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Laurel Rigertas
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Milan, In this post and a previous post you have stated your basic assumption that Legal Zoom primarily creates legal documents for consumers for which attorneys do not charge significant fees. I am curious about the basis for this statement. For a prior article I searched and searched for data about the average cost of legal services such as wills and powers of attorney (and divorces) either nation wide or in different markets. I could not find any reliable data whatsoever on this and was wondering if you have seen any.
I think your post raises several important issues. One of the advantages of Legal Zoom from a customer perspective is probably a sense of security about the cost. A customer can see what it costs to buy X form quickly by going on the website. A consumer who is interested in having a lawyer prepare that same document will probably not get that information from the lawyer's website. The consumer will call the law office and might get quoted a flat fee, but will often be told that the lawyer will need to conduct an interview, determine the client's exact needs and will then quote a price or present an hourly billing rate and an estimate of hours. Unless the client goes through this exercise with several attorneys, the client has no idea if the price quoted by a lawyer is low, mid or high range for the market. How many people have the time to go through this exercise? If Legal Zoom gives a price that the consumer can afford, what is going to incentivize the consumer to figure out what they will pay a lawyer and the benefits of hiring a lawyer vs. using Legal Zoom? Consumers are getting helpful price information for services from a variety of sites such as Angie's List where customers describe the nature of the work done, the estimate given and the price they actually paid. Perhaps information like this would be very helpful for legal services if uncertainty about cost is a main factor that is keeping people away from lawyers. I think it would also be helpful to know how many people who use Legal Zoom could actually afford to pay a lawyer more than they are paying Legal Zoom, but for one reason or another choose not to spend their money that way. In those situations, what are the assumptions about their legal needs and the value/quality of different services that cause the consumer to conclude that they are just as well off using Legal Zoom instead of a lawyer? And are those assumptions correct? Is there enough risk of harm to consumers to justify the government banning this choice from the marketplace? Or do the benefits of additional consumer choice and price competition for legal services outweigh any such risks? In other words, I'm not convinced that the benefit of companies like Legal Zoom is limited to providing legal services to those who otherwise could not afford them. I think price competition for legal services by lawyers may be potentially benefit every consumer whether they choose a lawyer or an alternative.
Toggle Commented May 5, 2014 on Legal Zoom Redux at Legal Ethics Forum
I expect that one of the advantages of Legal Zoom is the economy of scale. It can afford to invest a good amount of time and resources into making sure that its forms are up to date and meet the requirements of a particular jurisdiction if it expects to get a large number of customers at a low price. Most law firms just don't have the platform to benefit from this economy of scale and that seems to be a net negative for the general public. I also tend to believe that if enough lawyers were providing legal services at a reasonable price, then companies from Nolo Press to Legal Zoom would not have spent the past 50 years trying to fill a gap in the marketplace. I often think that Rule 1.5 has no real meaning. A "reasonable fee" seems to be mainly determined by what the market will tolerate, and there are lots of very wealthy players in the market. Perhaps companies like Legal Zoom will encourage some much needed price competition. I saw John Flood from the UK talk last fall. He mentioned a study done in the UK where all sorts of legal services providers (including lawyers and nonlaywers) were asked to prepare wills and then the quality of the work was analyzed. He said that the best work product came from the banks, not from the lawyers. I take from this finding that we should be taking a hard look at our assumptions about the delivery of legal services to figure out ways to make them more affordable and accessible. All that being said, I don't like the arbitration provisions in Legal Zoom's agreements. As a matter of public policy I think the services it is providing should be subject to open and transparent review and that any findings about the services it provides should be subject to appellate review and the creation of binding precedent to guide others. I realize that their agreements don't prevent UPL enforcement agencies from looking at their practices, but those agencies may not always learn about what is going on if everything is handled in a private arbitration. The arbitration policy also impedes the collection of data about the frequency of lawsuits arising from their services--data which might actually work in Legal Zoom's advantage if the numbers are low. And if they are not low, that is important data for determining the wisdom of alternative ways to deliver legal services.
John - I don't mind at all - thanks!
I've been playing around with the idea of whether law schools should have a social media policy (or at least "best practices" guidelines) for law students. I was interested to find that some medical schools have social media policies for their medical students and the AMA has a policy on social media. Is anyone aware of any law schools that have comparable social media policies? Here are a couple of links: http://msa.medicine.iu.edu/files/7113/2648/2858/OnlineProfessionalism.pdf, http://www.meddean.luc.edu/sites/default/files/site_hsd_ssom/social-media-guidelines.pdf
One of the questions that needs to be answered is whether there is any evidence to support the conclusion that the ethical rules you cite have actually resulted in more ethical conduct by lawyers than by other business people who are do not have a code of conduct. Such evidence may be out there, but I have not seen any empirical evidence to suggest that lawyers have proven themselves to be more trustworthy than others in business. And, if they have, are the incremental gains in trustworthiness large enough to justify the cost of only having lawyers do certain kinds of work?
