Legal Ethics Forum

Jessica Dixon Weaver, "Overstepping Ethical Boundaries? Limitations on State Efforts to Provide Access to Justice in Family Courts"

Article. Abstract:

Family law courts in America are overwhelmed with self-represented parties who try their best to navigate an unfamiliar territory laden with procedural and evidentiary rules. Efforts to level the playing field in these courts have resulted in state entities and judges taking on roles that previously belonged to attorneys. State supreme court judges and state agencies draft and promulgate family law forms, such as divorce pleadings and paternity acknowledgments, to provide poor citizens access to justice. While these efforts have resulted in positive outcomes for some families, reliance on the state’s imprimatur has caused significant harm to others. Upon closer examination, the state has not adhered to the same ethical standards that ordinarily apply to judges and attorneys with regard to the development and dissemination of these forms. This Article is the first to explore whether state courts and agencies have overstepped ethical boundaries and subverted public interest to satisfy private interests of the state as regulator. It argues that these state forms are poor substitutes for attorneys and that the complexities of family law continue to warrant legal counsel in our current adversarial court practice.

Misa Eiritz, "THE LAWYER AS SPORTS AGENT: ETHICAL DILEMMAS AND SOLICITATION"

Each year I get lots of exam papers that I enjoy reading and so this year I've given students the option of having me post their paper. This one is from Misa Eiritz. Excerpt (w/o references, which are available in the paper itself):I. Introduction: Why It Matters

Spurred by the exponential growth of athlete salaries in the mid to late nineteen-eighties, the responsibilities of sports agents and their legal counterparts began to expand and collide. Individuals looking to financially capitalize on this gain, or those simply attracted to the “glamour” associated with the sports industry, jumped into the fray and quickly tried to make their mark. While this expansion resulted in intense competition to enter the business, abuse and a myriad of unethical behaviors were rampant among practicing professionals. Agents became known for their overly aggressive tactics to recruit clients, unreasonable fees, and financial mismanagement. Many were even prosecuted under various criminal laws, ranging from tampering and extortion to racketeering. This widespread abuse led many client-athletes to turn to the legal profession for services formerly provided by agents.

V. Conclusion

In today’s world a lawyer-agent is removed from the “confines of rendering legal advice” and is perhaps more qualified than a non-lawyer agent to conduct business in the sports industry; however, the legal profession’s ethical code is hampering the flow of information and the growth of business. In an industry so driven by personal contact, and consisting of an extremely large number of attorneys, it is unfair to keep attorneys from engaging in client solicitation. Although the sports industry contains problems the solicitation rule is directly aimed at eradicating, namely client stealing and over-zealous sales pitches, there are rules in place for each professional league that ban approaching represented clients, and the initial sales pitch is part of being a professional athlete. Therefore, the original goals of the ban on solicitation in the legal profession are not at issue in the sports world. An equal playing field keeps lawyer-agents from turning to unethical alternatives to bring in new clients and benefits all parties.

Download Misa Eiritz - Ethics Paper Draft 1_BB

Guest Blogger Emily "This is Inconsistent with What She’s Been Telling Us”: Why the Criticism of Hillary’s Record on Women Matters

Interesting post at Feminist Law Professors, by Emily Gillingham, responding to criticism of Hillary Clinton for her defense of a rapist and her comments to a journalist afterwards.

"Lateral Hire’s Brief Role in ‘Dormant’ Case Doesn’t Require New Firm’s Disqualification"

Story at Bloomberg/BNA.

Representing Ahmed Abu Khattala: The Challenges

Khattala is the man  spirited out of Libya and charged with the  deaths of Americans including the U.S. ambassador in the attack on the U.S.  consulate in Behngazi. Now he has a lawyer from federal defenders in Washington, D.C. He will likely have others as well or instead.

A big question is: Can his lawyers talk to him without their conversations being recorded or overheard? How can they know? The lawyers can ask but can they trust the answer?

The lawyers can ask the judge to ask and we can assume an answer to the judge is accurate. But what if the government declines to answer or, more likely, takes the position (wihtout admitting that it is doing so)  that prosecutors not involved in the case, and national security personnel, may legally eavesdrop in order to identify culpable others or to get information that will impede future mideast violence?

So long as the trial team is not tainted, the U.S. will argue, it may, if it wishes,  overhear communications between Khattala and his counsel. Would a district judge forbid that? I somehow doubt it although he judge may insist on proof that the conversation was not shared with the trial team.

When and How Does Change in Lawyer Regulation Happen?

We've seen (and can expect more) law review articles exploring ways in which the regulation of the bar and of the legal services industry (not the same things) should, will, or must change. I've written a few. 

These article are mostly authored by law teachers.  At the risk of academic pride (to which I plead guilty) and paraphrasing Pound (Ezra, not Roscoe),  I suggest that legal scholars have been and will continue to be the antennae of the profession.

