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Professional responsibility of the new legal services providers
Bruce, what is it exactly that you teach your students? Do you use a rather philosophical approach to ethics or are your discussions with law school attendees centered around concrete professional duties?
For the most part, my students intend to practice as lawyers, not to be scholars. While I want to encourage them to think deeply about the role of lawyers in society and about different conceptions of the lawyer’s role and responsibilities, first and foremost, they need useful knowledge about how to function within the legal profession – how to interact with clients, judges, fellow lawyers, and others. When they become lawyers, my students will have to make decisions in professional life that take place in a highly regulated ethical and legal context. There are rules for handling conflicts of interest, property of your client, doing pro-bono work, treating your colleagues in an adequate fashion (or the court, for that matter), respecting the expectations of your clients with regard to confidentiality, conducting lawful billing procedures, and many more.
In recent years, we saw many new legal services providers entering the market. They are not law firms and a large part of their staff consists of non-lawyers. Therefore, they do not act under the supervision of the bar authorities. Do they have to follow the rules applicable to lawyers, regardless of not being law firms?
This is an interesting and controversial question. There are new market players, and the nature of how they are regulated will vary depending on their nature. If a company provides legal documents on-line, it is not holding itself out as a law firm but as a non-lawyer provider of legal information. If a regulator believes that this company is giving legal advice, the provider may be accused of engaging in the unauthorized practice of law and the regulator may seek to enjoin it. Otherwise, the provider will be regulated like any other business, not subject to the rules governing lawyers.
On the other hand, a service that electronically reviews legal documents, although not regulated directly, may be regulated indirectly if it is hired by a law firm to assist in providing legal assistance to a client. For example, if the provider electronically reviews documents to determine which must be produced in litigation, the lawyer retaining the service will ultimately have a responsibility to ensure that the work is done competently and that the service protects the client’s confidences.
Some other organizations provide lawyers to corporate clients but claim not to be law firms, so that, while the lawyers themselves are subject to professional regulation, the organizations assert that they are not. That may become controversial, because they organizations may be in a position to acquire public capital and to have non-lawyer control, whereas law firms cannot do so. Most likely, insofar as the clientele consists of sophisticated corporate clients, many of whom have in-house counsel, there will not be complaints about clients being misled or poorly represented. Even so, law firms competing with these organizations may be dissatisfied. As organizations become more entrepreneurial and test the regulatory boundaries in more creative and assertive ways, the bar associations may begin to pressure regulators to bring proceedings against new service providers. We may be in for some interesting times in the U.S.
So are you then opposed to these new legal services providers?
No, certainly not as a general matter. It is important to take advantage of new technology to find ways to make assistance with legal matters more accessible, affordable and effective. Work is being done to develop ways not only to bring legal costs down for corporations but to provide assistance to individuals who cannot afford lawyers at all. This is important because free legal assistance is not universally available to low-income individuals in civil matters. Individuals who cannot afford a lawyer may be better off with some assistance, for example, on-line assistance with simple wills or with court filings. Organizations providing these services should be regulated to ensure that they do not defraud consumers, just as other organizations that provide consumer goods are regulated. Even though non-legal services providers are not regulated by the professional conduct rules for lawyers, they can still be effectively regulated.
11/2013Read more interviews