The ABA Center for Innovation, about which I wrote not too long ago here, is accepting applications for its inaugural fellowship program. As reported in the ABA Journal: "Open to both newly minted lawyers and mid-career professionals
outside the law, the program seeks applications and proposals to create
or develop projects to improve the legal industry. Those who wish to
apply should have an idea that bridges the access-to-justice gap in the
U.S.; utilizes technology to deal with a vital legal need; designs or
builds a more effective way of delivering legal services; provides the
public with easier access to legal information; reduces the backlog of
cases in various courts throughout the country; creates tools that allow
lawyers to better represent their clients; or helps pro se litigants
represent themselves more effectively. The deadline for applicants is
Jan. 31."
"Innovation," as you may recall, was my pick for the hot topic of the year last year -- a claim I spoke about at the International Legal Ethics Conference in New York last summer. But, as I discussed during that presentation, the concept is too broad and often used to mean different things. For my posts on all topics somehow related to the issues raised by the concept of innovation, you can go here and scroll down.
Showing posts with label Unauthorized practice of law. Show all posts
Showing posts with label Unauthorized practice of law. Show all posts
Thursday, January 19, 2017
Sunday, October 23, 2016
Podcast on the ABA Report on the Future of Legal Services
Last August I reported on the ABA Report on the Future of Legal Services and concluded that I was not impressed. You can read my detailed reasons, and check out links to more information and comments here.
Today, the Legal Talk Network has posted a podcast discussing the report. You can listen to it by pressing on the play button below. If you can't see the button below, you can go here.
Here is the description of the program:
Today, the Legal Talk Network has posted a podcast discussing the report. You can listen to it by pressing on the play button below. If you can't see the button below, you can go here.
Here is the description of the program:
Many lawyers are familiar with the varied services and resources that the American Bar Association provides to their members around the country. In this episode of The Digital Edge, hosts Sharon Nelson and Jim Calloway talk with Vandenack Williams LLC. founder Mary Vandenack about the American Bar Association Future of Legal Services commission, the data found in that study, and how those findings can help lawyers improve and prepare for the future of law. Mary Vandenack served on the American Bar Association Commission on the Future of Legal Services and currently serves as co-chair on the Futures Taskforce and co-chair of the Economics and Technology Committee of the ABA Section of Real Property, Trust, & Estate Law.
Tuesday, August 16, 2016
ABA announces plan to create Center for Innovation
A few days ago I reviewed the final report of the ABA Commission on the Future of Legal Services (see here) and pointed out that one of its recommendations was for the ABA to create a Center for Innovation.
So, not wasting any time, on Monday, the ABA announced the creation of the Center, whose purpose will be "to foster innovative and ground-breaking approaches to bridging the access to justice gap as well as to improve the delivery of legal services." The Center will also serve as a resource center for ABA members, keep track of the ABA’s innovative efforts and provide fellowships for attorneys to collaborate with professionals in the technological, entrepreneurial and design industries. It will be located at the ABA’s headquarters in Chicago. The first major project for the Center will be to assist with a court-annexed online dispute resolution pilot project in New York.
The ABA Journal online has more information here.
So, not wasting any time, on Monday, the ABA announced the creation of the Center, whose purpose will be "to foster innovative and ground-breaking approaches to bridging the access to justice gap as well as to improve the delivery of legal services." The Center will also serve as a resource center for ABA members, keep track of the ABA’s innovative efforts and provide fellowships for attorneys to collaborate with professionals in the technological, entrepreneurial and design industries. It will be located at the ABA’s headquarters in Chicago. The first major project for the Center will be to assist with a court-annexed online dispute resolution pilot project in New York.
The ABA Journal online has more information here.
Monday, August 15, 2016
Legal Zoom founder comments on the report of the ABA Commission on the Future of Legal Services -- UPDATED
A few days ago I posted my review of the final report of the ABA Commission on the Future of the Legal Services. In case you missed it, you can read it here. As I stated then, I am not impressed. And I am pretty sure that all the comments I have seen (some of which are linked to in my post) generally agree the report is weak and disappointing.
Today, I saw an interview by the host of the blog Law Sites with one of the founders of Legal Zoom in which both of them criticize the report for the same reasons I did. You can read the interview here.
UPDATE (8-23-16): The same website that published the interview with Legal Zoom's founder, now has a column by the co-chairs of the Commission in which they respond to the criticism. You can read it here. They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative. Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach. I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete.
UPDATE (8-24-16): Another member of the Commission has posted a reply to some of the criticism here.
Today, I saw an interview by the host of the blog Law Sites with one of the founders of Legal Zoom in which both of them criticize the report for the same reasons I did. You can read the interview here.
UPDATE (8-23-16): The same website that published the interview with Legal Zoom's founder, now has a column by the co-chairs of the Commission in which they respond to the criticism. You can read it here. They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative. Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach. I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete.
UPDATE (8-24-16): Another member of the Commission has posted a reply to some of the criticism here.
