NC’s First 2017 FEO Permits Subscriber Based Texts that Invite Subscriber to Call Lawyer

Last month, NC adopted 2017 FEO 1, finding:

(1) that lawyers may use subscriber based text services to send texts with links to the lawyers website; and

(2) it is not a violation of 7.3(a) if the subscriber has the option to reply to the text message as follows:

  • Texting Service: Have you or someone you know been injured at work? If so, type YES.
  • Subscriber: YES
  • Texting Service: Lawyer can help. May we contact you at this number? If so, type YES.
  • Subscriber: YES
  • Texting: Service Thank you. A representative will contact you soon.
  • If the subscriber replies YES to both questions, ABC Texting provides the subscriber’s cell phone number to Lawyer. Lawyer will then contact subscriber directly.

The committee also confirmed that it is not a violation of 7.3(a) if the second text message from  includes the lawyer’s phone number and an invitation to call the lawyer.

 

ABA Opinion Suggests Lawyer Must Understand More of the “How” of Technology to Satisfy the Rules

Yesterday, the ABA issued a formal opinion on attorney email encryption, providing that while encryption is not required always, it may be – and to determine if it is, a lawyer must understand certain things, including how information is transmitted and where it is stored.

Model Rule 1.4 may require a lawyer to discuss security safeguards with clients. Under certain circumstances, the lawyer may need to obtain informed consent from the client regarding whether to the use enhanced security measures, the costs involved, and the impact of those costs on the expense of the representation where nonstandard and not easily available or affordable security methods may be required or requested by the client. Reasonable efforts, as it pertains to certain highly sensitive information, might
require avoiding the use of electronic methods or any technology to communicate with the client altogether.

Great summary of (and link to) the opinion here.

H/T to Jim Calloway @ Law Practice Tips.

Canadian Regulator Adopts a Cap on Referral Fees

On April 27, 2017, the Law Society of Upper Canada, which is the body that regulates lawyers in Canada’s largest province of Ontario, approved a set of recommendations that cap lawyer referral fees.   The action limits referral fees to 15% of the first $50,000 in legal fees and 5% thereafter, with an absolute cap of $25,000.  It adopted a standardized form for referral agreements that would be signed by everyone involved in a referral, including the referring lawyer, the lawyer getting the file and the client.

This action was based on a report issued by the Professional Regulation Committee’s Advertising & Referral Fee Arrangements Issues Working Group.   That Report is described in this new story and is available here (at Tab 4-2).

The U.S. counterpart to this issue is ABA Model Rule 1.5(e). Under Rule 1.5(e), a fee division among lawyers from different firms is proper if “the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing.”  That rule also requires that the feed division be in proportion to the work done or all lawyers assume “joint responsibility for the representation.”  Some states, such as Pennsylvania, have omitted the proportionality/joint responsibility clause, and other have omitted the “confirmed in a writing” requirement.

Thoughts on ABA Formal Opinion 476

When a lawyers tries to withdraw for a client’s failure to pay, the lawyer must take care to avoid breaching the Rule 1.6 duty of confidentiality, according to the December 2016 opinion. But what does this mean, practically speaking?  I see this as yet another tension between the law as a profession v. the law as a business.

If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.

More thoughts via the ABA Journal article Lawyers Should Tread Carefully Before Quitting a Troublesome Client.

Two Examples this Week of Technology and Artificial Intelligence Promoting Access to Justice

Two examples in the news this week of the potential for AI to increase access to justice – and perhaps raise UPL issues?  My hope is that the academy and the profession will focus on how this helps the public, while allowing lawyers to practice to the top of their license.


First, a 19 year old in Britain launched a bot in New York and London that allows folks to appeal their parking tickets.  In April, the bot had a 64% success rate.  Up next: Seattle.
Note that the developer is also working on a bot to help refugees seeking asylum, as well as a bot for HIV positive individuals to better understand their rights in disclosing their medical status.  More here from Business Insider.


Second, Bloomberg reported Thursday that some countries are using automated dispute resolution tools for family law issues (divorce, child custody and support), condominium, landlord-tenant, and employment disputes.  The tool uses algorithms to guide individuals “through a series of questions and explanations to help them reach a settlement by themselves.”  Human adjudicators may be brought in if a settlement is not reached.

Shifting Incomes for American Jobs | FlowingData

Source: Shifting Incomes for American Jobs | FlowingData

 

The average American hourly wage is $24/hour.  So how many people can afford to hire you?  The average person makes 40% of what you do – IF you earn $100,000.
Click through for an interactive graph which Nathan Yao has designed. It shows the distribution of income within occupations by occupation  in 1960, 1980, 2000, and 2014.  Looking at lawyers income you will see that most lawyers make under $100,000.  A handful make $150,000 and then a sizeable group earning above $200,000 This is no surprise to me.  It is a struggle to generate the $500,000 in business and fees you need to make $100,000.  Note that there is employer’s shareof Social Security and Medicare is 7.65%.  Plus health insurance.  A good individual plan costs about $700/month. So to make declare $100,000 costs you about $115,000 minimum.  So that comes to $57/hour if you work 2,000 hours/year.    GWC
Shifting Incomes for American Jobs | FlowingData
by Nathan Yao

As you progress through time, you’ll notice the distributions of income spread out more. This is especially obvious when you switch between 1960 and 2014. With the exception of lower paying jobs in areas such as food preparation and cleaning, it looks like there’s more opportunity to earn a higher salary (among those who have jobs at least).
That said, even if a job typically pays well, there are still people at the lower end of the bracket.