Thank you for everyone's posts and comments. Joshua - I agree with the enforcement problem of anonymous reviews (an issue that also plagues some defamation suits), but I don't think it matters whether or not review sites would recognize such a prohibition to a breach of contract action. Unless such sites were inducing clients to breach contracts which could amount to tortious interference, I think their position isn't relevant to the agreement. I also agree that it seems self-serving, although perhaps no more so than advanced conflict waivers or a confidentiality provision in the settlement of a malpractice suit. A main difference of course it that a former client who has sued for malpractice is most likely represented by another lawyer when agreeing to that confidentiality provision. That is a different posture than an attorney acting in a self-serving way at the outset of the relationship. Also, hopefully lawyers are mostly acting in a way that warrants positive reviews and such a provision would prevent consumers from seeing those.
Thank you Andrew! My other question that I'm thinking about is whether a lawyer who wants to exercise control over his or her on-line reputation could have as part of the retainer agreement a provision where the client agrees not to post any reviews of the lawyer's services. Then a lawyer could have a breach of contract action which would be much cleaner than having to prove defamation. A trend in this direction could, however, constrain consumers from finding out information about lawyers who they want to hire - which is really hard for the average consumer to do. But it also doesn't really help other consumers if they see false information about lawyers and the lawyers cannot respond short of initiating a lawsuit.
I think Andrew hit on the point that if a low social media presence benefits anyone, it will be a small number limited to the big firms that can develop wealthy individual and business clients through the personal contacts made at golf clubs, charity boards, etc. They may benefit from a sense of exclusivity that comes from only knowing about them by being personally well-connected in certain circles. For the rest of the masses, it's really hard to find helpful information about who to hire, so the more information the better. I see a growing role for on-line consumer reviews of their experiences with lawyers, but Angie's List has not yet added a category for lawyers.
Toggle Commented Aug 29, 2013 on Anti-Social Media for Lawyers at Legal Ethics Forum
There is an interesting combination of contradictory forces coming together around legal education. On the one hand there is a lot of discussion about reducing the amount of time it takes to earn a law degree and on the other hand there is a lot of discussion about those with a three-year degree lacking practice-ready skills. Putting these together has made me think that if a two-year degree is going to be a viable option, it would be of a limited nature--e.g. criminal law, family law, estate planning, civil litigation, etc.--and the student would focus his or her course work in that area and have at least an entire semester of field work (or a required apprenticeship post-graduation). This would require multiple types of bar exams and some issues navigating the boundaries of what one with a degree in a specialized area is excluded from doing, but perhaps that is the direction we are heading. There could still be a 3 year option for those who want a traditional J.D. without any practice limits.
Ben, in the wake of the Penn scandal, Illinois passed a law making all university employees mandatory reporters. They didn't seem to think about the fact that there are law school clinics, so this raised the same questions that you raised. Somehow this got the attention of the legislature and I hear that they are amending the statute to exempt attorneys. It's odd that the Mississippi one specifically includes attorneys. It would be interesting to see if you can find any legislative history on that. John - I agree 2.1 gives some guidance here, but I do think "should" works better here than 2.1s "may." The client (presumably) has no dog in this and therefore the lawyer can act as more of a minister of justice in this situation and consider the public interest and third parties.
While the proposed analysis makes sense to me, for the sake of the child's dignity who is being victimized in the porn, shouldn't the lawyer advise the corporation to report this violation of the law rather than be neutral on the issue and just await instructions?
