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Despite the support of forward-thinking, recently inaugurated Bar President Ramon Abadin, the Florida Bar has voted down a proposal to allow greater reciprocity with lawyers from other states. Abadin proposed reciprocity in his inaugural speech in June, and the Florida Bar’s three year Vision 2016 study featured a proposal that the state adopt a form of reciprocity or admission by motion. Abadin, who made a progressive attempt to thwart Florida’s blatant economic protectionism of its legal industry, rightfully questioned critics’ assertion that Florida has “too many” lawyers when seventy percent of people in the state cannot get legal services. Abadin, who has been traveling the state since his inauguration to discuss the Vision 2016 study, pointed out that Florida’s approach to the issue of reciprocity is antiquated and does not conform with the changing landscape of the legal industry, which now has to contend with internet companies such as Avvo, LegalZoom and Rocket Lawyer whose services are not confined by state lines.

However, despite his forward-looking efforts, Abadin admitted that reciprocity is unlikely to pass in Florida, even though the debate will continue. Many members of the legal profession spoke out against Abadin’s proposal, but no legitimate concerns were brought. A self-described young attorney who sat for three bar exams in an attempt to do things “the right way” was arguing against reciprocity, only to be told by Abadin that, “What happened yesterday doesn’t affect today.” Along similar lines, the Florida Board of Bar Examiners issued a letter against reciprocity, reasoning that individuals who are admitted to practice in Florida should establish at least a minimal knowledge of Florida law. However, while a bar exam may force attorneys to cram large amounts of material in a short amount of time—not a method of learning that cultivates long-term retention—it does not absolve a practicing attorney from conducting thorough legal research into applicable law. Legal education teaches lawyers how to think and how to find information, and an attorney who has these basic skills would not need to frantically memorize Florida—or any other state’s—law just to regurgitate it on an exam. In order to be a good advocate, the attorney would simply need to be sufficiently competent to effectively research and apply the law that is relevant to the case that he is handling.

During a September forum on the issue, Florida attorneys working in small firms and solo practices expressed a concern that reciprocity would cause Florida to be flooded with attorneys working for “mega law firms” who will complete for business. However, the ostensible purpose of restrictions on practice is to protect consumers, not to protect lawyers. Complaints from lawyers about competition expose the real reason for these and other unlicensed practice of law restrictions: to protect lawyers from competition, both within and outside the profession. Abadin’s response to critics who fear that Florida would be inundated with out of state attorneys should reciprocity pass was that there is no empirical evidence to support this contention. Abadin has been making commendable attempts to align Florida with more progressive approaches to reciprocity, as his state and the U.S. as a whole are clearly lagging on the issue. Both should look to Canada, a country that allows multijurisdictional practice. This in turn harvests greater competition in the legal services industry and allows more lawyers and law firms to reach economies of scale. A similar approach would help alleviate Florida’s justice gap that was pointed out by Abadin—a problem that is in fact all too pervasive throughout the United States.

 

Elena Kravtsoff is a Responsive Law volunteer

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In November 2014, the California State Bar Board of Trustees approved the creation and appointment of the Civil Justice Strategies Task Force. The charge of the task force was to analyze the reasons for the state’s justice gap: the conundrum of how there are so many lawyers yet so many Americans have unmet legal needs and cannot afford or access legal help. Specifically, the task force intended to study creative solutions and innovative strategies in use by other states and other countries that have the potential to greatly improve access to justice in California.

Responsive Law sent an array of innovative and creative solutions to the Civil Justice Strategies Task Force. We advised the task force to allow for alternative business structures to address the justice gap. Alternative business structures entail permitting outside investors to provide capital to legal service companies or allowing non-legal companies to partner and share fees with a legal organization. Both the United Kingdom and Australia have allowed legal entities to accept outside investment from non-lawyers; yet no state in the U.S has done so due to unfounded concerns that outside investment will lead to an increase in unethical violations by lawyers. 

We specifically recommended that California allow outside investments in the growing number of legal startups that already exist in their state. We highlighted the fact that pro-bono services and legal aid literally do not have the capacity to provide even half of the unmet need for legal services. Thus, California needs to invest in creating a larger array of affordable legal services via outside investment in legal startups.

