Throwback Thursday: Crowdfunding

Earlier this week, I received my first inquiry on the ethics of crowdfunding litigation.  It reminded me of a blog I posted in January 2016.

The post is HERE and it’s on, you guessed it, the ethics of crowdfunding litigation.  Given the inquiry, I thought I’d revisit the post.

 

Crowdfunding

I’m aware that January 2016 isn’t much of a “throwback.”  But that’s okay.  At GW Law, I was the quarterback on O.P.P., the first law school team to win the “grad school” division of GW’s IM flag football league.  We advanced to the Final Four where we were utterly smoked in the semis by the team that won the “staff” division. In any event, back then I wasn’t known for throwing deep; pinpoint accuracy was my thing.   So, a throwback of a mere 14 months might not be much of a throw, but the topic is relevant. So, I consider it the equivalent of an 11-yard out that keeps the chains moving.

An Opening Skirmish? 2nd Circuit Rejects Challenge to Ban on Nonlawyer Ownership of Law Firms

Rule 5.4(d) of the Vermont Rules of Professional Conduct prohibits lawyers from practicing in or forming a for-profit firm if (1) a nonlawyer owns any interest therein; (2) a nonlawyer holds a position similar to director or officer (or partner); or (3) a nonlawyer can control or direct a lawyer’s professional judgment.

Last year, I posted a series of blogs in which I asked whether it’s time to rescind 5.4 and authorize lawyers to practice in so-called “Alternative Business Structures.”  There are strong arguments in favor of ABS.  Chief among them, the infusion of capital, ingenuity, talent, and expertise in running a business might make lawyers and firms more efficient, more flexible, and better suited to provide clients with access to cost-effective legal services.  My posts aren’t all that original.  Rather, they summarize an ABA issues paper.  Nevertheless, I concluded that nonlawyer ownership is coming.

Josh King is the Chief Legal Officer at Avvo.  For a great take on how a careful and smart implementation of ABS might help both lawyers & clients, I recommend this post from Josh.

Last week, the 2nd Circuit Court of Appeals rejected a law firm’s challenge to New York’s ban on nonlawyer ownership. Jacoby & Meyers claimed that the rule violated the first amendment rights of association and to petition the government on behalf of clients.  In particular, per the ABA Journal, “Jacoby & Meyers  had argued it needed outside investment from nonlawyers to expand and increase efficiency, leading to reduced legal fees and the ability to represent more clients of limited means.”  Stories on the ruling and link s to the opinion ran in the ABA Journal, the Wall Street Journal Law Blog, How Appealing, and the Legal Profession Blog.

I’d be surprised if a constitutional challenge removes the ban on nonlawyer ownership & management from the ethics rules.  Rather, as a profession, we must continue to examine whether the rule makes sense. As noted at Above The Law, our task becomes increasingly important as more & more jurisdictions around the world and within the U.S. report not only the sky’s failure to fall following elimination of the ban, but a sunnier, bluer sky.

ALF

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 Phildaelpha 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 exuse 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 technoligy 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 servcies.”
  • 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 thir licenses: like using fax machines.

Attorney Stephen Embry authored the post that appears on 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 pargraph 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.”

 

Increasing Access: Financial Assistance to Clients

This is Part 4 in my series on using the Rules of Professional Conduct to increase access to legal services.  I expect it might be controversial.  Nevertheless, in my opinion, the problem has reached the point that nothing should be off the table. And, to be clear, this is not a recommendation for a rule change. It’s a recommendation that we never stop thinking about what we’re doing and whether we can do it better.

First, a quick refresher:

Now, here’s an idea that might belong on the table.

As most of you know, Rule 1.8(e) prohibits lawyers from providing financial assistance to clients.  Here’s the rule:

  • “A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
    • (1) A lawyer may advance or guarantee court costs and expense of litigation, including expenses of investigation, expenses of medical examinations, and costs of obtaining and presenting evidence, the repayment of which my be contingent upon the outcome of the matter; and
    • (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of a client.

