Written by Tom Gordon
Almost every driver has gotten a traffic ticket at some point. And almost every one of those drivers would have liked to have exercised their right to fight the ticket in court. Most decide not to, though, because of the expense of hiring a lawyer or taking time off to appear in court themselves.
A Florida company called TIKD has solved this problem by analyzing years of data from traffic tickets to determine the likelihood of a ticket being dismissed and using that to set pre-negotiated prices with lawyers. People with a traffic ticket can use a phone app to take a picture of their ticket and send it to TIKD. TIKD then analyzes the ticket and charges you a price less than the amount of your traffic fine. TIKD will then pay for a lawyer to fight your ticket and will cover the cost of any fines if you lose your case. Essentially, TIKD is getting consumers a discount on their traffic tickets by leveraging its knowledge of traffic court data and its ability to negotiate low rates with traffic lawyers. I had the opportunity to use the service and saved $25 on a $100 ticket when a speed camera said I was going 36mph in a 25mph zone.
While consumers have loved this service since its debut last year, the Florida Bar hasn't been so happy. As is often the case when the bar feels threatened by new business models (especially ones that use technology), the Florida Bar launched an investigation of TIKD for the unauthorized practice of law. In response, TIKD is suing the Florida Bar for antitrust violations, claiming that the investigation is being undertaken to protect existing law firms rather than to protect consumers.
We'll be commenting more on the TIKD case against the Florida Bar in the months to come. However, one of the most appalling aspects of the Florida Bar's defense against this suit is to claim that it is a Strategic Lawsuit Against Public Participation, or SLAPP suit. SLAPPs—according to the Florida Bar Journal!—are "legal actions brought against concerned citizens, bloggers, journalists, businesses, and other entities involved in speaking out on issues of concern to the public." In other words, SLAPPs are cases brought by powerhouses to intimidate the small, strong voice who speaks out against them.
It is Orwellian for the Florida Bar, which spends nearly $2 million of its $69 million dollar budget on fighting the "unauthorized practice of law" to claim that a small startup is intimidating it by challenging its monopoly over the legal services industry. In fact, it is the Florida Bar that is acting to intimidate its competitors by using the regulatory system it controls to threaten them with legal action.
Written by Bethany Hou
Responsive Law recently submitted comments to the North Carolina Bar regarding the Bar's recent proposed opinion on legal participation in an online platform for finding and employing a lawyer. The proposed opinion states that lawyers should be allowed to participate in these online platforms, subject to certain conditions. Online platforms have the potential to become the most easily accessible source of information for consumers, combatting the access to justice crisis in America.
The proposed opinion centers around the online platform, Avvo Legal Services, which operates using a directory of U.S. lawyers to connect consumers with lawyers. Avvo Legal Services offers "fixed-fee," or unbundled services, that charge a separate price for each legal service used. Current restrictions on such online platforms have prevented consumers from seeking out appropriately priced legal services, as well as seeking out lawyers to individual consumer specifications. These restrictions not only reduce consumers' access to legal services, but also reduce consumers' likeliness of finding affordable legal representation. With average legal prices in the range of 200-300 dollars per hour, fixed fee and unbundled services solve this issue and further promote the accessibility of legal services.
The NC Bar's proposed opinion supports opening up access to online platforms such as Avvo Legal Services, noting that these online platforms are subject to certain conditions that support the best interests of the consumer while wisely leaving the practice of law to lawyers' professional judgment. These conditions include separating the practice of law from the matching of lawyers with consumers on online platforms, prohibiting lawyer referral services for profit, leaving independent judgment to lawyers separate of the matching platform, determination of legal fees, and prohibiting misleading communications.
