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.

Lisa Rickard and Anthony Sebok on the Ethics of Investing in Another’s Lawsuit

From the New York Times Room for Debate:

The disclosure that Peter Thiel, co-founder of PayPal, spent about $10 million to help the wrestler Hulk Hogan sue Gawker Media apparently because a Gawker blog outed him as gay years ago revealed for many the lucrative practice of investors paying for litigation in which they are not involved.

While Thiel’s motives were not profit driven, most investors seek a cut of any final judgment or settlement. Should third parties be allowed to invest in lawsuits or does that unduly influence them?

Lisa Rickard, president of the United States Chamber of Commerce Institute for Legal Reform, says no – This is Casino Litigation Where We All Lose

Anthony Sebok, professor of law at Benjamin N. Cardozo Law School, says yes – Third-Party Litigation Finance Promotes Justice and Deters Wrongdoing

 

Second Circuit Finds New York’s In-state Office Requirement Constitutional

On April 22, 2016, the Second Circuit decided SCHOENEFELD v. SCHNEIDERMAN, et. al.  In a 2-1 decision, the Second Circuit reversed the district court and remanded the case with instructions to the court to award judgment to the defendants.  The Second Circuit majority upheld the constitutionality of New York’s rule that requires an instate office.  Relying on

McBurney v. Young, 133 S. Ct. 1709 (2013), the Court held, inter alia, that “in the absence of any proof that that statute’s instate office requirement was enacted for a protectionist purpose”, plaintiff could not prevail.

The suit was filed in 2008 by Ekaterina Schoenefeld, who was a New Jersey resident. She had cited the Privileges & Immunity Clause and argued that the policy, which blocked her from practicing in New York despite passing the bar there and meeting all other requirements, served no substantial state interest.  She had noted that New York residents need not have a physical office in New  York and may practice from their homes.   This argument was not successful.  The opinions are quite lengthy – 31 pages for the majority and 25 pages for the dissent. The ABA Journal has a story about the case here about and there is Wall Street Journal article here.

Although the Court held that it was constitutional for New York to have an in-state office requirement, the decision does not require such a rule.  At some point, New York might want to revisit this issue.   In addition to its domestic implications, this ruling has the potential to reduce the number of foreign-admitted lawyers who annually sit for New York’s bar exam. See Diane Bosse, Testing Foreign-Trained Applicants in a New York State of Mind.   New York’s in-state office rule could affect the attractiveness of the New York license as a global credential.

Lawyers, lawsuits, and the water crisis in Flint, Michigan

From NPR’s All Things Considered:

Out of State Lawyers Descend on Flint, Mich., Amid Water Crisis

For the most part, official help has been slow in getting to Flint, Mich., but one group of first responders is on the ground. A growing number of out of state lawyers are setting up shop in Flint, and they are filing dozens of lawsuits.

Listen to the coverage by Steve Carmody here (disclaimer, you’ll hear my thoughts about the situation during the last few seconds of this 3 1/2 minute radio spot).  Or read the full transcript after the jump. (Cross-posted at the Legal Ethics Forum.)Read More »