Working the Web: Delivering Legal Services Online
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Working the Web: Delivering Legal Services Online

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  • Broad language – but note first amendment constraints
  • “Stay informed & inform”: Raises few issues (except with respect to solicitation). “Expand Referral Network”: For corporate counsel, this means expanding the network of potential employers, employees or business partners.“Increase Online Footprint”: Important for reasons related to expanding your referral network, but also for reputation management.
  • Watch out for social media updates involving your “availability for professional employment.”
  • Why blogging is good for lawyers My personal experience: Networking and professional satisfaction Makes me a better lawyer NOT a form of advertising Lots of approaches, as seen on next few slides Solo/small firm Big firm Niche practices Group blogs
  • 7.1 prohibits false and misleading advertisements; 7.3 prohibits in-person, telephonic and real-time electronic solicitation
  • 47 states. Many similar models, including Google’s AdWords, operate on a pay-per-click or pay-per-lead basis.
  • Adopted by ABA Ethics 20/20 Commission in 2012. Response to Zelotes and others who claimed that performance-based advertising violated the rules. Likely not a part of state bar rules yet.
  • As long as the ads aren’t deceptive, it’s no different than “proximity advertising” offline. FL & NC have reached the opposite conclusion, assuming deceptivity.Far better for consumers to have access to as much non-deceptive information as possible.
  • Avvo is the biggest, but consider as well in context of Twitter, Facebook comment streams
  • Issues raised: Formation of attorney-client relationship? Non-issue. Disclaimed on site, in most lawyer answers and – most importantly – there inherently cannot be any formation of attorney/client relationship when the client is anonymous. No way to check conflicts, no way to meet duties, no way to have client relationship of trust and reliance. Doesn’t implicate ABA Model Rule 1.18 either, due to anonymity. Multi-jurisdictional practice?
  • Note that attorneys can’t practice law in violation of another state’s law . . . and the restriction on practicing law typically just prohibits establishing an office, misrepresenting the state of licensure or any systematic and continuous presence in the jurisdiction for the practice of law.Is answering questions online the “practice of law?”Decision – answering question at CLE conference does not constitute the provision of legal adviceAs legal advice is not normally provided in public, the use of a public forum to provide generic guidance will not be deemed to be the practice of law.Out-of-state LicensureFirst, state licensure is no guarantee of competenceABA Model Rule 5.5 – violation of MJP rules only occurs when practice in non-licensed state is systematic and continuous.Focus is on the physical location of the attorney, not the client
  • Raleigh attorney John Kirby. Suspended 6 months in 2011.Issues: Misrepresentation Fee-splitting with Just Answers. Out-of-state practice (advising on laws of other states) Note that payment of fees and private nature of questions makes the JA model much more likely to be the “practice of law”
  • Remember: A daily deal offer is a form of marketing; the advertising cost is the revenue split with the deal site operator.Whether it’s a daily deal or not isn’t important – the issue is with packaged legal services where the fee is collected by a third party site operator.
  • 8 states have looked at this, and 5 (MD, NE, NC, SC & NY) have said it’s OK. 3 (AL, IN & PA) have said no dice.
  • This is probably why you don’t see any Groupon offers from lawyers anymore . . .
  • Disclosures should advise clients not to proceed hastily, that no attorney-client relationship is formed by simply buying the offer, and that their money will be refunded if services aren’t a fit or there is a conflict On refunds, the portion payable to the site is the attorney’s marketing expense, and would not be netted out of a refund to the client.
  • Or “Limited Scope Representation”
  • Expand the legal market and bring services to those who couldn’t otherwise afford bespoke legal services.
  • Delivered online rather than installed directly onto a user's computer. Lots of handwringing over “the cloud”, but ultimately attorneys must simply use reasonable care to evaluate the reliability and security of cloud software. Odds are that major platforms are both more secure and more reliable than downloaded software or physical files.

Working the Web: Delivering Legal Services Online Working the Web: Delivering Legal Services Online Presentation Transcript

