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THE POINT

This series is about the how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.

This post addresses the situation where lower courts disagree with each other’s rulings — and a higher court will need to step in to resolve their differing judgments. But meanwhile business executives need to make decisions.

DISCUSSION

One of this blog’s goals is to help business owners and executives make better management decisions through a practical understanding of how the law works.

This four-part series takes up the question: Why can’t my lawyers say “yes” or “no”? Why can’t I get a straight answer?

With all my attorneys’ conditions and caveats — how can I make a business decision?

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My own answer:

Lawyers give guidance based on what the legal system has decided … so far. That legal system is made up of people. And any person’s judgment contains — to a greater or lesser extent — a subjective or arbitrary element.

Put another way: What lawyers tell you lacks the objectivity we associate with physics or chemistry — due to the human factor.

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THE POINT

In February of this year the American Bar Association took action that illustrates how attorneys’ views of their “ethics” rules can have the effect of shutting down innovation in the delivery of legal services, thereby protecting their incomes from unwanted competition.

DISCUSSION

It’s impossible to prove what someone has intended by an act on their part.

But the ABA’s February action had the effect of protecting their lawyer-members from unwelcome competition by shutting down consideration of changes in the “ethics” rules proposed for consideration by the ABA Center for Innovation and four of the ABA’s standing committees.

In February, the American Bar Association, acting through its House of Delegates, considered an ambitious proposal of its ABA Center for Innovation and four standing committees relating to innovation in the delivery of legal services. Here “innovation” meant opening doors to possibly better and cheaper ways to serve clients.

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The Point

The chief clinical officer of a 51-hospital system:

  • “We are now leveraging telehealth technology in ways that will last long after this pandemic.”
  • “The severity and suddenness of the Covid-19 emergency have hastened changes in how we deliver care.”
  • “Things we’ve been trying to accomplish for years all happened in the last six weeks.”

Discussion

So wrote Dr. Amy Compton-Phillips, chief clinical officer of Providence, a Catholic not-for-profit health system with 51 hospitals, in the Wall Street Journal, on March 28, 2020 (subscription required): “After the Pandemic, A New Frontier for Medical Technology: Telehealth Systems are Growing Rapidly in Response to the Crisis”.

Her essay is well worth reading as a lesson in how to make things better before an emergency forces one’s hand.

And it recounts how the urgency induced by the pandemic sped-up these efforts:

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THE POINT

It’s been governors and other government executives who’ve responded to COVID-19 — over protests from physicians and their medical societies — by removing the red tape of doctors’ protectionist rules to speed healthcare to those who urgently need it.

DISCUSSION

In the midst of a pandemic, we need physicians’ medical knowledge and clinical skills to get the best care to those infected or at risk of being infected. But we don’t need their insular, self-interested approaches to the way such medical knowledge and clinical skills are delivered to those who need them.

It’s worth noting that important parts of the red tape impeding health care responses to COVID-19 were created — and defended by — the medical profession and institutions promoting its interests.

And it took people outside of the medical profession — specifically, governors and other officials focused on the larger picture (i.e., public health) — to get us past those barriers that organized medicine had placed in the way of those results:

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THE POINT

Wall Street Journal, Saturday / Sunday, April 11-12, 2020, commenting on New York State’s response to COVID-19’s demands on its healthcare system:

” … New York’s biggest force multiplier has been regulatory relief.”

DISCUSSION

I invite your attention to my recent series: “‘Ethics’ Rules Shape the Legal Services Market: To Protect Clients? Or to Protect Lawyers from Unwanted Competition?” (here, here, here, here, and here).

As a practicing business lawyer — with a 12-year hiatus during which I was a general manager and executive (i.e., not practicing law) at Whirlpool and then GE — I concluded a long time ago that legal-services-market “ethics” rules have little to do with protecting clients, and a lot to do with protecting lawyers from unwanted competition.   

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Last Saturday (April 11, 2020) the Wall Street Journal (subscription required) featured the following editorial: “Doctors Without State Borders: Governors are easing rules on caregivers , and it’s long overdue”.

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THE POINT

1. Law firms and in-house law departments are “lawyer-centric” in managing their own workflows. They “reward the ‘exceptional, do-it-all-and-charge-for-it’ approach” that relies almost exclusively on attorneys’ skill sets.

2. As a consequence, law firms and in-house law departments “fail to determine the best skill set for most efficiently executing many jobs that are routine parts of corporate life.”

DISCUSSION

The legal profession’s expectation: The lawyer is meant to be star of the show. Anyone other than lawyers on the team is simple an “assistant to” the attorney.

Patrick Lamb — along with his law partner Nicole Auerbach — is one of a tiny group of law firm attorneys whom I view as genuine pioneers in legal innovation.

His message in a tweeted video on April 2, and a blog post on April 1, argues that the legal profession has got it wrong.

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Patrick Lamb’s blog post uses examples from his own career to describe his journey from lawyer-as-autonomous-genius to lawyer-in-collaboration-with-other-disciplines.

Trial lawyer that he is, Patrick Lamb argues concisely that the legal industry needs to move from “just lawyers” to “multi-professional teams” in his tweeted video:

“[You] need to break down the work that needs to be done into a series of processes,

“And see who is best able to execute on those processes.

