Right Problem, Wrong Solution

Straddling the fence between ethics and innovation is a really good way to get a butt full of splinters.  My pal, Carolyn Elefant, must have cheeks of steel to write a post at My Shingle suggesting that the ethics of solo innovation should be subject to crowdsourcing. Oh my.

Carolyn starts by noting that #Altlaw businesses, because they disclaim being law firms while selling the practice of law, are able to get a leap on solos and small firms based on their escaping the strictures of the disciplinary rules that apply to lawyers who admit to being lawyers.

It’s no coincidence that many of the innovations in the legal profession – the Axioms or RocketLawyers and matchmaking platforms are non-law firm entities that aren’t subject to ethics rules.  As a result, these companies can push the ethics envelope without fear of serious repercussions. By contrast, if a solo or small firms experiment with a new approach to serving clients, like a virtual office space or a networking arrangement, they can lose their license or reputation if it turns out they made the wrong call (like the Connecticut solos who were prosecuted for ethics violations for participating in Total Attorneys’ lead gen program).

Carolyn then makes the very astute observation that the #ReinventLaw of the New Normal of Future of Law crowd is blind to this glaring ethical sinkhole:

Futurists ignore these very real constraints on solos and smalls. And why not? It’s far more provocative to portray solos and smalls as a bunch of luddites with a guild mentality rather than as responsible business owners reasonably assessing risk in a heavily regulated environment.  And frankly, many futurists  — particularly those interested in  access to venture capital — stand to benefit from the ethics hurdles that keep solos and smalls in their place. After all, if ethics rules stymie solos and smalls from competing with new business models, that simply makes it easier for these #altlaw ventures to push solos and smalls right out of the market.

What? You thought empty rhetoric and incomprehensible jargon about quality and honesty was a substitute for truth?  Grow up.  But Carolyn was then facing a juncture, a fork in the road, and took a wrong turn.

So how can we provide solos and smalls with guidance as well as insulation from punishment making the wrong decision? Two ways: ethics safe harbors and crowdsourcing ethics opinions.

The problem begins with asking the wrong question, always something to be wary of.  Ask a wrong question and you get a wrong answer.  By recharacterizing it a bit, the question becomes:

So if #Altlaw businesses are allowed to circumvent lawyer ethics, how can we fashion a way for lawyers to skirt ethics too?

Carolyn’s solution is fascinating: let the people who don’t like the ethical prescriptions for lawyers recreate them so they can do what they please.  Crowdsource, baby.

Belying this approach is the fact that the Code of Professional Responsibility is the ugly baby of Old White Lawyers. This, of course, is true.  Just as the #ReinventLaw futurists will suffer no one who calls bullshit on their circle jerk, so too are the bar association committees that consider ethics made up of pedantic-bar-association-types who get off on announcing their self-importance at cocktail parties where they have to buy a ticket to be allowed in. They don’t get invited to free parties, for obvious reasons.

But crowdsourcing ethics is the polar extreme, a self-selected group of cutting edge digital natives who have proven themselves so myopic and entitled as to see nothing in ethical rules that doesn’t make their life easier and offer the possibility of making more money.  Missing from every single discussion is any voice saying, “what about the clients?”

In a comment to Carolyn’s post, an example is raised about Ohio’s refusal to allow lawyers to practice under trade names.  This is also the case in my home jurisdiction, New York.

One example of the useless rule that leads to a double standard is the rule (in Ohio, and other states) the prohibits lawyers from using a trade name for their firms. So I have to name my firm something like “Law office of me,” instead of 21st Century Business Law, which is actually more descriptive of what I am doing. Meanwhile, you’ve got a 600-lawyer firm here, and not a single lawyer in the firm has his or her name in the firm name. It’s all dead white men (which is really what the name of the firm should be, Dead White Men PC). So they are essentially using a trade name, where living solos are prohibited.

This raises an interesting point. First, would the use of a trade name really change anything?  Sure, it would allow a lawyer to pick his business name, and choice is always perceived as better than lack of choice, but does “Cool Lawyer in Ohio” make you a successful lawyer when “The Law Office of Joe Smith” doesn’t?  I suppose the answer is only when one gets clients via Google search based exclusively on cool law firm names.

