Judicial Ethics

On the subject of judicial ethics: A group of legal ethics professors and five law school ethics centers (including Fordham’s Stein Center) filed an amicus brief in a pending U.S. Supreme Court case, United States v. Davila.  In that case, a federal magistrate judge encouraged a criminal defendant to plead guilty and cooperate with the government, thereby violating Fed. R. Crim. P. 11, principles of judicial ethics and standards set in past judicial decisions.  The federal court of appeals overturned the defendant’s guilty plea even though the defendant never objected to the magistrate judge’s exhortation.  The ethicists’ brief argues that, to promote judicial integrity as well as the defendant’s fair process rights, the court of appeals acted within its supervisory authority in vacating the guilty plea without an inquiry into whether the particular defendant’s decision to plead guilty was influenced by the magistrate judge’s coercive conduct.

The Lawyer as Trusted Curator

A number of recent entrants to the legal services market are taking on what I see as a new sort of role beyond that of trusted advisor—the lawyer as trusted curator.  In an era of information overload, this seems to be an important role for an attorney.  While the Model Rules of Professional Conduct don’t use my terminology of ‘trusted curator,’ I think this is what the Preamble is getting at where it states that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system.”  And it seems to me that more lawyers can and should be acting as curators, both to educate the public and also as a way to develop their own client base.  At the end of this post, you’ll find a few examples I’ve studied as part of a current research project.

Here is my question:  When a lawyer acts as a ‘trusted curator’ of information about the law, does this trigger any special professional responsibilities?

To be sure, curating legal services is not the same as providing personalized legal advice to a client.  Yet, there are a number of parallels.  Users who encounter the curated experience may place an implicit trust in the lawyer’s culling together of relevant information, largely based upon the lawyer’s perceived expertise.  The  inclusion of some information and the exclusion of other information might motivate the user to act (or not act) in a particular way.  Well-curated information may very well lead a user to seek out the curator for individually-tailored legal advice.  In this way, curating is similar to advertising or marketing, as well as a form of education.

Much like the curator of an exhibit in a museum, these legal services providers combine law with art, design, technology, gamification, humor, and news from other fields to provide a rich user experience.  (For more on using design, tech, and games to illuminate law, see Margaret Hagan’s new Open Law Lab – the website is worth a visit just to check out her incredible artistic interpretations of law.)  While each of the examples I list below takes a slightly different approach, all offer at least a portion of their curated information for free, letting users establish some form of relationship before taking it to the level of becoming a client.

I see enormous potential for lawyers as trusted curators to help with the access-to-information-gap that perpetuates the access-to-justice-gap in this country.  Most of the public does not even recognize a legal problem when presented with it. Even if we succeed in providing more affordable, accessible services through technology and other efficiencies, the justice gap will remain unless individuals in need actually adopt the services. Curating legal information in user-friendly, understandable ways could go a long way toward filling this gap.

And here’s the list I promised above — a few examples of lawyers (and nonlawyers!) and legal service providers offering curated experiences in the US and the UK:

  • At AxiomLaw you will find case studies and a map of legal services to explore.
  • Inspired Law Practice uses Tumbler to collect and share information for lawyers to discover balance and happiness in their law practices.
  • LegalZoom was an early mover in packaging on-line legal forms for personal and business use.  And Legal365 is a UK competitor offering similar services.
  • Riverview Law offers a free library of legal information and uses social media like Twitter to educate the public about legal services.
  • ScotusBlog has curated a wealth of information about Supreme Court cases in an user-friendly, accessible website.
  • The State Decoded is the brainchild of a nonlawyer, Waldo Jaquith, but has inspired some beautifully designed websites for state statutes, including Virginia Decoded and MiLaws (our creation at ReInvent Law).
  • Velawsity recently launched a beta version of its online law practice management system, but already has over 3,000 followers on Twitter from its curated legal news and commentary.
  • Westaway Law  is a law firm for social entrepreneurship with a blog curating all things related to that field.
  • Most of these examples involve online curation, but LegalForce is banking on its online success with Trademarkia.com to open the BookFlip Store, a beautifully designed, historic store-front on University Avenue in Palo Alto offering books, electronic tablets and, of course, a highly-curated legal services experience where customers can do-it-yourself with books and a computer kiosk or meet with one-on-one with on-site chat attorneys.
  • QualitySolicitors is a branded group of law practices located throughout the UK, including in kiosks at WHSmith Stores.