Comment 10 reads as follows:

  • “Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.  These dangers do not warrant a prohibition on a lawyer lending a client court  costs and litigation expenses, including the expenses of investigation and medical examination and the costs of obtaining evidence, because these advances are virtually indistinguishable from contingent fees and help ensure access to the courts.  Similarly, exceptions allowing lawyers representing indigent clients to pay court costs and litigation expenses regardless of whether these funds will be repaid are warranted.”

A handful of states have adopted limited exceptions to the general prohibition on providing financial assistance to clients.  The exceptions might not necessarily increase access, but they help to maintain access.

In Louisiana, Rule 1.8(e)(4) states:

  • “(4) In addition to costs of court and expenses of litigation, a lawyer may provide financial assistance to a client who is in necessitous circumstances, subject however to the following restrictions.
    • (i) Upon reasonable inquiry, the lawyer must determine that the client’s necessitous circumstances, without minimal financial assistance, would adversely affect the client’s ability to initiate and/or maintain the cause for which the lawyer’s services were engaged.
    • (ii) The advance or loan guarantee, or the offer thereof, shall not be used as an inducement by the lawyer, or anyone acting on the lawyer’s behalf, to secure employment.
    • (iii) Neither the lawyer nor anyone acting on the lawyer’s behalf may offer to make advances or loan guarantees prior to being hired by a client, and the lawyer shall not publicize nor advertise a willingness to make advances or loan guarantees to clients.
    • (iv) Financial assistance under this rule may provide but shall not exceed that minimum sum necessary to meet the client’s, the client’s spouse’s, and/or dependents’ documented obligations for food, shelter, utilities, insurance, non-litigation related medical care and treatment, transportation expenses, education, or other documented expenses necessary for subsistence.”

In a previous post, I quoted from an opinion of the Louisiana Supreme Court that’s illustrative here.  In Louisiana State Bar Ass’n v. Edwins, a commissioner concluded that a lawyer had “been guilty of professional acts and omissions which do not conform to the standards of character and conduct laid down by the profession.”

Whoa! Acts & omissions that don’t conform to the standards we’ve laid down!  What might they be?

Well, among other things, advancing funds to a client to help the client avoid foreclosure and seek necessary medical treatment.

The Louisiana Supreme Court disagreed with the commissioner, stating:

  • “no bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim.”

Similarly,  in Minnesota:

  • “a lawyer may guarantee a loan reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits, provided the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation and, further provided, that no promise of such financial assistance was made to the client by the lawyer, or by another in the lawyer’s behalf, prior to the employment of that lawyer by that client.”

It’s Rule 1.8, and Minnesota’s rules are here.

With respect to the rule, the Minnesota Office of Lawyers Professional Responsibility has stated:

  • “While perhaps not a perfect solution, Minnesota’s approach to financial assistance to clients allows lawyers to act in a humanitarian fashion if the situation requires, and yet avoid troubling conflicts with the representation.” (Borrowing and Lending with Clients, Marcia Johnson, Minnesota Office of Lawyers Professional Responsibility, (August 1995)).

Alabama’s Rule 1.8(e)(3) authorizes lawyers to “advance or guarantee emergency financial assistance to the client, the repayment of which may not be contingent on the outcome of the matter, provide that no promise or assurance of financial assistance was made to the client by the lawyer, or on the lawyer’s behalf, prior to the employment of the lawyer.”  The policy reasons underpinning the rule are in the comment.

In Mississippi, and “under dire and necessitous circumstances,” Rule 1.8(e) authorizes a lawyer to advance up to $1500 to a client for reasonable and necessary medical or living expenses.  (At the link, scroll to pages 33 and 34)  The rule indicates that permissible assistance includes “minimal living expenses of minor sums such as those necessary to prevent foreclosure or repossession or for necessary medical treatment.”

Finally, in New Jersey, Rule 1.8(e)(3) authorizes certain non-profits to provide financial assistance to indigent clients that the non-profit is representing without a fee.

