Pledge to Focus on Lawyer Well-Being

Earlier this year, I blogged on the creation of the Vermont Commission on the Well-Being of the Legal Profession.  The Commission is in the midst of its work.  Its charge and designation is here.

This is a national topic.  Others states have undertaken similar projects.  The ABA has been a leader in raising awareness of issues related to lawyer well-being.

Last week, the ABA Journal reported that several of the country’s largest law firms have signed a pledge to follow a 7-point plan to improve lawyer well-being.  The pledge and the plan are here.   The pledge was developed by the ABA’s Working Group to Advance Well-Being in the Legal Profession.  The group has also developed this Well-Being Toolkit for Lawyers and Legal Employers.

Per the article in the ABA Journal, the goal is for all legal employers to take the pledge by January 1.

Here’s the pledge:

  • “Recognizing that substance use and mental health problems represent a significant challenge for the legal profession, and acknowledging that more can and should be done to improve the health and well-being of lawyers, we the attorneys of _______________________ hereby pledge our support for this innovative campaign and will work to adopt and prioritize its seven-point framework for building a better future.”

The seven-point framework:

  1. Provide enhanced and robust education to attorneys and staff on topics related tow well-being, mental health, and substance use disorders.
  2. Disrupt the status quo of drinking based events by challenging the expectation that all events include alcohol, and, ensuring there are non-alcoholic alternatives when alcohol is served.
  3. Develop visible partnerships with outside resources committed to reducing substance use disorders and mental health distress in the profession: healthcare insurers, lawyer assistance programs, EAPSs, and experts in the field.
  4. Provide confidential access to addiction and mental health experts and resources, including free, in-house, self-assessment tools.
  5. Develop proactive policies and protocols to support assessment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment.
  6. Actively and consistently demonstrate that help-seeking and self-care are core cultural values, by regularly supporting programs to improve physical, mental, and emotional well-being.
  7. Highlight the adoption of this well-being framework to attract and retain the best lawyers and staff.

The ABA’s program is a 2 year process.  The first year is focused on legal employers to recognize the problem and, as stated above, pledge to commit to promoting awareness & the seven-point plan. Then, in year 2, the ABA will ask legal employers to complete a commitment form that describes steps taken in the prior year.

In my view, whether formally taking the pledge or not, the ABA’s program provides a fantastic vehicle for legal employers to make the workplace healthier.

Wellness

 

Advertisements

Utah to license paralegals

As reported this week by Law Sites, the ABA Journal, and the Professional Responsibility Blog, Utah will license paralegals to practice law in limited areas.  On November 1, rules will go into effect that are expected to result in the licensing of paralegal practitioners sometime in 2019.

Utah’s rules will authorize paralegal practitioners to provide limited representation in three practice areas:

  1. temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change;
  2. forcible entry and detainer; and
  3. debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.

The rules authorize paralegal practitioners to provide limited representation in these areas without working under the supervision of a licensed attorney, but do not authorize court room appearances.  The first classes begin this fall, with the initial licensing exam expected to take place next spring.

I support paralegal licensing.  I view it as but one arrow in the profession’s quiver as it battles to increase access to legal services.

In 2015, I chaired the Legal Education Committee of the Vermont Joint Commission on the Future of Legal Services.  My committee recommended licensing paralegals to provide limited legal services.  The recommendation was based, in part, on the staggering number of self-represented litigants in Vermont’s civil docket. The report of the Joint Commission is here.  The recommendations from the Legal Education Committee begin on page 11.

Last December, I posted this blog: Paralegal licenses: incremental improvement to access isn’t perfect, but it isn’t badI openly questioned whether my committee had recommended a paralegal licensing program that created unnecessary barriers to entry.  My thoughts flowed from Mary Juetten’s post in the ABA Journal entitled The limited license legal technician is the way of the future of law.