Thursday, August 11, 2016
ABA Commission on Future of Legal Services issues its final report; I am not particularly impressed -- UPDATED
Back in 2014, the American Bar Association created a Commission on the Future of Legal Services and charged it with the task of studying how legal services are delivered in other countries and of recommending innovations that would improve the delivery of, and the public’s access to, legal services in the United States.
At the time, this seemed like a great way to organize what could otherwise have become an ever expanding and hard to manage debate, but now that the Commission's final report is out, it is being criticized for a number of reasons.
The Commission presented its final report at the 2016 ABA Annual Meeting and it has already been criticized for avoiding the hardest issues. See here, here and here, for example. The commission stated that courts should be open to innovations in the delivery of legal services and called on them to adopt the ABA Model Regulatory Objectives for the Provision of Legal Services but fell short of taking a specific stance on the more controversial topics. It merely encouraged states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public.” In other words, after two years of work, the Commission encouraged the states to consider what the Commission itself considered during those two years. And, as for the notion of alternative business structures, the Commission’s report’s language is even more tentative. It merely states that “[c]ontinued exploration of alternative business structures (ABS) will be useful.”
Thus, while the ABA’s Commission took steps to open the door to innovative approaches to the delivery of legal services, even considering allowing alternative business structures and non-lawyer service providers, the ABA itself continues to avoid embracing some of those approaches. As expressed by one commentator, even though the report documents the successful use of non lawyer legal services providers (LSPs) in a number of jurisdictions,
Moreover, as a result of the Commission’s report, the ABA has done what it does all too often. It created yet another Commission – or, in this case, a Center – to be chaired by one of the co-chairs of the ABA Commission on the Future of Legal Services, to continue studying the issues. This new Center, to be known as The Center for Innovation, will be responsible for “driving innovation in the justice system and the legal profession” by, among other possibilities, serving as a resource for ABA members, maintaining an inventory of the ABA’s innovation efforts as well as the efforts of the domestic and international legal services community, and operating a program of “innovative fellowships” to work with other professionals, such as technologists, entrepreneurs and design professionals, to create models that improve the justice system.
How these goals can be achieved, of course, is the real challenge that lies ahead.
In addition to recommending the creation of the Innovation Center, the Report lists 11 specific recommendations, most of which are general and things that no one would disagree with. For example:
1. The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.
2. The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.
3. The criminal justice system should be reformed.
4. Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services.
5. Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.
6. The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.
7. Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process.
8. All members of the legal profession should keep abreast of relevant technologies.
[Note that idea has been incorporated into the Model Rules and into the rules of most states by now.]
Then there is this interesting recommendation:
9. Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.
I am not sure I understand this one. The report reminds us that most Americans don't have access to legal representation, but at the same time it recommends that all Americans go get a legal check up regularly.
Finally, there are the recommendations that are going to be the center of criticism of the Commission:
10. The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.
I am not sure how to interpret this recommendation. Is the Commission endorsing eliminating the ban on allowing lawyers to form partnerships with non-lawyers or something less controversial? I am not sure. My guess is that working on this recommendation will be part of the new Center's goal.
11. Courts should consider regulatory innovations in the area of legal services delivery.
OK, but, as stated above, this is kind of an empty recommendation because all the Commission does is recommend that state courts consider that which the Commission has been considering for the last two years. I would have preferred to see something more concrete.
Also, it is interesting that rather than recommend the use of innovative ways to provide access to legal services, the Commission is recommending the adoption of innovative regulation to manage the delivery of legal services.
UPDATE (8-23-16): A few days after I posted this, I posted a link to an interview with one of the founders of LegalZoom with more criticism of the Commission's report. The same website that published that interview, now has a column by the co-chairs of the Commission in which they respond to the criticism. You can read it here. They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative. Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach. I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete.
UPDATE (8-24-16): Another member of the Commission has posted a reply to some of the criticism here.
UPDATE (10-23-16): The Legal Talk Network has posted a podcast discussing the Commission's report.
At the time, this seemed like a great way to organize what could otherwise have become an ever expanding and hard to manage debate, but now that the Commission's final report is out, it is being criticized for a number of reasons.
The Commission presented its final report at the 2016 ABA Annual Meeting and it has already been criticized for avoiding the hardest issues. See here, here and here, for example. The commission stated that courts should be open to innovations in the delivery of legal services and called on them to adopt the ABA Model Regulatory Objectives for the Provision of Legal Services but fell short of taking a specific stance on the more controversial topics. It merely encouraged states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public.” In other words, after two years of work, the Commission encouraged the states to consider what the Commission itself considered during those two years. And, as for the notion of alternative business structures, the Commission’s report’s language is even more tentative. It merely states that “[c]ontinued exploration of alternative business structures (ABS) will be useful.”