Again, I don’t know if this is an access issue.  At the very least, however, when there is no legitimate concern of a conflict of interest or frivolous litigation, the Rules of Professional Conduct should not prohibit common sense compassion.

 

 

 

 

 

 

 

 

 

 

UPDATED! Increasing Access: Ghostwriting

IMPORTANT UPDATE! 

Thank you to John Serafino of Ryan Smith Carbine for pointing out that Local Rule 32.2 of the US Court of Appeals for the Second Circuit provides:

“A pro se party who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’ Unless the Court orders otherwise, the attorney’s identity and address need not be disclosed.”

Here’s my updated post:

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

This is part 3 in my series on using the Rules of Professional Conduct to increase access to legal services.  It focuses on Rule 1.2(c) and ghostwriting.  Making it clear that ghostwriting does not violate the rules might encourage more lawyers to market limited services and, in turn, expand access to legal services.

Part 1 – Increasing Access: It MUST be Ethical.

Part 2 – Increasing Access: Limited Licenses .

Rule 1.2(c) authorizes a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”  Limited-scope representation is often referred to as “unbundling” or “providing unbundled legal services.”  Unbundling is not a new concept.  Still, it’s an underutilized tool.

The Reporter’s Notes to the 2009 Amendments to Rule 1.2 include instructive comments. For example:

  • “Although lawyers enter into fee agreements in a variety of practice settings, this proposal is intended in part to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal services to low or moderate-income persons who otherwise would be unable to obtain counsel.”

And:

  • “In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.”

A word of caution: a limitation must be reasonable under the circumstances. So, while there is not per se prohibition on “excluding actions that the client things are too costly,” a lawyer cannot exclude means or actions that are part and parcel of the duty to provide a client with competent representation.

Limited representation can take several forms. One is ghostwriting.  For the purposes of this post, “ghostwriting” is when a lawyer drafts a pleading for a client, and neither the lawyer nor the client discloses the lawyer’s involvement to the court or to the opposing party.

For many years, there was great debate as to whether ghostwriting was ethical.  Indeed, in 2007, the ABA Journal published an article entitled Scary Parts of Ghostwriting.  While highlighting the scary (aka: “unethical”) parts of ghostwriting, the article called attention to two key factors.

The first was the “Trendy Dilemma.”  As the ABA Journal described the trend:

  • ” . . . courts around the country increasingly are coming to grips with the practice, one of a number of services that lawyers are offering as part of the recent trend of unbundling. In contrast with traditional full-service representation, lawyers agree to be responsible for only carefully delineated portions of a client’s case. In addition to ghostwriting, services can include drafting a settlement agreement without participating in the negotiations, researching a legal issue for a client without getting involved in the larger case, or reviewing client-drafted documents strictly for compliance with court rules.”

The second was ABA Formal Opinion 07-446.  In the opinion, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that ghostwriting is a permissible form of limited representation allowed by Rule 1.2(c), stating:

  • “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”

Opponents had often raised two points while arguing that ghostwriting was unethical.  Some continue to raise the arguments today.

One argument is that judges give liberal construction to pro se pleadings, thus it’s unfair for a litigant not to disclose having received legal assistance.  The ABA’s response:“if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal” and there will be no reason to apply liberal construction.

The Committee added:

  • “[i]f the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage. Because there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed.”

Doesn’t this make sense? It does to me.

Another argument is that the failure to disclose a lawyer’s involvement constitutes misrepresentation by omission.  The ABA (and several bar associations) disagree.  Their position is that it is only dishonest if (1) the litigant is asked and lies; or (2) local court rules require the disclosure of trained legal assistance and no disclosure is made.   Absent an affirmative misrepresentation or a violation of court rules, it’s not dishonest.

Again, this makes sense to me.

Of course, as John points out, Local Rule 32.2 requires a self-represented litigant “who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’”  It strikes me, then, that the lawyer who provides the assistance has a duty to advise the client of the disclosure requirement.

