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.
A sentence now in a comment to Rule 5.5 says that virtual presence can be so substantial as to equal physical presence and thereby exceed the bounds of the rule's "temporary" limitation. 20/20 proposed to add to that comment to offer more guidance, but it met resistance from those who thought doing so would impede the growth of virtual practice. 20/20 withdrew the proposal. This was unfortunate. The debate needs airing.
I have no doubt that virtual presence can be so persistent that a state, wishing to protect its residents, might legitimately then claim that the lawyer is effectively "in" the state and should be admitted, no less than if he had opened an office there. This is a partial, but only a partial, answer to regulators who wish to rely on UPL rules. But often the presence will be within the bounds of "temporary," leaving the problem described in the post.
Posted by: stephen gillers | March 09, 2013 at 10:30 AM
It seems to me that the central problem is one of reciprocal discipline. There is little question, in my view, that the discipline authority in the state in which the client was injured has jurisdiction over the lawyer. The only "gap" here is the failure of the lawyer's licensing state to take adequate action against the lawyer for the misconduct that occurred in the client's state. If this is a problem that isn't getting addressed, the problem is one of reciprocal discipline, not Rule 5.5. And, of course, if the "lawyer" isn't really a lawyer at all and is merely pretending to be one on the Internet, the UPL statutes have that problem covered. So I guess that's a long way of saying that I don't view this as a gap created by MJP; it's a gap in the reciprocal discipline regime.
Posted by: Andrew Perlman | March 09, 2013 at 10:30 AM
Not being a lawyer at all was not part of the regulator's concern. Certainly, that can subject the non-lawyer to UPL prosecution.
I agree that nearly inevitable reciprocal discipline is the ideal. But there are problems:
1. Having to discipline all out of state virtual lawyers is expensive, a cost carried by the host state. There is the possibility of a judgment for costs but then there is the burden of trying to collect it and the cost attendant on that. Meanwhile, that doesn't help the victim.
2. One concern voiced to MJP against nearly certain reciprocal discipline is that the host state may be harsher with the out of state lawyer than it would be, on the same conduct, for the in state lawyer. That then gets into a matter of proof in the home state if the lawyer charges unequal treatment. Who will defend against that claim? Will the home state discipline authority be willing to do it? It's a time intensive task.
3. And even so, the regulator on the panel said it just doesn't happen. The home state doesn't comply. We can say it should do so, but her point is that it doesn't, and her residents are at risk. What do we tell her?
4. Finally, it is sometimes a challenge to identify the lawyer(s) behind the internet ad, also a cost.
Posted by: Stephen Gillers | March 09, 2013 at 07:11 PM
What world is this disciplinary counsel in? Not my world, where reciprocal discipline is aggressively pursued and where UPL is also aggressively disciplined by the mandatory bar.
There are forum states (Oklahoma and Arizona come to mind) where non-admitted lawyers are disbarred, and their home jurisdictions pay attention to that discipline.
Posted by: Beth Alston | March 09, 2013 at 07:18 PM
Stephen,
Regarding your point 1, there is no need to discipline "all" out of state virtual lawyers. I assume we're only concerned about the lying, stealing virtual lawyers. Is the number of such lawyers so significant that bar counsel can't keep up? Put another way, I have trouble imagining that this problem is so rampant and overwhelming that bar counsel can't address the problem adequately when it arises. Did this bar counsel cite any numbers regarding the number of complaints of this sort that are filed in any given year?
On the second point, I would be shocked to learn that reciprocal discipline is not imposed in a situation where the lawyer has been found to be engaging in lying and stealing (i.e., a situation where a lawyer is lying to, and stealing from, clients by taking their money and not doing any work for them with an intention to deceive from the start). I'm with Beth Alston on this point; it just does not seem realistic to me that the home state refused to impose reciprocal discipline.
On point 3 (and related to point 2), I'd be very interested to hear which jurisdictions fail to impose reciprocal discipline in a fact pattern of the sort assumed here.
On point 4, it's typically not all that difficult or time consuming to determine who owns an IP address from which a lawyer is operating a virtual practice. And again, we're assuming that a jurisdiction is getting deluged with these kinds of cases. I have trouble believing that, when this problem arises, bar counsel has great difficulty identifying the lawyer(s) involved.