Thus, while the ABA’s Commission took steps to open the door to innovative approaches to the delivery of legal services, even considering allowing alternative business structures and non-lawyer service providers, the ABA itself continues to avoid embracing some of those approaches. As expressed by one commentator, even though the report documents the successful use of non lawyer legal services providers (LSPs) in a number of jurisdictions,
rather than explicitly endorse wider use of LSPs, the commission passes the buck, calling on courts to “examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially authorized and regulated legal services providers.”
With regard to companies that use technology to deliver legal services, the commission finds that “in many instances, these innovative LSP entities have positively contributed to the accessibility of legal services.” Here again, however, the commission takes the route of recommending further study, calling on states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services.”
. . . .
. . . No one can deny that the future of legal services hinges on how we, as a profession, answer critical questions about evolving business models, evolving service-delivery models, and emerging technologies. Yet on these questions, the commission falls short of taking bold and decisive stands, instead recommending further study and consideration.
Moreover, as a result of the Commission’s report, the ABA has done what it does all too often. It created yet another Commission – or, in this case, a Center – to be chaired by one of the co-chairs of the ABA Commission on the Future of Legal Services, to continue studying the issues. This new Center, to be known as The Center for Innovation, will be responsible for “driving innovation in the justice system and the legal profession” by, among other possibilities, serving as a resource for ABA members, maintaining an inventory of the ABA’s innovation efforts as well as the efforts of the domestic and international legal services community, and operating a program of “innovative fellowships” to work with other professionals, such as technologists, entrepreneurs and design professionals, to create models that improve the justice system.
How these goals can be achieved, of course, is the real challenge that lies ahead.
In addition to recommending the creation of the Innovation Center, the Report lists 11 specific recommendations, most of which are general and things that no one would disagree with. For example:
1. The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.
2. The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.
3. The criminal justice system should be reformed.
4. Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services.
5. Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.
6. The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.
7. Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process.
8. All members of the legal profession should keep abreast of relevant technologies.
[Note that idea has been incorporated into the Model Rules and into the rules of most states by now.]
Then there is this interesting recommendation:
9. Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.
I am not sure I understand this one. The report reminds us that most Americans don't have access to legal representation, but at the same time it recommends that all Americans go get a legal check up regularly.
Finally, there are the recommendations that are going to be the center of criticism of the Commission:
10. The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.
I am not sure how to interpret this recommendation. Is the Commission endorsing eliminating the ban on allowing lawyers to form partnerships with non-lawyers or something less controversial? I am not sure. My guess is that working on this recommendation will be part of the new Center's goal.
11. Courts should consider regulatory innovations in the area of legal services delivery.
OK, but, as stated above, this is kind of an empty recommendation because all the Commission does is recommend that state courts consider that which the Commission has been considering for the last two years. I would have preferred to see something more concrete.
Also, it is interesting that rather than recommend the use of innovative ways to provide access to legal services, the Commission is recommending the adoption of innovative regulation to manage the delivery of legal services.
UPDATE (8-23-16): A few days after I posted this, I posted a link to an interview with one of the founders of LegalZoom with more criticism of the Commission's report. The same website that published that interview, now has a column by the co-chairs of the Commission in which they respond to the criticism. You can read it here. They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative. Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach. I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete.
UPDATE (8-24-16): Another member of the Commission has posted a reply to some of the criticism here.
UPDATE (10-23-16): The Legal Talk Network has posted a podcast discussing the Commission's report.
Monday, August 1, 2016
Florida adopts amendments to rules that may make it improper for lawyers to participate in Avvo Legal Services and other similar "matching" sites
Original post (July 11, 2016); Update below:
I recently posted a note on a recent opinion in Ohio which essentially concludes it is unethical for lawyers to participate in services like Avvo's Legal Services. (I happen to think that, as presently constituted, participating in Avvo Legal Services is unethical pretty much anywhere (see here, here and here), but not everyone agrees with me.)
Now comes news that the Florida Bar is considering certain amendments to its rules on referral services, which, depending on how they are interpreted, may also make it unethical to participate in Avvo's services.
Avvo Legal Services can argue it should not be considered a referral service, but the proposed Florida rule is apparently designed to defeat that argument by eliminating the distinction between referral services and "lead generators" - which is what Avvo is. The new Florida rule holds that any private entities that connect consumers looking for legal services with lawyers are to be called “qualifying providers” regardless of whether they are a “traditional” referral service or a technology-based provider (AVVO, LegalZoom).
Once all the different services are in the same category, whether they are lead generators or referral services does not make a difference. And the other important change to the rule is that it says that a lawyer can participate in private, for profit service only if the lawyer receives no fee or charge that is a division or sharing of fees unless the provider is The Florida Bar Lawyer Referral Service or a referral service approved by the Florida Bar.
As I have discussed elsewhere, Avvo disputes that its payment structure constitutes fee sharing, but I think the argument can easily be made that it is. In such a case, therefore, unless the Florida Bar has "approved" Avvo as a referral service in Florida - which I doubt - than Florida lawyers would be violating the rules by participating in Avvo's Legal Services.