I believe that, right now, there are many Vermont paralegals who could provide competent legal services in the exact areas in which Utah will soon authorize paralegals to practice.  Or, as I wrote last December:

  • “Let’s be honest: right now, there are high-quality Vermont paralegals who, without any additional training, could walk into a courthouse and provide much needed access to the scores of family law litigants without any.  Seriously.  If you were to get divorced tomorrow, who would you choose? A paralegal who has worked for years in a family law practice, or, me?  I’ve been licensed for 23 years and wouldn’t know the first thing to do for you.”

If some training is necessary, fine.  Let’s design the program, administer it, and allow paralegals to provide legal services for people who are going without.

Will the program solve the access crisis? No.  But it’d be better than nothing.

As I wrote in December:

  • “Some of you might be rolling your eyes and asking ‘what good would that do in the bigger picture?’   You’re right, it’s not perfect.  There will still be too many people who can’t afford legal services. But, we have to stop looking for the magic bullet that solves the entire problem at once.  The ‘big picture’ gets smaller by providing access to 1 person at a time. One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, ‘What are you doing?’

The youth replied, ‘Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.’

‘Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!’

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.’

Soon I hope we stop letting the desire to help everyone keep us from helping anyone.

See the source image

 

 

Pro Bono? There’s an App for that!

Well, not really an app.

So, in 2016, the ABA released a Report on the Future of Legal Services in the United StatesI don’t think the report received enough attention, but that’s a blog for another day.

Today’s point is limited to a theme expressed in the report.  It’s a theme that the ABA’s Ellyn Rosen stressed in a seminar that I attended two days ago: technology can help to close the access gap.

Ellyn cited to an eye-opening finding in the report. It’s on page 14, and quotes this 2014 article by Gillian Hadfield.

  • “Even with the profession’s deep commitment to pro bono and further innovations, pro bono work alone will not resolve the tremendous need for civil legal representation. Data shows that annually ‘U.S. lawyers would have to increase their pro bono efforts … to over nine hundred hours each to provide some measure of assistance to all households with legal needs.’ ”

Here’s one way to help: Vermont Free Legal Answers.  Think of it as pro bono without ever having to leave your desk.  All you have to do is sign up, then pick & choose the questions you want to answer.  It’s that simple.  If you’re reading this and are licensed in a jurisdiction other than Vermont, odds are that your state has it too. Over 40 states have adopted the ABA’s free legal answers model.

Am I asking you to increase your hours to 900? I am not.  I’m simply reminding you that every little bit helps. Think of the starfish story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

When it comes to unmet legal needs and pro bono, you too can make a difference for that one.

See the source image

Should we allow nonlawyers to own, manage, and invest in law firms?

With only a few exceptions, U.S. jurisdictions prohibit:

  • nonlawyer ownership of law firms;
  • nonlawyer management of law firms; and,
  • lawyers from sharing fees with nonlawyers.

Vermont does so through Rule 5.4.

In the lingo, “alternative business structures” are prohibited.

Last year, I posted a series of blogs related to Rule 5.4 and alternative business structures (“ABS.”)  Among them:

Here’s a summary of oft-cited arguments for & against allowing nonlawyers to own, manage, and invest in law firms:

Arguments for ABS

  • Increased Access to Legal Services
  • Enhanced Financial Flexibility for Law Firms
  • Enhanced Operational Flexibility for Law Firms
  • Improved Cost Effectiveness & Quality of Services

Arguments against ABS

  • Threat to Lawyers’ Core Values & Professional Independence
  • Will Lead to Less Pro Bono Work
  • Threatens the Attorney-Client Privilege
  • Promised Benefits Not Likely to Happen

The idea didn’t gain much traction in Vermont.  Today, the ABA Journal reports that the State Bar of California has formed a task force to study nonlawyer ownership.  Per the ABA Journal, California commissioned a report that indicated that amending the rules to allow ABS would:

  • “(1) drive down costs; (2) improve access; (3) increase predictability and transparency of legal services; (4) aid the growth of new businesses; and (5) elevate the reputation of the legal profession.”

