Take time to thank a paralegal.

Many of you who work in Vermont’s legal profession should take a timeout.

timeout_161424062

No, not because it’s such a beautiful sunny afternoon, although that would be a good idea too. Rather, take a moment – actually, more than a moment – to thank a paralegal!

Earlier this week, Governor Scott proclaimed today as Paralegal Day.  The proclamation acknowledges paralegals’ “vital role” in delivering legal services both in Vermont and throughout the country. It concludes by stating that today presents “an opportunity to recognize paralegals across Vermont for their efforts to ensure that quality, efficient and affordable representation is provided in Vermont.”

Please take advantage of the opportunity.  Take time out of your day to recognize a paralegal.

2022 Paralegal Day Proclamation

Related post

Paralegal licensure: let’s not let perfect be the enemy of the good.

Ontario Court Addresses Tech Competence as a Tool to Increase Court Access.

Before we start, here’s an old-fashioned challenge.  “Old-fashioned” in the sense that you are not allowed to do any research or to ask for assistance.

What is a Gestetner?

Anyone who  emails me the correct answer will receive a spot on the next #fiveforfriday Honor Roll in Legal Ethics.

19gadnnsbbmz0jpg

Last week on his LawSites blog, Robert Ambrogi posted Ontario Court Lays Down the Law on Technology Competence and Video ProceedingsThe post recounts a discovery dispute that resulted in this order.

In short, Plaintiff’s counsel wanted to conduct in-person witness “examinations.”  Ambrogi reports that an “examination” is the equivalent of a deposition.  Defense counsel objected to appearing in-person, asking instead to proceed remotely.

The order summarizes the competing arguments.

Plaintiff’s counsel, who is in Toronto, argued that “that he has gone to a Toronto Blue Jays game with thousands of fans. Society is opening and he should be able to examine for discovery in person. He adds that in his view it is the ‘best’ method to conduct an examination well and properly.”

Meanwhile, the Ottawa-based defense countered that “we are in the fourth wave of the pandemic. While some parts of society are re-opening with appropriate precautions, the defendants prefer not to get together in an examiners’ office with the parties opposite, staff, and the crowd of other counsel, parties, and witnesses often there for other cases.”

In the end, the court sided with the defense, ordering that, absent an agreement to appear in-person, the examinations would be done remotely.  In reaching its conclusion, the court made several observations on how tech competence can increase access.  For example,

  • “Arrangements so that litigants do not have to take a full day off work; drive downtown and pay $40 or more for parking; or take the bus for 90 minutes each way; are real savings that promote participation and access to justice.  If a lawyer can avoid travel and waiting time because she is working at her desk until she signs-on to a virtual examination or hearing, transaction costs are decreased for clients. Avoiding paying a lawyer to come to Toronto or to go to another place is also\significant cost savings for a client through virtual proceedings. Lawyers can participate in proceedings in multiple locations on the same day virtually. The increase in efficiency in their practices is substantial.”

Next, the court conceded that there are risks associated with virtual proceedings. Specifically, participants’ unfamiliarity with technology, off-screen coaching, and an informal setting that is not as likely to result in a “solemnity for the process.”

Nevertheless, noting that technology continues to evolve in helpful ways, the court concluded that, even when the pandemic ends, we shouldn’t necessarily “just go back to the way it was.” Doing so “assumes that the ‘good old days’ were actually good.”

Finally, and as Ambrogi reported, here’s where the court laid down the law on tech competence and court access:

  • “As to the balance of convenience and any other relevant matters, [Plaintiff’s counsel] submitted that just because virtual procedures are ‘easier and more convenient’ does not overcome the presumption that examination in person is the best way to examine a witness. Au contraire I say. Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view.”

Then, after noting that more experienced attorneys might not be as familiar with technology as newer lawyers, the court stated:

  • “Technological change affects everyone. Once upon a time, I had to learn how to use a Gestetner (Google it) and then a fax machine. I do not accept that in person is just ‘better’. It can be in some cases. But if counsel just prefers it because he or she is more comfortable with it, ought we to reject the printer because I liked my Gestetner (and Word Perfect for that matter)? The balance of convenience favours easier and more convenient processes with accompanying cost savings.”