We also recommended allowing more non-lawyers to provide legal help to consumers. We cited the launch of limited license legal technicians (a regulated profession of non-lawyers who provide document preparation and other legal assistance) in Washington state. We also recommended the proven strategy of limiting the breadth of unauthorized practice of law claims (UPL). Research has shown that UPL cases are brought mostly by lawyers, for anti-competitive reasons, as opposed to a dissatisfied customer. As Responsive Law has noted before, such aggressive UPL enforcement chills legal innovation. Specifically we proposed that the task force create a safe harbor provision for document preparation similar to the one in Texas that has helped to provide many Texans with access to self-help tools. We also encouraged the task force to again look to the United Kingdom where non-lawyers referred to as McKenzie friends have operated for the past 50 years providing court navigation help, moral support, case paper management and advice on courtroom conduct for free or for a small fee.

Lastly, we encouraged the task force to take the lead (as opposed to waiting for other states) by launching a compact with other states to allow for multi-jurisdictional practice similar to what exists in Canada. In Canada, a lawyer can practice in any province; allowing multi-jurisdictional practice allows for greater competition in the provision legal services and more lawyers and law firms to reach economies of scale. Thus the strategy of multi-jurisdictional practice could provide Californians with unprecedented access to lawyers. We believe California is off to a good start of addressing their growing access to justice gap; the strategies and solutions we have recommended will supercharge California’s potential to actually close the justice gap.

You can read our comments to the California Bar here.

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On July 26, Laurence Tribe, President Obama's Senior Counsel for Access to Justice, told an assembly of state supreme court justices that he had "come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment" and then told them what they could do to improve access to the courts. We'll be writing more about Professor Tribe's recommendations in the weeks to come, but we'd like to focus here on his comments on pro bono (free) assistance from lawyers.

Tribe recommended that the courts and bars loosen restrictions on unbundled representation and multi-state practice in order to increase opportunities for pro bono representation. He also suggested that courts reconsider their unauthorized practice restrictions so that court clerks could offer more help to self represented parties.

Unfortunately, pro bono work can't begin to cover the legal needs of the American public. About two million people got divorced last year, half of whom represented themselves. There also were about four million foreclosures and about 1.4 million consumer bankruptcies. That's over 6.4 million people who need legal help in just three areas of law. There are about one million lawyers in the country; however most of them have no background in these or other areas of law where everyday people need the most help. It is simply unrealistic to expect that lawyers could provide free full-service help to the millions who need assistance.

Fortunately, there are other options. Full-service representation is both prohibitively expensive -for pro bono lawyers and for paying clients. However, allowing unbundling for paid services would enable lawyers to offer a wider range of services that would be affordable for clients and make business sense for lawyers. For example, in an uncontested divorce, a client could fill out forms and pay a lawyer to review them. In a small claims case or other self-represented litigation, a client could pay for 30 minutes of a lawyer's time for coaching on how to present her case. Allowing clients to receive service other than in a one-size-fits-all plan-and allowing attorneys to be paid for such service without fear of ethics violations-will expand the availability of legal help far more than pleading for more pro bono hours.

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We recently weighed in on the ABA's new proposed rules for allowing lawyers to practice across state lines. You can read them here.

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Tuesday, 31 July 2012 20:00

ABA To Consider Virtual Lawyering Rules

The American Bar Association (“ABA”) Commission on Ethics 20/20 recently requested comments regarding the rules governing lawyers practicing across state lines via internet. Responsive Law suggested to the ABA that opening up the internet for legal services is highly beneficial to consumers and will make the legal system more affordable without sacrificing the accountability that is already present. 

Allowing lawyers to practice across state lines via internet is extremely beneficial to consumers. Although it is a relatively new practice, it is one that has great potential for increasing affordable access to the legal system.  Online commerce has expanded the availability of goods and services in nearly every industry, particularly for those located far from major cities. People currently use companies such as eBay and Amazon to order products and the availability, convenience, price and safeguards of these companies continuously drive customers to use and reuse their services. Similarly, the legal profession, with its duty to protect access to justice, should support any effort to make the legal industry friendlier to online commerce in the way that successful internet companies already have.

Virtual law practices will improve communication between lawyers and clients.  Many computer-savvy people may be more comfortable interacting with a lawyer online than through postal mail or in person. Since the internet does not require simultaneous communication, virtual practices can also expand the number of hours during which lawyers and clients can communicate thus increasing access. 

