eLawyering Blog

eLawyering Blog

Lawyers Delivering Legal Services OnLine

North Carolina Lawyers Oppose Access to the Legal System

Posted in Change, Document Automation, Expert Systems, Legal Ethics, Self-Help Law, Unauthorized Practice of Law, Web-Enabled Document Assembly

Greedy Lawyers A bill was introduced in the North Carolina legislature that would narrow the definition of the “practice of law” to exclude sell-help legal materials, including books, software, and legal information. [ See House Bill 663 ]. The text of the amendment is:

“(b) The phrase “practice law” does not encompass any of the following:” …  (2) the design, creation, assembly, completion, publication, distribution, display, or sale, including by means of an Internet Web site, of self-help legal written materials, books, documents, templates, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. “

The bill was reported out favorably of the Senate Committee on June 24, 2014, and will be voted on by the North Carolina Senate on July 9.  The North Carolina Bar Association is opposing passage of the bill.   The real reason for this opposition is  protecting lawyer’s incomes at the expense of easier access to the legal system for consumers. 

Texas has had a similar exemption from the definition of the practice of law for years with no demonstrable harm to the public.

It is well documented that 80% of the U.S. consumer public can’t afford the high cost of legal fees, so self-representation, a constitutional right, is one way for consumers to get access to the legal system. [ North Carolina Const. Art 1 § 18:  [ "All courts shall be open; every person for an injury done him in lands, goods, person, or his reputation shall have remedy by due courts of law, and right and justice shall be administered without favor, denial, or delay." ].

Self-representation enables consumers to resolve their legal problems at low cost. The U.S. Legal Services Corporation has endorsed this approach and funded over 40 states to enable citizens to assemble their own state-specific documents powered by a national document server managed by LawHelp Interactive.com. The Legal Services Corporation has also supported state-wide legal information Web sites. North Carolina also maintains a state-wide legal information Web site to provide tools to self-represented litigants and a legal forms site sponsored by the North Carolina Administrative Office of the Courts.  North Carolina has also automated three sets of interactive forms using the National HotDocs Server designed to enable a self-represented litigant to a pro se litigant appeal an eviction or file for custody in court without a lawyer.

These are the software and legal information tools that the North Carolina Bar seeks to restrict by not clarifying that the provision of self-help  legal publications, interactive software, intelligent Web advisors, and other emerging software-powered tools are not the “unauthorized practice of law.”

Instead of making it easier for citizens to exercise this constitutional right, the North Carolina Bar wants to make it more difficult.

A growing body of academic scholarship suggests that the major obstacle to access to the legal system for those who cannot afford legal services is the legal profession itself. Afraid of competition from new forms of legal solutions enabled by the Internet and more powerful software, the unauthorized practice of law committees of state bar associations target non-law firm Internet legal form web sites, non-lawyer legal document preparers, and other innovative means of enabling access on the theory they are protecting the public interest from harm.

The North Carolina definition of the “practice of law” is so broad it is arguably unconstitutionally vague and includes within it almost any act that results in creating a legal document.  [ See Act ]. Categorizing self-help legal information materials as “the practice of law” is a slippery slope.

In a recent article from Professor Deborah L. Rhode, from Stanford Law School,  & Lucy Buford Ricca, Director of the Center on the Legal Profession, Stanford Law School, titled: Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement., where the authors conducted a national comprehensive review of  unauthorized practice of law enforcement, they conclude that:

A third problem is the lack of focus on the public interest. Although bar leaders and case doctrine insist that broad prohibitions on unauthorized practice serve the public, support for that claim is notable for its absence.  Outside a few contexts such as immigration, foreclosures, and trusts and estates, it is rare for customers to assert injury, or for suits to be filed by consumer-protection agencies.  As noted earlier, three-quarters of jurisdictions reported that fewer than half of their complaints came from consumers or clients, and two-thirds of respondents could not recall a specific case of injury in the last year. Of those who did identify a case, almost all involved immigration. So too, the vast majority of UPL lawsuits filed against cyber-lawyer products are brought by lawyers or unauthorized-practice committees and generally settle without examples of harm.

More directly relevant Professor Renee Newman Knake from Michigan State Law School argues in:  Legal Information, the Consumer Law Market, and the First Amendment, 

“The economic arguments for liberalizing lawyer regulation to facilitate the free flow of information support the First Amendment analysis. Perhaps one state will bravely implement a regulatory structure to expand access to legal information without intervention by the U.S. Supreme Court. If not, as this Article has shown, many of the restrictions governing the organizational form of law practice and the distribution of legal services are constitutionally vulnerable to the extent they constrain the creation and distribution of legal information…”

Marc Lauritsen writing in Chicago Kent Law Review, in an article titled, Liberty, Justice and Legal Automa , (See also, Are We Free to Code the Law?) , concerned that the obstructionism of the organized bar will chill innovation when access to the legal system has become critical, asks whether we are free to code the law.

“It is in the enlightened interest of lawyers, as well as the best interest of society in general, to enable programmatic expression of legal knowledge.  We should be free to write code, run code, and let others run our code. If concerned citizens, law students, and entrepreneurs want to create tools that help people access and interact with the legal system, the government should not get in the way.  Are citizens at liberty to create and share software that helps others understand and interact with the legal system? Are we free to code the law?   We certainly should be.”