There you have it. Competence includes tech competence, and tech competence can increase access.

Who’d have thunk it?

On #GivingTuesday, consider pro bono.

I took a class in “logic” at UVM.  Upon realizing it was far more complicated than solving problems like the knights & knaves puzzle, I withdrew.[1]  As such, I’m not certain that the following works as a proper syllogism.

  • This blog is about legal ethics, professional responsibility, and the Rules of Professional Conduct.
  • The Rules of Professional Conduct include a section on pro bono.

Ergo, I should post on the pro bono rules every so often.

Even if it makes logical sense, I’m sometimes reluctant to do so. Or, in legal ethics parlance, I feel conflicted about doing so.

Why?  First, some background.

In 2017, the ABA’s Standing Committee on Pro Bono & Public Service surveyed 47,000 lawyers from 24 states on pro bono work.  Here’s an excerpt from the final report:

  • “In Vermont, 77.5% of the attorneys reported having done at least some type of public service activity in 2016 – the highest percentage among the states participating in the survey. Additionally, attorneys in Vermont outperformed other states in terms of the percent having offered reduced fee services in 2016. Approximately one third (33.6%) of Vermont’s attorneys had offered such services. Finally, Vermont was one of the top states in terms of the percent of attorneys having offered limited scope representation as part of their practice, surpassed only by Wisconsin; 41.5% of Vermont’s attorneys offered such services in 2016.”[2]

Hence my conflict.

  • Vermont lawyers already give so much.
  • I know how hard it is to practice law right now.

Ergo, I’m conflicted about a post that will be read as asking lawyers to give even more.

That said, today is #GivingTuesday.  As I have in prior years, I’m marking the event by asking lawyers to consider pro bono.  In 2018, I used the starfish story.  Then, on #GivingTuesday in 2019, I reminded lawyers that “the hashtag won’t be trending tomorrow.  But those it’s intended to help will still need your time. Tomorrow and many tomorrows to follow.”

The need persists. To learn more about opportunities, check out the resources below. In the meantime, thank you for considering this post. And thank you all that you do and all that you’ve done.

thank-you

[1] I was a master of “add/drop” deadline as well as of “withdraw – passing.”

[2] Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers, p. 39.  On page 41, the report goes on to note that states whose lawyers had “high levels of motivation for doing pro bono included Maine, Oregon, California, New York, Mississippi, and Vermont. Maine and Oregon were leading states for the percent of attorneys (89.3% and 85.8% respectively) indicating that they believe doing pro bono is important. Both states also had relatively low ratings for the list of discouraging factors (2.8 and 2.69 respectively). California and New York were both leading states for the average ratings for the list of motivating factors (2.9 and 2.84 respectively). Mississippi and Vermont were both leading states in terms of the percent of attorneys indicating they were likely to do pro bono in 2017 (62.9% and 58.9% respectively). Meanwhile, both Wyoming and Vermont had particularly low ratings for the list of discouraging factors (2.79 and 2.81 respectively).”

OPPORTUNITIES & RESOURCES

  • Mary Ashcroft is the Vermont Bar Association’s Legal Access Coordinator. E-mail Mary for information related to the VBA’s pro and low bono programs.
  • Sam Abel-Palmer is the Executive Director of Legal Services of Vermont. Formerly known as Lawline of Vermont, LSV has opportunities here.
  • Vermont participates in the ABA’s Free Legal Answers program.  As I noted in Pro Bono: There’s an App for That!, think of VT Free Legal Services “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.”
  • A 7-question quiz that is intended to highlight pro bono FAQs

Pro Bono: a celebration and FAQs

As Kool and the Gang sang, it’s time to celebrate!

Celebrate pro bono, that is.

Yes, it’s National Celebrate Pro Bono Week.  On this page, ABA President Reginald M. Turner shares a brief message on this year’s theme: Moving Forward in a Post-Pandemic World.  The pandemic has only increased the need to ensure access to legal services.