It’s an interesting concept.  At the very least, I think it’s one worth studying, as Vermont continues to struggle with acccess to affordable legal services.

Image result for alternative business structures

Ghostwriting as Access

I ain’t afraid of no ghost!

As such, in December 2016, I argued that ghostwriting is one tool at the profession’s disposal in the battle to increase to access to justice.  The post is here.  A quick recap:

  • Rule 1.2(c) authorizes lawyers to enter into limited representation agreements;
  • While ghostwriting used to be frowned upon, the trend is to conclude that it’s a permissible form of limited representation;
  • undisclosed ghostwriting does not provide a self-represented litigant with an unfair advantage;
  • undisclosed ghostwriting does not constitute misrepresentation by omission;
  • lawyers who “ghostwrite” must abide by the Rules of Professional Conduct while providing limited services; and,
  • lawyers should be aware of court rules that require self-represented litigants to disclose having received assistance from a lawyer.

Last week, the Mississippi Bar issued Ethics Opinion 261.  The opinion addresses two questions:

  1. Is it ethical for a lawyer to prepare documents for pro se litigants?
  2. If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

Here’s a summary of the Mississippi Bar’s conclusions.

On the first question:

  • limited representation “is an important means of providing access to justice for all persons regardless of financial resources;”
  • as long as doing so is reasonable and the client fully understands the limitation, limiting a representation to writing or preparing a document is a permissible; and
  • lawyers who provide limited representation must abide by “the full panoply of ethical obligations.”

As to the second question:

  • the preparing lawyer is not required to disclose having provided assistance;
  • undisclosed assistance does not constitute misrepresentation by omission; and,
  • undisclosed assistance does not provide an otherwise self-represented litigant with an unfair advantage.

Sounds familiar.

The Mississippi Bar added a few notes of caution.

First, the opinion stresses the importance of ensuring that the client understands what it means to receive “limited representation” in the form of ghostwriting.

  • “For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.”

Second, the opinion makes clear that a limited representation is exactly that: limited.  It’s likely unethical for a lawyer to use a limited scope representation as cover to participate actively & substantially in the matter on an ongoing basis. That would be deceptive.

Finally, the opinion alerts lawyers to the fact that, like this blog, it’s limited to an analysis under the Rules of Professional Conduct. Other law, including court rules, might require disclosure.

Image result for images of ghostwriting

 

 

 

 

 

108

I do a lot of CLEs this time of year.  This week, I’ve met with the Professional Responsibility Program, the State’s Attorneys, and the Chittenden County Bar Association.  Later today I’m presenting at the Defender General’s training.  Next week: the Attorney General’s Office and Andy Mikell’s VATIC conference.

Obviously, each presentation is different.  Yet, I’ve started each (and will start each) with a report on the relatively new Vermont Commission on Well-Being in the Legal Profession.   The response has been fantastic.  After each presentation so far, I’ve been contacted by lawyers who are willing to get involved to help other lawyers.

For more, read on.  I’m pasting in a blog that I posted a few months ago.

108

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services.  In 2015, SAMHSA conducted a national survey on drug use and health.  The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year.  The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont.  If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health.  The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  In addition, the study “determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant.”

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being.  The groups:

Last summer, the National Task Force published “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.”  The report makes a series of recommendations to the legal profession’s various stakeholders and urges state supreme courts to form committees to review the recommendations.

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating the Vermont Commission on the Well-Being of the Legal Profession.  The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change.   Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group.  My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions.  My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting.  For more information, including how to register, please visit this site.

As I’ve blogged, the report from the National Task Force is a call to action.  In my view, we have duty to keep this issue on the front burner.

Why?

Because 108.  That number is far too high.

Other posts on this topic:

#3 in 2017: We can’t let perfect be the enemy of good.

This week I’m counting down the 5 most-read posts of the year.  So far,

 

Starfish

The third most-read post of the year was this post on authorizing (and licensing) paralegals to perform tasks that, for now, only lawyers are authorized to perform. It’s a post in which I urge the profession not to let perfect be the enemy of the good and, more specifically, to consider whether licensing paralegals is much simpler than we’ve made it.