Responsive Law supports the proposed opinion (our full comments can be found here.) We support the committee's prioritization of consumer rights, as well as the proposal of reasonable guidelines and conditions. We noted in our testimony to the committee that online platforms have been used to great success for other fields such as the medical field. In addition, the committee's condition of leaving professional judgment to lawyers will ensure authorized practices of law, and its condition of leaving fee setting to lawyers will allow lawyers to exercise their own judgment. We sought greater clarification from the committee's stance on lawyer referral, noting the need to search and filter through the lists of lawyer as a useful feature for consumers that should be allowable.
Overall, the North Carolina Bar's proposed opinion is a move in the right direction—by interpreting ethics rules to allow these online platforms to best serve consumers, the NC Bar has shown to be forward-thinking and innovative in preserving consumer rights and promoting innovation in the legal industry.
You can find Responsive Law's comments here.
Bethany Hou is a Responsive Law Intern.
Written by Christine Kennedy
The resignation of Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit is the result of an acute revelation about the way self-represented litigants are treated in this country. Judge Posner, one of the country's most distinguished appellate judges, explains that he decided to resign his position after realizing how the legal system mistreats people who represent themselves in civil cases. Posner described this revelation as an awakening "from a slumber of 35 years."
Posner recalls receiving handwritten appeals from self-represented litigants who were for the most part uneducated. These appeals were usually disregarded and dismissed because of technical matters, and they're often viewed as not worth a federal judge's time. Unfortunately, this means that many people's legitimate cases are being tossed out for technicalities they (through no fault of their own) cannot understand.
Judge Posner surely also realizes this problem extends beyond litigants as millions of Americans face similar problems with legal matters that never reach an appellate court. Appellant litigants are just the tip of the iceberg of this problem, as most unassisted litigants cannot navigate a trial court, let alone an appeal. To make matters worse, people do not recognize when their problems have a legal component that could benefit from legal help. Only 14% of civil justice problems are taken to court, and less than a quarter are taken to a lawyer for advice. People often do not know when to pursue problems legally, which leaves their conflicts unresolved. Even if they did know they had a legal conflict worth pursing, people lack the knowledge to properly navigate through the legal system.
This problem is also persistent among transactional legal matters, which are far more common than litigation. Although people encounter various legal situations all the time, it is very rare that those matters are taken to court. People are much more likely to encounter routine procedures like writing a will, or reviewing a contract or lease, which do not require litigation. Most people do not get lawers to advise them on these matters. People either do not understand that lawyers can help them with these problems, or cannot get legal representation because it is too expensive. Unfortunately, legal representation would be beneficial in many of these cases, but its costs prohibits many from seeking out a lawyer.
If a person is lucky enough to know they have legal standing and decides to represent themselves in court, they receive little-to-no help navigating the legal system. They're left to traverse an extremely technical system all by themselves, and often get lost along the way. The recognition of this problem by Judge Posner is an extremely important step towards changing the legal system to better serve self-represented litigants. In most states, judges create the rules for navigating the legal system. Judges can use this power to make legal representation more affordable and accessible to people in this country, but that process starts with the recognition that there is a problem.
As an organization working to make the legal system more accessible, Responsive Law commends Judge Posner on his acknowledgement of this problem. We hope that more judges and lawyers will fight to make the legal system as accessible for those without lawyers as it is for the few who can afford them.
Christine Kennedy is a Responsive Law intern.
Written by Tom Gordon
In the face of opposition from Responsive Law, the Virginia State Bar (VSB) has backed off from a proposed ethics opinion that would have restricted Virginians’ ability to use affordable fixed-fee legal services.
The proposed opinion would have declared that lawyers were acting unethically by participating in programs where a company advertises their services for discrete tasks such as creating a will, reviewing a lease, or filing for an uncontested divorce, and charges a fixed flat fee for those services. The opinion was clearly directed at Avvo Legal Services, which has begun to roll out such services in markets nationwide.