Now, disclaimer: I serve as the chair of the Vermont Bar Association’s Pro Bono Committee. Still, there’s an entire section of the Rules of Professional Conduct dedicated to pro bono. So, it’s a topic that’s eminently appropriate for this blog.  I thought I’d mark the occasion by sharing the more common questions I receive about pro bono.

Also, it’s apropos that this post falls on a Wednesday.  More on that at the end of the post.  First, the FAQs.

What’s the rule?

It’s 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.”

The remainder of the 50 hours can be satisfied in any of the 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.”

My client didn’t pay, that’s pro bono, right?

  • Wrong.  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 . . ..”

I’m a government attorney, so I don’t have to do pro bono.

  •  False.  Rule 6.1 applies to all lawyers.  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).

Ok Mike, 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 person on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono work is not a 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.”

How can I learn about pro bono opportunities?

Mary Ashcroft is the Vermont Bar Association’s Legal Access Coordinator and is an excellent resource.  Also, here’s a list of pro & low bono programs.  Pressed for time?  Vermont Free Legal Answers is a way to provide pro bono assistance without leaving your home or office.  Finally, Sam Abel-Palmer is the Executive Director of Legal Services of Vermont.   LSV collaborates with the VBA to run the Vermont Volunteer Lawyers Project.

Finally, it’s Wellness Wednesday.  What’s that got to do with pro bono?  I’m glad you asked.

Eileen Blackwood is a former president of the VBA and former chair of the Pro Bono Committee. Twice a year, Eileen and I present a seminar for new lawyers.  I open by discussing professional responsibility, then Eileen Blackwood homes in on the pro bono opportunities.  Over the past few presentations, we’ve used “wellness” as segue from my presentation to Eileen’s.  Specifically, Eileen has made it a point to mention that one of the most rewarding cases of her career was one that she took pro bono.  While Eileen says it better than I can, the reward is the positive feeling that comes from having helped someone who desperately needed it, for no other reason than because you could.

Wellness indeed.

Thanks for considering pro bono!

pro bono

Tuesday Tips

On this morning’s run, I realized that I haven’t blogged in a while.  I tried to fool myself into thinking that I hadn’t had time.  However, I realized that blogging is no different than running, staying in touch with friends & family, or anything else that we tell ourselves we don’t have the time to do: it’s not so much that we don’t have the time, it’s that we don’t make the time.  So, in the middle of a gorgeous morning run, I vowed that the day would include a blog post.

Alas, too distracted by the perfect running weather, no topic popped to mind.  A few minutes ago, however, my brother texted to ask which steak tips I buy from the meat market that’s near my condo.  Somehow, thinking of steak “tips” got me thinking that I should post a blog with some quick tips on legal ethics.  Especially with the opportunity for an alliterative headline.

What follows is an old blogger’s trick when no original content jumps to mind: a potpourri of links to other sources, each loosely related to professional responsibility.

Reregulation

I’m interested in the emerging concept of “re-regulation.”  In a nutshell, the concept embraces reforming and revising the traditional system of legal regulation to spur innovation and to increase access to legal services. I first mentioned re-regulation here, a post in which I linked to this more helpful post from Jayne Reardon at 2Civility.  From the ABA Journal, a few updates related to regulation:

  • this story about a proposal in New York to allow social workers to provide clients with limited legal services.
  • this story about the Utah law firm that is the country’s first to be owned entirely by non-lawyers.

Competence

The duty of competence is the cornerstone upon which this blog was built.  Here are some links to recent ABA Journal articles that touch upon the duty:

  • If you practice in the United States Court of Appeals for the District of Columbia Circuit, make sure not to use the Garamond font in your briefs.
  • Tired of using (or reading) “citation baggage?” Those cites with endless parentheticals and quotations?   Last month, Justice Clarence Thomas endorsed using “cleaned up” to convey that citation baggage has been omitted.
  • Finally, there’s this story. It serves to caution us that when characterizing another’s legal argument as “sound and fury signifying nothing,” we’d do well to remember the entirety of MacBeth’s statement.