Here are my thoughts on ghostwriting:

  • For simple pleadings, we should consider it a permissible form of limited representation authorized by Rule 1.2(c).
  • For more substantive pleadings, we should, at the very least, remain open to the same.
  • The next disciplinary counsel should commit to vigorously investigate & prosecute ghost writers who fail to provide competent advice or otherwise violate the Rules of Professional Conduct.

At least one New England state agrees.  In 2010, the Connecticut Bar Association issued Informal Opinion 2010-04.  The CBA concluded:

  • “We therefore now conclude that under the Connecticut Rules of Professional Conduct a lawyer who prepares and controls the content of a pleading, brief or other document to be filed with a court is not required to inform the court that the document was prepared by the lawyer. Nor do the Rules require that the lawyer demand that the pro se litigant make such disclosure. To the extent, however, that a law of the jurisdiction or a tribunal rule requires disclosure of such assistance, the lawyer must, of course, comply with the law or tribunal rule.”

I agree.

Ghostwriting will not bridge the access gap or suddenly make legal services available to everyone.  However, dispelling the notion that ghostwriting puts a lawyer’s license at risk will only serve to increase access to legal services.

Increasing Access: Ghostwriting

IMPORTANT UPDATE! 

Thank you to John Serafino of Ryan Smith Carbine for pointing out that Local Rule 32.2 of the US Court of Appeals for the Second Circuit provides:

“A pro se party who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’ Unless the Court orders otherwise, the attorney’s identity and address need not be disclosed.”

Here’s my updated post:

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

This is part 3 in my series on using the Rules of Professional Conduct to increase access to legal services.  It focuses on Rule 1.2(c) and ghostwriting.  Making it clear that ghostwriting does not violate the rules might encourage more lawyers to market limited services and, in turn, expand access to legal services.

Part 1 – Increasing Access: It MUST be Ethical.

Part 2 – Increasing Access: Limited Licenses .

Rule 1.2(c) authorizes a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”  Limited-scope representation is often referred to as “unbundling” or “providing unbundled legal services.”  Unbundling is not a new concept.  Still, it’s an underutilized tool.

The Reporter’s Notes to the 2009 Amendments to Rule 1.2 include instructive comments. For example:

  • “Although lawyers enter into fee agreements in a variety of practice settings, this proposal is intended in part to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal services to low or moderate-income persons who otherwise would be unable to obtain counsel.”

And:

  • “In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.”

A word of caution: a limitation must be reasonable under the circumstances. So, while there is not per se prohibition on “excluding actions that the client things are too costly,” a lawyer cannot exclude means or actions that are part and parcel of the duty to provide a client with competent representation.

Limited representation can take several forms. One is ghostwriting.  For the purposes of this post, “ghostwriting” is when a lawyer drafts a pleading for a client, and neither the lawyer nor the client discloses the lawyer’s involvement to the court or to the opposing party.

For many years, there was great debate as to whether ghostwriting was ethical.  Indeed, in 2007, the ABA Journal published an article entitled Scary Parts of Ghostwriting.  While highlighting the scary (aka: “unethical”) parts of ghostwriting, the article called attention to two key factors.

The first was the “Trendy Dilemma.”  As the ABA Journal described the trend:

  • ” . . . courts around the country increasingly are coming to grips with the practice, one of a number of services that lawyers are offering as part of the recent trend of unbundling. In contrast with traditional full-service representation, lawyers agree to be responsible for only carefully delineated portions of a client’s case. In addition to ghostwriting, services can include drafting a settlement agreement without participating in the negotiations, researching a legal issue for a client without getting involved in the larger case, or reviewing client-drafted documents strictly for compliance with court rules.”

The second was ABA Formal Opinion 07-446.  In the opinion, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that ghostwriting is a permissible form of limited representation allowed by Rule 1.2(c), stating:

  • “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”

Opponents had often raised two points while arguing that ghostwriting was unethical.  Some continue to raise the arguments today.

