Early Career Scholarship for Dec. 2018 Melbourne Int’l Legal Ethics Conference

Thanks to the generosity of Prof. Deborah Rhode from Stanford, the International Association of Legal Ethics (IAOLE) has funds that likely will be used to fund an early career scholar’s attendance at the ILEC 2018 in Melbourne in December 2018.  For additional information about the Deborah Rhode prize for scholarship, see https://law.unimelb.edu.au/ilec2018#iaole-deborah-rhode-prize.

For information about ILEC 2018 and information about past ILEC conferences, see:

https://law.unimelb.edu.au/ilec2018 and

http://www.iaole.org/conferences/

(Hat tip: IAOLE President Prof. Alice Woolley, U. of Calgary)

 

 

Proposed Changes to DC Bar Admission Rules

The DC Court of Appeals is seeking comments on whether it should “amend D.C. App. R. 46 relating to admission of graduates of non-accredited law schools.”   The proposed changes affect the rule that allows foreign LL.M. students to sit for the DC bar exam, as well as graduates of U.S. non-ABA accredited schools who have been in practice for less than 5 years.  Responses should be sent to the Clerk of the DC Court of Appeals by July 31, 2018.

In February 2018, the DC Board of Governors voted in favor of the proposed amendments that would, inter alia, change the bar eligibility requirements for foreign LL.M. students.  The proposed changes would reduce from 26 to 24 the number of U.S. legal education credits that provide a pathway for bar exam eligibility, change the required courses, and allow the same number of distance education courses as are permitted by ABA accreditation rules. The proposed new language, which is used in multiple locations in Rule 46, states:

Of such 24 credit hours, a total of six credit hours shalJ be earned in courses of study in the following subiects: two credit hours of instruction in professional responsibility (based on the ABA Model Rules of Professional Conduct or rules of professional conduct of a U.S. jurisdiction}; two credit hours of instruction in U.S. legal institutions (including the history, goals, structure, values, rules and responsibilities of the U.S. legal system); and two credit hours of instruction in common law legal reasoning, research, and writing. A minimum of six credit hours shall be earned in courses of study, each of which is substantially concentrated on a single subject tested on the Uniform Bar Examination.  The law school issuing the credit hours shall certify in writing that its courses comply with the specific course requirements in this rule. Any amount of such 24 credit hours may be completed through distance education from the ABA-accredited law school, provided the law school issuing the credit hours certifies in writing that its distance education methods comply with ABA distance education standards; 

The DC Bar’s February 2018 proposals were based on the Jan. 2018 Final Report from the DC Bar’s Global Legal Practice Task Force (“Task Force“).  The DC Bar’s transmittal letter begins on p. 3 of the Court’s Notice & Comment pdf; the Jan. 2018 Final Report begins on p. 11 of the pdf, and a redline version of the proposed changes begins on p. 25 of that Final Report, which starts at p. 41 of the Court’s Notice & Comment pdf.  As the DC Bar’s transmittal letter describes, the January Task Force 2018 Final Report and the February 2018 Board vote reflect comments the Task Force had received on its July 2017 consultation draft.

The topics addressed in this Notice and Comment are covered on pp. 3-4 of the Casebook (especially the “Global Perspective” box) and in Chapter 9(1). For information about why U.S.-based clients might want access to foreign-trained lawyers, see Diane F. Bosse, Testing Foreign-Trained Applicants in a New York State of Mind, 83(4) The Bar Examiner 31–37 (Dec. 2014); Laurel S. Terry, Admitting Foreign-Trained Lawyers in States Other than New York: Why it Matters, 83(4) Bar Examiner 38 (Dec. 2014).

AVVO Ethics Bar Stands: New Jersey Supreme Court

Supreme Court Won’t Take Up Avvo Ethics Case

An opinion by New Jersey legal ethics authorities that deemed Avvo off-limits to lawyers in the state will not be reviewed by the state Supreme Court.

In an order dated June 1 and obtained by the Law Journal on Monday, the court denied a petition for certification by Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals.

The organization, called Responsive Law for short, had asked the court to review the June 2017 opinion, jointly issued by the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising and the Committee on the Unauthorized Practice of Law, which found that Avvo facilitates improper fee-splitting and may not be utilized by New Jersey lawyers.

Opposing the petition were the Attorney General’s Office, representing the committees, and the New Jersey State Bar Association.

Responsive Law executive director Tom Gordon said in a statement Monday that the court, “by summarily declining to review the decision … has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”

“According to the U.S. Supreme Court’s [North Carolina State Board of Dental Examiners v. Federal Trade Commision (2015)] decision, active supervision by a disinterested government agency is a prerequisite for antitrust immunity when policy decisions are made by market participants,” Gordon said. “The real losers here, though, are the people of New Jersey, who are being prevented from finding affordable lawyers online using the same tools they use to find doctors, babysitters, and mechanics.”

Now-former State Bar president Robert Hille, of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, filed a brief on behalf of the bar urging the court to pass on the case. The NJSBA issued a statement Monday from current president John E. Keefe Jr. of the Keefe Law Firm in Red Bank.

“The court’s decision to let stand the joint opinion is an important one that provides clarity for New Jersey lawyers and protects consumers,” Keefe said.

“The association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys,” he said, adding that the court’s denial of certification “has ensured that a client’s interests are paramount and that they are represented fairly and impartially by lawyers adhering to our long-established rules governing professional conduct and ethics.”

Representing the state was Deputy Attorney General Steven N. Flanzman. An email to an Attorney General’s Office’s spokesman didn’t get an immediate response Monday.

The June 21, 2017, opinion was issued in response to an NJSBA inquiry asking whether lawyers may “participate in certain online, non-lawyer, corporately owned services.” The inquiry named Avvo, LegalZoom and Rocket Lawyer specifically.

The shortcomings of LegalZoom and Rocket Lawyer could be fixed simply by registering with the state, the committees held. But they found ethical trouble with the very structure of Avvo’s “pay-for-service” programs. The opinion decreed that “New Jersey lawyers may not participate in the Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a nonlawyer in violation of Rule of Professional Conduct 5.4(a), and pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).”

According to the opinion, Avvo offers “Avvo Advisor”—through which customers buy 15-minute phone conversations with a lawyer for a $40 flat rate, of which Avvo keeps a $10 marketing fee—and “Avvo Legal Services,” which allows customers to pay flat fees to Avvo for legal services provided by affiliated lawyers, after which Avvo pays the lawyer but keeps a marketing fee.

“The participating lawyer receives the set price for the legal service provided, then pays a portion of that amount to Avvo,” the committees said. “The label Avvo assigns to this payment (“marketing fee”) does not determine the purpose of the fee. … Here, lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.”

The opinion also held that marketing fees lawyers pay to Avvo are not for advertising but amount to an “impermissible referral fee” by the definition contained in RPCs 7.2(c) and 7.3(d), and Avvo’s practice of holding the lawyer’s fee until the service is provided violates an attorney’s requirement to maintain a registered trust account per Rule 1:28(a)-2.