Professor Catherine J. Lanctot. from Villanova Law School concludes in an article on the same subject [ "Does LegalZoom Have First Amendment Rights: Some Thoughts about Freedom of Speech and the Unauthorized Practice of Law" Temple Political & Civil Rights Law Review 20 (2011): 255. ], that even if one assumes  that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees.

“To the the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article concludes with a “caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom.”

Conclusion:  10 reasons the North Carolina Bar should support this amendment to the definition of the practice of law:

  1. The legal profession will be viewed more favorably as on the side of the consumer, rather than on then in the side of their pocket books;
  2. A challenge to a publisher that legal software is the unauthorized practice of law is likely to fail on 1st Amendment grounds;
  3. There is a difference between legal software (a “publication” ) and a lawyer providing legal advice. (‘conduct”);
  4. Technology innovation will be encouraged for the benefit of both consumers and lawyers;
  5. It will be clear that the publication of consumer facing web-enabled interactive legal forms by legal aid agencies in North Carolina, and other public agencies,  is not the unauthorized practice of law;
  6. The U.S Department of Justice and the U.S. Federal Trade Commission will have less reason to accuse the North Carolina Bar of anti-competitive behavior; [ See letter to Massachusetts Bar Association from the FTC on this subject ];
  7. Bar leadership can demonstrate that they understand that the legal profession is changing and can help prepare their members for 21st century law practice;
  8. With disclaimers, a consumer will understand the difference between using an interactive software application and receiving advice from a “live” person;
  9. The North Carolina Bar can avoid the charge it restricts access to the legal system;
  10. The North Carolina Bar can avoid the charge it is out of step with contemporary technological developments.
*Disclosure: My Company, SmartLegalForms, Inc.,   provides web-based interactive self-help legal forms directly to consumers and to non-lawyer companies nationally and in the state of North Carolina. [ See for example ]

vLawyer and William McNeil have a Credibility Problem

Posted in Virtual Law Practice

In a widely distributed press release to announce his coaching service in virtual lawyering, Attorney and co-founder of vLawyer Consulting, William McNeil makes this statement:

vLawyer defines a virtual law practice as a blending of a traditional brick-and-mortar law firm and legal services delivered entirely through the Internet and a secure client portal. The American Bar Association has responded by launching an e-lawyering task force, but to this point has only provided guidance for lawyers looking to open virtual law offices where clients never meet with the lawyer in person. This works for certain practice areas, but family law and criminal defense attorneys are left out of this definition. A virtual law practice, as defined by vLawyer, can apply to many different practice areas and gives attorneys the power to design their own lifestyle, while providing top-notch client service. 

This statement is "made-up" stuff.

The eLawyering Task Force of the Law Practice Division of the American Bar Association was not "just launched."  It was established in 2000 by William Paul, then President of the ABA. Nowhere in the statements that the eLawyering Task Force has published has been the representation that virtual lawyering should be limited to law firms that solely deliver legal services without seeing a client.   We have clarified in multiple statements and presentations that the idea of online delivery of legal services should be combined with an off-line face-to-face presence and each delivery mode should support and reinforce the other.

While it is possible to create a virtual law firm pure play where there is no face-to-face presence, it is difficult to make a success of a purely virtual law firm practice.  We expand on this idea in a White Paper, published by DirectLaw, the sponsor of this blog entitled: Virtual Law Practice:  Success Factors.   After working with over 300 law firms that use the DirectLaw virtual law firm platform, we have a good idea of what works and what doesn’t work. Download the White Paper here.

The eLawyering Task Force  minimum requirements for law firms delivering legal services online (October, 2009), provides a framework for further discussion and to define the essential requirements for enabling the delivery of ethically compliant online legal services.  The guidance was not designed to provide recommendations on how every type of law practice should execute on this concept.  

A more expansive discussion of these requirements is contained in an article which just appeared in Legalink Magazine, by Stephanie Kimbro and myself. Ms. Kimbro also served on the Task Force and wrote the book on Virtual Law Practice.  We conclude the article with this thought: 

The idea of A "Virtual Law Practice" will not be only something that early adopters utilize in their law practice – it will become an essential component of every law firm practice."

We welcome Attorney McNeil’s recent entrance into this field as solos and small law firms need all of the coaching and support they can get to adopt their practices to the requirements of 21st century practice.  The eLawyering Task Force is an open group that welcomes discussion of these concepts and their implications. Our next meeting will be during the American Bar Association Annual Meeting in Boston in August, 2014.  To learn more about what we are really doing  come join us. (McNeil that message is for you!).

 

 *Disclosure: Richard Granat is Co-Chair of the eLawyering Task Force, Law Practice Division, American Bar Association.

 

CodeX FutureLaw 2014: Ethics

Posted in Legal Ethics, Unauthorized Practice of Law

CodeX FutureLaw 2014

CodexXFuture Law 2014
 

Guest Post from Will Hornsby with appreciation:

The recent CodeX FutureLaw 2014 Conference brought together all of the usual suspects in the tech law world, seemingly asking the same questions – Why aren’t reforms being adopted that would make our business models unfettered and why isn’t the ABA leading that charge? I had hoped to address those questions more effectively within the ethics panel discussion, but have a sense the Q&A format of that panel was a not a good vehicle to clearly make these points. Hopefully, this post will do a better job of that. 