The post includes one of my favorite anecdotes. It’s an anecdote that reminds me of how the profession attempts to tackle the issues it confronts. I often wonder if the profession is the “man on the beach” when, what we really ought to be, is a child smiling with hope. I’ll leave you with that anecdote.

*********

“One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

In a Season of Giving, Consider Pro Bono

It’s a season of giving.  As I’ve aged, I’ve learned that the gift of time is often more appreciated than a gift of a thing.  The lesson might translate to the legal profession.

Yesterday I noticed this tweet from Attorney Bob Carlson.  Bob is the President-Elect of the American Bar Association.  It reminded me that the need for our time never goes away.

Pro Bono is the legal profession’s way of giving time.  As Bob tweeted, one easy way to give of your time is through the ABA’s Free Legal Answers program.  Vermont participates in the program.  For more information, please visit https://vt.freelegalanswers.org/

In addition, Mary Aschroft is the Vermont Bar Association’s Legal Access Coordinator.  Please contact Mary if you’re interested in learning more about the various opportunities to provide pro bono (or low bono) legal services.

I’ve pasted in a refresher on the ethics of pro bono at the end of this post.

For now, thank you for considering a gift of your professional time.

Give Pro Bono

*******************************************************************************

These tips originally appeared in October 2016.

Per Rule 6.1,

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
    • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
      • (1) persons of limited means; or
      • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

  • Who qualifies as a “person of limited means?”
    • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”
    • Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services.  Those people need help as well.
  • My client didn’t pay, that’s pro bono.
    • Categorically false.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
    • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
    • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”
  • I’m a government attorney, so I don’t have to do pro bono.
    • False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
      • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).
  • So I’m doing pro bono work, what other rules apply?
    • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono is not license to act unethically.
  • What about the conflicts rules?
    • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
      • short term limited legal services
      • under the auspices of a program sponsored by a nonprofit organization or court
      • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
    • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
    • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.

 

 

Paralegal licenses: incremental improvement to access isn’t perfect, but it isn’t bad.

Wrong

In 2013, the Washington Supreme Court adopted a rule authorizing limited license legal technicians to practice.  In 2015, the Legal Education Committee of the Vermont Joint Commission on the Future of Legal Services recommended something similar: authorization for Vermont Certified Paralegals to provide limited legal services.  The recommendation was based, in part, on the staggering number of self-represented litigants in Vermont’s civil docket.

Washington’s LLLT program is here.  The report of the Vermont Joint Commission is here.  The recommendations from the Legal Education Committee begin on page 11.

I chaired the Legal Education Committee.  The idea of a Vermont Certified Paralegal program hasn’t gained much traction.  Which makes me wonder . . .

. . . what if we got it wrong?

To be clear, I don’t think we were wrong to recommend limited licensure for paralegals.  Rather, I wonder if we were wrong to recommend a training & certification program that includes too many barriers to entry.  Did we focus too much on creating mini-lawyers, when far less would be a gargantuan improvement in access to legal services?  In short, did we make “perfect” an enemy of “good?”

These thoughts struck me late yesterday afternoon as I read Mary Juetten’s article in the ABA Journal: The limited license legal technician is the way of the future of law.

Some of Juetten’s key points:

  • “First, access to justice is not limited to low-income Americans. The 80 percent unmet need figure is based on the entire population. Therefore, many families cannot qualify for help and cannot afford an attorney.”
  • “Second, most middle-income citizens carry debt loads commensurate to their earnings, and any unplanned expenses are difficult to cover.”
  • “Third, many family law attorneys charge anywhere from $250 to $400 per hour, which is still more than double that of a LLLT. For example, using a 10-hour matter, a LLLT could charge up to $1,500 but an attorney would be $4,000. That $2,500 is a substantial savings to almost everyone.

Think about that.  $2500.  I’m guessing that even among the demographic reading this blog, $2500 isn’t an amount tossed around casually.

