Bench & Bar

SEP 2017

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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| SEPTEMBER/OCTOBER 2017 32 A vvo, the sometimes scorned and sometimes praised lawyer rating service, has recently began offering a program called Avvo Legal Services in some 26 states. Many believe that this service may offer at least a partial solution to the access to justice (A2J) problem. Others believe it's just another assault on the legal pro- fession as we know it. While Avvo has yet to offer this service in Kentucky it no doubt will. And Kentucky will then be faced with the decision whether Avvo Legal Services is appropriate here. How we approach the issue may be important. Here's how Avvo Legal Services works. Attorneys can sign up for Avvo Legal Services and offer set services at a price sometimes as low as $40. ose in need of legal services can go to the Avvo website and fill out an online form describing what they need along with their credit card information. Avvo then matches that need with an attorney offering the service. If, and only if, there are services actually rendered, does Avvo charge the credit card. It then pays the attorney rendering the service but keeps a small "marketing fee." Clear violation of the ethical rules preventing fee splitting with non-lawyers? At least one state Bar Commission recently thought so. In an Opinion issued by three Committees of the New Jersey Bar Association on June 21, 2017, New Jersey barred its lawyers from participating in the plan on the grounds that a portion of the fee was going to a non-lawyer service and that this constituted impermissible fee splitting. Advisory Committee on Professional Ethics Joint Opinion 732, Committee on Attorney Advertising Joint Opinion 44 and Committee on the Unauthorized Practice of Law, Join Opinion 54, issued June 21, 2017. e Committees rejected Avvo's argument that this marketing fee in fact constituted a permissible advertising or service fee. e Committees cited the opinions of the state bars of Pennsylvania and South Carolina in support of their conclusions. So it's a far gone conclusion, right? Maybe. Maybe not. And how you approach the question may not only determine the result but how we as lawyers are perceived by the public. e basis for the fee splitting rule (in Kentucky it's found at SCR 3.130 (5.4)) is that fee splitting might interfere with a lawyers professional judgement. Indeed, the Kentucky Rule is found under a section entitled "Professional Independence of a Lawyer." But even the New Jersey Committees specifically found that Avvo Legal Services program did not in fact impose any restraints on a lawyer's professional judgment. ("Avvo does not insert itself into the legal consultation in a manner that would interfere with the lawyers professional judgement"). e Committees then said "sharing fees with a non-lawyer is pro- hibited without qualification." Period. A rule is a rule. It's not clear what the KBA would or should do when or if presented with this issue. Certainly, there is no Kentucky case or Opinion dealing with an identical situation. But in Oliver v. Kentucky Board of Governors, 779 S.W.2d 212 (1989), the Kentucky Supreme Court considered somewhat similar issues in looking at issues involving the use of temporary lawyers. e Supreme Court noted with approval an ABA Ethics opinion that approved "an arrangement whereby a law firm pays to a temporary lawyer compensation in a fixed dollar amount…and pays a placement agency a fee based upon a per- centage of the lawyers compensation…e Placement agency is compensated for locating, recruiting, screening and providing the temporary lawyer for the law firm just as agencies are compensate for placing with law firms nonlawyer personal. Id. Is the Avvo Legal Services program substantively different? Does Avvo Legal Services present a danger to the public? Several other states looking at Avvo Legal Services type arrangements seem to think not only does Avvo Legal Services not harm the public but actually provides a benefit. Oregon's Bar, for example, recently ini- tiated a Futures Commission to look at the practice of law and it proposed changing the ethical rules to allow this sort of arrange- ment. And Virginia reportedly started to issue a ruling like New Jersey but then tabled it presumably for further study. And there are policy considerations that may suggest these kinds of programs like Avvo Legal Services are indeed beneficial. Unlike subscription programs like LegalZoom and Rocketlawyer (both of which were Avvo Legal Services in issue in New Jersey for different reasons) which require client subscribers to pay monthly or yearly fees, Avvo Legal Services allows those with individual short lived and discrete legal problems to get an answer at a low cost. But for a service like Avvo Legal Services, these individuals might never consult a lawyer at all. Even though they may be the ones who need to the most. us Avvo Legal Services satisfies a need that other similar providers do not. Given the fact that some 85 percent of Americans don't think of using a lawyer when a need arises and that most people would expect to be able to do a quick Avvo Legal Services: A2J Solution or Barbarian at the Gate? BY: STEPHEN EMBRY FUTURE OF LAW PRACTICE

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