Two fundamental regulatory obstacles limit online legal service models – the unauthorized practice of law and the ability to capitalize legal services. What we all need to realize clearly and at the beginning of this conversation is that the practice of law and the rules and laws that pertain to these issues are regulated in the US at the state level. This is the difference between the US and the UK and Australia. 

As Prof. Rhode noted, some states basically conclude that the practice of law is what a lawyer does, and therefore anyone doing what a lawyer does is committing the unauthorized practice of law when it is done by someone who is not a lawyer. Many states define the practice of law to include the selection of forms, which is an integral part of some online models. Regardless of the breath of the state definitions, they generally preclude the delivery of legal services by corporate entities that are not law firms. 

So, if you have a model that is delivering legal services, the question is how do you do so in a way that is not the unauthorized practice of law. There seems to be two paths. First, you can proceed on a state-by-state basis. That path can further be divided into court challenges and legislative changes. So, for example, LegalZoom recently prevailed through the courts in South Carolina. Decades ago, the owner of Quicken Family Law lost in the Texas courts and lobbied the state legislature, successfully, to redefine the practice of law in a way that carved out its model. The second path is through federal courts, in anticipation that the issue may come before the US Supreme Court and result in a decision that accommodates your model as the law of the land. 

Why hasn’t the ABA solved this problem? Prof. Rhode indicated the ABA “punted” on the issue when it gave thought to the creation of a model definition of the practice of law many years ago. (Call me a cynic, but I suspect she would have been critical of the definition advanced by the ABA had it come up with one.) What the ABA may have learned from that endeavor was that the states were not interested in a model rule. They, instead, embraced the definitions they have in place and showed no interest in a uniform definition, let alone a more liberal one. Simply put, no one can lead when others are not willing to follow.    

The second issue is related to UPL, but, I think, broader. It involves the capitalization of legal services. Why is it that those who are not lawyers cannot have an ownership interest in law firms? This, of course, is the key issue both for attracting start-up funding and creating an exit strategy where the corporate owner can profit from creating a legal service model. Unlike UPL, the ABA has taken a stance on this- seemingly since the beginning of time. Simply put, when a lawyer is put in the position to either serve the interests of a client or serve the financial interests of the shareholders of a corporate entity that owns the law firm, the ABA believes fidelity to the client should not be compromised. This is perceived as a core value of the legal profession and one that sets it apart from businesses. 

Even though the ABA is not likely to change its position in the foreseeable future, we should again keep in mind that the ABA has no direct force and effect on this issue. Again, the matter is controlled exclusively by the states. Nothing stands in the way of those interested in pursuing capitalization of law firms from doing so in each state, or alternatively pursuing the matter in federal court. 

But, be careful of what you wish for. What happens when the practice of law becomes unregulated and anyone can provide legal services? It is not likely a niche online legal service provider fills that space. Instead, the insurance industry become the resource for estate planning documents, no doubt giving discounts to customers with advance directives that prohibit resuscitation. Financial institutions provide incorporation services for their customers as they now provide trusts. Realtors assume the function of land conveyances. All this low-hanging fruit that had been a profit center for lawyers and is transitioning to online legal service providers is likely to be assumed by industries that will have collateral economic advantages. They will do it cheaper and on a larger scale than any of today’s online providers. As we confront the ethics battleground, it needs to be done strategically, with great precision, down a path that avoids the minefields. 

This is obviously a very superficial analysis, but one that I hope generates further discussion and interest in the ethics aspect of Future Law. 

Project Management for Lawyers at ABA TECH SHOW

Posted in Law Firm Productivity

Legal Project ManagementHere comes Lean for Lawyers! Legal project management in large law firms is becoming a mandatory discipline, rather than a way to differentiate one firm from another. Larger law firms are now marketing their skills in legal project management – the ability to complete a legal assignment on time and within a budget The Law Practice Division of the ABA recently published a book titled: "Legal Project Management for Lawyers in One Hour. " One large law firm, SeyfarthShaw has created an affiliated unit, SeyfarthLean , to apply legal project management technologies plus other lean technologies such as Lean Six Sigma, process management techniques, knowledge management technologies to reduce the price of legal services from 15% to 50%.

Smaller law firms can use off the shelf products like Basecamp, inexpensive and easy to use,  to incorporate legal project management technology into their practices. But these off the shelf products have to be adapted to the law practice environment.

At this last week’s ABA TECHSHOW,  there was one excellent presentation on visual work flow applications by Aaron Brooks  . There were also new developments by vendors on the exhibit floor where project management tools that solos and small law firms can use that embedded into other applications:

mycase,com, a web-based  practice management application has a feature that enables a solo or small law firm practitioner to create task templates and work flows.

LawPal has re-launched its web site as a Trello/Basecamp for lawyers to manage transactions online and securely with their clients. It includes project management, document review, markup, storage and signing as part of version 1. They will be adding guided workflow in the next version to allow firms to further automate their transactions. (Disclosure: Author is an advisor to LawPal).