From there, Juetten notes:

  • “As of this month, there are only 26 LLLTs licensed in Washington, mainly concentrated in the Seattle-Tacoma area. The program appears to suffer from barriers to entry including the cost of the classes and the duration of the practical experience requirement. In addition, the classes are not eligible for student aid, so it is also expensive.”

And it’s about when I finished the last paragraph that I said to myself “Self, what if we got it wrong?”

As we consider whether to issue limited licenses to paralegals, we shouldn’t design or require training & certification programs that approximate law school.  The goal shouldn’t be to provide people who can’t afford lawyers with access to something that  walks, talks, and looks like a lawyer.  It should be to provide them with something that is better than they have now – which is nothing.

It’s long past time to think outside the box.  Let’s play “what if.”

What if an 8-week training program is sufficient to provide competent & practical legal services that are better than nothing?  What if it’s 6 weeks?  What if it’s 2?

We didn’t consider those options.  Maybe we should. I mean, we let new lawyers hang their own shingles without requiring liability insurance or any training in trust accounting.

Let’s be honest: right now, there are high-quality Vermont paralegals who, without any additional training, could walk into a courthouse and provide much needed access to the scores of family law litigants without any.  Seriously.  If you were to get divorced tomorrow, who would you choose? A paralegal who has worked for years in a family law practice, or, me?  I’ve been licensed for 23 years and wouldn’t know the first thing to do for you.

I’m not declaring that an 8 (or 6 or 2) week training program is sufficient.  But again, what if it is?  The Vermont Bar Association is more than capable of providing comprehensive and high-quality training.

Some of you might be rolling your eyes and asking “what good would that do in the bigger picture?”   You’re right, it’s not perfect.  There will still be too many people who can’t afford legal services. But, we have to stop looking for the magic bullet that solves the entire problem at once.  The “big picture” gets smaller by providing access to 1 person at a time.

One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

So, maybe we got it wrong.  In a perfect world, a Vermont Certified Paralegal might have thousands of hours of practical work and a semester or two of legal curriculum. For now, however, it might require far less to begin to make a difference.

 

TBT: Alternative Litigation Financing

In this week’s version of Throwback Thursday, I’m re-running this post on Alternative Litigation Financing.  From a rules perspective, I don’t have any particular interest in the topic. I’m reprinting it for 2 reasons.

First, the not-so-important reason.  Oddly, the post is this blog’s most-visited. Here’s a picture of my 2017 stats.  The most visited page is the home page – something you get to just by going to the blog, and a page that changes with each new post.  The post on Alternative Litigation Financing is the most-visited page that you actually have to seek out.

ALF 2017

Not surprisingly, the post wasn’t exactly an instant classic.  I posted it in December 2016. By and large, it went unread before it’s popularity inexplicably spiked in April.  It has remained popular ever since.  Here’s a picture of the post’s monthly visits:

ALF Monthly

The post isn’t tagged.  Yet, “ALF” must be a relatively common search term that drives visitors to this site.  I have a feeling they aren’t looking for legal ethics or a post about the tv show.

By the way, don’t worry – I can’t tell which posts you read.  I pay for the free version of WordPress, which means I can only determine whether some unidentified person or bot (dare we say ALF?) visited a post.

Here’s the other reason that the original post interests me.  An impetus behind the original post was to convey that we do not (and should not) have to evaluate every new thing for compliance with the rules.  What do I mean by that? Let me tell you.

It happens most often with technology.  As a profession, we went through the exercise EVERY SINGLE TIME technology provided a new means of transmitting and storing client information. Is it ok to communicate by fax machine? What about a car phone? Are cell phones ethical? Email must be a violation, right? Can I text clients? Is it okay to use cloud storage?

Fortunately, over the past few years, bar associations and regulators have recognized the folly in such an approach. A better approach is to establish the principle, then apply the principle to whatever’s next.  For example: lawyers have a duty to take reasonable precautions to prevent unauthorized access to, or inadvertent disclosure of, information related to the representation of a client.  Boom!  There it is.  Now, when whatever is next arrives, you’ll know.