One argument is that judges give liberal construction to pro se pleadings, thus it’s unfair for a litigant not to disclose having received legal assistance.  The ABA’s response:“if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal” and there will be no reason to apply liberal construction.

The Committee added:

  • “[i]f the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage. Because there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed.”

Doesn’t this make sense? It does to me.

Another argument is that the failure to disclose a lawyer’s involvement constitutes misrepresentation by omission.  The ABA (and several bar associations) disagree.  Their position is that it is only dishonest if (1) the litigant is asked and lies; or (2) local court rules require the disclosure of trained legal assistance and no disclosure is made.   Absent an affirmative misrepresentation or a violation of court rules, it’s not dishonest.

Again, this makes sense to me.

Of course, as John points out, Local Rule 32.2 requires a self-represented litigant “who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’”  It strikes me, then, that the lawyer who provides the assistance has a duty to advise the client of the disclosure requirement.

Here are my thoughts on ghostwriting:

  • For simple pleadings, we should consider it a permissible form of limited representation authorized by Rule 1.2(c).
  • For more substantive pleadings, we should, at the very least, remain open to the same.
  • The next disciplinary counsel should commit to vigorously investigate & prosecute ghost writers who fail to provide competent advice or otherwise violate the Rules of Professional Conduct.

At least one New England state agrees.  In 2010, the Connecticut Bar Association issued Informal Opinion 2010-04.  The CBA concluded:

  • “We therefore now conclude that under the Connecticut Rules of Professional Conduct a lawyer who prepares and controls the content of a pleading, brief or other document to be filed with a court is not required to inform the court that the document was prepared by the lawyer. Nor do the Rules require that the lawyer demand that the pro se litigant make such disclosure. To the extent, however, that a law of the jurisdiction or a tribunal rule requires disclosure of such assistance, the lawyer must, of course, comply with the law or tribunal rule.”

I agree.

Ghostwriting will not bridge the access gap or suddenly make legal services available to everyone.  However, dispelling the notion that ghostwriting puts a lawyer’s license at risk will only serve to increase access to legal services.

 

 

 

Tech Competence as Access

False advertising? Guilty as charged.

tech-ethics

No, this post isn’t part of my series on Ethics as Access: Using the Rules of Professional Conduct to Increase Access to Legal Services.

However, the only reason it isn’t is that the Vermont Supreme Court’s Advisory Committee on the Rules of Civil Procedure has yet to act upon the recommendation that Vermont adopt Comment 8 to Rule 1.1 of the Rules of Professional Conduct. The proposed comment makes it clear that the duty of competence includes a duty of tech competence.

I first reported on the recommendation here.  As of September 30, and according to Robert Ambrogi’s phonemenol LawSites Blog, 25 states had adopted Comment 8.

Here, the recommendation has been before the civil rules committee for nearly two years.

Wait…are you thinking “why is the civil rules committee reviewing proposed amendments to the rules of professional conduct?”  Me too.

It’s inexplicable to me why, in Vermont, the committee that advises the Court on the Rules of Civil Procedure vets proposed amendments to the Rules of Professional Conduct.  I’d assume that the Professional Responsibility Board would play that role. After all, when it promulgated Administrative Order 9, the Court vested responsibility for, and supervision of, the Professional Responsibility Program with, that’s right, the Professional Responsibility Board.

Further, the Board employs a full-time bar counsel who, you know, blogs about issues related to attorney ethics. Finally, as most of you are udoubtedly aware, the Rules of Professional Conduct are not part of the Rules of Civil Procedure. Indeed, Rule 16 of Administrative Order 9 clearly states that “[d]isciplinary proceedings are neither civil nor criminal but are sui generis.”

One might think that just as proposed changes to the Rules of Civil Procedure shouldn’t go through the PRB, proposed changes to the Rules of Professional Conduct shouldn’t go through the Civil Rules Committee.

But one might think a lot of things.

And, anyhow, I digress.  Back to tech, ethics, and technological competence as access.