RocketLawyer has now fully integrated the LawPivot Q&A platform into Rocketlawyer and announced at ABA TECH SHOW a new management tool for its on call network of lawyers which has a Lawyer Dash Board that organizes and manages work flow around the provision of legal advice.

RocketMatter, not to be confused with RocketLawyer, has a feature that enables task tracking. You can drag-and -drop tasks to prioritize them and tag them to assemble a "Gettings Things Done" checklist.

I predict that we will see more legal project management tools built into law practice management applications designed for solos and small law firms. If your company is building legal project management tools for lawyers we would like to know about it. Just let us know in the comment section.

I also think that there will be demand for full-time project managers within larger law firms, or lawyers who have project management skills. To this end, we are a launching this summer an on-line course in Legal Project Management through the Center for Law Practice Technology, Florida Coastal School of Law that initially will be open only to law students. The course is being taught by Mark Lassiter, a consultant to law firms on how to implement project management technologies within a law firm. 

Lean Lawyering is the next big thing.

Two ABA presidents to weigh in on future of legal education

Posted in Legal Education

Legal EducationTwo ABA presidents to weigh in on future of legal education at South Carolina Law Review symposium Feb. 27 – 28.Legal Education

For more information and to register online, go to the South Carolina Law Review website.

Will non-lawyers soon be allowed to provide certain legal services? They might if one of the key conclusions from a recent report by the ABA Task Force on the Future of Legal Education is implemented. (See my blog post on this topic at: Limited Licensing of Legal Technicians: A Good Idea? 

I am participating in this program so I will get another opportunity to air my somewhat contrarian views on whether there should be another licensed class of professionals serving the public directly who are not lawyers. A complicated subject that needs more debate.

The report, released in January, will be the focus of the South Carolina Law Review Symposium Feb. 27 – 28 at the University of South Carolina School of Law. The symposium will explore why law schools and the legal profession must make changes – and what those changes should be – to keep up with the evolving marketplace for legal education and legal services delivery. 

Titled “On Task?: Expanding the Boundaries of Legal Education,” the symposium will take place in the law school’s auditorium. 

The symposium will begin at 4 p.m. Thursday with a panel discussion in response to the Task Force’s report and a keynote address by Jim Silkenat, president of the American Bar Association and partner at Sullivan & Worcester LLP in New York. Silkenat will discuss the legal profession and future of legal education and its impact on law schools, corporate counsel and private attorneys. USC board of trustee, alumnus and ABA president-elect William Hubbard will introduce Silkenat and offer his views on the future of legal education. 

Friday’s sessions, which take place 9 a.m. to 4 p.m. will focus on proposals outlined in the Task Force’s recent report and law schools’ responses to changing markets within—and outside of—the law curriculum. Panels also will address the changing expectations of law firms and clients, new platforms in the delivery of legal services, the growing demand for information management by corporate clients, and the promises and challenges of limited licensing. 

Participants include, among others: 

  •  Elizabeth Chambliss, USC professor of law and director of the Nelson Mullins Riley & Scarborough Center on Professionalism;
  • Steve Crossland, chairman of the Washington Supreme Court Limited License Legal Technician Board;                                          
  •  Barry Currier, managing director of accreditation and legal education, ABA Section of Legal Education and Admissions to the Bar;  
  • Neil Hamilton, professor of law and director of the University of St. Thomas School of Law’s Holloran Center for Ethical Leadership in the Professions; 
  • Renee Knake, professor of law and co-director of Michigan State University College of Law’s Kelly Institute of Ethics and the Legal Profession;  
  • Paula Littlewood, executive director of the Washington State Bar Association;
  •  Hon. Barbara Madsen, chief justice of the Washington Supreme Court;
  • Lisa Rohrer, executive director of executive education and the Case Development Initiative at Harvard Law School; and
  • Ronald Staudt, professor of law and director of Chicago-Kent College of Law’s Center for Access to Justice and Technology.

I am participating on a Panel with my colleague and friend, Ron Staudt, focusing on teaching legal technology in the J.D. curriculum,  a current project of mine through the new Center for Law Practice Technology at Florida Coastal School of Law..

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Legal Start-Ups in the Big Apple

Posted in Law Startups

New York City - legal start-up centerNew York City is starting to rock as a venue for legal start-ups – new ventures targeted at the legal industry. The big event this week will be ReinventLawNYC, sponsored by Michigan State University College of Lawthe Kauffman Foundation, and the ABA Journal,  at Cooper Union. Richard Susskind  will be giving the end note presentation. The event is free, but you need to reserve your ticket in advance. Many members of the NY Legal Hackers Group will be in attendance. LegalTech New York is also happening new week so it will be a busy week for the legal industry.

Below is a list of  legal start-ups in the New York metropolitan area.

Here is what is trending:

  • legal document generation on mobile devices.
  • virtual lawyer consultation as a lead generation mechanism.
  • social networking for lawyers.
     