You can find the redline version of the proposed rule and its comment here. Lawyers Ethics Alert Blog has more information here.
UPDATE (8/1/16): The Board of Governors met on Friday, July 29, 2016 in Miami Beach and approved the proposed revisions. Lawyer Ethics Alert Blog has more details here.
I recently posted a note on a recent opinion in Ohio which essentially concludes it is unethical for lawyers to participate in services like Avvo's Legal Services. (I happen to think that, as presently constituted, participating in Avvo Legal Services is unethical pretty much anywhere (see here, here and here), but not everyone agrees with me.)
Now comes news that the Florida Bar is considering certain amendments to its rules on referral services, which, depending on how they are interpreted, may also make it unethical to participate in Avvo's services.
Avvo Legal Services can argue it should not be considered a referral service, but the proposed Florida rule is apparently designed to defeat that argument by eliminating the distinction between referral services and "lead generators" - which is what Avvo is. The new Florida rule holds that any private entities that connect consumers looking for legal services with lawyers are to be called “qualifying providers” regardless of whether they are a “traditional” referral service or a technology-based provider (AVVO, LegalZoom).
Once all the different services are in the same category, whether they are lead generators or referral services does not make a difference. And the other important change to the rule is that it says that a lawyer can participate in private, for profit service only if the lawyer receives no fee or charge that is a division or sharing of fees unless the provider is The Florida Bar Lawyer Referral Service or a referral service approved by the Florida Bar.
As I have discussed elsewhere, Avvo disputes that its payment structure constitutes fee sharing, but I think the argument can easily be made that it is. In such a case, therefore, unless the Florida Bar has "approved" Avvo as a referral service in Florida - which I doubt - than Florida lawyers would be violating the rules by participating in Avvo's Legal Services.
You can find the redline version of the proposed rule and its comment here. Lawyers Ethics Alert Blog has more information here.
UPDATE (8/1/16): The Board of Governors met on Friday, July 29, 2016 in Miami Beach and approved the proposed revisions. Lawyer Ethics Alert Blog has more details here.
Monday, June 27, 2016
North Carolina legislature amends definition of practice of law as part of agreement with Legal Zoom
Last December I reported that the North Carolina Bar and Legal Zoom reached a consent agreement which suspended the litigation between them for two years
or until the legislature approved an amendment to the
definition of the practice of law.
The amendment was finally approved about a week ago when the House and the Senate both unanimously passed House Bill 436 after a conference committee spent months negotiating the final language in the bill.
The measure now heads to Gov. Pat McCrory.
The bill redefines the term "practice of law" in the state by exempting services that provide blank legal documents. The services must register with the State Bar every year, and each type of document must be reviewed and approved by a licensed North Carolina attorney before going online. The services also must include a disclaimer that the online documents aren't a substitute for seeking legal advice, and any customer satisfaction disputes must be referred to the State Bar.
The amendment was finally approved about a week ago when the House and the Senate both unanimously passed House Bill 436 after a conference committee spent months negotiating the final language in the bill.
The measure now heads to Gov. Pat McCrory.
The bill redefines the term "practice of law" in the state by exempting services that provide blank legal documents. The services must register with the State Bar every year, and each type of document must be reviewed and approved by a licensed North Carolina attorney before going online. The services also must include a disclaimer that the online documents aren't a substitute for seeking legal advice, and any customer satisfaction disputes must be referred to the State Bar.
Sunday, June 19, 2016
Attention Ohio Lawyers: PR Board finds participating in programs like Avvo Legal Services is likely unethical
Just a few weeks ago the Professional Responsibility Board of the Supreme Court of Ohio issued an advisory opinion on whether it is ethical to participate in certain internet programs that "match" prospective clients with available lawyers. The opinion does not mention any such services specifically by name but given the description of the services, it is clear (at least to me) that one of the programs at issue is Avvo Legal Services. The opinion concludes that the business model of these types of services present many ethical concerns and that because of at least some of them, participating in them might be unethical.
The opinion starts by explaining the question presented as follows:
I don’t think that the hypothetical business model described in the Ohio Board’s opinion is a referral service because the consensus on whether online matching services constitute “lawyer referral services” turns on whether such services utilize someone exercising discretion, such as an intake worker answering a telephone, when determining which attorneys to recommend to which clients based upon some stated criteria. See ABA Standing Committee on Lawyer Referral and Information Service, The Regulation of Lawyer Referral Services: A Preliminary State by State Review, page 5.
Thus, if the program at issue simply creates and provides a list of potential lawyers from which potential clients can choose who they want to hire, the argument that the program is a referral service is weaker. In such a case, the program is more akin to a “lead generator,” a type of business model that is mentioned specifically in the Comment to Model Rule of Professional Conduct 7.2 which bans giving anything of value to a person for recommending the lawyer’s services.
In Ohio, however, the key is not a ban on paying a fee, even if that fee is calculated as a percentage of the legal fee earned on the referred matter. The key is whether the referral service is registered with the Supreme Court of Ohio. If the service is not registered with the Court or if it does not follow all the requirements imposed by the Court’s regulations, participating in the service is unethical.