Not sure how to fit in pro bono work?  Here’s an interesting post from the ABA on how technology is making it easier to do pro bono work.

As I’ve preached, competence includes tech competence. I’ve also blogged about pro bono work.  If you accept the proposition that competence includes tech competence (which the ABA and 25 states have accepted), and if you believe in pro bono work, then remember that tech can make it easier for you to comply with Rule 6.1’s aspirational goal.

For all my posts on tech ethics, go here.

 

 

Increasing Access: Limited Licenses

Earlier this year, I was invited to speak as part of the Vermont Law School Summer Lecture Series. My topic: “Using the Rules of Professional Conduct to Increase Access to Justice.” I’m reformatting the talk as a series of blog posts on ways we can use the Rules of Professional Conduct to increase access to legal services.

Part 1 of the series is HERE. It includes a link to a video of my talk and is intended to reassure you that the Rules of Professional Conduct do not pose a barrier to increased access to legal services.

This is Part 2.  Here, I focus on using limited licenses to increase access to legal services. To tie it to the Rules of Professional Conduct, I’ll refer to Rule 5.5 throughout. Rule 5.5 is the rule that prohibits the unauthorized practice of law.  In other words, this post focuses on increasing access to legal services by increasing the pool of people who are authorized to provide legal services.

You’ll note that I prefer the phrase “access to legal services.”  Andrew Perlman is the Dean of Suffolk University Law School.  He’s also one of the leading thinkers on the future of the legal profession.  A law review article that he wrote played a significant role in shaping my views on limited licenses for nonattorneys.  The article is here.  In footnote 4, Perlman noted:

  • “. . . it may be more appropriate in some situations to say that the public needs better ‘access to legal services.’ After all, many important legal and law-related services (e.g., getting a will or health care proxy) are not necessarily about ‘justice,’ at least not in the usual sense of the word. That said, a significant percentage of legal services have a strong relationship to justice, so the phrase ‘access to justice’ is appropriate in most circumstances. The terms are used interchangeably in this Article.”

Perlman’s initial point resonates with me.  “Justice” can be a nebulous term.  I’m sure there are many litigants who had lawyers but do not feel like they received “justice.”  We should not measure access by results.  Rather, when staggering numbers of civil litigants come to court without attorneys, we should measure access by the number of people who arrive with a person authorized to provide legal services.

Here are two ideas.

  1. Limited Licenses for attorneys who agree to limit their work to pro bono cases.
  2. Limited Licenses for Vermont Certified Paralegals.

1.  Pro Bono Emeritus

This idea focuses more on amending the attorney licensing rules than it does on Rule 5.5.

As most of you know, when a Vermont attorney receives or renews a law license, the attorney must choose “active” or “inactive” status.  An attorney on active status must pay full freight ($410 per cycle) and complete 20 hours of CLE. An attorney on inactive status is not authorized to practice law.

There are plenty of lawyers who no longer want to maintain an active license, but who are willing to give back by providing services pro bono.  Requiring “active” status (and its $420 fee and 20 hours of CLE) is a deterrent to giving back.  So is the spectre of a disciplinary prosecution for the inactive attorney who represents clients, albeit without pay.

In a few weeks, the Vermont Supreme Court will consider a proposal to add a new license status: pro bono emeritus.  If approved, a lawyer who chooses pro bono emeritus status would be authorized to provide legal services, without pay, to persons of limited means, as well to organizations of the type listed in Rule 6.1(a)(2).  Lawyers on pro bono emeritus status would pay a significantly reduced licensing fee.  They would be required to complete 8 hours of CLE, not 20, er reporting period.

To be clear, this idea was not mine. It came from the VBA’s Pro Bono Committee and has been endorsed by the VBA Board of Managers. My role was limited to drafting the language and submitting it to the Court. The hope is that the new licensing category will afford more lawyers an opportunity to give back and, in the process, afford more litigants access to legal services.  Many other states have adopted similar rules.  And by “many,” I mean “most.”  The ABA’s chart on state pro bono emeritus rules is here.

