Redesigning Legal Session 3: The Future of Unauthorized Practice of Law and Remote Practice - Shared screen with speaker view
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The answer is totally YES it has jumped the shark.
I already have a question — are there any avenues for TIKD Services Inc. to pursue in Florida or at the Supreme Court?
I wish - the antitrust case in the SD FL got dismissed…
I wish - the antitrust case in the SD FL got dismissed
But SHOULD regulators involve themselves in this situation?
But aren't the Rules of Professional Conduct supposed to be rules of reason? Why would the public be confused if the lawyers aren't holding themselves out the practice in such jurisdictions?
I work remotely from home. Nobody knows what business I am in unless I tell them. So how does anyone find out that these people are lawyers?
The state doesn’t have a legitimate interest despite the claim that it does.
So I hope you all will address the issue of cross jurisdiction in for example M&A deals... and clients in NY represented by lawyers in CA, or CO or TX or vice versa.
Here’s your COVID twist - suppose an Ohio-licensed lawyer lives across the Ohio river in Newport KY, and is working from home due to a pandemic, but still doing only Ohio law?
People are not as stupid as regulators wish they were.
The state has a proper role — after harm is done. Not before.
It should not issue proactive law — and UPL is proactive law.
It is akin to saying Guilty until deemed innocent.
plenty of incompetent lawyers practicing in their own states
This ABA announcement sounds like a change of direction by them — and our hypothetical example means the couple is fine to live in a third state.
ABA Opinion 495 - https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-495.pdf
Look - if you go to Starbucks in nice clothes, start running Word on your laptop, people in there are going to see you typing out a citation and are suddenly going to get confused that you’re a lawyer in that state…
Stay out of Starbucks!
Wendy, please clarify — by harm you mean, actual harm done. Not whimsy imagined potential harm, right?
OH has changed their R 5.5 to allow for remote practice effective 9/1/2021.
Oh thank you Desi
I live in a southern state when lots of lawyers own vacation homes. I write opinion letters for such attorneys who telecommute from here. I focus on the word “for” in the phrase “presence in this jurisdiction for the practice of law” … it helps that there is case law in our state that says “it’s not where you are but what you are doing that determines whether you are engaged in UPL.”
Can we kick the states out who disagree?
:) Lol I kid.
Are we within our rights to demand a proper non-fluid definition of “practice of law"?
Yes!! Protecting the public is the #1 role of regulators!From the dissent in the Florida TIKD case…. “[D]efining the practice of law must be considered in the context of our obligation to protect the public . . . . [T]he major purpose for prohibiting the unlicensed practice of law is to protect the consuming public from being advised and represented in legal matters by unqualified persons who may put the consuming public’s interests at risk.”
*not a response to Stephanie’s question. :)
Protecting the public has to be confined to handling instances of actual harm, not making the decisions for individual members of the public.
And what about the sophisticated client - CEOs of businesses, for those of us that practice corporate and transactional law, not consumer-oriented law or litigation
There is most assuredly a role for government — to deal with harms inflicted. The role that some courts & legislators are taking is that it is their role to be our parent, our nanny, our guardians. We are not incapable adults. I resent this attitude by regulators.
People can imagine all kinds of bad outcomes — but I think that access to justice has been very adversely affected by the smothering of innovation in the name of "protection."
I don’t get why Hypothetical #2 is a problem.
Should be yes under temporary practice rule.
his client is California, and its incidental to his regular practice
If Larry considers that the laws of any state need expertise, then it should be Larry’s call on whether to hire a local lawyer with expertise to assist with such local issues.
It should not be dictated by the overseer ABA or any rules of conduct on what MUST happen. Such micro-managing is proper with little kids, not with capable adults.
UPL law jumped the shark the moment it was started.
“Gonna ‘let’ Larry do it.” So, not existence as of right, but by permission.
For a state to require *every single thing that might happen in a state* to be managed by an attorney licensed in that state, is not protecting the public. It’s just increasing costs and complexities without any reasonable basis for doing so.
It's a money thing!
It’s make-work for lawyers. Do they really need make-work? Are they so insecure that they need these idiotic laws to ensure a flow of work? And what is happening? People are self-representing more and more, or ignoring legal problems until they’re swamped by them.
The type of client should not be the determining factor. That is allowing this legislation to ooze into the system and destroy it from within.
There may actually be local property transfer legal issues that recommend assistance from local counsel, but Larry should still be able to lead the deal
What about matters that are purely or largely matters of federal law rather than state law such as federal Indian law, immigration, international trade, federal administrative matters, etc.
Any insight as to why TX and HI have been resistant to adopting the model MJP rule?
Lynda, can you put a link in chat please for that chart?
See RPC 5.5(d)(2)
As soon as you compel this kind of thing, you actually do more harm than good. It’s a rubber-stamp, rather than an actual self-evaluation on what is needed in the locale.
Thank you Chase!
Here’s the link directly to the Rule 5.5 comparison chart. (PDF) https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-5-5.pdf
Lincoln lawyer needs to worry about malpractice liability
Much appreciated, Joshua.
Seems to be a competence issue
How different would family law be in neighboring states? I mean — what are these people learning in law school if they cannot navigate these differences? This seems to be a ridiculous made-up-out-of-whole-cloth “problem” in order to get more money out of us for nothing of value.
The UPL rules should all be repealed. They serve no useful purpose. I have yet to hear a good reason for any of them.
The licensing should also be discarded.
