Written by Josh King
Tom has already posted about the NJ Supreme Court's summary rejection of Responsive Law's challenge to that state's latest ethics opinion impacting Avvo Legal Services. But as Avvo's former Chief Legal Officer, I wanted to offer a few of my thoughts on the Court's lazy, arrogant, and retrograde decision.
Sorry—I may be frontrunning my conclusion here.
But it's crazy how little respect the New Jersey Bar and Supreme Court have shown throughout this process for consumers, their own members, or even the rule of law. As Tom notes, the New Jersey Supreme Court has blithely ignored its obligation to actively supervise the competition-impacting activities of the Bar. The Court has further failed to observe even the most basic principles of public access and input into the administrative rulemaking process. And the entire enterprise has exalted strained and mechanistic readings of the rules rather than any sort of good faith consideration of First Amendment principles, antitrust constraints, or--most importantly—the interests of New Jersey citizens in need of legal help.
Bar Ethics Opinions Are Inherently Cautious
How did New Jersey get in this mess? You can thank the use of ethics opinions. Ethics opinions are guidance that attorney regulators (and some non-regulatory Bar Associations) give to their members. The purpose of this guidance is to give attorneys comfort that certain practices comply with the Rules of Professional Conduct. After all, attorneys rely on their licenses, and most don't want to do anything that might put their license at risk.
You won't be surprised to learn that such opinions are very conservative. Ethics committees broadly and mechanically apply the rules, typically with no regard whatsoever for First Amendment implications, antitrust considerations, or whether the opinion is good for consumers of legal services.
This uber-careful approach can actually be a good thing in some situations. Attorneys who feel like they are making close calls on client confidences or assets are treading on dangerous ground. These matters are ones where attorneys should ALWAYS err on the side of caution –and ethics opinions do a great job of helping attorneys err on the side of caution.
The problem comes when ethics opinions apply this same belt-and-suspenders approach to legal marketing and business development.
Innovation vs. Ethics: Not a Zero-Sum Game
The rules dealing with attorney-as-fiduciary (whether money or confidences) only ratchet one way. Ethics opinions are great in these areas, as there is no detriment to clients if attorneys are over-complying with the rules. What client WOULDN’T want their attorney to be super-cautious when it came to their money or secrets?
But over-compliance turns into a negative when it comes to questions of attorneys informing the public about the services they offer—or participating in innovative new programs like Avvo Legal Services.
Most lawyers will naturally withdraw from whatever line is drawn by a bar's ethics opinion. If that line is based on a conservative reading of the Rules of Professional Conduct—and the approach of bar ethics opinions practically guarantees that it will be—consumers will be deprived of information and options they would have otherwise.
Bars Should Respect Consumers or Refrain from Regulating
It's not just good policy that bars should treat legal marketing and service offerings differently than fiduciary obligations. While the state has wide latitude to regulate most matters related to the practice of law, the First Amendment dictates that bars meet a much higher burden when it comes to interpreting rules that impact legal marketing. And as Tom points out, antitrust law requires that bar committees consider the anti-competitive aspects of regulation when interpreting the law—or be actively supervised by the state.
Yet as New Jersey so aptly demonstrates, bar ethics opinions persist in applying the same old cautious approach to all questions they face. And when questioned, the bar—and its putative government overseer, the state Supreme Court—retreats into defensiveness and summary rejection. This approach is not sustainable. It shows a lack of respect for important First Amendment and competition law principles, and it is actively harmful to the public, whom the Bar is supposed to serve. If bars like New Jersey can't get this part right, they should at least get out of the business of issuing ethics opinions.
Josh King is the former General Counsel of Avvo, and a member of the Responsive Law Board of Directors.
Read more about antitrust and governance here.