(Disclaimer, I’m an advisor to LegalForce and Velawsity.)

(Cross-posted at the Legal Ethics Forum)

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are now being accepted for the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2013.  The prize will be awarded at the 2014 AALS Annual Meeting in New York.
Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu
The deadline for submissions and nominations is September 1, 2013.

Granat on Private Investment in US Legal Services–New Business Models

For those of you who won’t be joining us at ReInvent Law Silicon Valley this coming week, I’ll try to do some posting on the topics that might be most interesting to LEF readers.  One talk by Richard Granat of DirectLaw gets to the heart of Model Rule 5.4 and the recent announcements about private investment in legal service providers (see, e.g., Axiom Scores $28 Million Round of Funding).

Here is Richard’s description of his talk, Private Investment in US Legal Services–New Business Models:

I am interested in how to get private capital into law firms, given the restrictions of ABA Professional Rule 5.4 which prohibits non-lawyers from taking an equity interest in a law firm. Are there ways of getting around this rule? What kind of law firm structures can be created that enable private equity investment? Is it wise to enable private investment in law firms? Will it ever happen in the United States given the present position of the ABA and  state bar associations? What can small and medium size law firms do to access capital to make them more competitive? Are Clearspire and AxiomLaw ethically compliant models that can be replicated?

Richard previews more of the ReInvent Law Silicon Valley talks at his eLawyering Blog.

The complete line up of our 40+ speakers for ReInvent Law Silicon Valley is here.

(Originally posted at the Legal Ethics Forum.)

Emergency VA Lawyer Assistance

Emergency VA Lawyer Assistance. New Jersey Law Journal Editorial Board

A recent report of the General Accountability Office (No. 13-89, Jan. 18) about the handling of veterans’ disability and pension claims by the Department of Veterans Affairs is an eye-opener.

The starting point is a bleak comparison: Although the VA completed processing of 1 million claims for benefits in fiscal 2012, a 9 percent annual increase over 2009, the number of claims filed between 2009 and 2012 increased by 29 percent. As a consequence, as of August 2012 there were more than 850,000 pending claims, with 66 percent of them deemed backlogged. Although the VA’s target in 2011 was for an average processing period of 132 days, the current average is about 260 days. 

Budget cuts, deterring increased staffing, have exacerbated the problem. To help reduce the backlog, the VA has employed new technology and innovations, such as paperless record-keeping and simplified terms and forms. Resources have been shifted from appeals to processing initial claims, and private contractors have been hired. Veterans are offered assistance by VA personnel and volunteer groups in filling out applications and obtaining required information.

Even so, the problems are mind-numbing. For example, relevant medical records are not fully computerized, and the high number of reservists and National Guard personnel serving in the war zone, on multiple tours, means that more VA claimants must rely on reserve and National Guard record-keeping systems, often handwritten only, that are not linked to or fully compatible with Department of Defense (and thus VA) medical and related computer records. Nor are Social Security Administration record systems fully compatible.

It gets worse. To improve claims processing, VA employees have been shifted from appeals to claims processing. That means fewer people available to analyze an applicant’s notice of disagreement with the initial claims decision (the first step toward appealing an adverse initial determination) and an appeals process that has slowed to a crawl. VA targets no more than seven days to enter a notice of disagreement into the system. Now the average is a staggering 43 days. The average time to process the notice is 390 days, and it takes a total of 580 days, on average, for an appeal to be certified.

Thankfully, lawyers in New Jersey and elsewhere have lent their assistance. Pro bono counsel are offered through the N.J. State Bar Association and the N.J. Department of Military Affairs. Veterans service organizations at regional VA offices also assist applicants in filling out the forms and marshaling the requisite medical and service information. The National Veterans Legal Services Program and its Lawyers Serving Warriors project offers pro bono services of lawyers at a number of national law firms and in-house legal departments. Lawyers now are allowed to assist or appear, on a fee basis, at some stages of the process.