Legal Document Generation and Document Management Companies

ShakeLaw - document automation on smart phones.
Docracy - crowd-sourced legal documents with signing and execution functions
EverPlans- organize estate planning information, legal document storage, and automated estate planning documents. (disclosure: I work with this company).
CaseRails - Another web-based document automation solution.
Legitimo - Another document automation solution for smart phones, but in English or Spanish. Limited to contracts.
Paperlex – contract management platform.
Clearpath Immigration - Automated immigration filings. Consumer facing.
WhichDraft- legal document automaton platform
 

Lead Generation Web Sites/Companies

LawDingo - Online consultations with lawyers.Video consultations. Q & A platform.
LawVisors- online consultations by smartphone. Q & A platform. Company thinks it offers a form of virtual lawyering, but its really just a lead generation Web Site.
WireLawyer - social networking site for lawyers and crowd-sourced legal documents, Reminds me of the old CounselConnect.
EsqSocial - another networking site for lawyers with lead generation possibilities.
PrioriLegal - another lead generation site connecting New York lawyers to business clients. Similar, and sounds like LawPal, which is based in San Francisco. {Disclosure: I have advised LawPal}.
LawTrades- Another lead generation site promising to connect clients with the "best" lawyers.

Servicing Lawyers: B to B Models
Lawfty – Bringing big data marketing concepts to law firms.
DocketAlarm- API for the U.S. Court System.
AllegoryLaw – web-based litigation support system.

Legal Education and Career Development

Quimbee - online legal education platform for law students, lawyers, and lay persons. (worth watching).
J.D.Stop – social networking site for law students.
ResumeLaunchPad  - apply to law firm jobs across the country in minutes.

On-Line Dispute Settlement

JusticeBox - online dispute settlement platform focused on legal. Competes with Modria which is better financed but not focused solely on legal.

Consumer Legal
PayMyTrustee- simplifies making payments to Chapter 13 bankruptcy trustees by consumers.

 

Limited Licensing of Legal Technicians: A Good Idea?

Posted in Legal Education, Limited Scope Legal Services, Self-Help Law, Standards and Best Practices, Training and Education, Unauthorized Practice of Law

American Bar AssociationThe American Bar Association has issued its draft Report and Recommendations on the Future of Legal Education. You can download it here.

I agree with many of the recommendations of the report which urges law schools to experiment with different modes of legal education, recommends relaxing ABA accreditation rules which impede innovation, and modifies the traditional law curriculum to focus less on the teaching of doctrinal law and more on skills the prepare law students to actually practice law. Many of the recommendations,if adopted, would radically change the structure, focus, and culture of many law schools.

One of the recommendations of the Task Force is the idea of limited licensing of non-lawyers ("legal technicians") to deliver legal services to the public directly without the supervision of a lawyer:

"However, there is today, and there will increasingly be in the future, a need for: (a)persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services. The new system of training and licensing limited practice officers developed by Washington State and now being pursued by others is an example and a positive contribution."

Thus one of the final recommendations of the Task Force Report is:

"Authorize Persons Other than Lawyers with J.D.’s to Provide Limited Legal Services, Whether Through Licensure Systems or Other Mechanisms Assuring Proper Education, Training, and Oversight."

and:

"Develop Educational Programs to Train Persons, other than Prospective Lawyers, to Provide Limited Legal Services. Such Programs May, but Need Not, Be Delivered through Law Schools that are Parts of Universities."

Unlike the other recommendations which deal with fixing legal education, these recommendations are focused on access to justice issues, which requires a different framework for analysis. 

The recommendation to create a new class of limited licensed legal providers, so-called "Legal Technicians" –  needs to be re-evaluated in the light of changing legal industry market dynamics and the accelerating impact of Internet technology on the delivery of legal services.

Just to note, for decades I have been a strong advocate for the idea that trained paralegals should be permitted to serve the public directly, without further licensing or regulation by any state body, other than graduation from an ABA-accredited law school and a few years of experience working in a law firm.  I was formerly President and Dean of the Philadelphia Institute for Paralegal Training, the nation’s first paralegal educational institution, and in that role saw how effective a trained paralegal can be in serving a law firm’s clients.

More recently. the company I founded – DirectLaw - offers a virtual law firm platform for solos and small law firms. If there were a new class of limited license professionals in the market, I would not hesitate to modify our DirectLaw platform to serve limited licensed professionals, opening up a major new market for our virtual service. So personally I have much to gain by a new class of limited license professionals that would serve the public directly.

Only recently have I begun to reconsider the viability of a new class of legal paraprofessionals serving the public directly primarily because of  changes in the market for personal legal services.

I have  reservations about the proposal to license non-lawyers to provide limited legal services. My reservations are in the form of a challenge to the Task Force recommendations on limited-licensing, in the sense that the idea needs further thought and analysis before states rush to adopt these ideas. (despite the fact that Washington State already has a scheme in place, and  California and New York are considering similar proposals). 

Here are my reservations – comments welcome:

  • The data that we have (see for example www.attorneyfee.com) suggests that the pricing of legal services by solo practitioners and very small law firm firms is going down — not up. It is not a fact that the legal fees are out of reach of many consumers. There is an issue of connecting with consumers with lawyers– but it is becoming less of a price issue and more of an "engagement" issue. There is no evidence to suggest that the fees that limited licensed practitioner would charge would be any less than the fees currently charged by solo practitioners, but their service, by definition, would be much more limited than the service offered by an attorney.
     