If you clicked on the final two links, you’ll understand my closing line:

Let it never be said that quoting Ricky Bobby is “citation baggage.”

Ricky Bobby

Updates on Leaving a Firm, Tech Competence, and Regulatory Reform.

Today’s post updates/revisits topics I’ve previously discussed:

  • duties to clients when a lawyer leaves a firm.
  • Tech competence: it’s been 16 years (!) since Zubulake.
  • Arizona adopts significant regulatory reform.

Duties to Clients when a Lawyer Leaves a Firm

In September, I posted Leaving A Law Firm: Breaking Up Is Hard To Do.  The post highlights the duties that a departing lawyer and firm owe to clients. It’s based (mostly) on a formal advisory opinion that the ABA issued in 1999.

Then, in December, I posted this update after the ABA Standing Committee On Ethics And Professional Responsibility issued Formal Opinion 489: Obligations Related to Notice When Lawyers Change Firms. 

Update: Last month, the Ohio Board of Professional Conduct issued Formal Opinion 2020-06: Lawyer Departing a Law Firm.  The opinion tracks the most recent ABA opinion.  Summary:

  1. When a lawyer with “principal responsibility” for a client matter departs a firm, the lawyer is required to communicate the impending departure.
  2. Preferably, notice should come from both the firm and the departing lawyer.
  3. The departing lawyer should not notify clients of the impending departure before notifying the firm.
  4. Neither the departing lawyer nor the firm should state or imply that the client is the firm’s or the lawyer’s or take any action that interferes with the client’s right to choose counsel (including a new firm altogether).  Client choice remains paramount!
  5. Given the prior professional relationship, both the departing lawyer and firm may indicate a willingness to continue to represent the client.
  6. If no remaining lawyers can provide competent representation to the client, or if a conflict at the new firm prohibits the client from following the departing lawyer, the firm and lawyer must work to assist the client to find new counsel.

Thank you Professor Bernabe for the tip.

Tech Competence: it’s been 16 years (!) since Zubulake

The blog was founded on the slogan “Competence Includes Tech Competence.”  In January, and following a CLE in which I was fortunate to present with a group of highly competent litigators, I posted Competence & E-Discovery. I think it’s an okay refresher.

Last week, I fell down a rabbit hole of old articles on legal ethics and found an ABA Journal post from 2014: Looking back on Zubulake, 10 years later.  To me, it’s an interesting and informative review of the landmark decision, a decision that, really, thrust “tech competence” into the parlance.

Arizona Adopts Regulatory Reform

Last week, I blogged about the Utah Supreme Court’s decision to adopt significant changes to the Rules of Professional Conduct and the manner in which the provision of legal services is regulated. In short, acknowledging that the rules can serve as a barrier to accessing affordable legal services, the Utah Court issued Standing Order 15 which:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

Update: The day after my post, the Arizona Supreme Court adopted similar reform  Per this press release, the “goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices.”  The changes:

  • create a process to license paraprofessionals who will be authorized to provide limited legal services in certain types of cases, including going to court with clients;
  • repeal the rule that prohibits fee sharing with a lawyer in another firm; and,
  • repeal the rule that prohibits non-lawyers from having ownership interests in law firms.

Legal Ethics

Maine, Utah, and Reforming Attorney Regulation.

Perhaps it’s appropriate that I visited Maine last weekend.

There’s not much I enjoy more than an early morning run followed by a dip in the ocean. In Maine, I was able to do exactly that each morning. In the surf, I’m like my 9-year old self: my attention focused on the horizon, looking for giant ships and the next big breaker to ride to shore.

IMG_5171

What’s that got to do with reforming attorney regulation?

Reform is no longer on the horizon. It’s approaching shore. Whatever the metaphor, I hope that we get on board or ride the wave.

