Thursday, October 28, 2021

Florida Supreme Court finds that company that provided help with traffic tickets engaged in unauthorized practice of law -- UPDATED

October 17, 2021 (Updates at the end)

Back in 2018, I wrote about a couple of complaints filed in Florida that I argued could challenge the very notion of professional regulation.  In one of them a law firm argued that a technology company was practicing law, while in the other the company challenged the notion of the regulation of the profession under antitrust laws. This second lawsuit (the anti-trust lawsuit) was dismissed, but the Florida Supreme Court just decided the first case.  My original post about this topic is here, and I wrote an update here.

In my original post I explained that "TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license."

At some point between then and now, the company went out of business apparently, but the case continued and in a 4 to 3 opinion issued on October 14, the Florida Supreme Court found that the company did engage in the unauthorized practice of law.  You can read the full opinion here.  The Legal Profession Blog has a good summary here.  Faughnan on Ethics has a comment here.

The court provided a number of reasons to support its conclusion, but, to me, this is the more interesting one:  "an inherent conflict and corresponding risk to the public arises whenever a nonlawyer like TIKD controls and derives its income from the provision of legal services. Like any other business entity, TIKD is motivated by a desire to maintain and increase profitability. When coupled with the provision of legal services to the public, there is a risk that such motives will eventually give rise to a conflict between the profit demands of the nonlawyer and the professional obligations of attorneys to act in the interests of a client. . . .  TIKD is not subject to the Bar’s jurisdiction and, other than Bar discipline proceedings against individual attorneys, there is no means by which to protect the public or guard against such conflicts."

As you can see, this is the "traditional" argument in favor of banning lawyers from forming partnerships with non-lawyers for the provision of legal services.  It is also the argument used against adopting new regulatory schemes such as the ones recently adopted in Utah and Arizona.  A company like the one at issue here probably would be allowed to provide legal services as an alternative business structure in those jurisdictions today.  (This is why I said back in 2018 that the issues raised by the case in Florida went to the core of the regulation of the practice of law.)

But, evidently, a slim majority of the Florida Supreme Court justices are not ready for such regulatory changes and imposed a permanent injunction.

In contrast, Justice Couriel offered a different view in dissent, arguing in part that TIKD did not practice law because it did not provide any legal services to the consumer.  It merely provided a "portal" through which consumers could get (and pay for) legal services provided by Florida lawyers.  

I understand this argument and it makes sense, but it does not quite address the issue of whether the connection between the lawyers and TIKD somehow created a relationship which allowed a non-lawyer to participate with the lawyer in the provision of legal services.  

In the end, I think the question is more complicated than what the dissenters make it sound because of the limiting regulatory scheme within which lawyers in Florida are allowed to practice.  

The question to address is not really whether this case is correctly decided -- it may very well be given the rules that apply now.  The question is whether those rules should be changed.  And the answer to THAT question is playing out in Arizona and Utah.  

UPDATE 10/27/21:  Lawyer Ethics Alert Blog has a comment here.

UPDATE 10/28/21:  The Legal Ethics Advisor Blog has a comment on the decision here.

Sunday, October 17, 2021

New Jersey finds that practicing law remotely is not unauthorized practice of law

New Jersey’s Committee on the Unauthorized Practice of Law joined with the Advisory Committee on Professional Ethics to issue Joint Opinion 59/742 which holds that lawyers who work remotely from a state in which they are not admitted do not necessarily engage in the unauthorized practice of law.  You can read the opinion here, and comments on it here and here.

Sunday, October 10, 2021

ABA issues new formal opinion on the duty of communication with a client when the attorney and client have difficulties understanding each other -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility recently issued a new Formal Opinion (No. 500, October 6, 2021) on an attorney’s duty to communicate with a client when the lawyer and client have difficulty understanding each other.  The summary of the opinion reads as follows:

Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished.  In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary. In addition, particularly when there are language considerations affecting the reciprocal exchange of information, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications, bearing in mind potential differences in cultural and social assumptions that might impact meaning.

You can read the full opinion here.   

Ethical Grounds has a comment on the opinion here.  The ABA Journal has a story here.

UPDATE 10/30/21:  The Legal Ethics Advisor has a comment on the opinion here.

Should Louisiana adopt MR 8.4(g)?

 The Louisiana Legal Ethics blogs recently posted a comment on Model Rule 8.4(g) and on whether Louisiana should adopt it.  It concludes:

In my view, Louisiana either should do nothing at all (like what the committee did), or adopt a simpler anti-discrimination standard that is directly tethered to anti-discrimination laws applicable to Louisiana lawyers. Such anti-discrimination laws would include those enacted by the federal government, the State of Louisiana, and local governments. Doing so would avoid the need for the LSBA to “keep up” with changing notions of what personal characteristics are worthy of class protection. Doing so would also avoid imposing discipline on innocent and merely negligent lawyers. Here is my proposed language:

It is professional misconduct for a lawyer to: . . . (h) engage in conduct in connection with the practice of law that the lawyer knows is unlawful discrimination prohibited by federal, state, or local law. This Rule does not prohibit legitimate advocacy when a protected personal characteristic is relevant to the representation, nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

You can read the full comment here