Although there are many positive aspects of practicing via internet, some states are moving towards prohibiting licensed lawyers from practicing law in the state unless they hold a physical office in that state.  This is extremely inconvenient for the person seeking legal assistance. For example, a New York resident who moves to Tennessee to take care of aging parents will not be able to hire an attorney licensed in New York unless that attorney has a physical office in New York.  For this consumer, whether they are dealing with a lawyer physically located in New York or New Jersey, or even California is irrelevant. What is relevant is that the lawyer is competent to deal with the client’s issues relating to New York law. Unfortunately, on top of the burden of caring for aging parents, this person will now have to travel back and forth to New York rather than handle their legal matters online.

Even though we currently live in a mobile society, there are an increasing number of situations, like the New-York-to-Tennessee move, where restrictions on practice based on physical location of the lawyer hinder one’s ability to receive legal services. These anticompetitive restrictions reduce access to the law, yet provide no additional protection to consumers.

While some of the criticisms regarding lawyers practicing across state lines via internet involve a decrease in quality and accountability of legal service, most of those criticisms are largely unfounded.  In the same way that eBay and Amazon are held accountable for dissatisfied customers, lawyers practicing across state lines via-internet can be held accountable for any bad legal practices. If one is dissatisfied with the services of their virtual lawyer, they can hold that lawyer accountable in the same ways in which they can hold an attorney accountable who lives down the street.  Lawyers, regardless of whether they are engaging in physical or internet practice can be held accountable through civil lawsuits, or action by bar disciplinary committees in the state where they are licensed.  Moreover, while consumers can hold lawyers equally accountable whether the lawyer is working in person or virtually, choosing virtual lawyering can result in lower cost and more options when choosing a lawyer.

Virtual law practice has great potential for increasing affordable access to the legal system.  It enables consumers to have greater access to affordable and competent legal work while keeping it accountable and cost-effective. You can read our full comments to the ABA, urging them to allow this practice to grow.

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The ABA House of Delegates approved a new consumer-friendly rule today which will allow lawyers who move to a new state the ability to practice in that jurisdiction for up to a year while seeking bar admission. Responsive Law supports this action and believes that this change will benefit consumers by allowing a greater amount of lawyer mobility, which will give consumers a larger choice in their legal service provider.  Moreover, with the approval of this rule, the ABA is adapting, albeit slowly, to the expectations of both consumers and lawyers in today’s mobile society.

Jen Roy, a law student at the University of the District of Columbia, is a Responsive Law intern.

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The hotly contested Senate race in Massachusetts recently touched the legal world. Critics accuse Democratic candidate Elizabeth Warren of engaging in the unauthorized practice of law in Massachusetts because she wrote a number of amicus briefs filed in federal appeals court from her office at Harvard Law School. State ethics rules prohibit a lawyer who is not licensed in state from establishing “an office or other systematic and continuous presence in this jurisdiction for the practice of law.”
 
While Warren’s work on corporate bankruptcy cases may seem removed from the legal needs of everyday people, this incident illustrates a broader concern: many state ethics rules are still based around the idea that a lawyer’s practice is inexorably linked to their physical location. What matters is not the lawyer’s familiarity with state law or whether they are licensed to appear in court, but where the desk they worked at was physically located.
 
As Responsive Law has previously noted, basing a system around an attorney’s office address hinders consumers’ access to legal resources. Consumers across state lines are prevented from seeking out otherwise competent and accredited attorneys if that attorney isn’t near a certain location. For example, if a person in Connecticut goes into foreclosure, they could not have their longtime attorney work on the case if the attorney is currently attending a conference in Massachusetts. Even if the attorney is registered with the Connecticut Bar and familiar with Connecticut law, the attorney cannot provide services in Massachusetts unless they have an office there. In order to do any work on the foreclosure case, the attorney must drop everything and return to Connecticut. The consumer either would have wait and hope for the attorney’s speedy return or go through the process of finding another attorney. These restrictions diminish access to legal resources by making it inconvenient and expensive to conduct legal business across state lines by forcing attorneys to constantly travel instead of working online.
 