  • Avvo, Inc. Confidential - ©2013Working the Web:Delivering Legal Services Onlineby Josh KingAvvo, Inc.
  • Avvo, Inc. Confidential - ©2013Josh KingGeneral Counsel &Vice President, Business DevelopmentAvvo, Inc.Twitter: @joshuamkingEmail: josh@avvo.comIntroduction
  • Avvo, Inc. Confidential - ©2013Overview• Social Media as Advertising• Performance-based Advertising• Question and Answer Forums• Online “Deals”• Unbundled Legal Services• Cloud Considerations• Conclusion and Q&A
  • Avvo, Inc. Confidential - ©2013Social Media as Advertising
  • Avvo, Inc. Confidential - ©2013Social Media is About Sharing
  • Avvo, Inc. Confidential - ©2013ABA Model Rule 7.1• A lawyer shall not make a false or misleading communication about the lawyeror the lawyers services. A communication is false or misleading if it contains amaterial misrepresentation of fact or law, or omits a fact necessary to make thestatement considered as a whole not materially misleading.
  • Avvo, Inc. Confidential - ©2013How Not To Use Social Media
  • Avvo, Inc. Confidential - ©2013SocialSocial Media Is Not a Billboard
  • Avvo, Inc. Confidential - ©2013Illustration: CA Ethics Opinion
  • Avvo, Inc. Confidential - ©2013Performance-Based Advertising
  • Avvo, Inc. Confidential - ©2013ABA Model Rule 5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer . . .(c) A lawyer shall not permit a person who recommends, employs, or pays thelawyer to render legal services for another to direct or regulate the lawyersprofessional judgment in rendering such legal services.
  • Avvo, Inc. Confidential - ©2013ABA Model Rule 7.2(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertiseservices through written, recorded or electronic communication, includingpublic media.(b) A lawyer shall not give anything of value to a person for recommending thelawyers services except that a lawyer may(1) pay the reasonable costs of advertisements or communications permittedby this Rule;(2) pay the usual charges of a legal service plan or a not-for-profit orqualified lawyer referral service. A qualified lawyer referral service is alawyer referral service that has been approved by an appropriateregulatory authority
  • Avvo, Inc. Confidential - ©2013Zelotes v. Total Attorneys Cases
  • Avvo, Inc. Confidential - ©2013Comment to Rule 7.2“Moreover, a lawyer may pay others for generating client leads, such asInternet-based client leads, as long as the lead generator does not recommendthe lawyer, any payment to the lead generator is consistent with Rules 1.5(e)(division of fees) and 5.4 (professional independence of the lawyer), and thelead generator’s communications are consistent with Rule 7.1(communications concerning a lawyer’s services).To comply with Rule 7.1, a lawyer must not pay a lead generator that states,implies, or creates a reasonable impression that it is recommending the lawyer,is making the referral without payment from the lawyer, or has analyzed aperson’s legal problems when determining which lawyer should receive thereferral.”
  • Avvo, Inc. Confidential - ©2013Competitive Keyword Ads
  • Avvo, Inc. Confidential - ©2013Organic ResultsSponsored Listing
  • Avvo, Inc. Confidential - ©2013Question and Answer Forums
  • Avvo, Inc. Confidential - ©2013Avvo Q&A
  • Avvo, Inc. Confidential - ©2013ABA Model Rule 5.5(a) A lawyer shall not practice law in a jurisdiction in violation of the regulationof the legal profession in that jurisdiction, or assist another in doing so.(b) A lawyer who is not admitted to practice in this jurisdiction shall not:(1) except as authorized by these Rules or other law, establish an officeor other systematic and continuous presence in this jurisdiction for thepractice of law;
  • Avvo, Inc. Confidential - ©2013North Carolina Just Answers Case
  • Avvo, Inc. Confidential - ©2013Online “Deals”
  • Avvo, Inc. Confidential - ©2013
  • Avvo, Inc. Confidential - ©2013Groupon for Legal Services?
  • Avvo, Inc. Confidential - ©2013Issues Raised By Bars• Is the fee split a reasonable cost of advertising?• Does it violate prohibition on splitting fees with non-lawyers?• How to comply with trust account rules?• Is creation of attorney-client relationship being delegated?• Could this be an excessive fee?• How to deal with refunds?• Where service isn’t appropriate for client• Where lawyer isn’t competent to provide service• Conflict Issues• What of duties of competence and diligence?
  • Avvo, Inc. Confidential - ©2013
  • Avvo, Inc. Confidential - ©2013Compliant Online Sales Would Include:• An appropriate offer that the attorney is competent to provide• Adequate disclosures• Deposit of funds into client trust account• (advance payment or earned retainer? Depends on state)• A refund mechanism – and readiness to refund the whole thing• Some assurance that the fee paid cannot be said to interfere with the lawyer’sindependent professional judgment (i.e., there is no way the marketer cancontrol the legal services provided by the attorney)• Treatment of purchasers as “prospective clients” under ABA Model Rule 1.18
  • Avvo, Inc. Confidential - ©2013ABA Model Rule 1.18(a) A person who consults with a lawyer about the possibility of forming aclient-lawyer relationship with respect to a matter is a prospective client.(b) Even when no client-lawyer relationship ensues, a lawyer who has learnedinformation from a prospective client shall not use or reveal that information,except as Rule 1.9 would permit with respect to information of a former client.(c) A lawyer subject to paragraph (b) shall not represent a client with interestsmaterially adverse to those of a prospective client in the same or asubstantially related matter if the lawyer received information from theprospective client that could be significantly harmful to that person in thematter, except as provided in paragraph (d).
  • Avvo, Inc. Confidential - ©2013Unbundled Legal Services
  • Avvo, Inc. Confidential - ©2013ABA Model Rule 1.2(c)(c) A lawyer may limit the scope of the representation if the limitation isreasonable under the circumstances and the client gives informed consent.
  • Avvo, Inc. Confidential - ©2013Limited Scope Representation• Attorney handles discrete “chunks” of work• Examples:• Advice or form completion• Coaching• Drafting• Court appearances• States have rapidly started to adopt over last 10 years• Opportunities abound for online/telephonic services
  • Avvo, Inc. Confidential - ©2013Even full scope in some areas
  • Avvo, Inc. Confidential - ©2013Cloud Considerations
  • Avvo, Inc. Confidential - ©2013Software-as-a-Service (“SAAS”)
  • WhoShouldUse CallAnalytics?Free TrialMolly Toddmolly@avvo.com
  • Avvo, Inc. Confidential - ©2013Josh KingGeneral Counsel &Vice President, Business DevelopmentAvvo, Inc.Twitter: @joshuamkingEmail: josh@avvo.comQuestions?Stay up to date ondevelopments in the law ofsocial media – and getnotification of upcomingfree Avvo CLE webinars –with my new monthly emailnewsletter:“Socially Awkward – WhereSocial Media Meets thePractice of Law”Email “subscribe” tojosh@avvo.com