  • Solo practitioners are already being displaced by technology which is forcing a reduction in legal fees. Limited license practitioners would be even more vulnerable to the impact of information technology on the more routine services that they would offer.
     
  • The restrictive licensing scheme for lawyers, which is based on a "job-shop" model is likely to be replicated in the licensing scheme for "legal technicians." Licensing of legal service professionals based on the "job shop" model creates a high overhead enterprise that is vulnerable to new entrants into the market, e.g., LegalZoom, that are not subject to such restrictions.  Lawyers already suffer from a competitive disadvantage against new market entrants. Legal technicians will face the same competitive disadvantages. I can’t see how the practices of legal technicians, with certain exceptions, will be viable economically. (I have yet to see a business plan of what such a limited license practice would look like that would include the cost of malpractice insurance, office expenses, advertising and marketing expenses, etc.).
     
  • Introduction of a new class of limited licensed professionals will continue to erode the economic model of solo and small law firm practice by sucking out from those practices the more routine legal services which are important to sustaining the economic viability of those law firms. It is naive to suggest that solo practitioners should concentrate on doing "more complex legal work" leaving the routine legal work to "limited license professionals.". If the ABA wants to deliver a death blow to solo practitioners this is a good way to do it. (See: Will California Threaten Lawyer Livelihoods with Legal Technicians?)
     

Creating a new regulatory scheme and educational system for limited licensed professionals is going to be high in cost. It is not likely that law schools and universities will be able to offer education a price point which is much lower than there existing price levels. The result will be that we will have a new class of students being trained in law that who will incur high student loans where the income generated from their practice will be insufficient to amortize the principal and interest, because of limited market prospects and price compression in the legal industry.

  • Many of these new students who aspire to limited licensed professionals professionals are likely to be members of minority groups. Since there will be no hard data on the income prospects for this new class of professionals — just the idea that that once graduate they will be able to compete with lawyers in a limited way – seducing students into a new field where there is no effective demand.
     
  • I can just hear the pitch of commission-based admission’s representatives at a variety of educational institutions who will jump in this market: "Become a licensed legal professional and you can provide legal services like a lawyer."

One result will be the imposition on a group of students excessive loan burdens which will be impossible for them to discharge. (This reminds me of the banking industry preying on minority neighborhoods with fraudulent loans). I would feel more comfortable with an of educational program to train legal technicians if the tuition was very low or free. Since there is no evidence that there is a viable career upon graduation, the risk should be assumed by society, and not the individual student. So if law schools and universities want to jump in this educational market the least they can do it make it tuition free or very low in cost for the first three years, until it is clear that there is a real career after graduation.

I could write more abut this subject, but this post is already long enough. 

 

New Center For Law Practice Technology

Posted in Legal Education

Center for Law Practice TechnologyThere has been much discussion lately on whether law schools are training lawyers for 21st century law practice. At the ABA Annual Meeting this week in San Francisco a Presidential Task Force on the Future of Legal Education is scheduled to report out its recommendations.. In my last blog post, I identified 13 law schools that were making a commitment to training law students in legal technology and law practice management. At one point in my career,  I taught these subjects at several law schools under the guidance of Gary Munneke., — whose untimely death last November has created a vacuum that will be hard to replace.

My own bias is that in this digital age, to be a competent lawyer requires an understanding of legal practice technology. The ABA supports this view as at last year’s mid-year meeting the ABA House of Delegates  acting on the recommendations of the ABA 20/20 Commission, voted to amend the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent in technology. Specifically, the ABA voted to amend the comment to Model Rule 1.1, governing lawyer competence, to say that, in addition to keeping abreast of changes in the law and its practice, a lawyer should keep abreast of “the benefits and risks associated with relevant technology.”

Center for Law Practice TchnologyI have been looking for an opportunity to getting back into teaching law practice technology and now have the opportunity with Stephanie Kimbro to create a new Center for Law Practice Technology with the backing of Florida Coastal School of Law in Jacksonville, Florida.

Stephanie and I will become Co-Directors of this new Center. and the plan is to develop a series of online courses for law students nationwide  that will lead to a Certificate of Law Practice Technology and Management. The first courses will be offered in January, 2014.

The Center will also be a laboratory for developing and testing new forms of online legal services.  Students will have the opportunity to experience virtual law firm technologies and other emerging technology tools such as legal expert systems, document automation technology, and legal applications that are designed to increase access to the legal system. You can read more about this new Center here.

13 Top Law Schools Teaching Law Practice Technology

Posted in Competition, Legal Education, Training and Education, Virtual Law Firms

The eLawyering Task Force of the Law Practice Management Section of the ABA was created in 2000 by then President of the ABA, William Paul. At that initial meeting Gary Munneke, a founding member of the Task Force and the leading law school educator and author on the subject of law practice management and then Chair of the Law Practice Management Section of the ABA (now deceased),  recommended that law schools update their law practice management courses to reflect the impact that the Internet would have on the practice of law.

13 years later there are few law schools that have made a sustained commitment to teaching what the Task Force calls "law practice technology". By "law practice technology" the Task Force does not mean technology and law courses such as Intellectual property courses, patent law courses, courses in copyright, etc.

