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.

 

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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.”

Celebrate Pro Bono

This week marks the National Celebration of Pro Bono.  This year, the ABA encourages lawyers to provide pro bono services to events and organizations that assist homeless youth. To me, the focus calls to mind Jay Diaz’s fantastic work as the Vermont Bar Foundation’s Poverty Law Fellow.

Anyhow, I thought I’d use the National Celebration of Pro Bono to review the section of the Vermont Rules of Professional Conduct that applies to pro bono services.

pro bono

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.

That’s all for now. I hope you celebrate pro bono week by providing some pro bono hours.  For opportunities to do so, contact Mary Ashcroft or Angele Court.

pro bono

Make Time For What Matters

Regular readers know what I blog about most: Rule 1.1 and the duty to provide clients with competent representation.

I am a firm believer that in order to satisfy that duty, you must act competently to take care of yourself.

Here’s what I mean.

Last month, I posted on Anxiety, Stress, and Work-Life Balance.  The post includes a quote from Jeena’s Cho’s ABA Journal article Talking about the elephant in the room – social anxiety. She wrote:

“Finally, remember: ‘Secure your own oxygen mask before assisting others.’ ”

Perfect analogy.

Jeena’s article was in response to the New York Times article The Lawyer, The Addict.  I also blogged in response to NYT article: Lawyers Helping Lawyers: Keep it on the Front Burner.  

To Jeena’s point about securing your oxygen mask before assisting others, let’s add Tracy Richelle High’s tips in the most recent ABA Journal: 10 ways to make time for the things that matter.  The tips are fantastic.  You should read them.  In my view, Tracy nails it in her first paragraph:

“But the answer is quite simple: You make time for the things that matter. Period.”

As a profession, we talk a lot about access to justice & access to legal services.  As I see it, lawyer well-being is an access issue.  Access to legal services requires a full complement of healthy and competent lawyers.

Make time for yourself.  It’s not unethical.

work life balance

Monday Morning Answers – #84

Happy Labor Day!

Friday’s questions are HERE.  The answers follow today’s Honor Roll

Thanks to all who offered encouragement in Saturday’s race.  It went well and the Clemson game was fantastic.  Watching the Tigers “touch the rock” and run down the hill for the first time since last year’s national championship was electric.   And we didn’t have bad seats:

IMG_2512

Honor Roll

Answers

Question 1

The rules do not require lawyers to have succession plans. However, a comment to a particular rule suggests that it’s a violation for a sole practitioner not to have a plan that designates another lawyer to review the solo’s files and contact the solo’s clients in the event of the solo’s death, disability, or unavailability.  It’s the rule on:

I used this question as a reminder following Hurricane Harvey.  Remember – there are many ways in which a solo might become unavailable.  Seminars often focus on the doom & gloom of death or disability.  Yes, those things happen.  But, if you’re traveling and a weather emergency keeps you from getting home for a few extra days, can your clients make it without you?

Question 2

Valerie and Eddie divorced many years ago.  Eddie is over a year in arrears on court-ordered spousal maintenance payments.

Valerie asks Lawyer to represent her in a motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Valerie.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.  V.R.Pr.C. 1.5(d)(1)(i)
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Valerie.
  • D.   There is no violation because it was Valerie, the client, who proposed the contingent fee.

Here’s a very simple way to help provide access to legal services: the rules clearly allow contingent fees in certain post-judgment family cases.  Rule 1.5(d)(1)(i) allows them in cases involving past due maintenance & property division, while subsection d(1)(ii) allows contingent fees, with court approval, when child support is past due.

DO NOT say to me “but Mike, I’ll never make a difference with access by taking a post-judgment spousal maintenance case on a contingent fee.”   You will make a difference to that client.  And, while this is likely best addressed in a blog of its own, my opinion is that, as a profession, we too often let perfect be the enemy of the good.  Instead of forming commission after study commission after blue-ribbon commission, we should strive make a  difference whenever and wherever we can, no matter how small “whenever and wherever” seems.  Like to the one client who you represent on a contingent fee basis in a post-judgment matter where court-ordered spousal maintenance is past due.

Question 3

Lawyer represents Organization.  Lawyer leaves Organization for private practice.

True or false:   Lawyer’s general knowledge of Organization’s practices and procedures ordinarily will preclude Lawyer from representing a party adverse to Organization.

False.  See, V.R.Pr.C. 1.9, Comment [3].  As Professor Alberto Bernabe puts it, “being familiar with the organization’s ‘playbook’ does not typically disqualify the lawyer.”

Question 4

Rule 8.4 prohibits some types of conduct that do not involve the practice of law.  Although it no longer appears in the text of the rule, what’s the 2-word term used to draw the distinction between non law-related conduct that violates the rules and non law-related conduct that does not? Conduct involving ” ________  ___________.”

“Moral Turpitude.”  V.R.Pr.C. 8.4, Comment [2].  A phrase that drove me nuts in the old days!  Professor Bernabe has some great posts on the continued use of the phrase in the rules.

Question 5

This is a fictional scenario.  A prop device, if you will.  Play along.

I received an ethics complaint from a woman complaining how her brother was treated in a criminal case.  The thrust of her complaint was that her brother was framed for the murder of his best friend, Andy, who had just confessed to an affair with her brother’s “cheatin’ wife.”

Referring to her brother’s defense attorney, she wrote that her brother never should’ve “trusted his soul to no backwoods southern lawyer.”  She alleged that the proceeding was “a make believe trial” and that the “judge in this town has got blood stains on his hands.”