“The surprising answer is that, more often than not, you don’t need a lawyer to do the job.

“You need somebody who’s capable, and who is a process-focused person, to administer the process, except an occasional spot where a lawyer’s judgment is required.

“And if you break down work into those series of processes, you find that you can frequently get it done, much better, and also much cheaper.”

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See update below about 3M lawsuit against a re-seller of its N-95 masks alleging “price-gouging” filed April 10, 2020.*

THE POINT

1. Conventional law firms design waste into their work — charging by the hour, over-staffing, assigning inexperienced attorneys alongside qualified ones, and avoiding substantial technology adoption.

2. In-house counsel — whose number and influence have grown in the past 40 years — have not used their companies’ purchasing power to fix this problem. So it persists.

DISCUSSION

On March 28, in the anchor’s set-up to a business news show’s interview with Mark Cuban, I wondered if I’d heard it wrong:

Was Mark Cuban really criticizing 3M Company for price-gouging and the like on 3M’s N-95 surgical masks (“so-called because they block 95% of very small particles”)?

In the midst of the COVID-19 pandemic?

No — not 3M directly.

Mark Cuban was alleging that 3M had failed to use its influence to stop distributors and other third parties from price-gouging and the like on 3M-made N-95 surgical masks.

His point: 3M could use its purchasing power with respect to these distributors and other third parties to bring a stop to this problem … if it wanted to do so.

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THE POINT

1. Bar authorities and courts too often take extreme, over-literal views of the professional “ethics” rules that shape the legal services market.

2. Unsurprisingly, their interpretations frequently just protect attorneys from unwanted competition — not protecting clients from fraud or abuse.

DISCUSSION

As a lawyer, I take a strict, traditionalist view of legal “ethics” rules that truly pertain to honesty: Don’t lie to a judge, never allow yourself to be in a conflict with your client’s interest, etc.

And on eight or nine occasions I have withdrawn from representing a client where I believed that following their wishes would have the effect of making a misrepresentation to a counter-party in a deal, to a government official, or to a court (and where the client refused to make a disclosure I proposed to restore honesty to the situation).

But I believe that most of the “ethics” rules shaping the legal services market are little or no use in guarding clients from harm. Instead, they mostly protect lawyers from unwanted competition:

  • Part 2 — U.S. lawyers can’t practice law as part of an accounting firm.
  • Part 3 — Where an app connects you to a company that retains a lawyer for your traffic ticket case, and also puts a ceiling on the fine you have to pay, the app company violates legal “ethics” by “practicing law”.
  • Part 4 — If a client chooses an attorney after finding them on a client / lawyer matching service, the web listing is “referring” the lawyer to the client — even though it’s the client who selects the lawyer.

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Each of the offerings prohibited in the above cases meets a legal need:

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THE POINT

1. LegalMatch.com is a legitimate, constructive solution to a legal need faced by the public that the legal profession seeks to shut down on “ethical” grounds”.

2. Legal “ethics” should be a shield to protect clients from fraud or abuse, not a sword for the legal profession to attack unwanted competitors.

DISCUSSION

Let’s say that you find yourself in need of a lawyer. And that you don’t know of any attorneys in your geographic area who are experts in the field you’re concerned with.

According to the California appellate court, whose ruling against LegalMatch.com the California Supreme Court summarily upheld (i.e., without an opinion) on March 11, 2020, this was how LegalMatch.com worked:

  • “LegalMatch sends information to lawyers based solely on the client’s selection of geographic location and area of expertise.”
  • “After the lawyers receive this information, each lawyer has the opportunity to affirmatively reach out to the individual [would-be client].
  • “Depending on the client’s preferences, the potential client may choose to send contact information to the lawyers so that they may continue their discussion outside of the platform.”
  • “Lawyers and clients negotiate between themselves to determine the parameters of their attorney-client relationship.”
  • “Each lawyer who purchases a subscription is slotted into a geographical location and category of legal expertise.”
  • “The number of lawyers in a geographic location and category of legal expertise is limited by an algorithm (allocation system) that maintains LegalMatch’s profitability by balancing the number of clients and lawyers available.”
  • “Potential clients may use the site for free.”
  • “LegalMatch receives no fee for the successful formation of an attorney-client relationship.”

This, in other words, was nothing more than a lawyer-client matching service. Nevertheless, this court held that LegalMatch.com amounted to an illegal lawyer “referral” service.

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THE POINT

1. TIKD was a legitimate, constructive solution to a legal need faced by the public that the legal profession seeks to shut down on “ethical” grounds.

2. Legal “ethics” should be a shield to protect clients from fraud or abuse, not a sword for the legal profession to attack unwanted competitors.

DISCUSSION

Let’s say you were driving in Miami (or elsewhere in South Florida, or Tampa metro area, or Washington, D.C., or specified counties in Maryland or California), and a police officer gave you a ticket for speeding.

Say it was for $200.

Until legal action by the Florida Bar and a traffic ticket lawyer forced it to suspend operations, a Coral Gables, Florida company called TIKD would offer you the following:

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