The Board then goes on to discuss other concerns including the duty of a lawyer to supervise non lawyers, the possibility of lawyers facilitating the practice of law by non lawyers, the possible interference with a lawyer's independent professional judgment, the sharing of fees with non lawyers and possible violations of the duty to keep client money in a trust account. This is not surprising to me since these are some of the issues I have argued create problems for lawyers participating in Avvo's Legal Services.
You can read the Ohio Board's Opinion here.
The opinion starts by explaining the question presented as follows:
A lawyer seeks guidance regarding whether a particular business model involving online lawyer referrals is permissible under the Rules of Professional Conduct and the Rules for the Government of the Bar of Ohio. The proposed business model is an online referral service that matches a prospective client with a lawyer for a particular legal service. Although the client chooses the lawyer, the company defines the types of legal services offered, the scope of the representation, the fees charged, and other parameters of the legal representation. Additionally, the model requires a lawyer to pay a “marketing fee,” for each completed client matter. The “marketing fee” is based on the fee generated from the completed individual legal matter.Based on this description, the opinion concludes that the business model at issue constitutes a “referral service” regardless of how the company running it describes itself. I am not sure I agree with this conclusion.
I don’t think that the hypothetical business model described in the Ohio Board’s opinion is a referral service because the consensus on whether online matching services constitute “lawyer referral services” turns on whether such services utilize someone exercising discretion, such as an intake worker answering a telephone, when determining which attorneys to recommend to which clients based upon some stated criteria. See ABA Standing Committee on Lawyer Referral and Information Service, The Regulation of Lawyer Referral Services: A Preliminary State by State Review, page 5.
Thus, if the program at issue simply creates and provides a list of potential lawyers from which potential clients can choose who they want to hire, the argument that the program is a referral service is weaker. In such a case, the program is more akin to a “lead generator,” a type of business model that is mentioned specifically in the Comment to Model Rule of Professional Conduct 7.2 which bans giving anything of value to a person for recommending the lawyer’s services.
In Ohio, however, the key is not a ban on paying a fee, even if that fee is calculated as a percentage of the legal fee earned on the referred matter. The key is whether the referral service is registered with the Supreme Court of Ohio. If the service is not registered with the Court or if it does not follow all the requirements imposed by the Court’s regulations, participating in the service is unethical.
The Board then goes on to discuss other concerns including the duty of a lawyer to supervise non lawyers, the possibility of lawyers facilitating the practice of law by non lawyers, the possible interference with a lawyer's independent professional judgment, the sharing of fees with non lawyers and possible violations of the duty to keep client money in a trust account. This is not surprising to me since these are some of the issues I have argued create problems for lawyers participating in Avvo's Legal Services.
You can read the Ohio Board's Opinion here.
Thursday, April 28, 2016
Podcast: interview with Legal Zoom
Monday, March 28, 2016
Another podcast on artificial inteligence and the practice of law
Back in August of last year, I posted a podcast on artificial intelligence and the practice of law (see here). My intro was as follows: "Have you seen the newest commercial for LegalZoom in which lawyers say
"I am definitely not a robot!"? This line is a reference to recent
debates as to whether lawyers can (or will be) replaced by robots or
computers in the future. Interestingly, some lawyers have been replaced by computers already by a computer program that allows parties to resolve disputes
without the need for lawyers, mediators or arbitrators. But I don't
think we need to worry about all lawyers being replaced ....yet, at
least"
The issue of artificial intelligence is back in the news and here is a new podcast courtesy of the Legal Talk Network: "Artificial intelligence has long been a tool for lawyers to perform their tasks more efficiently. However, the technology has advanced to the point where computers can now perform many of the tasks that were once the exclusive domain of humans. In this month’s Asked and Answered, the ABA Journal’s Victor Li talks to freelance writer Julie Sobowale about how artificial intelligence is revolutionizing the practice of law."
You can listen to the podcast by pressing the play button below or by going here.
The issue of artificial intelligence is back in the news and here is a new podcast courtesy of the Legal Talk Network: "Artificial intelligence has long been a tool for lawyers to perform their tasks more efficiently. However, the technology has advanced to the point where computers can now perform many of the tasks that were once the exclusive domain of humans. In this month’s Asked and Answered, the ABA Journal’s Victor Li talks to freelance writer Julie Sobowale about how artificial intelligence is revolutionizing the practice of law."
You can listen to the podcast by pressing the play button below or by going here.
Monday, January 11, 2016
Utah getting close to allowing non-lawyers to provide some legal services
As I have argued before,
the "hottest" issue in professional responsibility today is the notion
of "innovation" which is shorthand for a discussion on new approaches to
providing legal services. And one of the most important recent
developments on the subject was the approval of a proposal in Washington
state to allow (and to regulate) the provision of limited legal
services
by state certified legal technicians (known as Limited License Legal
Technicians, or LLLTs). I discussed this development here, here and, most recently, here.
Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia—have created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.” But Utah is the only jurisdiction where such a task force, which received its charge from its state supreme court, has finalized a recommendation.
Based on the recommendation, the Utah Supreme Court has given preliminary approval to a program that would authorize “licensed paralegal practitioners” (LPPs) to engage in the practice of law on a limited basis by performing discrete legal tasks in specified practice areas. The Court will now form a committee to make recommendations on numerous unresolved details—including the scope of the services LPPs will be allowed to perform, the practice areas they will be confined to and the regulatory framework for licensing LPPs and overseeing their conduct.
The recommendation urges to the court to authorize LPPs to perform limited tasks in three practice areas: family law, eviction and debt collection within which they would be allowed to provide limited client counseling, help with forms, represent a client in mediated negotiations, explain another party's documents and prepare settlement agreements, among other things.
Interestingly, although not surprisingly, the task force expects there will be significant “opposition from lawyers” which could be one “barrier to establishing a paraprofessional program.” Sixty percent of those responding to a 2015 survey said they disagree with the proposal, with many expressing concerns that the public needs access to qualified counsel, rather than to unqualified counsel in what is a highly complex area of the law which can impact the client significantly for years to come.
For more information, you can check out the ABA/BNA Lawyers' Manual on Professional Responsibility, 31 Law. Man. Prof. Conduct 760.
Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia—have created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.” But Utah is the only jurisdiction where such a task force, which received its charge from its state supreme court, has finalized a recommendation.
Based on the recommendation, the Utah Supreme Court has given preliminary approval to a program that would authorize “licensed paralegal practitioners” (LPPs) to engage in the practice of law on a limited basis by performing discrete legal tasks in specified practice areas. The Court will now form a committee to make recommendations on numerous unresolved details—including the scope of the services LPPs will be allowed to perform, the practice areas they will be confined to and the regulatory framework for licensing LPPs and overseeing their conduct.
The recommendation urges to the court to authorize LPPs to perform limited tasks in three practice areas: family law, eviction and debt collection within which they would be allowed to provide limited client counseling, help with forms, represent a client in mediated negotiations, explain another party's documents and prepare settlement agreements, among other things.
Interestingly, although not surprisingly, the task force expects there will be significant “opposition from lawyers” which could be one “barrier to establishing a paraprofessional program.” Sixty percent of those responding to a 2015 survey said they disagree with the proposal, with many expressing concerns that the public needs access to qualified counsel, rather than to unqualified counsel in what is a highly complex area of the law which can impact the client significantly for years to come.
For more information, you can check out the ABA/BNA Lawyers' Manual on Professional Responsibility, 31 Law. Man. Prof. Conduct 760.
Monday, January 4, 2016
Detailed comment on New York's new rule on temporary admission to practice
Wednesday, December 30, 2015
New York amends its rules; allows lawyers from other jurisdictions to temporarily practice in New York
The ABA/BNA Lawyer's Manual on Professional Responsibility is reporting that "[l]awyers licensed outside New York are finally allowed to engage in temporary law practice in the Empire State, thanks to a new court rule adopted Dec. 10.
With this long-awaited step, New York became the 47th state to adopt a version of ABA Model Rule 5.5 on multijurisdictional practice. The new temporary practice rule goes into effect Dec. 30, or as soon as certain steps required by New York judiciary law are completed. The New York rule differs from the MJP rules of other states in a couple of ways. Most notably, it allows temporary practice not just by lawyers licensed in other U.S. jurisdictions, but also by lawyers who are authorized to practice law in a non-U.S. jurisdiction. Also, New York's new MJP rule is a rule of attorney admission rather than a rule of professional conduct. This approach enabled MJP to be adopted in New York without getting approval from the presiding justices of the four appellate divisions, as is required for professional conduct rules."
The ABA/BNA Lawyer's Manual on Professional Responsibility has the full story at 31 Law. Man. Prof. Conduct 758 (here).
The ABA/BNA Lawyer's Manual on Professional Responsibility has the full story at 31 Law. Man. Prof. Conduct 758 (here).
Friday, December 25, 2015
A conversation with LegalZoom's CEO
The Lawyerist has a podcast on LegalZoom with its CEO, John Suh, in which the hosts talk about the nuts and bolts of how LegalZoom builds documents, the role LegalZoom plays in access to justice, its brushes with various states’ ethics boards, the ways LegalZoom partners with lawyers to deliver legal services, which it claims is more effective than LegalZoom or lawyers could do alone and about "why lawyers should stop treating LegalZoom like the bogeyman." Go here to listen to the program/
Wednesday, December 9, 2015
Legal Zoom settles case vs North Carolina Bar
The stories regarding whether LegalZoom is engaged in the unauthorized practice of law (UPL) go back many years. I have posts on this issue on this blog from the very first year I started it. The first story I posted on this is from 2010, here and here, when the company was sued in Missouri for allegedly violating the rules regarding UPL. That claim was eventually settled. See here.
