Here are the comments that I filed in response to the California Task Force’s Proposals on Access to Justice Through Innovation of Legal Services. I took the time because it’s so important for solo and small firm lawyers to weigh in – there are enormous opportunities here. Speaking on behalf of the MyShingle constituency, MyShingle supports the Task Force approach – though we are concerned that it will take too long to implement. Thus, we have offered short-term changes that can be adopted today and that will pave the way for the longer-term reform. Here’s an executive summary of my comments which you can read in all of their 22–page glory HERE.
SUMMARY OF MYSHINGLE COMMENTS
- General Background: Generally, the Task Force Report along with the Henderson Paper accurately reflect the current state of the legal market, including the urgent problem of access to justice. But neither report offers a full picture of the modern consumers’ expectations and habits, which explains why many do not currently engage lawyers and will inform the level of protection necessary in a future regime.
- Recommendation 1.0 (Practice of Law) MyShingle generally agrees with the Task Force Recommendation not to define the practice of law, but instead, proposes a de minimis exception for any civil matter with a value of $5000 or less.
- Recommendation 1.2 (Innovation Through Technology) MyShingle does not support a duty of technology competence for lawyers because market forces will render obsolete lawyers who do not stay up to speed. Moreover, tech competence is only part of the problem when it comes to making lawyers relevant and expanding access to justice. Absent regulatory reform — such as elimination of lawyer trust accounts, simplifying ethics rules on flat fees, plainly stating that lawyer matching platforms are not impermissible fee splitting and changing current archaic advertising regulations — even the best technology in the world will not expand access because consumers will never be able to find lawyers and once they do, they will have to go through an interminable list of disclaimers before they can hire them.
- Recommendation 2.0 MyShingle does not oppose permitting nonlawyers to provide legal advice without running afoul of UPL. MyShingle recommends that any regulations governing licensing for legal technicians or advisors not be overly complicated or onerous.
- Recommendation 2.1 As a broad matter, MyShingle does not oppose outside ownership. In this regard, MyShingle recommends that the Task Force gain a greater understanding of the various business models for outside ownership and formulate rules regarding use of client data even in anonymized format and even, in some circumstances, with client consent. But as the Task Force works towards rules that would allow outside ownership on an entity-level, MyShingle strongly supports relaxing rules to allow lawyers to joint-venture and partner with non-lawyers on a project, product or service basis to develop innovative packaged services. In addition, MyShingle urges the Task Force to eliminate regulations that prohibit payment or sharing of referral fees to non-lawyers and to state clearly that lawyer-matching platforms are a payment mechanism and not fee-sharing arrangements with non-lawyers.
- Recommendation 2.2 and 2.3 – Development of artificial intelligence systems and other technology-powered tools to increase access to justice should be strongly encouraged. MyShingle endorses the Task Force’s measured approach that would facilitate development of these tools as well as its concern for maintaining confidentiality and other benefits of the attorney-client relationship. MyShingle also endorses algorithmic transparency, particularly for tools used to evaluate the viability of matters to avoid constant rejection of “loser” cases that push the envelope of the law and serve the public interest. See C. Elefant, Data Analytics and the Importance of Loser Law.
- Recommendation 3.4 MyShingle disagrees with the Task Force’s recommendations to adopt the ABA’s recent revisions to the Model Rules. The ABA’s proposed changes, which MyShingle has criticized previously, are a pallid, post hac ratification of benign conduct like allowing attorneys to give clients gifts or to post an email address rather than a physical address on a website. The proposed regulations punt on more controversial issues like whether a lawyer matching platform constitutes impermissible fee-sharing and therefore, should be disregarded entirely in favor of FTC regulations which provide more protection to consumers.
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