These days, both consumers and attorneys are constantly on the move. Rules that hold that a physical office is integral to the practice of law restrict access and raise the costs of legal services whiling doing nothing to protect consumers from actual frauds and charlatans.  This system should be abandoned for one that allows for better virtual access to law. An attorney’s competence and familiarity with the law, and not the location where they do their research and writing, should be the relevant factor when a consumer decides whose legal service is best for them. At a time when legal resources are prohibitively expensive and inaccessible to so many, states like Massachusetts should adopt rules that drive down costs through competition and enhance consumer choices. Consumers should not have their choices artificially restricted based on where a lawyer has their mail delivered.
 
Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.
 
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As much of the Northeast continues to recover from Hurricane Sandy, aid organizations have mobilized to help the victims of the storm begin to rebuild their lives. One area that often gets overlooked in disasters like this is the issue of legal needs. Sadly, the progress toward creating a system to make pro bono legal aid more accessible in the aftermath of a storm has been uneven.

Hurricane Katrina demonstrated that large natural disasters impact a region’s legal services in two primary ways. First, the devastation creates a tremendous strain on the legal system by increasing the number of legal issues. Disasters overburden the system as victims begin to file insurance claims, experience landlord-tenant issues and have disputes over construction contracts to name a few issues. At the same time, disasters deplete the legal infrastructure in place to deal with these issues. Mass evacuations and damage to communications infrastructure mean that lawyers are separated from their clients and staying in contact is difficult. Law offices may be damaged, inaccessible or without power, meaning that lawyers no longer have access to the relevant documents or the ability to keep track of their cases. Finally, courthouse closures can slow the system even further, leaving vulnerable people in a state of legal limbo.

Understanding these difficulties, many lawyers from across the country offered to take pro bono cases in the Gulf in the wake of Hurricane Katrina to help as the devastated justice system begin to rebuild. However, these efforts ran into initial difficulties because of Louisiana and Mississippi rules limiting the ability of out-of-state attorneys to take cases.  Although the Supreme Courts of both states eventually adopted temporary rules that allowed more out-of-state aid in, this episode exposed a major deficiency in the emergency legal aid system. At a time when whole communities are devastated and people everywhere are eager to help, lawyers should not be prevented from contributing their services because of a formalistic regulation. 

Since then, the American Bar Association has responded by adopting what is known as the “Katrina Rule” in 2007. The model rule is more flexible and allows out-of-state attorneys to take certain cases on a pro bono basis in the aftermath of disasters. To their credit, 16 states have adopted this rule into their own judicial systems as of July of 2012. However, the pace of reform has been uneven. Implementation is still pending in fifteen states and eight states have actively decided not to adopt this rule.

This delay and outright rejection of this type of reform is morally inexcusable in the face of devastation from a storm such as Sandy. While New York, New Jersey and Delaware have all adopted a version of the rule, Maryland is still considering adoption and Pennsylvania had already actively rejected the rule. The normal justification for unauthorized practice of law restrictions that prevent anyone but in-state attorneys from practicing is a concern about scam artists and unqualified attorneys. But these circumstances do not apply given the limited and regulated way pro bono work is allowed under the rule. In the face of so much human suffering, no resource for attending to the victims needs should be constrained by arbitrary rules. It is simply wrong to turn away willing volunteers from a disaster area that could desperately use their help. 

Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.

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Tuesday, 22 January 2013 00:00

NJ Adopts Rule Allowing Virtual Law Offices

The New Jersey Supreme Court has adopted a rule supported by Responsive Law that will allow lawyers to practice in New Jersey without a physical office in the state. The rule could increase New Jerseyans' options in choosing a lawyer. For example, a person in Hoboken will now be able to   choose from New Jersey-licensed lawyers located just across the Hudson River in New York City, and a person in Cherry Hill will now be able to choose from lawyers located just across the Delaware River in Philadelphia. New Jerseyans could also see the cost of a lawyer decrease due to the reduction in overhead for lawyers by not requiring them to maintain a full-time, fully-staffed office.

The rule maintains standards for lawyer responsiveness to clients, including a requirement that lawyers designate a location for inspection of documents by state regulators, and a requirement of prompt return of client calls, whether through voicemail, a third-party operator, or other means.

You can read our testimony to the New Jersey Supreme Court, which contains a more detailed description of the benefits of this rule. The rule takes effect on February 1, 2013.

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