Proponents of regulatory reform argue that the Rules of Professional Conduct impede access to legal services. Three ideas are central to reforming attorney regulation:

  • allowing non-lawyers to provide services that, now, only lawyers are authorized to provide;
  • relaxing the rule that prohibits (a) non-lawyer investment in law firms; (b) sharing profits with non-lawyers; and (c) partnering with non-lawyers; and,
  • relaxing the rule that prohibits lawyers from providing something of value in exchange for referrals.

For an overview of reforming attorney regulation – aka “re-regulation” —  this post from 2Civility is helpful.

Okay Mike, so where’s Utah figure into all of this?

Both on this blog and at CLEs, I’ve expressed frustration with the pace at which the legal profession adapts to change. One of the most-read posts on this blog is this one in which I argued that when it comes to increasing access by authorizing paralegals to provide legal services, we can’t let perfect be the enemy of good.

Which is why I was so excited to learn that last week, the Utah Supreme Court issued Standing Order 15. The order transforms regulatory reform from “talk” to “walk.”

Today, I’m not going to dive into the weeds of the “regulatory sandbox” that the order creates. Rather, I’m going to highlight (1) the changes it makes to the Rules of Professional Conduct; and (2) the reasons that the Utah Supreme Court approved it.

Standing Order 15:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

In addition, but a topic for another day, Standing Order 15 significantly streamlines the lawyer advertising rules.  

Why adopt such significant changes?  Here’s the press release in which the Court announced that it had adopted the order.  It includes the following paragraph:

  • “Justice Deno Himonas who, along with John Lund, past-President of the Utah Bar, led the effort, summed up the need for innovative solutions in the face of America’s access-to-justice crisis as follows, ‘We cannot volunteer ourselves across the access-to-justice gap. We have spent billions of dollars trying this approach. It hasn’t worked. And hammering away at the problem with the same tools is Einstein’s very definition of insanity. What is needed is a market-based approach that simultaneously respects and protects consumer needs. That is the power and beauty of the Supreme Court’s rule changes and the legal regulatory sandbox.’ Now, under the leadership of the Supreme Court and the Bar Commission, which will have an important role in the Innovation Office, Utah will be the first state in the nation to lay the foundation for a truly accessible and affordable, consumer-oriented legal services system.”

This morning, Justice Himonas and John Lund agreed to meet with me virtually to record an interview that will focus on Standing Order 15, Utah’s new regulatory sandbox, and regulatory reform in general.  I will post it as soon as it’s finished.

This is not the last I’ll broach this topic.  Since June, Justice Cohen and I have been participating in a series of seminars put on by the IAALS Unlocking Legal Regulation Project. We’re learning about the very changes that Utah adopted.  By the end of the year, we anticipate being ready to start a more in-depth discussion here in Vermont. 

Stay tuned.

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

Additional Information on Utah Standing Order 15

Related Posts from this blog

Increasing Access is a Professional Responsibility

I’ve long argued that increasing access to legal services is a professional responsibility that falls on all lawyers.  In other words, it’s the profession’s responsibility.  Let me back up a moment.

If you’re not aware, the sheer number of self-represented litigants is staggering.  In 2015, the Vermont Joint Commission on the Future of Legal Services issued this report.  Kudos to Dan Richardson for envisioning, creating, and shepherding the Commission to an end product.

I chaired the Commission’s Legal Education Committee.  Our section of the report referenced numbers from a study that Judge Davenport did in 20112.  On page 19 we wrote:

  • “In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering. Defendants in small claims cases represented themselves 94% of the time.21 In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally ‘better,’ respectively left to represent themselves 84% and 74% of the time. This ‘improvement’ was offset, if not rendered irrelevant, by the fact that 99% of
    foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.”

I’m not aware of anything to suggest that more litigants are hiring lawyers.  Further, as an aside, I switched from a business track to poli sci during my sophomore year at UVM.  Still, it’s tough to imagine another industry that has such an untapped market.

Anyhow, occasionally, I hear “but Mike, the ethics rules make it tough to provide access.”  That’s a load of horse manure.  I’ve got an entire power point on how, in my view, the rules encourage lawyers to ensure access to legal services.