Then in 2011 it was LegalZoom which took the offensive and sued the North Carolina Bar challenging its application of the rules regarding UPL. See here.
Now comes news that LegalZoom's claim against the North Carolina State Bar has been settled. (Forbes). According to the story, under the terms of the settlement the state bar has agreed to support legislation that would clarify the definition of “unauthorized practice of law,” which currently is open to various interpretations and was used by the bar to challenge LegalZoom.
This is becoming one of the most important debates for the profession. The ABA has announced a partnership with Rocket Lawyer (Legal Zoom's competition), and has created a Commission on the Future of Legal Services to study other innovative approaches to providing legal services.
The ABA has been slow to adopt meaningful change to its rules and views on innovation and it is not clear at this point what the recommendations of the Commission will be. Also, the recommendations one similar state commission were not entirely well received (here). But whatever happens, the ongoing and future debate on these issues (usually bundled under the catchphrase (or catch-word, rather) "innovation") will be interesting.
Lawyer Ethics Alert Blog has more on the story here. (10/28/15)
For more on LegalZoom go here, here and here.
UPDATE (12-9-15): In my original post (above) I stated the case was "settled" and referred to the terms of the "settlement." To be accurate, though, the parties agreed to a "consent judgment" in the case, the terms of which are summarized by the North Carolina State Bar here. You can also read the full text of the consent judgment here. One important point not mentioned before is that the consent agreement does not terminate the litigation but merely suspends it for two years or until the legislature approves the proposed legislation to amend the definition of the practice of law. If this is not achieved within two years, the agreement states the parties can resume the litigation. If the parties resume litigation, they will be free to pursue all claims and defenses that were available to them before the Consent Judgment was entered.
Then in 2011 it was LegalZoom which took the offensive and sued the North Carolina Bar challenging its application of the rules regarding UPL. See here.
Now comes news that LegalZoom's claim against the North Carolina State Bar has been settled. (Forbes). According to the story, under the terms of the settlement the state bar has agreed to support legislation that would clarify the definition of “unauthorized practice of law,” which currently is open to various interpretations and was used by the bar to challenge LegalZoom.
This is becoming one of the most important debates for the profession. The ABA has announced a partnership with Rocket Lawyer (Legal Zoom's competition), and has created a Commission on the Future of Legal Services to study other innovative approaches to providing legal services.
The ABA has been slow to adopt meaningful change to its rules and views on innovation and it is not clear at this point what the recommendations of the Commission will be. Also, the recommendations one similar state commission were not entirely well received (here). But whatever happens, the ongoing and future debate on these issues (usually bundled under the catchphrase (or catch-word, rather) "innovation") will be interesting.
Lawyer Ethics Alert Blog has more on the story here. (10/28/15)
For more on LegalZoom go here, here and here.
UPDATE (12-9-15): In my original post (above) I stated the case was "settled" and referred to the terms of the "settlement." To be accurate, though, the parties agreed to a "consent judgment" in the case, the terms of which are summarized by the North Carolina State Bar here. You can also read the full text of the consent judgment here. One important point not mentioned before is that the consent agreement does not terminate the litigation but merely suspends it for two years or until the legislature approves the proposed legislation to amend the definition of the practice of law. If this is not achieved within two years, the agreement states the parties can resume the litigation. If the parties resume litigation, they will be free to pursue all claims and defenses that were available to them before the Consent Judgment was entered.
Thursday, August 6, 2015
Short article on issues related to unauthorized practice of law claims against non lawyer providers of legal services
If I had to pick what is the "hottest" issue in professional responsibility today, I would say it is a collection of issues all related to the notion of unauthorized practice of law, and the "threat" of competition from non lawyers in the provision of legal services. This includes issues related to DIY legal services, such as those provides by LegalZoom and others, the regulation of non lawyers to provide legal services, artificial intelligence, and so on. It is no accident that the ABA recently created a commission on the future of the practice of law to study these types of questions.
This is why a recently published comment in the NY Legal Ethics Reporter is so relevant. It is called Virtually Unclear: Will Legal Tech Companies Bridge Justice Gap or Fall into UPL Abyss? and you can read it here.
This is why a recently published comment in the NY Legal Ethics Reporter is so relevant. It is called Virtually Unclear: Will Legal Tech Companies Bridge Justice Gap or Fall into UPL Abyss? and you can read it here.
Second Circuit on what constitutes "the practice of law" and its implications for issues related to unauthorized practice and more (including artificial intelligence)
The United States Court of Appeals for the Second Circuit recently issued an opinion in an interesting case with important implications for the definition of what it constitutes to practice law, which in turn is important to the broader debates on who can practice law, whether lawyers can practice in jurisdictions where they are not admitted and whether companies that provide legal services by non lawyers are practicing law illegally.