On the other hand, is it really a problem that lawyers use trade names rather than their own name?  For the most part, of course not. Who cares if a lawyer practices under the name “Cool Lawyer”?  The problem arises, however, when the chosen name is “Guaranteed Acquittal of Ohio, Inc.,” or perhaps “Jones and Smith, International,” when the email is answered from a kitchen table by someone named Greenmoyel.

What’s missing from Carolyn’s approach is that the level playing field she rightfully seeks isn’t going to come from reducing ethics applied to lawyers, but eliminating the ability of #Altlaw to escape ethics by hiding behind incomprehensible jargon and lying about what it does.

Rather than call for crowdsourcing the new ethics so that the rules are changed to allow everyone to cheat, the call should be for prosecutors to get to work on those who are engaged in the Unlawful Practice of Law.  Now that’s a solution.



10 thoughts on “Right Problem, Wrong Solution

  1. Adam Ziegler

    Why assume that crowdsourcing ethics scenarios would lead only to outcomes that would “allow everyone to cheat”? If properly designed, what Carolyn proposes would allow lawyers who care just as much as you about core professional and ethical values – the “what about the clients?” folks – to weigh in with reasoned analysis supporting their views on a given issue. In many instances, I think those views – well-supported by logic, authority and experience – would carry the day over rosy speculation by idle dreamers.

    Might this be the ideal form of lawyer self-regulation? Rather than rely on a small cadre of ethics arbiters, who seem not to understand emerging issues (either the risks or the opportunities) and whose analysis is opaque at best (and sometimes paywalled, as Carolyn often notes), why not allow all of those with a stake in an issue and a commitment to the values of our profession to weigh in transparently with views that will stand or fall on their merits.

    Finally, we don’t have to cede all (or any) actual authority to the “crowd.” It could simply serve as an input or sounding board available to assist the deciders among us in reaching better judgments.

    1. SHG Post author

      Missing from your analysis is the “self-selected” aspect. Lawyers who have no real issue with the DRs won’t be bothered crowdsourcing it. They have no horse in the race, and will spend their online time (if at all) reading/discussing things that matter to them.

      Only lawyers who have a problem and are seeking change, an “interest group” for change if you will, will care enough to spend their time arguing about changes to the ethics rules.

      An unfortunate truism is that, no matter how important an issue may be, people don’t care unless it touches their lives. This only touches the lives of people who desire change. That’s why.

  2. Adam Ziegler

    I agree that self-selection could prove to be a problem, perhaps a fatal one for this kind of effort. I’d like to think that the important rules would find plenty of articulate defenders if challenged, and the foolish ones would not. But we don’t have to be limited to speculation about self-selection. Perhaps we could test it.

    1. SHG Post author

      Is the reply button broken today? Does it only work for me?

      We could test it, but if the test failed, it would nonetheless be used by those who seek change and to excuse their refusal to abide the DRs as proof that they aren’t unethical, just extra-ethical. One can always question whether the obvious will happen again this time, but this rationalization would justify chaos in the name of “maybe” because “you never know.”

      We have a pretty damned good idea, because it has happened every other time it’s been tried, invariably to our detriment. So yes, we could test it, but the definition of insanity is to keep trying the same thing and expect a different result the next time. So no, it’s not a sound idea or argument.

  3. KP

    “”Basically everyone should be able to do whatever they want.””

    What! You can’t have that!! There would be no role for Govt or legislators beyond “Don’t commit harm to other people”, so hundreds of thousands of people (including lawyers!) would have to look for real work.

    However to put the practice of law on the same real-life footing as selling and buying breakfast cereal does have a great attraction! The efficiency of society would increase markedly.

  4. UltravioletAdmin

    I think in many ways something like a state bar ethics opinion is a Crowd source. But, one of the problems being is ethics opinions are going to be state focused. Another big thing is people forgot practicing ethics is practicing law. Those ethics opinions from a crowd source are going to be crap because the people who know the answers aren’t going to risk their own professional necks or their business models.

    Alt law usually works either by a legal figment (like self help services), or by being a service to corporations and firms (everything from a search company to a matchmaker). Ethics crosses the line to actual practice, and crowd sourcing ethics sounds like a great way to get UPLed and sued for malpractice.

    The real solutions for solos and small firms is to lobby their state bars to more aggressively pursue prosecution of UPLs and making sure the alt-law crowd stays in their niches.

  5. Tomas

    Ethics rules and government licensing are frankly asinine anyway. Let bad-acting lawyers face the market like everyone else.

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