I haven’t used this blawg much as I prefer Twitter these days (shorter & easier). However, as many of you know, I submitted a four-page public comment document through the California Lawyers Association, which is my proper channel to do so. As I’d stated at the time, the Government Affairs Committee collected and compiled comments from all of our sections, as well as individual comments from our members, to create a master document.
I think they did a terrific job. However, it did end up to be a ten-page document – and they weren’t able to incorporate all of my comments – but they had no problem with me both submitting my entire document to ATILS directly, and posting them publicly. Now, even at four pages, there was much more that I wanted to say, but preparing a thorough documents takes time, so I chose a reasonable ending point.
It’s important to understand that, while I support the goals of ATILS in principle, I have concerns; therefore I decided to write my comments as a thought piece in order to encourage the Task Force to think more broadly about the implications of their policies. Below are my comments, exactly as originally written (typos and all) on August 12, 2019:
ATILS COMMENTS – AUGUST 12, 2019
Perry L. Segal
CLA Board Representative, Law Practice Management and Technology Section
Attorney-at-Law, Charon Law
Technology and Management Consultant, Charon Solutions, Inc.
I feel that I have a unique perspective as someone who spent twenty years in technology and technology management, then entered a second career as a technology attorney approximately twelve years ago (passing the July 2007 California Bar exam). I also have two business entities: A technology and management consultancy C-Corporation that I started in 1999 as well as a Sole Proprietorship Law practice that I started in 2008. Further, as a Council Officer under the previous iteration of CLA, I was involved in the prior examination of these issues, which at the time was referred to as the, “Limited License Working Group.”
At the outset, let me say that the formal comment form that provides three position choices: Support, Oppose or State No Preference, does the entire process a disservice. I sense that like myself, others support some of the concepts, oppose some and are neutral on others. What is a person like me supposed to select that won’t present a skewed picture of my views?
THE DIFFERENCE BETWEEN A LAWYER AND A NONLAWYER
PERCEPTION VS. REALITY
Many nonlawyers believe that they can be lawyers; some will be right, some will be wrong, but the biases and concepts that nonlawyers bring to the real-world practice of law are critical. First, they’ve been exposed to what they think law practice looks like via television programs, radio, news and the internet. Most of these programs have an interest in making the practice of law appear exciting and dramatic. As most attorneys know, this is normally not the case. There’s no exposure to the behind-the-scenes machinations that make up most lawyers’ days, and many of us have heard the phrase, “I could do that!” based on a completely false idea of what it means to be a lawyer.
Let me use myself as an example. In the corporate world, I interfaced with legal departments all the time. In one particular example, my technology group assisted the attorneys at Tri-Star Pictures to fight off a gargantuan eDiscovery demand – long before eDiscovery as a word existed. I’d represented myself in small claims court – and won – and, having always regretted not going to law school, I thought, “I can do this!” Well, having passed the California Bar exam, apparently, I can, but a lot transpired along the way. For one thing, I quickly learned the difference between the layman’s concept of law vs. the reality. I was lucky in one respect; my upbringing and job experience already prepared me to see all sides of an issue. However, I saw most students struggle mightily with this more than almost anything else. They’d always had opinions; and now they were being told to throw them away and see all facets of the problem. For me, that came naturally – for most nonlawyers, it requires years of practice. My support for this? The current pass rates on the California Bar Exam. Students are struggling.
If the Bar seeks to regulate nonlawyers, this and other issues must be addressed. Without law school – and training during – and after – law school, how will one accomplish the goal of producing nonlawyers who can, “Think like a lawyer?” in a highly-compressed period of time?
As I’ve said to colleagues before, the issue of allowing nonlawyers to provide legal advice might make sense as a concept, but I keep seeing it couched as lawyers practicing protectionism, or lawyers refusing to accept change, or lawyers belly-aching that they had to pay for years of very-expensive law school and toil away as a low-paid associate – and nonlawyers will bypass this requirement. Lawyers are mocked and told to “get with the program” and condescendingly told to accept the coming future of our technological overlords. Well, I’ve been immersed in technology since I was a teenager and In my view, this is simplistic, and actually diminishes the inherent risks involved, one of which is the danger of creating the Uber of legal advice.
What seems to be lost in the discussion is the model under which nonlawyer practice would operate. There should be a focus on the costs of lawyers vs. nonlawyers that doesn’t focus on the above inequities, but because of what effect it will have on the relationship between lawyers and nonlawyers. For example, Bob is a lawyer. Tim is not. Bob has a ton of overhead operating his practice. Tim does not. Therefore, Tim rightly surmises that he can charge much less for his service, yet earn the same profit margin as Bob, so he does it. Bob, experiencing the predictable drop of business due to this, is forced to lower his prices as well. Bob’s activity increases, but Tim’s falls somewhat, so Tim elects to make a little less profit, and lowers his fees again. Unchecked – and absent the understanding that this is a likely result – could result in a race to the bottom; and both sides lose.
If this is to be attempted, there must be a framework to address problems like these.
UNAUTHORIZED PRACTICE OF LAW (UPL)
I teach CLEs to educate attorneys, young and old, about the ethical challenges of the combination of technology and law. A primary part of my practice is assisting lawyers to market ethically via social media. Here’s what I’ve learned in one sentence: Older attorneys are too cautious with technology, but younger attorneys are not cautious enough!
