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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33 BENCH & BAR | of a reasonable portion of a legal fee to "credit card processors, group advertising providers, or online platforms" for hiring a lawyer. See Proposed Amendments to Rule 5.4, Approved by the Sub- Committee on Avvo Legal Services, July 26, 2017. e recom- mendation cautioned however that this approval was contingent on there being no "interference with the lawyer's independence of professional judgment or with the client-lawyer relationship." In its Comments, the North Carolina Committee recognized that it is the lawyer who must determine whether any such interference would exist and that Avvo confirm its intention of noninterference. e Committee Avvo Legal Services recommended that lawyer using the Avvo or similar ser vice must Avvo Legal Ser vices investigate the "reliability, stability and vitality" of the service. By doing so, the North Carolina Committee tried to strike the right balance between the benefits of Avvo Legal Services to the public and the need to preserve lawyers' independence. As the KBA noted in its 2008 Opinion E-429 (2008), "the Rules of Professional Conduct were not designed to specifically address many of the issues that arise in an age of advanced technology and sophisticated marketing schemes." Technology among other things challenges our legal system and analysis as new issues and innovation must be considered under laws developed at another time and to address other issues. Any evaluation of Avvo Legal Services and similar services should therefor start with an analysis of the A2J problem, the potential harm, risk and benefit of the program rather than a strict application of Rules just for the sake of the Rules. As Chief Justice Warren Burger so eloquently put it, "e notion that most people want black-robed judges, well-dressed law- yers, and fine paneled courtrooms as the setting to resolve their dispute is not correct. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible." Since the time this article was prepared, the New York State Bar Assoc- iation has also issued an advisory opinion that Avvo Legal Service program violates New York fee splitting rules. internet search and find a lawyer to get what they need, (just like with anything else), Avvo Legal Service type programs may provide the exact access to justice opportunity needed. And at a time when there is an oversupply of lawyers and many in the profession are having trouble making ends meet, Avvo Legal Services supplies a market and allows those lawyers willing to work for a certain price to have work. Avvo fills a void by letting those who want to work find those who are willing to pay. And the mar- keting fee Avvo keeps? Avvo argues is akin to the service charge a credit card imposes to help pay for the convenience being offered. Is there any real interference of judgment posed by Avvo Legal Ser- vices? Its hard to see since Avvo really has no role in the providing of the advice, which the New Jersey Committees recognized. Most lawyers know how to recognize and resist interference. Most lawyers have no problem representing their client zealously. For example, the legal profession has for years allowed fees based on success (contingent fees) without thinking that this automatically some- how interferes with a lawyer's professional judgment. e insurance defense bar has long faced issues of independence where legal fees are paid by an insurance carrier but the lawyer represents an insured with the resulting occasional pull and tug. And certainly lawyers can advertise, use for profit advertising agencies and even split fees among themselves to the extent there are problems, the solution in all these areas have relied on individual adjudications not wholesale prohibition. And finally, there are issues of public percep- tion. In an era where there are too many lawyers and vast numbers of people with legal needs underserved, an effort by Bar Associations made up of lawyers attempting to prohibit a program that tries to link the two together may not come out looking so good. While public perception should not necessarily rule, having the long term trust of and credibility with the public is important. One need only recall the efforts of the Texas Bar Association in the late 1990s to try to bar the use of the Quicken Family Lawyer only to have its determination overruled by the Texas Legislature. See Unauthorized Practice of Law Comm. V. Parsons Tech, Inc. 179 F.3d 956, (5 th Cir. 1999) (vacating the District Court's injunction banning Quicken Family Lawyer after the Texas Legislature amended its 1939 unau- thorized practice of law statute). e most enlightened approach to the issues posed by Avvo Legal Services may have recently come from North Carolina. Rather than a knee jerk rejection to Avvo Legal Services, North Caro- lina engaged in a thoughtful, deliberative process, appointing a sub-committee that held several meetings to discuss Avvo Legal Services and invited Avvo representatives to be part of the process and be heard from. e result of this studied approach was a unanimous recommenda- tion that the North Carolina Ethical Rules be amended to create an exception to the fee splitting provisions to allow the payment ABOUT THE AUTHOR STEPHEN EMBRY is a member of Frost Brown Todd LLC and the firm's class action, privacy and mass tort groups. Embry is a national litigator and advisor who is expe- rienced in developing solutions to complex litigation and corporate problems. He is also a frequent speaker and writer. In addition to practicing law, Embry's passions include education, officiating swimming on national and local levels and all things tech. He is a husband and proud father. And, finally, he is unabashedly and unapologetically a University of Kentucky basketball fan. FIND A LAWYER

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