What Happens When We Are Quiet About Things We Should Question?

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What happens when we are quiet about those things we should question? We become unwittingly complicit.

In 2013 the legal profession saw something they have never seen before, more than a half a billion dollars flowing in to startup companies (who got this money?) who have discovered the ‘legal vertical’.  These companies are not investing in law firms, though.  They are investing in ancillary businesses to assist lawyers in doing their jobs, help lawyers get clients, and help clients handle their own legal matter pro se. The ‘legal vertical’ has pretty much been the last holdout because it is a profession so individualized, bound by onerous rules of professional conduct, and comprised of professionals who have, up until this point, maintained exclusive access to a certain level of expertise.  The legal profession has created their own, highly insulated gateway for clients to access this expertise. With technology, the old model is being systematically dismantled.  And this is not a bad thing at all.

But what happens when companies not bound by professional rules of conduct who are heavily financed, entice those who are starved for money? These companies show up at every conference, every bar event, whether as speakers or Platinum sponsors, financing luncheons or happy hours. They glad-hand their way into the kingdom not as concerned about the ties that bind lawyers to a professional code, but subtly encouraging shortcuts and workarounds to break these ties through their services. And it’s not just the lawyers who are afraid to bite the hand that could potentially feed it.  It’s those organizations (journalistic or bar) dependent upon advertising and sponsorship dollars. There are many pseudo-journalistic blogs we love to read.  There is also  the ABA Journal, Above the Law, Bar Associations, and other on-line go-to sources in your professional twitter feed, RSS and more, who appear to be tamping down their natural inclination to question these companies.  Why?  Could it be they don’t want to offend a highly-financed company who might throw a few sponsorship bucks their way? But we rely upon these publications and organizations to guide us, not mislead us. These online newspapers and magazines and organizations really aren’t bound by anything but their own publication’s or organization’s mission statement even though their audience has come to rely on what they have to say about these very same companies. No one has a gun to their heads, though.  They just print what are basically opinion pieces/advertorials and shake the glad-handers’ hands or they just stay quiet on the product or service.

There was a day when legal bloggers and legal publications and bar organizations came out in force to question everything that didn’t immediately smell right. And even those things which possibly could smell wrong down the road.  And it encouraged lively debate within the profession and promoted a lot of questioning of products and services being offered in ways which may or may not negatively impact lawyers.  But having been blogging now for nine years, as big money (the likes of which has never been seen before in this profession) has been spread like predigested food from a mother bird to her baby birds’ mouths,  these vocal curmudgeons and bars seem to have lost their voice and their grit.  Or maybe they are exhausted.  Or maybe they just don’t want to push back against the inevitable or bite the hand that feeds them.  I don’t know.  All I know is they not only have nothing to say anymore, they don’t even share the commentary that does speak to the issues.

This is very disquieting.

What it means for you as lawyers is you must question every new product and service entering this legal vertical which seems appealing to you when it comes to generating business or improving your back office operations.  Everything.  And a good company will give you concrete information, ethics opinions, and be totally transparent about issues you might face as a lawyer if you use their services.  Don’t necessarily rely upon publications or organizations which promote them. Seek your own ethics opinion if the company has nothing to offer.

We live in a day and age where we fully understand there are risks associated with trying new products and services and they could butt up against current rules that bind you as an attorney.  There are potential violations of our Rules of Professional Conduct lurking everywhere. But ultimately, you have the responsibility of knowing if using a product or service complies with these rules. Remember, you may not agree with the rules, but until they are changed, they govern your code of conduct. It is your law license on the line, not anyone else’s. Continue to move forward, but always proceed with caution.

Oh, we vet all our sponsors (and have turned down numerous companies over the years who wish to reach our audience) and feel quite comfortable with the services they offer lawyers.  They’ve demonstrated a healthy respect for their customers, you, and your mission to provide legal services ethically.  Yet, still do your due diligence so you are comfortable they are the right fit for you and your practice.



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2 comments on “What Happens When We Are Quiet About Things We Should Question?

  • Susan, as usual you raise good points. In the real estate area of my practice, in Illinois some brokers are trying to tie sellers to captive title companies. They cut out the attorney/agent fee, expect the attorneys searching title to be satisfied with what others provide them, and then object when attorneys (like me) raise concerns about who did the title search and who wears the ultimate liability?

    Furthermore , with more “one – off” projects, or limited scope representation , that’s going to raise the issue of what may a client be doing that you’re not aware of when you engage in these a la carte services?

    I’m not suggesting that either limited scope representation or a la carte services are improper , but I do think further questions need to be asked before you enter into these agreements.

    • Kevin, I think limited scope representation is being aggressively addressed by courts because judges realize pro so litigants need help. So they are working with attorneys and trying to make it less onerous. A well defined agreement helps in these situations outlining the scope (narrow and clear and often outlining specifically what it DOES NOT cover) and is the best defense. If we are relinquishing control over the entire representation it’s natural there will be things the client will do during the periods the agreement is not in force, right? And I believe the courts will take this into consideration.

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