In the proposed opinion, the VSB’s Standing Committee on Legal Ethics opined that lawyers could be violating legal ethics rules by paying a marketing fee to a company like Avvo, which it considered a violation of the prohibition on lawyers sharing fees with non-lawyers. It also said that it would be unethical for Avvo to maintain possession of client fees while a client waits for the lawyer to complete the work for which they were hired. Instead, the committee claimed, such money should be held in the lawyer’s client trust account.
Responsive Law submitted comments to the committee opposing the proposed opinion. We noted that clients were likely to be better protected against misappropriation of their fees under Avvo’s model than by a client trust fund. A client trust account, we noted, “is not a subterranean vault guarded by a goblin at Gringotts Wizarding Bank; it’s a paper (or electronic) construct to which the lawyer has complete access.” By contrast, under Avvo’s model, the organization holds the fees until the client indicates that the lawyer has satisfactorily completed the work.
Our comments also noted that a lawyer’s payment of a marketing fee to Avvo is a reasonable business expense, much like a credit card processing fee, and is also a totally reasonable way for lawyers to advertise that causes no harm to consumers. Rather than looking for technical violations of the ethics rules, the VSB should consider whether the increased access to legal services such services provide outweighs a theoretical harm that has not been demonstrated.
Finally, we pointed out that attempts by the VSB to restrict innovative new business models is a potential violation of the U.S. Supreme Court’s recent ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission. In that case, the Court held that self-regulating professions cannot hide behind “state action” immunity from antitrust law when the regulators are market participants. Several elements of the proposed opinion relied upon bar rules that are anticompetitive, making antitrust liability a strong possibility for the VSB, the Ethics Committee, and their individual members.
Aside from Avvo and one individual lawyer, Responsive Law was the only entity to submit comments opposing the proposed ethics opinion. In response to those comments, the Ethics Committee voted not to submit the proposed opinion to the Bar Council. VSB Ethics Counsel James McCauley told Virginia Lawyers Weekly (sub. req’d) that the committee now plans to “go back and study the affected rules.”
To read Responsive Law’s comments to the VSB, click here.
Tom Gordon is Executive Director of Responsive Law.
Written by Angel Gutierrez
Responsive Law recently submitted comments to the American Bar Association regarding proposed rule changes to the Model Rules of Professional Conduct governing lawyer advertising and solicitation. Lawyer advertising is one of the most common ways that people find out about where they can get legal help. Restrictions on truthful advertising not only hinder the lawyer's ability to advertise her services, but also the consumer's ability to find the right lawyer for her legal matter. Lawyers have the right to convey truthful information and consumers have the right to make an informed decision among different options for legal services.
The current rules of professional conduct maintain an antiquated mindset under which advertising is heavily restricted due to being seen as undignified. While a Victorian era gentleman could find a good lawyer through recommendations from family members or friends from the country club, the modern consumer relies on advertising—especially online—to find professional services. Despite repeated court rulings that lawyers are free to advertise like any other profession, the ABA's Model Rules (followed by nearly all states) keep them shackled with unnecessary restrictions that serve to protect this antiquated business model rather than to protect consumers. This view of advertising as some type of "tasteless" activity leads to a society of uninformed consumers. If this type of pressure on lawyers continues, then the legal profession will never see change and consumers will always be left out of the equation.
A recent research study by Rebecca Sandefur (a member of our policy advisory board) concluded that most Americans are unaware when their problems have a legal component and wouldn't know how to find a lawyer even if they thought one would help them. Under the current rules, lawyers end up providing less information to consumers due to fear of punishment for running afoul of overly restrictive and unnecessarily technical restrictions.
Fortunately, the proposed amendments may indicate a shift in the bar's thinking. The amendments would streamline the rules to focus more on the truthfulness of lawyer advertising and solicitation and less on the form that such advertising takes. Responsive Law's comments to the ABA support these proposals in the hope that they will move the legal profession out of the Victorian-era and into the era of technology, where consumers can more easily access information about lawyers at the touch of a button.
You can find Responsive Law's testimony here.
Angel Gutierrez is a Responsive Law intern.