I guess that's a long way of saying that, like Beth Alston, I think there is more to this story than what you heard. I'd like to see some hard data about the number of complaints received of this sort and how often a lying, stealing lawyer is not disciplined by his/her home jurisdiction as a result of a virtual (and deceptive) offer of representation in another state.
Posted by: Andrew Perlman | March 09, 2013 at 07:59 PM
It was a panel discussion so there were no footnotes. The world she's living in this: she has been disciplinary counsel to her state supreme court for (if I correctly recall from the bio) more than a decade. I certainly have no basis to question her descriptions or to dismiss her complaints until I get "hard data." I don't have her experience or knowledge.
Certainly the opportunity for exploiting vulnerable clients, often desperate, is much exacerbated by the web. This seems to be self-evident. Do we try to find antidotes to the expansion of that opportunity that MJP has created (and of course I'm all for MJP) or do we say "yes, we realize the risk is there but we need the hard data before try to minimize the increased dangers from cross-border practice coupled with the internet?"
The prior posts seem to suggest there is no problem in fact, or only a modest one, but where is the hard data for that? Without it, I'm inclined to listen to someone who has been in the trenches rather than have this turn on the burden of going forward.
Posted by: Stephen Gillers | March 09, 2013 at 09:36 PM
I guess I'm just trying to get a better feel for how widespread this problem is. For example, did she suggest that this is happening a lot? Or was she just concerned that a couple of cases didn't pan out the way she would have liked?
I also think it matters what the precise "problem" is. Are clients actually having their money stolen from unscrupulous virtual lawyers? Or is this just the virtual equivalent of "my lawyer took my money and didn't respond promptly to my legal needs, and now I want my money back"? I was expressing skepticism that a discipline authority would be unwilling to pursue reciprocal discipline in the former scenario. But if she was also talking about the latter type of complaint, I think that the reciprocal discipline issue can be more complicated.
I suppose my point is that, without this kind of detail, it's hard to know how serious this problem is and what kinds of fixes might be necessary. But if she is saying that she is seeing a lot of lying and cheating cases where the lawyer's home state is not imposing reciprocal discipline, that's a serious problem that certainly needs to be addressed.
Posted by: Andrew Perlman | March 09, 2013 at 10:55 PM
She was not alleging theft.
Lawyer's website attracts gullible and desperate client who does not know to whom to turn. (Google "immigration lawyer.")
Lawyer is overly optimistic, takes money, fails to produce the result the client believes he promised. Lawyer is then uncommunicative after giving bad news.
We can appreciate how easy this scam can be to pull off. State agency may pursue lawyer to develop the facts (again we have costs) but lawyer ignores agency or claims lack of jurisdiction.
The service the lawyer offered is within the orbit of temporary cross-broder practice so UPL is out.
The panelist was definitely not talking about criminal conduct (theft) or lying to a tribunal. The problem is exacerbated by the existence of internet legal services. It would not exist two decades ago.
We know there are internet scams. Even lawyers fall for them. Lawyers can also perpetuate them. A local lawyer could not fail to cooperate with the agency without further risking his license.
Posted by: Stephen Gillers | March 10, 2013 at 09:25 PM
I have to echo Beth's observation. I have spending a fair amount of time dealing lately dealing with UPL issues and I see no lack of zeal on the part of California discipline authorities in prosecuting California lawyers who are offering services to clients in other states.
Posted by: David Cameron Carr | March 11, 2013 at 09:32 AM
I'm not sure of your point, David. Are the CA authorities disciplining for UPL in the other states? The panelist's point is that MJP has removed UPL prosecutions from her tool kit.
Posted by: Stephen Gillers | March 11, 2013 at 09:40 PM
Prior to investigation, I think in many cases it's impossible to know if it's a case of theft or just a dispute about fees and unhappiness with the end result--and it sounds to me like the hard part is the investigation, not the ultimate discipline. And just to add another wrinkle--I've been looking at some of the attorneys who advertise online about their willingness to assist pro se litigants, and some of them are not only in a different state--they are in a different country. Sunlexis in India advertises such services (http://www.sunlexis.com/testimonials.html ), and individual attorneys (some also in India) also advertise their services on elance.com. I'm not sure what, if anything, can be done to regulate the practice when it involves overseas attorneys--but I do worry that discouraging US attorneys from providing such help (when there is at least the possibility of reciprocal discipline) would just push more of it into the international arena.
Posted by: Cassandra Robertson | March 12, 2013 at 06:10 PM