The momentum for change, which is different, will come from elsewhere -- from economic forces (rules change when it is in the economic interest of lawyers to change them, witness the adoption of lateral screening after 20 years of rejection), and to beat back external threats (witness the 2003 amendments to Rules 1.6 and 1.13, after repeated rejections, in order to dissuade the SEC from invoking its full Sarbanes-Oxley powers; it worked).

But academics will primarily inspire the ideas that define the shape  the changes will take. This is our history.

The bar seriously lagged in updating its rules through 1970. The 1908  Canons, even as amended, were  useless to  the bar of the 1960s and earlier decades. The 1970 Code was inadequate on day one, which is why seven years after  adoption it was necessary to appoint a new commission (the Kutak commission) to start all over.

The Kutak Model Rules  had a longer shelf life but by the time of Ethics 2000, it also needed significant amendment. Ethics 2000 narrowed the lag between the bar's offical position and law as practiced.

If Ethics 2000 was our finest hour, the MJP commission runs a close second. MJP was writing on a smaller canvas -- how sensibly to deal with lawyers' cross-border practices -- but it wrote well and has been influential (full disclosure: I was on it).

The 20/20 commission (same disclosure) did some good things, but  around the edges. It missed  opportunities to be visionary (to see things 20/20, as it was charged), but  it can be partly excused for two reasons.  First, the hostility of a large minority in the HOD even to permit talking about rules allowing some lay investment in for-profit law firms -- just talking -- cast a broader pall and led 20/20 to stay within safe borders. 

Second, the current bar leadership will not be bold. In this, it is like the leaders of the 50s through the early 80s. It will be the next generations that approach the issues with  appetite for change.

A datum of proof (not unique) was an exchange at a 20/20 hearing with a prominent and thoughtful participant in these matters and who spoke against any rule change that would allow non-lawyers to have any equity interest in law firms, however small.

Would your position be the same, he was asked, if you assumed that a modest change would both improve the quality of advice to clients and  result in no misconduct by the non-lawyers or the lawyers they work with whatsoever?

Yes, he said.

So there you have it. We're not dealing with empiricism and evidence-based rules -- the bar does not emprically test its own empirical predictions of the effects of  rules it supports or opposes -- but with ideology or maybe a better word is faith. 

 

 

Michele Beardslee DeStefano, "Compliance and Claim Funding: Testing the Borders of Lawyers’ Monopoly and the Unauthorized Practice of Law"

Article. Abstract:

The complexity of commerce in today’s globalized era and the rise of technology have sparked new developments in the debate surrounding unauthorized practice of law (UPL) statutes. Proponents of UPL statutes argue that these rules protect consumers from the incompetency of nonlawyers. Opponents, however, argue that UPL statutes are designed to protect lawyers’ monopoly on legal and law-related services, contending that these statutes are written so broadly that the distinction between what is legal advice versus nonlegal business or strategic advice is indeterminate. Further, these statutes seem to suggest that, as a profession, we have been unable to define the practice of law in a concrete way. Thus, many argue for the abolishment of UPL statutes. In doing so, opponents of UPL statutes believe that, amongst other benefits, access to justice will increase because nonlawyers will be able to do what was traditionally lawyer-only work, and lawyers will lose the power of a monopoly-rooted competitive advantage. Proponents do not appear to disagree and, in fact, have been accused of protecting UPL statutes for this very reason.

Are the opponents to UPL statutes right? This is the primary issue I seek to examine: will abolishing UPL laws enable nonlawyers to encroach on lawyers’ monopoly of services?

Arguably, UPL statutes are most contentious on the margins — those areas where the line between business and law is the hardest to draw. More and more lawyers are moving into these quasi-legal jobs, where a legal license is not required but having a law degree provides an advantage. As such, both lawyers and nonlawyers perform key roles and often work together. Although there is debate over who should take the lead, and many scholars have thoroughly studied the unauthorized practice of law by nonlawyers, it does not appear that scholars or regulators have focused on lawyers or nonlawyers working in these quasi-legal roles in relation to UPL or the influence they might have on the reputation and status of the legal profession.

Thus, to fill this gap and analyze whether elimination of UPL restrictions will decrease lawyers’ monopoly of legal and law-related services, I explore two growing areas straddling the border between business and law in which lawyers and nonlawyers compete for jobs: compliance and claim funding (also commonly known as alternative litigation funding). To aid in this exploration, I use: (1) information from interviews I conducted with seventy general counsels and compliance officers of S&P 500 corporations across a variety of industries, including banking, pharmaceutical, and petroleum (the Compliance Study); and (2) my own personal work experience as a consultant to a start-up commercial claim funding company. This set of data and my experience bring to life how some compliance officers, lawyers, and commercial claim funders view and describe their jobs, and, ultimately, aid my analysis of the effect that eliminating UPL statutes may have on lawyers’ monopoly of law-related services.

