I'm at a conference in Chicago and was on an MJP panel yesterday. A disciplinary counsel on the panel raised the following problem created by opening the door to cross border practice. It needs attention though it doesn't mean we should close the door.
Persons with legal problems who have little or no knowledge about lawyers and the legal system are today easily victimized by websites offering to help. The "virtual" lawyers behind these sites, we were told, can and do take advantage of the clients. The lawyer does not deliver on what the website seemed to promise. Unsophisticated and desparate clients can be gullible. The website may be persuasive. The lawyer may then become unavailable. The client may have only the name of the virtual law firm. She has no address. The client complains to the regulator.
The regulator on our panel said that civil liability doesn't help because the client is unable to hire a lawyer to go after the former lawyer and the amount of money paid does not make it worthwhile (although the amount may be a lot for the client). Discipline has limited utility because her state can only reprimand the lawyer, whose home state, when notified, may not take the conduct as seriously because it happened somewhere else. (The 'full faith and credit' rule in lawyer discipline has exceptions, probably overbroad.) The lawyer may ignore process and challenge the host state's jurisdiction. He will lose on that challenge. Or if he defaults, the finding of discipline may not translate into a challenge to his license in his home state.
The regulator said that in the past her state could prosecute the virtual lawyer for UPL, a felony in her state. But today, the door-opening MJP rule from the ABA, which her state has, means the practice may not be unauthorized. So she loses the most valuable weapon for protecting vulnerable residents of her state.
Now, this is not an argument to close the door because the overwhelming number of lawyers and clients who take advantage of cross-border practice rules are benefitted. We can't make rules for the bad lawyer at the expense of a healthy national legal economy. But we do need to think about how to protect the vulnerable clients (immigration clients, for example, who may not even wish to complain), who may be fooled by the websites and not realize that the person behind it is unreliable or worse.