I can't speak to the sufficiency of the allegations, but if you read the complaint the affidavit in support of it makes many references to the purported interstate commerce connection. http://www.nytimes.com/interactive/2013/04/22/us/tsarnaev-complaint.html?ref=us
There are a lot of non-lawyer consulting firms that provide regulatory compliance advice in a variety of fields - health care, banking, industrial safety (OSHA, EPA, DOT compliance), environmental, pharmaceutical (FDA/Controlled substances act), etc. A couple of thoughts come to mind as to why they may exist in a zone relatively protected from UPL complaints. As an initial matter, these consultants seem to largely (although not exclusively) deal with federal regulations. In some federal administrative proceedings, the regulatory agencies have authorized non-lawyers to appear in a representative capacity. Perhaps this is just an extension of that culture and the states have taken a hand-off approach (as they have with tax preparation). The other thought I had was a slippery slope concern. If an outside consulting agency cannot advise a company about, for example, OSHA ADA or SEC rules compliance, then how can a non-lawyer employee of a company ever advise the company or its employees about what needs to be done to comply with the regulations? And given how heavily regulated many industries are, the practical result would be that every head of HR or safety compliance employee would have to be a lawyer or outside counsel would have to be brought in for these discussions. If UPL prosecutions tried to push business practices in this direction, I think there would be a lot of public backlash. I believe those charged with enforcing UPL prohibitions carefully pick their battles so as not to lose any ground.
I too question whether for-profit-firms would pass savings on to consumers as opposed to increase profits. I suppose the answer could be that if, for example, they are charging $1500 for a X service, they will only get 10 clients, but if they charged $500, they would get 100 clients because so many more could afford it, which could end up more profitable. But again, I don't know that the market would play out this way. In terms of increasing access, the profession (through the judges on the state supreme courts) controls who gets licensed and their scope of practice (i.e. the State Supreme Courts typically define the practice of law and what only lawyers can do through their decision law or occasionally by rule). It seems to me that to increase affordable access one of two things, or perhaps both, needs to happen. We keep the pool of those who can practice law pretty much the same (3 yr JDs from ABA accredited schools and a bar exam), but focus on increasing free or low cost access to that pool (your suggestion above), which is either largely through taxpayer funding or volunteer attorney time. Or we can examine the pool of who is allowed into the monopoly and think of ways of expanding it to include others who could provide legal services. Both CA and WA are starting to explore this idea. We see this approach in medicine right now with advanced nurse practitioners battling doctors in state legislatures over scope of practice issues and seeking the right to independent practices. Because most state supreme courts have held that the state legislatures lack the power to define the practice of law under the separation of powers doctrine, there's no comparable forum for a similar robust public debate to take place over the scope of practice for legal services. It might be that both approaches need to happen to really have an impact on access.
I agree with your comments Milan and would add a couple of other observations. The report is quite critical of legal education for not having its graduates sufficiently practice ready, but fails to acknowledge that law schools are offering far more practice/skills oriented training than they were 10-15 years ago. Skills courses are also very resource intensive, which could have an upward impact on tuition. In response to this concern, the report suggests not shortening legal education, but transforming the second and third year to include components such as apprenticeships and 2Ls/3Ls working as teaching assistants. I'm not sure how the latter makes them "practice ready." As for apprenticeships, on many levels I'm not a fan of a school collecting tuition for a year and then sending the student off site to learn from someone else for the year. Why not just let them graduate after two years and go work for some money if the drafters don't think a third year in the educational institution is beneficial? They could get some kind of limited license while they completed their apprenticeship and then be fully licensed thereafter. The report is also fairly critical of scholarship and suggests that schools should prioritize teaching ability and practical skills over scholarship when hiring, that practicing judges and lawyers should be on law school hiring, promotion and tenure committees, that schools should reduce the scholarship for tenure and should remove the requirement that all faculty engage in faculty. My Dean spoke up about the benefits of scholarship at one of the hearings and in press coverage regarding this report. While there is certainly room for some of this criticism, the report lacked a balanced assessment of the benefits of scholarship. It made statements like "40% of law review articles are never cited and 80% are cited less than 10 times" as if that was the sole measure of the value of scholarship. For example, regardless of how many times anything I've written is cited, I have learned a lot from each article I've written, which in turn has made me a better teacher. There was no assessment of such values. Along these lines, the report criticized law schools for offering "exotic" courses and concluded that anything with a "Law and ___" title was a luxury that cannot be afforded. Lastly, I thought that the report's recommendations for ways that the Illinois Supreme Court could reduce the cost of obtaining a law license were thin and lacked innovation. The heart of the recommendation was that the Court should either eliminate the bar exam or let students take it during their third year (presumably taking away from their practice ready training) so they can start working immediately upon graduating. That was pretty much it. As a side note, in response to your discussion of the oversupply of lawyers, I have this observation that has been troubling me whenever this topic comes up. There is only an oversupply of lawyers when we define the market for legal services as "those who can pay for the services" as opposed to "those who need the services." If we look at "those who need" as part of the market (and as a profession with a monopoly I think we have to), demand is going up. The demand and supply are like ships passing in the night under the current cost of the supply that our legal monopoly is producing. Our profession needs to address this problem somehow. As for law school debt, I understand the argument is that if debt is lower, graduates could take lower salaries at firms that could in turn provide services at lower billing rates that more middle and low income citizens could afford. In theory, the new graduate could make debt payments and the firm could still make a profit. I don't, however, know that adjusting the law school debt factor alone leads to this happy outcome.
