An Illinois Perspective: The Ethical Issues Arising from the Unbundling of Legal Services as a Result of Efforts to Provide Greater Access to the Legal System Christina Holland April 30, 2003

ISBA Advisory Opinion Lawyer limited the scope of his representation to the preparation of documents for a closing. Lawyer did not attend or otherwise participate in the closing Did he violate is ethical duties? Holding: Yes!

What the Lawyer Did Wrong: Aided in the unauthorized practice of law Limited the scope of his representation in a manner that led to the violation of other duties – Duty of communication – Duty of loyalty

Key Ethical Concerns Unauthorized Practice of Law Creation of Attorney/Client Relationship Violation of Various Ethical Duties – Competence & Diligence – Scope of Representation – Confidentiality – Conflicts of Interest & Loyalty – Candor & Fairness

Unauthorized Practice of Law No concrete definition Widely accepted method of demarcation – Advice v. information Use of electronic methods of communication makes this more problematic – Ex:15 year old dispensing legal advice to thousands – Ex: Quicken Family Lawyer CD-ROM case Software provided questionnaire and then used automated program to generate a personalized legal document Initially held to be UPL – later overturned

Creation of Attorney-Client Relationship Restatement (Third) Test: Arises when: – (1) a person manifests to a lawyer an intent that the lawyer provide legal services for the person – (2) the lawyer either Manifests his consent to the person Fails to manifest his consent and knows or reasonably should know that the person is relying on the lawyer for legal services Key Points: – Can be created by implication – Generally depends on whether specific legal advice was given in response to the request

Unbundling in an Electronic Setting Degree of anonymity involved makes it more difficult to judge the intentions of the other party – No sensory clues – ISBA Advisory Opinion “Lawyers participating in chatrooms and other on-line services that could involve offering personalized legal services to anyone who happens to be connected to the service should be mindful that the recipients of such advice are the lawyer’s clients, with the benefits and burdens of that relationship.”

Use of Disclaimers Used to deny that such a relationship has been formed, or that legal services are being provided But, courts are reluctant to enforce disclaimers if the actions of the attorneys providing the disclaimer are contradictory therewith

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Duty of Competence Requires attorneys to provide competent representation which requires legal knowledge, skill, thoroughness and preparation Potential Problems in an Unbundled Setting – Due to limited nature of services, lawyer may not be aware of the big picture and therefore be unable to competently advise

Further Problems in Electronic Settings How does the client know the person on the other end is even a licensed attorney? How does the client know the person on the other end is competent in the area of law and/or the laws of a particular jurisdiction relevant to the client’s needs? Clients are unable to use sensory clues to determine if they feel comfortable with the attorney and if they think the attorney is competent

Duty of Diligence Lawyers must act with reasonable diligence and promptness throughout their representation Problems: – Lower level of responsibility when only providing certain services can lead to a lack of diligence

Further Problems in Electronic Settings Ability of attorneys to follow-up with clients when contact occurs in chatroom or message board setting can be limited If attorney does not believe that relationship has been formed, more likely to be less than diligent in performing any legal task

Overcoming these Problems of Competence & Diligence Responsibility of Clients – Research the attorney with whom they’re dealing – Use recognized legal organizations – Follow up via phone or in person Responsibility of Attorneys – Be aware of these pitfalls – Act competently & diligently by: Getting the full picture Following up Advising client to get a new attorney if not competent in the specific area of law or laws of a jurisdiction

Scope of Representation Client has right to set objectives, but attorney has the right to limit the scope of his representation – But, such limitation cannot lead to the violation of other ethical duties Recall the ISBA advisory opinion

Problems in Electronic Settings Need full disclosure and consent from client – may be hard to determine when done electronically because a lack of sensory clues – Has the client read the limiting language, or did he skip over it, perceiving it as legalese? – Did the client understand the effect of the limiting language? Is the client scared off by the limitation, especially if they are unfamiliar with the concept of unbundling?

Overcoming Limitation on Scope Problems Follow-up with the client via telephone or in person to ensure he or she understood Keep written records indicating the client’s consent to the limitation Do not limit the representation in such a way that will violate other ethical duties

Duty of Confidentiality Most basic of the ethical duties One of which most clients are keenly aware Problems in traditional unbundled legal settings: – Lack of privacy that results in otherwise confidential conversations being held in open, non-private areas – Need disclosure from client before it can be waived

Further Problems in Electronic Settings Are the communications secure, or can third parties intercept? – Obviously no expectation of privacy in chatrooms and on message boards – Are password protected websites enough to ensure secure communications?

Overcoming Confidentiality Concerns Attorneys should advise clients of the potential risk and encourage safer methods of communication Clients should not use obviously public methods of communication – Chatrooms – Message boards Assumed risk? – As with , telephone, mail, and messenger services

Duty of Loyalty & Conflicts of Interest Lawyers cannot represent clients whose interests are adverse to other clients Extends to both current and former clients In traditional setting, use an intake system to cross-check potential new clients against current and former clients

Problems in an Electronic Unbundled Setting Identity of the client may be unknown – Screenname or false name Expectation of quick answers Need for an intake system that isn’t so cumbersome that it takes away the perceived benefits of electronic communications

Overcoming Loyalty Concerns Practically impossible to overcome when communications take place in chatrooms or on message boards More easily done when electronic communications take place through website of a recognized legal organization because an intake system can be implemented

Duties of Candor & Fairness, & the Problem of Ghostwriting Ghostwriting – Attorney prepares court documents and client submits to the court as his own Candor – cannot fail to disclose material facts to the court when such disclosure is necessary to prevent assisting client in carrying out a fraudulent act Fairness – must be fair to both opposing party and their counsel

Problems of Ghostwriting Could lead to leniency by the judge if the other party is represented by counsel and the judge thinks the party is pro se – Resulting in unfairness to the opposing party Assisting the client in perpetuating a fraud on the court

Illinois’ Take ISBA Advisory Opinion allows attorneys to prepare court documents and not otherwise appear or take part in ensuing litigation Thus, no need to ghostwrite in Illinois

Further Opportunities for Change Amend the rules of professional responsibility to allow for the provision of unbundled legal services – Ex: TX amended its rules in response to the Quicken Case Adopt exceptions or exemptions in certain structured situations – Washington – California – Colorado

Washington & its LPOs Recall from IOLTA case Washington allows “limited practice officers” to select, prepare and complete legal documents incidental to the closing of real and personal property transactions Allows participation by laypersons in what is traditionally considered the practice of law

California Family Law Facilitator Act Facilitators qualifications: – Licensed attorneys – 5 years experience in the practice of law Duties include: – Explaining and assisting in filling out court forms – Providing educational materials Statute explicitly sets forth that no attorney/client relationship is formed and that Rules of PR do not apply to attorneys working as family court facilitators

Colorado Family Court Facilitators Program Facilitators qualifications: – College degree – 3 years experience with court procedures, family law, OR social work Duties Include – Individual case management – Determination of relevant legal issues Particularly discovery and disclosure requirements – Reviewing documents to ensure compliance with relevant statutes and rules – Explanation of court procedures to pro se litigants

Attorneys engaging in unbundling must: – Be aware of these ethical concerns – Take appropriate steps to sidestep ethical barriers I.e. Act diligently, appropriately limit scope of representation – Make clients aware of potential pitfalls and things clients can do Advise them not to use public methods of communication Profession and individual states must be more open to unbundling and modifying rules – Follow the leads of TX, CA, WA, and CO