The case involved a lawyer who was hired to conduct document review by a law firm. The lawyer was licensed in California but not in North Carolina where the document review would take place. The lawyer, who typically worked 45-55 hours per week, sued because he was not paid overtime as required by the Fair Labor Standards Act. However, because the FLSA does not apply to the “practice of law,” the court had to determine if he was engaged in the practice of law or was merely performing clerical or other ministerial tasks.
The court held the lawyer was not engaged in the practice of law under the circumstances, which raises the question of whether we can agree on a definition for what constitutes the practice of law.
The best discussion of the case and it implications I have seen is at the Faculty Lounge, here, and it is worth reading (including the comments). You can read the opinion itself here.
The Legal Profession Blog has a summary here and Above the Law has a short comment here.
What does this have to do with "artificial intelligence," the subject of my two previous posts today? Two things: 1. part of the reasoning by the court was based on the argument that what the lawyer was doing could be performed by a machine, implying it did not require any independent professional judgment. Whether that is true or convincing remains a matter of debate, but that was part of the reasoning. 2. to the extent that work usually performed by lawyers can be done by a machine, then companies that provide those services either by machines or non lawyers can defend against accusations of violating rules or statutes against the unauthorized practice of law.
The case involved a lawyer who was hired to conduct document review by a law firm. The lawyer was licensed in California but not in North Carolina where the document review would take place. The lawyer, who typically worked 45-55 hours per week, sued because he was not paid overtime as required by the Fair Labor Standards Act. However, because the FLSA does not apply to the “practice of law,” the court had to determine if he was engaged in the practice of law or was merely performing clerical or other ministerial tasks.
The court held the lawyer was not engaged in the practice of law under the circumstances, which raises the question of whether we can agree on a definition for what constitutes the practice of law.
The best discussion of the case and it implications I have seen is at the Faculty Lounge, here, and it is worth reading (including the comments). You can read the opinion itself here.
The Legal Profession Blog has a summary here and Above the Law has a short comment here.
What does this have to do with "artificial intelligence," the subject of my two previous posts today? Two things: 1. part of the reasoning by the court was based on the argument that what the lawyer was doing could be performed by a machine, implying it did not require any independent professional judgment. Whether that is true or convincing remains a matter of debate, but that was part of the reasoning. 2. to the extent that work usually performed by lawyers can be done by a machine, then companies that provide those services either by machines or non lawyers can defend against accusations of violating rules or statutes against the unauthorized practice of law.
Another post on Artificial Intelligence
The Law Technology Today blog has just posted a panel discussion on artificial intelligence (the subject of my most recent post, below). In it, the panelists discuss five questions about AI and lawyers. You can read the roundtable discussion here.
Podcast on lawyers and articificial intelligence
Have you seen the newest commercial for LegalZoom in which lawyers say "I am definitely not a robot!"? This line is a reference to recent debates as to whether lawyers can (or will be) replaced by robots or computers in the future.
Interestingly, some lawyers have been replaced by computers already by a computer program that allows parties to resolve disputes without the need for lawyers, mediators or arbitrators. But I don't think we need to worry about all lawyers being replaced ....yet, at least.
In a recent episode of The Kennedy-Mighell Report, the hosts discuss issues related to artificial intelligence and lawyers, try to eparate myth from reality, and ponder whether AI can take over the work of lawyers. They discuss the definition of AI, robotics, Technology Assisted Review, driverless cars, document assembly software, LegalZoom and how lawyers are assisted or threatened by these technologies.
You can access the podcast by clicking on the play button below. If you don't see the button below, you can go here.
Interestingly, some lawyers have been replaced by computers already by a computer program that allows parties to resolve disputes without the need for lawyers, mediators or arbitrators. But I don't think we need to worry about all lawyers being replaced ....yet, at least.
In a recent episode of The Kennedy-Mighell Report, the hosts discuss issues related to artificial intelligence and lawyers, try to eparate myth from reality, and ponder whether AI can take over the work of lawyers. They discuss the definition of AI, robotics, Technology Assisted Review, driverless cars, document assembly software, LegalZoom and how lawyers are assisted or threatened by these technologies.
You can access the podcast by clicking on the play button below. If you don't see the button below, you can go here.
Tuesday, July 28, 2015
Podcast on the ABA Commission on the Future of Legal Services
As everyone knows, the legal service industry has been changing rapidly. Some jurisdictions allow non lawyers to provide some legal services, companies provide access to legal documents and forms and many potential clients are now looking online for solutions to legal problems. On the other hand, there is still a large percentage of the population without access to the legal services they need. In order to deal with this emerging legal marketplace shift, American Bar Association President William Hubbard formed the ABA Commission on the Future of Legal Services.
The Digital Edge has posted a podcast discussing the Commission on the Future of Legal Services and its specific plans for looking into solutions. You can listen to the podcast by pressing on the play button below. If you can't see the button you can go here.
The Digital Edge has posted a podcast discussing the Commission on the Future of Legal Services and its specific plans for looking into solutions. You can listen to the podcast by pressing on the play button below. If you can't see the button you can go here.
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