The rules were drafted before there was an internet or easy way to access another state's law short of getting on your horse and going into another state...
mr. Kennedy's audio is inconsistent. it sounds like he is using his computer microphone and it is having trouble consistently picking up his voice.
It is not preventing lawyers from turning out to be incompetent, thieves, paedos, murderers, fraudsters. So what is the point of licensing if it does not prevent bad lawyers from practising?
One issue is the mobility of the client - if I represented a client from a jurisdiction where I’m located, and the client moves to another state (or is a digital nomad and always on the move), do I have to stop representing that client? (and I do transactional work)
Oh Lynda, that’s too radical!!!!
What if you scrapped all the “legislation” and started over? What would you all do?
A lot of time & effort is wasted focusing on all this minutiae instead of dealing with actual harm done. There is not enough time or money to deal with all of it. The form is taking precedence over the substance and that should be viewed as criminally negligent.
What would be? Or what should be? Let’s face it, newly minted lawyers are not competent. What do they learn in law school? Not much. They need actual time to learn to be good lawyers. Without the pretense of being “licensed,” what would new lawyers have to do to earn a reputation of being good?
Also, clients seek out lawyers using the internet, and just aren’t savvy to licensing issues. They want this lawyer they found on the web, and then the lawyer has to turn them away
And more: what would longer-time lawyers have to do to keep showing that they are good, competent and trustworthy? The licensing is a mirage of competence, not proof of competence.
But consider that getting funding should come out of different courts offering value to lawyers to entice them to pay the dues. Not because they are compelled to.
It is a different way of funding when you take coercion out of the mix. When you cannot force people to pay you, you have to figure out how to persuade them to pay you.
Hypothetical 4 is again assuming that the law should speak to harm that might be done, rather than harm actually done.
Should this kind of practice require authorization? And why?
So an occasional out-of-state client is OK, is that the gist of this one?
If Laura can attract clients from 2 states — it is because she is knowledgeable about the law in those states.
The rules are bogus and UPL has jumped the shark.
Instead of focusing on how much work Laura does here or there, how about being able to respond in a timely way to actual harm done.
Too much effort is being wasted on the volume of Laura’s work — and so the public is not being protected when actual crime takes place.
As an inhouse lawyer, I often worked with lawyers in other states representing us, and not necessarily on matters in those states; M&A for example. This is the way corporate law is practiced - and if this is deemed UPL, it is very antiquated. In Colorado years ago when I was on the lawyer regulation committee, we had a very robust argument in the committee about this.
How many robberies and burglaries are not solved and dealt with — where is the police, the investigative funding going ? To UPL cases?
But several states (california) don’t admit lawyers on motion
Competence is gained over time. The UPL law acts as though lawyers remain newbies their entire lives.
Competence is also something that should first & foremost be left to the clients to evaluate. How does a client figure it out? By being rational.
Easier to buy a gun
I also am working on On Motion for CO. Applied in March. Still waiting. References, background checks, retake MPRE, etc. It’s a huge pain and expensive!
What is being gained by this, Wendy?
In Tennessee, lawyers would also be required to pay an additional professional privilege tax of $400.00 per year.
Carol Dalenko (NC)
Can we move on, please?
Can he get pro hac’d if everyone is conflicted out?
What about fact that standards for Admission to practice anywhere are becoming more universal- via the Unified Bar Exam up to 40 states(?) (yes, some with state specific provisions-- acceptable scores vary(but not that widely)...
Will there be any access to justice use cases? Like with community navigators trying to guide tenants through eviction process? Or social service workers trained to do legal screening/referrals?
An easy (although not my favorite) solution is to allow the out of state lawyer to take on the work if they get the client’s informed consent. Let the client choose!
Presumably Monty has read up on the Idaho law that applies. That’s what a competent lawyer does.
This is more proof that UPL law is destroying lives — it is not protecting anyone who has an actual legal problem.
Government overreach is occurring in every segment of our lives. America is being flushed down the drain because few people understand what rights are and why we have them.
Bad! Washington State tried that model and realized it did not help the underserved community. Now California is weighing that option.
Great webinar. Thanks to Lynda, Mike & Wendy and all in the chat!
Carol Dalenko (NC)
agree. They need to be regulated.
They need to repeal the legislation and find another way to deal with the problems.
Thanks Lynda, Wendy and Mike!
Really great conversation!
@KevinBalkwill I think that is a bit of a miscategorization of everything that happened with the LLLT program in Washington. Lots of context needed there.
Yes, great conversation! Thank you!
Are we talking about access to justice or providing legal services in any context?
I disagree that we need to eschew UPL restrictions entirely and let lawyers practice where they want with client consent. I have seen many many cases where out of state lawyers have caused serious harm to clients in my state and the regulatory systems in my state and the home states were not sufficient to protect those people.
Thanks, everyone. Great discussion.
Excellent program and presenters. Thank you. Please, please, please, use headphones next time.
Carol Dalenko (NC)
A good service to litigants is for approved non-attorneys to collect and review the evidence, determine the clear and decisive facts, then turn it over to an attorney to determine the proper legal action.
I think the real way forward is to free the market in legal services.
Stop trying to micro-manage everything and deal with whatever problems that arise.
Thanks to all of you for the discussion. Very insightful.
Thank you -- so helpful!
Agree. Thank you.
Thanks all! Great conversation!!
Carol Dalenko (NC)
HOW MANY ATTENDEES TODAY?
Is legal credit available?