More specifically, I’ve blogged and spoken on two issues that, arguably, would increase access:

  1. Allowing nonlawyers to own, invest in, and manage law firms;
  2. Allowing nonlawyers to provide specified legal services that, for now, only lawyers can provide.

My posts on the nonlawyer ownership issue can be accessed here.  My post on allowing paralegals to do more was the third most-read post on this blog in 2017.  In the post, which is here, I argued against letting the perfect response to the access crisis serve as an enemy to a good response.

Neither idea has gained much traction in Vermont.  But each is back in the news nationally.

Two weeks ago, the State Bar of California authorized a 60-day public comment period on a series of  regulatory reforms “tentatively recommended” by the  Task Force on Access Through Innovation in Legal Services.  Per this press release from the Cal Bar:

  • “The Task Force’s 16 reform options under consideration represent a groundbreaking menu of possible changes to certain key regulatory issues, including:
    • Exceptions to current restrictions on the unauthorized practice of law;
    • The prospect of non-attorney ownership; and
    • Entity regulation.”

As Professor Bernabe notes on his Professional Responsibility Blog,

  • “The underlying force for these proposals is a concern that something needs to be done to provide more and more affordable access to legal services to people in need.  As you probably know, there are many studies that show that many (perhaps most) people with legal needs don’t have access to affordable representation.  Opening the door for some regulated provision of legal services by non-lawyers might help close the gap.  Yet, some argue this is not a good idea.  And so, the debate continues.”

Yes, the debate continues.  I expect to bring it to the Professional Responsibility Board at its September and December meetings.  In the meantime, many have weighed in, both for and against.  To learn more, check out posts from Above The Law, the ABA Journal, and the Legal Ethics Alert Blog.

No matter your position, keep in mind my theme when I speak on this topic: if increasing access is against the rules, we need to look again at the rules

Legal Ethics.

Legal Ethics & Crowdfunding to pay legal fees

Professor Alberto Bernabe often appears on this blog’s #fiveforfriday Honor Roll.  He also has his own blog and, last week,  blogged on an advisory from the DC Bar. The opinion addresses the ethics issues that arise when a lawyer’s client crowdfunds legal fees.

The opinion is here. Professor Bernabe’s blog post is here.  He wrote more extensively on the topic in this article that pre-dates the DC advisory opinion.

I’ve also blogged on the topic. I did so here in response to an advisory opinion from the Philadelphia Bar Association.  I wrote:

  • “That’s why the Philly opinion is great.  It doesn’t treat ‘crowdfunding platforms’ as new creatures that require new rules.  Rather, it reminds lawyers that the rules that apply when using a crowdfunding platform are the same rules that apply to any other representation.”

As Professor Bernabe notes, the DC Bar opinion is consistent with the Philadelphia opinion and others on crowdfunding.

I like the following statement from the DC Bar:

  • “It is not unusual for clients to rely on money collected from family or friends to pay for legal services.”

Indeed, many Vermont lawyers accept payment from someone other than the client.  The most common situation?  A parent pays for a child’s lawyer in a criminal or family case.

When that happens, it’s critical for the lawyer to remember Rule 1.8(f):

  • “A lawyer shall not accept compensation for representing a client 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 the representation of a client is protected as required by Rule 1.6.”

In other words, even if Parents are paying Lawyer to represent Child, they don’t get to direct the representation and, absent Child’s consent, Lawyer cannot disclose information relating to the representation to them.

Somewhat related, the DC Bar included a great tip in Ethics Opinion 375:

  • “A lawyer should consider counseling his or her client regarding disclosures to third parties. Crowdfunding typically entails some level of disclosure to third parties about the predicate need for counsel. Because of their financial support, crowdfunding contributors may be interested in the status of or information about the client’s matter. Due to the risk of waiver of the attorney-client privilege, or simply for strategic reasons, a lawyer who knows that a client is crowdfunding should provide the appropriate level of guidance to the client regarding disclosures to third parties, whether such disclosures occur on a social media platform or privately in discussions with friends and family.”