Like it or not, we already possess demographics to illustrate the divergence between tech use by older attorneys vs. younger ones, but there’s another divergence: The difference between practicing the required amount of caution vs. those who throw caution to the wind. Technology is only as talented as those who design it – and the public is very excited about using these new technologies – but one must keep in mind: self-driving cars keep killing people, listening devices are listening a little too much, and social media sites are aggregating and selling your data. For the nonlawyer, the goal is profit – and there’s nothing wrong with that. However…
Like it or not, attorneys must forgo profit in exchange for ethics. I’m contacted constantly by attorneys who wish to advertise via social media, and must advise them that ethically, they simply cannot do it “that way”. Both new and career attorneys argue with me until they’re blue in the face to try to persuade me to give them the fork in the road that will allow them around the ethical rules; but there is no fork available. If even the attorneys can’t see it, the regulators had better be wary of what the nonlawyers see.
It’s not the software; it’s the mindset of the individual(s) using it. Mindsets are very difficult to change, especially for people who have no idea how technology actually works. The good news is it can be done.
NONLAWYER FINANCIAL INTEREST IN A LAW PRACTICE
I think this is the most intriguing to me of these proposals, especially as an individual who is forced to operate two business entities due to the restrictions on lawyers. This means, separate bank accounts. Separate credit cards, separate financial statements, separate tax returns, separate business licenses, separate franchise taxes (in CA); even separate phone numbers, email addresses, business cards and stationery. In short, costs that could be avoided. All things being equal, ethical people would have no problem accomplishing this goal. Unfortunately, not all people have ethical goals. There are conflict-of-interest issues to examine – and I’m obviously not the first to mention them.
First, let’s examine a real-world example of what I consider an ominous illustration of the potential dangers conflict of interest could cause. It occurred in Florida, but has a California connection: Terry Gene BOLLEA, professionally known as Hulk Hogan, Plaintiff, v. GAWKER MEDIA, LLC, et al., Defendant. United States District Court, M.D. Florida, Tampa Division. December 21, 2012. [https://www.leagle.com/decision/inadvfdco131011000161]
In short, Hulk Hogan had a valid claim against Gawker. The case was filed in USDC in Florida. However, what was not revealed until much later was that Hogan had a secret benefactor who had his own serious personal beef with Gawker – and bankrolled Hogan to the tune of $10 million dollars: Silicon Valley billionaire Peter Thiel [https://www.nytimes.com/2016/05/26/business/dealbook/peter-thiel-tech-billionaire-reveals-secret-war-with-gawker.html]:
“What the jury — and the public — did not know was that Mr. Bollea [Hogan] had a secret benefactor paying about $10 million for the lawsuit: Peter Thiel, a co-founder of PayPal and one of the earliest investors in Facebook.”
It’s important to note that Mr. Thiel is a lawyer; however, his status as such has nothing to do with what occurred here. He was a disinterested party in this case – or so it appeared. From the article:
“He said that he hired a legal team several years ago to look for cases that he could help financially support. ‘Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,’ he said. ‘In a way very similar to how a plaintiff’s lawyer on contingency would do it.’ But there was another element involved:
“A 2007 article published by Gawker’s Valleywag blog was headlined, “Peter Thiel is totally gay, people.” That and a series of articles about his friends and others that he said “ruined people’s lives for no reason” drove Mr. Thiel to mount a clandestine war against Gawker. He funded a team of lawyers to find and help “victims” of the company’s coverage mount cases against Gawker.”
The implications are obvious, so I won’t repeat them. Some would argue – and in my opinion, fairly – that this is the same thing that law firms do now (take cases on contingency); but is it? When a law firm considers contingency, one obvious goal is winning, but the firm practices various tests to attempt to evaluate the risk/reward vs. the potential strength of the case. In any case where an “outsider” becomes an “insider”, there must be serious evaluation as to what potential outcomes might be. If there isn’t some sort of ethical wall of separation between the investor side of the business and the lawyers best qualified to evaluate the health of a choice, the investor could potentially demand that the firm sue a competitor of theirs for an advantage, or pursue a case that is potentially unwinnable – but can be brought with the bare level of probable cause – but is initiated with a sinister goal in mind and not the achievement of justice for the client (or is the investor the client?).
Investment banking firms possess a similar ethical wall of separation. Perhaps a model to examine? [https://www.investopedia.com/articles/analyst/090501.asp]
LAWYERS SHARING FEES WITH NONLAWYERS
Briefly, I see this as a similar issue to outside investment, but in reverse. I had a case several years ago where a firm wished to ethically advertise and accepted the assurance of a vendor that they would advertise according to attorney ethical rules. In short, the vendor did not do so, and with the first advertisement, a partner in the firm was brought up on a state bar’s ethical violations. I was hired to find the way out. When I spoke to the vendor, they were incensed when I informed them of how they’d violated attorney ethics and put the attorney at risk. “That’s stupid!”, they said. My answer (which is the same today as it was then): “It may be stupid or not, but it’s the rule!”. Others have already addressed that nonlawyers don’t have a license to lose, but I think it goes further than that: Nonlawyers also don’t have years of experience, completed extensive coursework and had to pass more than one exam on the subject (law school itself, and potentially both the MPRE and also having it tested again on the Bar exam).
I hope my comments are taken as I meant them to be: A plea to stop simplifying these extremely complex issues and a commitment that, if we as a profession decide to move forward with some – or all – of these recommendations, hopefully, my information may be used as a thought piece to seriously address these issues. We must find a way to provide access to justice to those who desperately need it, and we need to find that fork in the road, even if there’s some pain along the way. I, and a large group of people who believe the same as I do, successfully spun off the Sections into the CLA. Was there pain? Yes. Yet here we are, in spite of it.
With my best regards, and best wishes for good luck, I thank you for considering my comments. I’m at your service.
Perry L. Segal