2.  Limited Licenses for Vermont Certified Paralegals

Another idea is to confer limited licenses to certified paralegals. In the first post in this series, I referenced the Vermont Commission on the Future of the Legal Profession. I chaired the Commission’s Committee on the Future of Legal Education.  Our committee recommended licensing paralegals who complete a certified educational program.  I won’t rehash the recommendation.  It’s on pages 14-33 of this report.  However, here are a few thoughts:

As the Committee noted:

  • “Not all legal services require delivery by a person with a law degree. Given the
    staggering number of cases involving self-represented litigants, there are routine
    matters in which common legal services could be delivered competently with proper
    training.”  Commission Report, p. 28.

I mentioned Andrew Perlman above. Again, his law review article is here.  In it, he wrote that:

He added:

  • “The focus should be on whether a particular service can be performed by
    someone who does not have a law license, not who can perform the service best.
    After all, even when services must be performed by lawyers, we have never
    concluded that only the most skilled lawyers must handle a matter. The
    touchstone should be competence.” Toward the Law of Legal Services, 37 CARDOZO L. REV. 49, 92(2015).

By licensing paralegals who complete a certified educational program, we’d expand the pool of people authorized to provide legal services and, hopefully, increase access to legal services.

I often hear two counter-arguments.

The first is that authorizing paralegals to practice will take work from lawyers.  If that’s your argument, raise your hand.

Thank you.  Now I know that you did not read the Committee report.  Again, here’s the report.  The Committee made it clear that the recommendation was “to identify specific legal services within family law, landlord-tenant law, and collections law that Vermont Certified Paralegals should be authorized to provide to clients.”  Report, p. 27 (emphasis addded).

Specific areas within family law, landlord-tenant law, and collections law.

As I mentioned in the original post in this series, those are the exact areas of law in which huge numbers of litigants are representing themselves.  Per Judge Davenport’s study, the percentages of self-represented litigants in each area:

  • Active parentage cases: 84%
  • Tenants: 90% (vs 24% of landlords)
  • Collections Defendants: 84% (vs 2% of the plaintiffs)
  • Foreclosure Defendants: 74%  (vs 1% of the plaintiffs)
  • Divorce: 54%

Authorizing certified paralegals to provide legal services to litigants who are not receiving legal services from lawyers will not take work from lawyers.

The second argument that I’ve heard against limited licenses for paralegals is that people who can’t afford lawyers won’t be able to afford paralegals.  Maybe not.  But maybe some  will.  On this point, I’m reminded of my priest, Monsignor Lavalley.

Monsignor Lavalley often tells the story of a man who went for a walk on a beach. The beach was littered with thousands of starfish that had been left ashore when the tide receded and that would surely die before the tide rose again to save them.  The man encountered a little girl who was returning starfish to the water, one at a time. It was late in the day, and the girl would soon have to go home for the night.  The man said to the girl “it’s getting dark and there are too many.  Go home. You’re never going to make a difference.”  The girl picked up a starfish, smiled, and replied “to this one I will.”

True, some people who can’t afford lawyers won’t be able to afford paralegals.  But maybe one will.  Let’s help who we can, when we can.  If tomorrow one more person than today has access to legal services, we’ll be better off than we were this morning.

Increasing the type of providers who are authorized to provide legal services is a way to use the licensing rules and the Rules of Professional Conduct to increase access to legal services.

access

 

Increasing Access: It must be Ethical

Earlier this year, I was invited to speak as part of the Vermont Law School Summer Lecture Series. My topic: “Using the Rules of Professional Conduct to Increase Access to Justice.” I spoke for a bit less than an hour.  You can watch the presentation HERE.  I used a power point, which isn’t visible on the video.  If you’d like it, please e-mail me and I will send it to you.

Over the next few days, I’m going to use this space to share the ideas that I shared at VLS. The ideas are limited to how the Rules of Professional Conduct can be used to increase access to legal services.  Many other ideas exist and are worth discussing.  However, they are beyond the scope of the ethics rules and, therefore, beyond the scope of this column.