In sum, nothing about using a social media platform to crowdfund legal fees is inherently unethical.  Oh, and as mentioned in both the Philadelphia and D.C. advisory opinions: crowdfunding helps provide access to legal services to those who otherwise might not be able to afford a lawyer.

See the source image

Related:

 

 

 

 

 

 

Providing Access to Legal Services is a Professional Responsibility

Last month, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 484.  The opinion outlines a lawyer’s duties to clients who use finance companies to finance the lawyer’s legal fees.

The ABA Journal blogged on the opinion.  The post includes the following quote:

  • “By some estimates, more than 75 percent of low-income and middle-income individuals have legal needs that go unmet for financial reasons,” said Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Formal Opinion 484 is important because it addresses a way to increase access to legal services for those persons who may wish to or need to finance legal fees in order to retain counsel.”

I’ll summarize the opinion in a separate post.  And, I find it a bit incongrous to discuss access to legal services in the context of the ethics of referring low-income people to loan companies.  For now, however, I want to make clear my view that increasing access to legal services is a professional responsibility.

The fact that such a staggering number of people can’t afford lawyers should not surprise anyone.  We’ve known about it for years.

In September 2015, the Vermont Commission on the Future of Legal Services issued a report and recommendations.  I chaired the Commission’s subcommittee on the Future of Legal Education.  Our section of the report included a recommendation to license paralegals as part of the effort to increase access.  We noted:

“Vermont has an access to justice problem. The issue is better described as Vermont has an ‘access to legal services problem.’  The problem is not new.

In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering.Defendants in small claims cases represented themselves 94% of the time. In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally “better,” respectively left to represent themselves 84% and 74% of the time. This “improvement” was offset, if not rendered irrelevant, by the fact that 99% of foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.

These numbers reflect a court system that would be unrecognizable to lawyers who practiced a generation or two ago. In 2012, small claims, collections, landlord-tenant, divorce, and parentage cases accounted for 72% of Vermont’s civil docket.  The vast majority of ordinary Vermonters navigating a civil dispute are doing so without any help from a lawyer.”

(I included the excerpt, but deleted the footnotes.  To review them, see page 19 of the report.)

I’ve often written & spoken on issues related to access to legal services. Two common questions:

  1. Mike, what’s this got to do with ethics?
  2. Mike, I’m all for increasing access, but the rules seem to make it difficult.

Answers:

  1. Everything.
  2. I disagree.

The Vermont Rules of Professional Conduct are here.   Let me share some excerpts from the preamble

  •  “As a public citizen,  lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of legal services rendered by the legal profession.”  Preamble, [6].

The same paragraph continues:

  • “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.

The paragraph concludes:

  • “Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”

So, to me, the Preamble makes clear that working to increase access to legal services is a professional responsibility.  I think the Preamble also establishes that there is no legitimate argument that the rules deter, or should be intepreted in such a way that would deter, lawyers from providing legal services to those who cannot afford them.

The rules are intended to deter unethical conduct.  It simply cannot be unethical to help those in need.

I could go on at length with my thoughts on using the Rules of Professional Conduct to increase access to legal services.  I won’t.  Suffice to say, I believe that increasing access to legal services is a professional responsiblity.

And, as we work to meet that responsibility, it’s important not to act like lawyers.  As I blogged here and here in posts on access, too often, we let perfect be the enemy of the good.  Those without access are too many to strive for the perfect solution.  Indeed, as Jason Tashea notes in an ABA Journal post on Formal Opinion 484, the problem is likely far bigger than the profession itself.

Whether you agree with his argument is one thing.  But, to me, it crystallizes the notion that our predilection to search for the perfect solution keeps us from making progress.  There’s no magic arrow that will slay the dragon that is unmet legal needs.  But there might be progress in every pinprick.

We don’t have to be perfect.  Even being a little bit better would be good.

And it’s our professional responsibility to be better.

Legal Ethics