Saturday, July 21, 2018

Verdict article on Formal Opinion 478 regarding judicial ethics

The most recent column at Verdict discusses ABA Formal Opinion 478, issued in December 2017, which warns that judges may risk violating the ABA’s Model Code of Judicial Conduct (“Model Code”) by going online and independently researching facts or parties pertinent to cases pending before them.  You can read it here.

NY State Bar calls for regulation of online providers of legal documents

The New York State Bar has filed a resolution with the ABA House of Delegates, to be heard at the Annual Meeting, calling for regulation of online providers of legal documents. The resolution states, in full: 

RESOLVED, That the American Bar Association urges states to adopt General Provisions for Regulation of Online Providers of Legal Documents to establish reasonable standards of product reliability and efficacy, provide consumers with information and recourse against abuse, ensure consumers are made aware of the risks of proceeding without attorneys, inform consumers where affordable attorneys can be found, and protect confidential information; and

FURTHER RESOLVED, That until such time as the General Provisions are adopted, online providers of legal documents are encouraged to adopt the Statement of Best Practices to provide a common-sense approach to self-regulation of online providers of legal documents.

The report that accompanies the resolution argues that "there is a need for some form of regulation in order to (i) establish minimum standards of product reliability and efficacy, (ii) provide consumers with information and recourse against abuse, (iii) ensure consumers are made aware of the risks of proceeding without attorneys, (iv) inform consumers how affordable attorneys can be found, and (v) protect consumers’ confidential information."

The ABA annual meeting is in about a week.  Stay tuned.

Thursday, July 12, 2018

Pennsylvania Superior Court rules lawyer can't serve as guardian ad litem and as lawyer for a child at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it.  I also published a law review article on the subject, available here.

Since then, the Court did review a case on the issue and decided that attempting to serve as a lawyer and as a guardian at the same time constituted an impermissible conflict of interest.  I wrote an article about the case (here).

Unfortunately, the practice of appointing lawyers to serve as lawyers and guardians simultaneously is still common in many jurisdictions, including, oddly, in Illinois.  (The ruling in Illinois banned the practice in delinquency cases but not in family law matters.)

I am writing about this again today because I just read that the Pennsylvania Superior Court issued a ruling in a case called In re J'K.M., 2018 BL 226337, Pa. Super. Ct., No. 1390 WDA 2017, 6/26/18, holding that an attorney appointed as a teen's guardian ad litem and as her lawyer in a neglect proceeding can't continue the dual roles because a divergence between what the child wants and what is best for them creates a conflict of interest.

Given my history on this issue, you will not be surprised to hear that I think this is definitely the correct decision. 

Wednesday, July 11, 2018

Office Depot Legal Services is back

Back in March I reported that Office Depot was set to start offering a pre-paid legal services plan.  Yet, when I went to check their website, I found out the program had been deleted.  I wondered if the idea had been scratched but could not find out more information.

Fast forward to this week.... and voila'.  The service is back up and running.  I still don't know what happened back when they first rolled out the website, but now it is back and functioning.  You can go check it out here.

If I understand it correctly, the program is a pre-paid legal services agreement for small businesses, not a referral service, which is an important distinction.  Services are provided by a firm with which the services seems to have an exclusive agreement.

If you go to the website, you can type in a zip code to "find your nearest firm."  I typed the zip code for the Chicago suburb I live in and the result was one law firm in the city of Chicago.  I typed in the zip code for downtown Chicago (which we call "The Loop" by the way), and got the same result.  I tried the zip code for Los Angeles and, again, the result was just one firm.

In other words, this program seems to have only one firm available for the consumer, which is very different from the Avvo Legal Services model in which the service would generate a list of options for the client from where the client could choose their favorite, and from a referral service which chooses (or at least helps choose) a lawyer for the consumer.

I have not seen any reaction or comments on the service in other blogs or legal ethics sites.  But that is not necessarily surprising.  Other than the fact that the service is owned by Office Depot, I am not sure there is anything new here.  Pre-paid legal services plans have been around for a long time and are mentioned in Model Rule 7.2 and its comment, which states that a lawyer who accepts assignments from a legal service plan must act reasonably to assure that the activities of the plan are compatible with the lawyer's professional obligations.

Tuesday, July 10, 2018

More on the demise of Avvo Legal Services

A few days ago I reported that the company that recently bought Avvo has decided to discontinue Avvo Legal Services ("ALS"). 

There have been a couple of comments, but I am a little surprised I have not seem much reaction to the news.  Law Sites has a report with some links, but no opinion one way or another.

The only opinion statement I have seen so far is by Professor Milan Markovic, over at the Legal Profession blog, in which he laments ALS's demise, stating that "My personal view is that the ethical concerns regarding Avvo Legal were overblown because Avvo Legal neither recommended one attorney over another nor interfered with attorneys' professional independence of judgment.  ...[T]o address lack of access to justice, the organized bar should embrace Avvo Legal and other companies that promote awareness of the law and the availability of lawyer assistance.  Instead we continue to ignore the demand side of lack of access to justice while regulators experiment with supply-side solutions such as "navigators", "LLLTs," and alike that I fear will prove ineffectual." 

Friday, July 6, 2018

Avvo Legal Services is dead

Whether participating in Avvo Legal Services violates rules of professional conduct was one of the most debated questions in legal ethics recently.  Long time readers of this blog know I have written extensively, both here and in law reviews, on the subject, which is why I was dumbfounded when I saw the news today.

Internet Brands, the company that recently acquired Avvo has announced that Avvo Legal Services will be discontinued by the end of the month.  

That's it. No more explanation. They are not going to continue to argue there are no ethical issues to worry about.  They are not going to continue to try to convince that the rules should be changed. They are not going to continue to argue that the rules are unconstitutional.  They are done. Avvo Legal Services is dead.  

Evidently, whether that is a good thing or a bad thing depends on what your opinion is about the service, the company and the regulations involved.  That, we can debate some other time.  For now, the interesting question is simply "why?"  Why now?  (particularly because it seemed that the position to recognize and allow services like Avvo Legal Services seems to be gathering support.)    Was it the opinions of the bar associations that held it would be unethical to participate in Avvo Legal Services?  Was it that it was not profitable?

I don't know.  Others have concluded that Internet Brands did not want to fight the regulatory agencies, stating that "[f]rom a business perspective, it is understandable that Internet Brands didn’t want to continue this service given the regulatory obstacles it faced." 

But that's not exactly what the spokesperson for the company said in a letter disclosing they are discontinuing the service.  There, all they say is that "[a]s a part of our acquisition of Avvo, we have evaluated the Avvo product offerings, and adjusted the Avvo product roadmap to align more comprehensively with our business and focus. Accordingly, we have decided to discontinue Avvo Legal Services.”