Same thing with alternative litigation financing.  Yes, it’s new and different. However, for almost as long as lawyers have existed, they’ve taken cases in which payment is made by someone other than the client. We have a principle that applies in that situation: the payor cannot interfere with the lawyer’s independent judgment and is not entitled to information about the matter unless the client consents.  That principle applies when a parent is paying for kid’s DUI, as well as it applies when plaintiff’s attorney is using crowd-funding or another source of ALF to finance litigation.

The end.

*****************************************************

Again, the post is here.  For the click averse, here’s the original post:

Yes, my columns often include references to sports, music, movies, and TV.

No, this column is not about this Alien Life Form and his tv show:

alf

Rather, this post is about Alternative Litigation Financing.

Earlier this year, I praised an advisory ethics opinion in which the Philadelphia Bar Association concluded that crowd funding litigation is not necessarily unethical.  Crowd funding is an alternative method of financing many things, including litigation.

Last week, the ABA’s Law Practice Today blog ran a piece on Why Alternative Litigation Financing is Poised to Disrupt Litigation.  It’s an interesting post that raises issues related to legal ethics, access to legal services, access to justice and, in a way, tech competence. It also gives me an excuse to use the word “champetry” for, perhaps, the first time since law school.

As I wrote in my post on the Philadelphia advisory opinion, the fact that something is new or different does not render it unethical.  As ALF platforms continue to grow in popularity, remember that it is not a platform or technology that poses an ethics risk – – it’s the lawyer who uses the platform or technology.  Indeed, the post in Law Practice Today quotes from a white paper that the ABA’s Commission on Ethics 20/20 issued in 2012:

  • “[this]Report should not be interpreted as suggesting alternative litigation finance raises novel professional responsibilities, since many of the same issues…arise whenever a third party has a financial interest in the outcome of the client’s litigation. A lawyer must always exercise independent professional judgment on behalf of a client… “

In other words, ALF is permissible as long a lawyer doesn’t violate any other rules while representing a client who uses ALF to pay for the lawyer’s services.

A few rules more likely to arise than others:

  • Rule 5.4(c) states that a “lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”
  • Rule 1.8(f) prohibits a lawyer from accepting “compensation from one other than the client unless:
    • (1) the client gives informed consent;
    • (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
    • (3) information relating to representation of a client is protected as required by Rule 1.6.

Also, I’d suggest that having read this post, Rule 1.1 might come into play.  The rule requires lawyers to provide competent representation to their clients.  Arguably, the duty of competence includes advising a client who lacks resources on alternative sources of litigation financing.  Is it a stretch to say that the failure to do so is unethical?  Yes.  But what would it hurt to keep a few of the ALF providers in mind?  The post on Law Practice Today lists and links to 4 of them.

In any event, I urge you not brand crowd funding and other forms of ALF as unethical for no other reason than “that’s not how we’ve done it in the past.” Is it new?  Yes. Is it different? Yes.

But, it’s not lost on me that one of the cases cited in the post on Law Practice Today involved a group of college students who turned to crowd funding to finance litigation that they otherwise could not have afforded.  You too, some of my loyal readers, were once on the cutting edge, doing things that left more senior lawyers fretting for their licenses: like using fax machines.

Attorney Stephen Embry authored the post that appears on Law Practice Today.  In it, he lays out some of the concerns with ALF, but then provides strong counter-arguments to those concerns.  Above all, his final paragraph bears keeping in mind:

  • “Balanced against the risks is the upside. In a world where over 60% of small businesses who experienced a legal event in the past two years report not hiring a lawyer (LegalShield Survey Report ), where 80% of the legal needs of the poor and middle class go unmet (See Legal Service Report)and where some 40% of law school graduates can’t find full time jobs (ABA 2015 Report) anything that tears down barriers to justice and allows an underserved population to be served may be worth the risk.”