Instead the Task Force means the intersection of internet technologies and the practice of law.  It is no longer possible to teach law practice management without taking into account the impact of information technology on law practice. We include within this category courses that train law students in document automation, legal expert systems, and other course work that has an impact on the nature, productivity and profitability of law firms.

The Task members believe that to educate law students to be "practice ready",  particularly for law schools where the majority of graduates will end up in solo and small law firm practice, understanding the principles of law practice technology are essential.

The Top Legal Practice Technology Schools Project

In honor and in memory of Gary Munneke, the eLawyering Task Force is working on a project to identify the top law schools teaching legal practice technology today. Our methodology is to review law schools web site catalogs and also seek input and recommendations from law schools themselves through a self-nomination process.

The criteria for inclusion on the list is:

 

1. A full-time faculty member dedicated to teaching and coordinating a program in law practice technology.  This subject matter should be the focus of serious research, including the development of innovations in law practice.

2. At least two credit courses in this subject matter such as law practice management, law practice technology, ediscovery and big data, outcome prediction,  legal project management, virtual lawyering,  expert legal systems development, document automation, and/or other coursework which deal with innovation in the delivery of legal services and law practice.

3. Non-credit courses taught by adjunct instructors don’t quality.

4. Law schools sponsoring incubator programs are interesting, but these programs involve lawyers who have already graduated, not law students.

The initial list includes the following law schools, in alphabetical order:

 Brigham Young University Law School for their ground-breaking work in teaching computer-based practice systems under the leadership of Larry Farmer and Blair Janis.
 

Chicago Kent Law School‘s Center for Justice and Technology under the leadership of Ronald Staudt and CALI for their work in piloting law school clinical programs and for their innovative On-Line Course on Digital Law Practice under the leadership of John Mayer.


Columbia University School of Law, Lawyering in the Digital Age Clinic, under the leadership of Professor Conrad Johnson, Professor Mary Marsh Zulack, and Brian Donnelly, Lecturer in Law. Conrad Johnson is chosen as 2013 Professor of the Year.

 

Georgetown Law SchoolGeorgetown Law School’s Iron Tech Competition and Technology, Innovation and Law Practice Seminar   under the leadership of Tanina Rostain and Roger Skalbeck.

 

 

 

Maurer School of Law at Indiana University under the leadership of William D. Henderson for his courses on Legal Project Management and the Law Firm As a Business Organization and for Directing the Center on the Global Legal Profession.

 

Reinvent Law LabopratoryMichigan State Law School‘s Reinvent Law Laboratory, under the leadership of Dan Martin Katz and Renee Newman Knake.

 

New York Law SchoolNew York Law School’s Certificate Program in Mastery of Law Practice Technology under the leadership of Dan Hunter.

 

We are adding today, (May 17, 2013) a 13th school to our list – the Northern Kentucky University Chase College of Law because of a $1,000,000 grant made just last week by W. Bruce Lunsford to establish and support the W. Bruce Lunsford Academy for Law, Business + Technology. Lunsford, is  a 1974 graduate of Chase College of Law, and is chairman and CEO of Lunsford Capital, LLC, a private investment company headquartered in Louisville, Ky. The Academy will be operated by the NKU Chase & Informatics Institute under the leadership of Professor Jon Garon Click here for the full press release.
 

University of Miami Law School’s LawWithWithoutWalls Project under the leadership of Michelle DeStefano and Michael Bossone and the Apps for Justice Project within the Law School’s Clinical Program.

Stanford Law School Codex Center for Legal InformaticsThe CodeX – Stanford Law School Center for Legal Informatics – under the leadership of Mark A Lemley and Roland Vogl. See course on Legal Technology and Informatics by Ron Dolin.

 

Institute for Law Practice Technology and Innovation

Suffolk Law School‘s new Institute for Law Practice Technology and Innovation under the leadership of Andrew Perlman.  Co-Chair of Advisory Committee are Jordon Furlong and Marc Lauritsen.

University of the Pacific McGeorge School of Law for their course on Computer-Assisted Litigation under the leadership of Professor Fred Galves and Tim Pignatelli, CEO, Legal Technology Consulting.

 
 

Vermont Law School‘s new Technology of Law Curriculum and their course on "Digital Lawyering" under the leadership of Oliver Goodenough, Jeane Eicks, and  Brock Rutter.

 

This is a preliminary list. The eLawyering Task Force is inviting self-nominations from law schools and recommendations by others either commenting the Task Force’s list serve or for convenience by simply adding comments to this blog post. Our plan is to publish a more complete list by the Annual Meeting of the America Association of Law Schools in January, 2014 in New York City.

Disclosure: I am Co-Chair if the eLawyering Task Force. Any opinions expressed in this blog post are my own, and not the opinion of the eLawyering Task Force of the Law Practice Management Section of the American Bar Association..

Is Axiom Law a Law Firm?

