Should legal ethics rules be changed to allow non-lawyer ownership of legal services providers? So controversial is the question that it was major news in July when the State Bar of California voted to appoint a task force to study and make recommendations on the issue. What spurred the bar to take this action was the Legal Market Landscape Report it commissioned from William D. Henderson, professor at Indiana University Maurer School of Law. Henderson is my guest on today’s episode to discuss his findings and recommendations.

Henderson’s report makes the case that the legal profession is failing in its core mission of serving those who need legal services. The situation has brought the profession to an inflection point that requires action by regulators, Henderson says. The most effective regulatory action would be to ease rules on non-lawyer investment in order to allow lawyers to more closely collaborate with professionals from other disciplines, such as technology, process design, data analytics, accounting, marketing and finance.

“By modifying the ethics rules to facilitate this close collaboration,” Henderson writes in his report, “the legal profession will accelerate the development of one-to-many productized legal solutions that will drive down overall costs; improve access for the poor, working and middle class; improve the predictability and transparency of legal services; aid the growth of new businesses; and elevate the stature and reputation of the legal profession as one serving the broader needs of society.”

At Maurer, Henderson holds the Stephen F. Burns Chair on the Legal Profession. In 2017, he founded Legal Evolution, an online publication that chronicles successful innovation within the legal industry. A prolific author and speaker, he focuses primarily on the empirical analysis of the legal profession. Among his honors, he was named by the ABA Journal as a Legal Rebel, included on the National Law Journal’s list of The 100 Most Influential Lawyers in America, and in both 2015 and 2016 named the Most Influential Person in Legal Education by The National Jurist magazine.

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For a geek like me, it was big news last August when the American Bar Association’s House of Delegates voted to amend the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent in technology. Specifically, the ABA voted to amend the comment to Model Rule 1.1, governing lawyer competence, to say that, in addition to keeping abreast of changes in the law and its practice, a lawyer should keep abreast of “the benefits and risks associated with relevant technology.” (I wrote about this in the context of e-discovery at the Catalyst E-Discovery Search Blog.)

Now, the duty to be competent in technology may be coming to my state, Massachusetts. Last week, the Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct published a comprehensive set of proposed revisions to the Massachusetts professional conduct rules. The bulk of the proposed revisions are derived from changes to the ABA Model Rules based on the recommendations of the ABA’s Ethics 2000 Commission and its more recent Commission on Ethics 20/20, which specifically looked at globalization and the profession’s increased use of technology.

And, yes, there among the proposed changes is the duty of competence in technology. Specifically, comment 8 to Rule 1.1 would say:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.

While I am thrilled to see this change proposed, and believe it is long overdue, it is merely the tip of the iceberg of the extensive revisions the committee has proposed. To read more about the proposed revisions, visit the site, which also includes:

Before it sends the proposed revisions to the SJC, the committee is seeking public comments. Comments are due by Dec. 2, 2013, and should be directed to The Standing Advisory Committee on the Rules of Professional Conduct, c/o Senior Attorney Barbara Berenson, John Adams Courthouse, One Pemberton Square, Boston MA 02108.  Comments may also be sent by email to barbara.berenson@sjc.state.ma.us.

A new mobile app introduced this week by the New York State Bar Association lets lawyers search and access ethics opinions from their mobile phones. The NYSBA Mobile Ethics App includes the state bar’s catalog of more than 900 legal ethics opinions, dating back to 1964.

The app allows users to search for an opinion by keyword, retrieve it by opinion number, or browse a list of categories such as “attorney advertising,” “concurrent representation” and “non-refundable retainer.” Results show both a digest of the opinion and its full text. It can notify you when new opinions are added.

The free app is available for iPhones, iPads, Android phones and BlackBerrys.

On Wednesday, the ABA Commission on Ethics 20/20 issued its initial report (PDF) on whether ethics rules should be changed to address lawyers’ use of technology for marketing and advertising.

As you may recall, when the commission first announced its plans to study this issue, it created quite a stir among legal bloggers, kicked off by a much-discussed “red alert” blog post by legal marketer Larry Bodine which began, “The ABA is quietly gathering support to choke lawyer marketing on the Internet.” (Links to the original post no longer work and I cannot find it anywhere on Larry’s blog.)

With the commission’s report now out, the headline on Karen Sloan’s National Law Journal piece today pretty much sums it up: Alarm Over ABA Study of Online Advertising Proves Unfounded. Karen quotes me in the article, saying:

Massachusetts lawyer Robert Ambrogi said that the proposals strike a “sensible balance” between the need to regulate lawyer advertising and lawyers’ ability to use technology to educate consumers.

She also quotes Kim Perret, chairwoman of the Legal Marketing Association’s task force on the issue, as praising the suggested changes and for its “restraint on the issue.”

Restraint is the operative word here. As the report’s cover letter explains:

[T]he Commission concluded that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values.

As I said to Karen Sloan, I believe that the proposed rules strike a sensible balance between regulating lawyer advertising and promoting the use of technology to educate consumers about law and legal services. Rather than create new restrictions on advertising, the proposed rules make modest changes that help answer questions many lawyers face.

Notably, the proposed rules recognize that lawyers should be able to communicate and engage with others online without necessarily creating a prospective attorney-client relationship. Rather, that prospective would arise only when the lawyer creates a ‘reasonable expectation’ that he or she is interested in forming such a relationship.

The proposed rules also are commendable for explicitly authorizing lawyers’ use of pay-per-click and pay-per-lead Web marketing sites. In my opinion, these sites can be important tools for helping consumers find appropriate lawyers. Until now, uncertainty about ethical rules have inhibited lawyers from using them.

On another point, the proposed rules clarify a question that vexes many lawyers online, that of what constitutes an inappropriate solicitation. The rules take the sensible approach of recognizing that a website or banner ad directed to the public at large is not a solicitation. Rather, the rule suggests this definition:

A solicitation is a targeted communication initiated by the lawyer that is directed to a specific potential client and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

Of course, these are only proposals at this point. They will be debated by the ABA House of Delegates at the association’s annual meeting in August 2012. In the meantime, the commission invites comments on these initial proposals, which are due by Aug. 31.

We do not know whether the commission’s sensible and restrained report was in response to the initial uproar or in spite of it. Either way, the commission should be commended for a job well done.

The use of expert witnesses in litigation has skyrocketed. Have our ethics rules kept pace? I have posted an article, Proposed: A Lawyer’s Code of Expert Ethics, at the Web site of IMS Expert Services, that sets out a draft of a proposed code. The idea is to generate discussion about whether such a code is needed and, if so, what it should say. I would encourage you to add your thoughts to the discussion so far by posting a comment at the bottom of the article.