Cognizant that several readers have informed me that shorter posts receive more attention, I will break this series into 5  posts:

  1. Increasing Access: It Must Be Ethical
  2. Limited Licenses
  3. Limited Representation/Ghostwriting/Flat Fees
  4. Emergency Financial Assistance to Clients
  5. Non-Lawyer Ownership & Management of Law Firms

Increasing Access: It Must Be Ethical

I’ll start as I did at VLS: stop reading this blog and go volunteer an hour of your time.  For years, we’ve held fanastic seminars aimed at devising solutions to solve the justice gap.  That’s great, but at some point it’s just lawyers being lawyers. Most of you know that my background is in basketball.  Basketball players & teams don’t get better by sitting around and talking about getting better.  They get better by playing basketball.  To that end, talking about the justice gap won’t help to reduce it.  Reducing it will reduce it.

As a profession, we excel at forming committees, holding hearings, and drafting, re-drafting, and issuing reports. Too often, those reports sit on shelves or today’s electronic equivalent.  Absent action, the hours devoted to the reports would have been better spent volunteering at a rent escrow clinic or taking a pro or low bono case.

And there’s plenty to do.

For those of you not aware of the numbers, Judge Davenport conducted a study in 2012. The studied revealed a staggering number of self-represented litigants:

  • Active parentage cases: 84%
  • Tenants: 90% (vs 24% of landlords)
  • Collections Defendants: 84% (vs 2% of the plaintiffs)
  • Foreclosure Defendants: 74%  (vs 1% of the plaintiffs)
  • Divorce: 54%

These five types of cases accounted for 72% of the civil docket.

Don’t get me wrong: many lawyers are providing top-notch work to clients who have little or no ability to pay. Among them, the staff attorneys at Vermont Legal Aid, LawLine of Vermont, and the Defender General’s office.  Further, there are several excellent programs that are up & running.  At the risk of excluding some, I’ll list a few off the top of my head:

Further, many of you have donated time and money: the VBF’s Access to Justice Campaign comes to mind, as do the regular and generous donations from the Rutland County Bar Association.

Finally, Dan Richardson’s tireless efforts with the Vermont Commission on the Future of Legal Services resulted in a report that includes several recommendations that, if adopted, would only help to increase access to justice.

But I don’t think the numbers have improved since Judge Davenport’s study.

So, to the Rules of Professional Conduct we go.

Don’t let anyone tell you that the rules prohibit or impede lawyers from participating in programs designed to increase access.  That is pure BS.  Here are a few quotes from the Preamble,

  • “A lawyer is a public citizen having special responsibility for the quality of justice.”
  • “A 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.”
  • “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.”
  • “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.”

Hmm.  Seems rather clear to me that the rules do not impede ensuring access to justice. Quite the opposite.

For me, it comes down to this: what do the rules prohibit? Yes, we have lots of rules, many of which are written in perfect legalese.  But, I’ll never forget something that a Vermont attorney for whom I have the utmost respect told me shortly after I’d been named disciplinary counsel in 2000: “the rules are great, but remember, it’s lawyers who lie, cheat, or steal who you should focus on.”

Isn’t that exactly it?  No lying, no cheating, no stealing.

Oh, I hear you thinking right now: “but Mike! what about diligence? or conflicts?”  My response: a lack of diligence is a form of lying. A conflict is cheating.

From there, it’s simple.  Helping those in need is not lying, cheating, or stealing. I don’t know how else to say it.  For those of you who need a cite, here’s something that the Louisiana Supreme Court said in 1976 and to which I will return in a follow-up post:

  • “no bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim.” La. State Bar Ass’n v. Edwins, 329 So. 2d 437 (1976).

In sum, the Rules of Professional Conduct do not impede lawyers from helping those in need to access legal services.

With that out of the way, I will use the next 4 posts in this series to discuss ways that the rules can be used to increase access.