditioned on the patient’s silence.

So Medical Justice changed the form. Instead of this quid pro quo of “don’t write bad stuff about us online and we won’t give your private medical records out,” the new agreement took an even more devious tack: it assigned copyright, prospectively, from the patient to the doctor for any reviews that the patient might write in the future. This would allow the doctor to use the notice-and-takedown provisions of the Digital Millennium Copyright Act to have such content removed from review websites.

How would that make a difference? You see, ordinarily, a review website isn’t going to pay much attention to your typical cease-and-desist-you’re-defaming-me demand letters. Reviews are user-generated-content, and review sites have solid immunity from defamation liability for such content, thanks to CDA 230. But claims based on copyright aren’t subject to that statute’s sweet protection. As a result, many sites will automatically take content down in response to DMCA takedown notices in order to take advantage of the DMCA “safe harbor” from liability that such a takedown affords.

I would have loved to have tested that out if I’d gotten such a takedown demand; as you might gather, I find these attempts to silence patients completely vile. But before Medical Justice could get these agreements into the hands of too many doctors, they stopped, grudgingly recanting their efforts (the Doctored Reviews undertaking can probably take some credit for that).

However, it was too late for at least one dentist.

Stacy Makhnevich used this form, and when a patient submitted a negative review on Yelp, she invoiced him $100/day for as long as the review was up. The story is amusing – Makhnevich got her desserts in spades – but the news here is what happened in the class action lawsuit that was filed against her: a federal district court judge entered a default judgment against her, finding that:

  • Even if copyright was assigned by the agreement, any use in a review would be protected by fair use;
  • Obtaining the agreement was a breach of the dentist’s fiduciary duty and a violation of dental ethics;
  • The agreement constitutes “copyright misuse;”
  • The agreement is unconscionable; and
  • The agreement is a deceptive act in violation of New York General Business Law section 349(a).

The court basically eviscerated the idea that these sorts of agreements are remotely acceptable. That’s a good thing; hopefully more professionals will get the idea that the best way to maintain a good reputation is to do good work, be responsive to patient/client concerns  . . . and not try to muzzle your customers and abuse the legal system at the same time.

Answering Legal Questions Online

Josh King1 Comment

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.[ref]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).[/ref]

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.[ref]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.[/ref]

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.[ref]See ABA Model Rule 5.5.[/ref]  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.[ref]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?[/ref]

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.

Bars May Lose Antitrust Immunity

Josh King5 Comments

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.

 

Blog Trolls and Commercial Use

Josh King2 Comments

Keith Lee at Associate’s Mind has blogged over the last couple of days about the latest law blog ripoff outfit, something called “Lawblogs.net.” Lawblogs is yet another scraper, pulling down posts from other sites and posting them – apparently in their entirety – on its site. Business plan? Sell ads around all of that scraped content, because we know that law blogs are traffic magnets, amirite?

OK, so that’s scummy, sleazy and probably not a high ROI endeavor. It would be much better to scrape photos of kittens, or celebrities, or well, pretty much ANYTHING other than content that is a) lightly-read (to put it charitably) and b) written by people who sue people for a living.

But I digress.

One thing in Keith’s otherwise-excellent recap of finding this troll was this statement about Creative Commons licensing:

For example, Kevin Underhill, author of Lowering The Bar, uses an Attribution-NonCommercial-NoDerivatives 4.0 International Creative Commons license. Meaning that while you can re-publish posts from his blog, they cannot be used for commercial gain. Advertising is commercial gain. As such, displaying any of the content from Lowering The Bar within a website supported by advertising is in violation of the license.

A lot of people believe this about Creative Commons licensing, but here’s the thing: it’s not the case. The fact that a site is monetized by advertising does not mean that the content within the site is “commercial.”  I wrote about this a couple of years back:

The fact that a publisher has a commercial motive does not mean that everything published is likewise commercial.  “Commercial” means that the work itself is resold or incorporated into something that is for sale (although there are plenty of exceptions even then, starting with fair use).  This is a basic legal principle, and it’s been reinforced time and time again.  See, for example, the Dex Media v. City of Seattle case I wrote about earlier.  Or the Browne v. Avvo suit filed by an attorney upset over his rating right after Avvo launched in 2007.  Or the latest Lindsay Lohan lunacy, involving a suit (tossed yesterday) over a reference to the troubled actress in a Pitbull song (“locked up like Lindsay Lohan”).

Obviously, the copyright issues Keith identities would apply to a troll like Lawblogs.net aggregating entire blog posts onto its own site. But absent more specific designation within the CC licensing paradigm that “commercial” means more for CC than it does for traditional first amendment analysis, Creative Commons licensors will have an uphill battle trying to hang their hats on the “no commercial use” exception.

Non-Lawyer Ownership of Law Firms

Josh King

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.[ref]And it’s not as if traditional law firms are immune from having difficulty representing unpopular clients.[/ref]

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.

Legal Services – The Quality Myth

Josh King

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.[ref]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.[/ref]

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.[ref]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.[/ref]

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.