Posted in Legal Ethics, Outsourcing

AxiomLawSome colleagues asked me that other day if I knew whether Axiom is a law firm. I said I didn’t really know, so I decided to find out. There has been much buzz lately about AxiomLaw .  The company recently raised $28,000,000 in private equity funding, after an initial round of $5,000,000.  Axiom has recently launched a new Web site call ReThinkLaw  – a kind of forum Web site that is designed to "provoke thought and drive innovation in the business of law—leading to greater efficiency and positive change for the benefit of clients, firms and lawyers alike."

The AxiomLaw Web site and ReThinkLaw site makes it look like Axiom is a law firm.

For example:

AxiomLaw sounds like a law firm and has a domain name that makes it look like a law firm. When it describes itself it states that "it is not your father’s law firm" or it is  "a new model legal services firm."

But its not a law firm at all. The company’s real name is Axiom Global, Inc.,  It is organized as a "C" corporation, and incorporated in the State of Delaware, just like any other company. (This explains of course how it can have investors).

So if AxiomLaw is not a law firm – what does it actually do? It targets the General  Counsel’s office of large corporation’s and provides the following services:

  • It’s a high priced placement firm assigning lawyers to work for in-house General Counsel;
  • It’s an outsourcing firm working directly for General Counsel of major Fortune 500 corporations;
  • It does "projects" directly for General Counsel of major Fortune 500 corporations.

Should any one care whether AxiomLaw is a law firm or not?

  • Prospective attorney recruits might care whether they are being recruited by a law firm or something else;
     
  • Prospective customers should understand that only a company with an in-house counsel who is a member of the bar where the legal matter is being conducted can qualify for AxiomLaw’s services;
     
  • If you don’t have an in-house counsel, then you can’t use Axiom’s services. Not being a law firm. Axiom cannot provide services to the public (individuals or organizations) directly;
     
  • Prospective corporate customers should understand that the traditional lawyer-client confidentiality privilege does not apply. Any confidentiality must result from the relationship between the company’s general counsel and their outsourced lawyer workers by virtue of the agreement between Axiom and the corporation customer – but I wonder if that is sufficient.
     
  • Competing law firms might care that Axiom suggests that its services are "legal services" competitive with the services of other law firms, when in fact they are are just "services" by definition. Actually contracted support services by in-house counsel. Otherwise Axiom would be violating Unauthorized Practice of Law (UPL) regulations in every state. Since Axiom is not really a law firm it can make claims about its services, that are not subject to bar regulation. Some of the statements that Axiom makes about its services, a law firm is prohibited from making because it would be in violation of the advertising and disclosure rules which are operative in every state.
     
  • Law firms are prohibited from solicitation. AxiomLaw is not subject to the same constraints.
     
  • Maybe state bar association officials should be concerned that the location of the disclaimer on the AxiomLaw web site that states that Axiom is not a law firm and cannot give legal advice. It is difficult to find. . I finally found it here.  and here.

Is AxiomLaw a positive development for the legal profession? Who knows?

General Counsel of major companies seem to think so. AxiomLaw is demonstrating that certain kinds of services can be delivered at a much lower price, without compromising quality. By enabling corporate counsel to get done certain kinds of legal work that ordinarily would be provided by outside counsel at a much higher price, Axiom has opened up a major market be simply segmenting the kind of work that can be done more efficiently in-house with help from Axiom.

It seems to me, however, that an in-house counsel assumes the risk of malpractice when they contract with Axiom. Axiom is not a law firm so it can’t secure a law firm malpractice insurance policy. Moreover, the supervisor of the legal work is not Axiom, (technically it can’t be), but in-house counsel. When in-house counsel contracts with a company like Axiom they give up the assurance of quality legal services and accountability that they get from a traditional law firm. 

In checking directly with Axiom on this point, Axiom states that:

"The individual lawyers don’t carry their own malpractice, Axiom maintains a lawyer’s professional liability insurance policy that provides coverage for all Axiom attorneys, regardless of W-2 or independent contractor status. Almost all of our lawyers in the US are W-2 employees. Axiom does not, because we cannot, have access to or supervise the substantive work of our lawyers."

One likely impact of these developments is to destabilize the business model of the Big Law firms by sucking out the more routine work from big law firms which results in decreasing overall profitability.  As the Axiom’s of the world expand their services and their reach,  there will be less work for the large law firms resulting in a shrinkage of the market share of traditional law firms. (real law firms!). The firms that are left standing will offer the most high-end legal services but will probably raise their fees as they will be the only game in town as a supplier of complex legal services where law firm accountability is a necessity.

Do GC’s have any interest in a vibrant independent and expanding legal profession, or do they prefer a world where there will be less traditional law firms offering their services at higher fees?

Two final questions for consideration:

1. Should AxiomLaw be more transparent on its Web site about what kind of an organization it really is by making clear that it is not a law firm, and should it avoid comparisons with traditional law firms?

2. Maybe non-law firms like Axiom, with their access to capital and superior management and technological resources, should be able to offer legal services like a real law firm, but just make these new organization’s subject to the Rules of Professional Conduct like any other law firm.

Of course, private investment in a law firm is prohibited by Model Rule 5.4, but maybe it’s time that state bar associations recognize that there is a new kind of organization moving into the legal industry any way, so why not simply subject these new players to the same regulatory scheme as traditional law firms?

Would that level the playing field? Would that provide better consumer protection for both individual consumers and corporate purchasers of legal services?