Thanks for sharing that Renee. I was curious about the model as I read the article. Is this MDP? Selling books, tables and legal services? I was curious if the lawyers were employees of the business or more in the nature of leasing space from the business. In other words, is this the corporate practice of law? Are they each responsible for determining their own conflicts or does Bookflip have a conflicts system?
This comes up every year in my PR class. I agree that location is not the deciding factor and that thinking about a case can be legitimate billable time when hourly billing is involved (frequently billed as "analyzing" or "strategizing" or "assessing"). I suggest three guidelines for my students to think about. First, is thinking about your client's matter your primary objective during the relevant period of time? If you're in the shower, I'd say that getting clean is your primary objective and thinking about the client's matter is secondary and shouldn't be billed. But, if you're sitting in a park with a notepad with a goal of thinking through your strategy on a case, then it sounds like working on a client matter is your primary objective. Second, image that your client could watch what you are doing on a webcam. How do you think they would feel about paying you $200 or whatever an hour for what they see? (Similar to the idea of being comfortable explaining what you did to a judge in an affidavit). Third, turn the tables and imagine that you or a close family member is paying $200 an hour of hard earned money for this lawyer's time. How would you feel about paying it?
Toggle Commented Mar 19, 2013 on Thinking of You at Legal Ethics Forum
There are several law schools that require mandatory pro bono as a condition for graduation (I believe at Columbia it is 40 hours), so some schools do have experience with coordinating enough pro bono opportunities for all graduates. I do, however, agree that this can be a challenge. At my school (Northern Illinois University), we have been working on pairing our students with alumni for pro bono projects as part of our voluntary pro bono program. This allows our students to engage in pro bono work with supervision and also encourages our alumni to provide pro bono work. I don't know what the student practice rules are in New York, but Illinois Supreme Court Rule 711 allows senior law students to provide some limited legal services with supervision for organizations such as legal aid and the PD's office, but does not allow student practice under the supervision of private practice attorneys. If New York has a similar rule, it may want to consider allowing limited student practice under the supervision of a private attorney when that attorney is providing pro bono services as a way to increase opportunities.
The collaboration concept model as developed with the NPs is a good idea to consider. Thanks.
Because the state supreme courts have the authority to determine who is qualified to apply for admission of the bar, they would have to be persuaded to open the bar admissions process to graduates of non-ABA accredited schools. For example, Illinois Supreme Court Rule 703 provides: "each applicant shall have pursued a course of law studies and fulfilled the requirements for and received a first degree in law from a law school approved by the American Bar Association." One justice dissented to the adoption of this rule, which you may find of interest: JUSTICE HEIPLE, dissenting: By the amendment to Rule 711 and by Rule 703, which was previously adopted, this court recognizes only law schools which have been approved by the American Bar Association. I both dissent and object to these rules because they represent an improper delegation of a governmental and judicial function to a trade association of lawyers. The American Bar Association is a voluntary association of dues paying lawyers (currently $225 per annum) that exists for the benefit of its members. No lawyer is required to belong. Most do not. It clothes its parochial existence with an overlay of public activities and pronouncements designed to convince the general public that it is interested in the general welfare. That its primary focus is the benefit of its members, however, is beyond question. That the American Bar Association is a trade association warrants neither commendation nor condemnation. As a trade association engaging in improving the status of lawyers and lobbying Congress and the State legislatures, it is on a par with any other trade association. It is decidedly not, however, an arm of the State of Illinois nor of this court. It is improper for this court to assign and delegate to that organization the ultimate decisionmaking function of deciding for the State of Illinois which law schools warrant official recognition. It would be proper, of course, for this court and its Board of Law Examiners (now, Board of Admissions to the Bar) to consider and weigh the evaluations of the American Bar Association in considering which law schools are to be approved. The work of the American Bar Association in evaluating law schools could be considered as relevant evidence in that regard. No objection could be raised to that procedure. This court, however, has no right to delegate its decisionmaking function to the American Bar Association, the Teamsters Union, the Republic of Uganda or any other such body or group. If the rule asserts a valid principle of law, then this court could as well assign all of its decisionmaking functions to others who might be considered experts in their field. For the reasons given, I respectfully dissent.
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Dec 14, 2011