Interestingly, her brother WAS framed! In fact, the sister is the one who did it! Not only did she admit to killing Andy, she wrote that her brother’s “cheatin’ wife had never left town and that’s one body that’ll never be found.” It’s the first complaint I’ve ever received in which the complainant confessed to a crime.

Anyhow, Vermont’s Professional Responsibility Program and Judicial Conduct Board don’t have jurisdiction over the defense attorney and judge.

Name the state to which I referred the complainant.

Georgia.  The question refers to the AM smash The Night Light The Lights Went Out in Georgia.  After Liza Minelli and Cher turned it down, one-hit wonder Vicki Lawrence took it to #1.  As a few readers mentioned, once the title-line gets in your head, good luck getting it out.

Finally, Friday’s questions included a reference to Johnny I Hardly Knew Ye by The Irish Rovers.  My apologies to the (several) readers who prefer The Dropkick Murphys’ version.

 

How to Help in Harvey’s Aftermath

For those of you interested in how you might be able to help in Harvey’s aftermath, I’m sharing some information that I received from the National Conference of Bar Presidents and the National Organization of Bar Counsel.

There are opportunities to volunteer to provide legal services to those impacted by the disaster.  There’s an obvious need for lawyers admitted in Texas or Louisiana, but it appears that, in Texas at least, out-of-state lawyers can contact the Texas State Bar and express an interest in volunteering.

If you know of anyone impacted by the disaster who needs help, National Disaster Legal Aid has created the Hurricane Harvey resource page.

State and local bar associations have published information on the resources that are available to those impacted.  For more, visit any of the following:

The Texas Bar Foundation created a Hurricane Harvey Disaster Relief Fund.

Finally, I’ll share a reminder from Christine Hickey, President of the National Conference of Bar Presidents:

  • “While it is natural and appropriate that we focus on the legal needs of individuals and organizations in Harvey’s path, we cannot overlook the critical needs of shelter, food and clothes for individuals whose lives have been turned upside down. If you have not done so already, please consider making a donation to the Salvation Army, the American Red Cross, or other reputable relief organization.”

Thank you.

Disaster Legal Assistance

 

 

Lawyers Helping Lawyers – Keep it on the Front Burner

Since I started this blog, I’ve not received more e-mails, texts, or DMs suggesting that I post about a particular topic than I have this week.  The suggestions flowed from an article that ran in Saturday’s New York Times: The Lawyer, The Addict.

Read it.

I first blogged on this topic in March 2016 with the post Lawyers Helping Lawyers.  The post referred to a study done by the ABA and the Hazeldon Betty Ford Clinic.  The study found “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”

In my post, I noted that “[e]xtrapolating from the ABA/Hazeldon study, approximately:

  • 500 active Vermont attorneys are problem drinkers
  • 500 active Vermont attorneys exhibit signs of problem anxiety
  • 720 active Vermont attorneys struggle with some level of depression.”

I added “[h]ere’s a real number, not an extrapolation: over the past 14 months, three        Vermont attorneys took their own lives.”

Pointing out that, in my experience, lawyers are often the first to know that another lawyer is struggling to cope with addiction or mental health issues, I urged lawyers not to come at this problem from the perspective of “when do I have a duty to report another lawyer?”  Instead, I argued:

  • “How about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?”

The beat goes on.

Since my post 16 months ago, 5 Vermont lawyers have been transferred to disability inactive status or placed on interim suspension as a result of substance abuse and/or mental health issues.  For those 5 lawyers, help came too late not to involve the disciplinary process.

Whatever we do to address this problem, we need to make sure it includes spreading the word that it is no longer sufficient to wait to refer someone to help until he’s hospitalized or her practice has cratered.  Refer early.  Not to save clients from harm, but to help a fellow human being get into recovery or treatment.

After the NYT article ran this weekend, some wonderful, caring lawyers engaged me in social media conversations on the need to do better as a profession on this issue. I love that they were involved and I thank each and every one of them.

We need to do more.  The fact that “talking about it on social media” is a positive step shows how far we have to go.

My original post includes links to resources:

  • “Help is available.”Contact the Vermont Lawyers Assistance Program. It’s confidential and the volunteers are exempt from the reporting requirement in Rule 8.3.  Josh Simonds is the Director and is an excellent resource. A referral to Josh’s program will not result in a referral to the disciplinary prosecutors.

    “Or, call me.  It’s confidential. I can refer an attorney to the LAP program or to one of the PRB’s assistance panels. The panels, in turn, have the authority to refer a lawyer to LAP or to any type of counseling.  I CANNOT refer the attorney to the disciplinary office.

    Or, visit the website for the ABA Commission on Lawyer Assistance Programs.”

Beyond encouraging you to refer lawyers in need to help, other things I think we need to do:

  • Figure out how to fund the Vermont Lawyers Assistance Program
  • Decouple discipline/reporting from treatment/referrals
  • Seminars on how to help, where to turn
  • CLE in recognizing the signs & symptoms of alcohol/drug abuse & mental health conditions
  • Understanding that, if help arrives early, the lawyer will not lose his or her law license

There’s probably a lot more to do.  These would just be a start.

We cannot let the topic fade into the background.  The numbers prove that lawyers need help now.  We must provide it.

As a profession, we’ve gone on & on for years about “access to justice” and haven’t come close to solving that problem.  In my book, “access to justice” necessarily includes “access to legal services.”   Not to just any legal services, but to competent legal services.   In that sense, this is an access issue.

Help another lawyer.  The one you help might someday return the favor.

Here are some resources:

Road to Recovery

 

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 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.”