Legal Ethics Forum

Is the Legal Profession at an Inflection Point?

Bill Henderson's report to the State Bar of California on the legal landscape can be found here. Taxprof's coverage can be found here. 

As with much of Prof. Henderson's work, I find the analysis both fascinating and frustrating.  Fascinating because he clearly identifies some extremely important trends in the legal market such as the growth of in-house legal employment (Figure 2). Frustrating because - in my view at least - his data selection is at times puzzling.  For example, is it unclear why one would compare the boom to the post-recession period to evaluate the long-term future of the legal profession.  What may appear to be "irreversible structural shift" on the basis of such a comparison could merely be the legal service market returning to normalcy. Yet, Prof. Henderson uses the period from 2007 to 2012 to compare consumer legal spending (figure 5) and legal employment/ receipts (figure 1).  In terms of the former, considering consumer legal spending over a much longer period of time does not support the view that the legal profession is at an inflection point.  Rather, consumer spending on legal services  went down in the aftermath of the recession (understandably) because cash-strapped households devoted their funds to other uses.  However, as shown below, consumer spending has since rebounded. 

I also do not believe that it is helpful to compare legal services to the healthcare or education sectors, largely because the government plays a much larger role in the latter two sectors. In any event, I encourage readers to review the report and form their own opinions.

 

(Click on the graph to enlarge it)

 

 

Judge Kavanaugh on the Primary Purpose Test

Confirmation hearings are unlikely to focus on Judge Kavanaugh's privilege opinions, but in the process of revising my casebook I re-read Kellog v. Brown & Root, Inc., 756 F.3d 754 (D.C. Cir 2014), which holds that "[i]n the context of an organization's internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply. That is true regardless of whether an internal investigation was conducted pursuant to a company compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy."

The premise of this ruling is that there need not be a single "primary purpose" for a communication. "[T]he primary purpose test, sensibly and properly applied, cannot and does not draw a rigid distinction between a legal purpose on the one hand and a business purpose on the other. After all, trying to find the one primary purpose for a communication motivated by two sometimes overlapping purposes (one legal and one business, for example) can be an inherently impossible task. It is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B. It is thus not correct for a court to presume that a communication can have only one primary purpose. It is likewise not correct for a court to try to find the one primary purpose in cases where a given communication plainly has multiple purposes. Rather, it is clearer, more precise, and more predictable to articulate the test as follows: Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?"

Judge Kavanaugh applied these principles again last month in Fed. Trade Comm'n v. Boehringer Ingelheim Pharm., Inc., 892 F.3d 1264, 1266 (D.C. Cir. 2018).  

For what it is worth (and, as I say, I doubt his privilege opinions will be the focus of impending debates), these propositions strike me as sound. Lawyers help clients solve problems, and problems commonly have both business and legal aspects. As a consequence, both in internal investigations and in general, communications often have multiple purposes. A corporate client may view the "primary" purpose of even an explicitly legal communication as being to achieve a "business" resolution.  Setting aside internal investigations, much civil litigation could be characterized that way. It should not follow that the communications are not privileged.

The primary purpose test may serve to weed out privilege claims in cases where a lawyer is brought in to a business discussion just to provide legal cover, or when a person with a law license engages in purely business communications.  That is an important role, but one that seems to me to be adequately served by asking whether there was a "significant" legal aspect to the communications.

 

 

R.I.P. AVVO Legal Services

The new owners of AVVO, the eponymous lawyer ranking site, have decided to discontinue AVVO Legal Services ("AVVO Legal").  A whole host of state ethics opinions warned attorneys of possible ethical violations, although one state recently indicated openness to modifying its ethical rules to fit AVVO Legal and other for-profit lawyer referral providers. 

My personal view is that the ethical concerns regarding AVVO Legal were overblown because AVVO Legal neither recommended one attorney over another nor interfered with attorneys' professional independence of judgment.  As I expressed in this space, to address lack of access to justice, the organized bar should embrace AVVO Legal and other companies that promote awareness of the law and the availability of lawyer assistance.  Instead we continue to ignore the demand side of lack of access to justice while regulators experiment with supply-side solutions such as "navigators", "LLLTs," and alike that I fear will prove ineffectual.