My analysis leads me to three conclusions. First, the work conducted by compliance officers and claim funders could be considered the practice of law, and therefore, UPL statutes could prohibit such work if conducted by nonlawyers. Second, often the people with legal training and practice experience play the role of compliance officers and claim funders. Third, because of their degrees, training, and experience, attorneys may be considered more qualified or better situated to fill these mixed business-law consultant roles than their nonlawyer counterparts.

If these conclusions are correct, they lead me to two preliminary hypotheses. First, contrary to the arguments made in support of abolishing UPL statutes, such a move may not end lawyers’ monopoly of legal and law-related services. Instead, lawyers (those trained in the law) may be able to monopolize (or at least maintain a stronghold in) the marketplace for these closely law-related services, even if UPL statutes are eliminated. The role of the corporate attorney has expanded as clients’ needs have grown more complex. Clients may prefer that their lawyers fill these law-related roles for two reasons: first, because they have played them historically, and second, because they have the expertise and training to play them well.Moreover, although law is arguably a business, lawyers are still part of a profession, a delineation that only serves to protect the monopoly.

Second, these lawyer-nonlawyers may add to what Tanina Rostain identified a few years ago as a growing industry of law consultants, who are not necessarily part of the legal profession, and, therefore, not held to the rules governing professional conduct. Because ambiguity surrounds lawyers’ work in these quasi-legal areas and the issue of what is the practice of law is also nebulous, lawyers in consultant positions may be able to evade ethical obligations and help clients find legal loopholes because of their training and expertise as lawyers. This raises special concerns for the public and for the legal profession in terms of its reputation and position in the marketplace.Granted, I examine only two areas that lay on the margins of law and business. More research needs to be done on other areas to determine if these hypotheses have merit elsewhere.

Part I begins by providing a brief overview of the debate over UPL statutes and the theory behind lawyers’ monopoly of legal services. Part II describes and explores the type of work that compliance officers and litigation funders conduct. It analyzes whether these law-related jobs could be considered law practice and what skills and expertise are needed to fill these roles. Part III attempts to answer the question posed above: Will eliminating UPL statues potentially enable nonlawyers to fill the role that lawyers currently play in these areas on the border between business and law? In other words, if UPL laws were abolished, would a nonlawyer or lawyer get the job? My analysis leads to the hypothesis that in the areas of compliance and litigation funding, the lawyer will still get the job. Further, collaboration may not increase between lawyers and nonlawyers, and negative unintended consequences may result from abolishing UPL statutes.

Laurel S. Terry, "Putting the Legal Profession's Monopoly on the Practice of Law in a Global Context"

Article. Abstract:

When considering the proper scope of the U.S. legal profession’s monopoly, regulators and commentators may find it useful to compare the scope of the U.S. monopoly with the legal profession monopolies found in other countries. This Article surveys what we know — and do not know — about the scope of the monopoly in countries other than the United States. The Article finds that the state of knowledge on this topic is relatively undeveloped, that the scope of the U.S. legal profession’s monopoly appears to be larger than the scope of the monopoly found in some other countries, but that the “conventional wisdom” may be incorrect with respect to the scope of the legal profession’s monopoly outside of the United States. It discusses some relatively new developments that may contribute to our knowledge in this area, including reports from the World Trade Organization, the European Union, and the International Bar Association. It also suggests that relatively new organizations, such as the International Conference of Legal Regulators and the International Association of Legal Ethics, might contribute to our knowledge about legal regulation around the world.

"It is the role of good lawyers to identify and exploit [loopholes]"

From Justice Scalia's dissent in American Broadcasting Cos. v. Aereo, Inc.:

I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement. If that does not suffice, then (assuming one shares the majority’s estimation of right and wrong) what we have before us must be considered a “loophole” in the law. It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude “looks-like-cable-TV” solution the Court invents today.

Silvia Hodges Silverstein, "I Didn't Go to Law School to Become a Salesperson — The Development of Marketing in Law Firms"

Article. Abstract:

The legal profession has undergone greater transformations during the past few decades than in the last few centuries. Deregulation and liberalization, increasing consumer expectations, new information technology, and a growing global marketplace have resulted in an increasingly competitive marketplace. Services that were once considered highly specialized are treated today more and more like commodities. Most lawyers no longer have the luxury of waiting for business to come to them. “Technical” competence alone does not guarantee success in winning new business or keeping existing clients.

There is general recognition in business and business school academia that marketing answers such challenges and that marketing is not only highly recommended, but necessary to ensure an organization’s long-term survival. Marketing is important since organizations need to be aware of their competition and aim to satisfy their customers in order to be successful. This is particularly true for service industries since service providers interact directly with their customers. While the rationale for marketing might be unquestionable, numerous studies and articles stress that law firms often resist the diffusion of the marketing concept.

This paper examines the underlying reasons for the advent of marketing among law firms. Both barriers and drivers are explored to understand why an industry like the legal profession starts to embrace marketing. While barriers to a market orientation are somewhat poorly understood, the development of marketing is explained with macro-environmental factors — political, economic, technological, societal — and the underlying implications of micro-environmental factors — the legal profession, law firms, and individual fee earners.