1. Bar authorities and courts too often take extreme, over-literal views of the professional “ethics” rules that shape the legal services market.
2. Unsurprisingly, their interpretations frequently just protect attorneys from unwanted competition — not protecting clients from fraud or abuse.
As a lawyer, I take a strict, traditionalist view of legal “ethics” rules that truly pertain to honesty: Don’t lie to a judge, never allow yourself to be in a conflict with your client’s interest, etc.
And on eight or nine occasions I have withdrawn from representing a client where I believed that following their wishes would have the effect of making a misrepresentation to a counter-party in a deal, to a government official, or to a court (and where the client refused to make a disclosure I proposed to restore honesty to the situation).
But I believe that most of the “ethics” rules shaping the legal services market are little or no use in guarding clients from harm. Instead, they mostly protect lawyers from unwanted competition:
- Part 2 — U.S. lawyers can’t practice law as part of an accounting firm.
- Part 3 — Where an app connects you to a company that retains a lawyer for your traffic ticket case, and also puts a ceiling on the fine you have to pay, the app company violates legal “ethics” by “practicing law”.
- Part 4 — If a client chooses an attorney after finding them on a client / lawyer matching service, the web listing is “referring” the lawyer to the client — even though it’s the client who selects the lawyer.
Each of the offerings prohibited in the above cases meets a legal need:
- Part 2 — A company needing sophisticated, business-savvy legal representation might welcome access to the Big 4 rather than be confined to conventional law firms or in-house counsel.
- Part 3 — An individual driver might find their traffic ticket a costly annoyance, and welcome the chance to delegate this headache to a competent lawyer, and get reassuring financial guarantees too.
- Part 4 — A would-be client with a legal need, but no acquaintance with lawyers in the relevant field, might appreciate no-cost access to a listing of multiple lawyers from whom to choose — knowing that the website sponsor does not get a cut from any eventual lawyer / client engagement.
In each of the situations described above, the offering is made and the choice would be up to the would-be user. Except that the legal profession seeks to remove that choice from the would-be user under the dubious guise of legal “ethics”.
Each of these positive alternatives has three elements that, I believe, true legal innovation circa 2020 requires:
1. Each involves people other than licensed lawyers in key operational roles — bringing in lawyers only for those roles that require the judgment of a licensed, law school-trained attorney:
- The Big 4 are run by accountants.
- TIKD, the traffic ticket app, is a company that has no lawyers in management (these non-lawyers hire outside lawyers who specialize in traffic tickets).
- The same goes for LegalMatch.com — no lawyers in management — they’re a matching site for clients and lawyers.
2. In contrast to attorneys’ modus operandi which makes them the star of the show (“step back and let me lawyer”), each features a rigorous business process — in which attorneys are merely one element:
- The Big 4 have been creating processes to serve their business clients for decades — conventional law firms typically resist this in the name of lawyer “autonomy” because “every matter is different”.
- In TIKD, the company places the lawyer into the process — the lawyer does not run the process.
- Same for LegalMatch.com, lawyers are passive participants (clients pick them).
3. Each features substantial use of technology — for speed, for reduced cost, and for greater accuracy in work product:
- The Big 4 have been at the cutting edge of technology adoption for decades — conventional law firms remain laggards in this area.
- TIKD is organized around an app on the driver’s mobile phone.
- LegalMatch.com is a web platform.…
To summarize, each of the legal offerings set forth in Parts 2, 3, and 4 of this series featured the above three traits. What rendered each “unethical” — in the eyes of the legal profession — was the fact that lawyers weren’t running the show.
So I conclude this 5-part series with the same question I offered at the outset:
“Might some of these ‘ethics’ rules that regulate the market for legal services actually have more to do with protecting lawyers from unwanted competition than they do with protecting clients?”