SOPA

sopa_anti-1_final-600x450

http://ning.it/zL1634

The False Ideals of the Web – op ed piece by Jaron Lanier

“The proposed Stop Online Piracy Act, or SOPA, which is being considered in the House while the Senate looks at a similar bill, is deemed the worst thing ever. Popular sites like Wikipedia staged a blackout on Wednesday to protest the bills. Google put a black banner over its name. Nothing quite like that has ever happened before. This is extraordinary, because it shows that belief in the priority of fighting SOPA is so absolute as to trump the stated nonpartisan missions of these sites.”

Absolute positions are not the foundation for healthy discourse. Web vigilantism does a disservice to the need to fight the politics of SOPA. Rising above the political discourse is what’s needed; SOPA demonstrates a lack of understanding of the ideals of the web; we need to express these ideals in ways that promote freedom of expression and define new, and fairly negotiated roles, for intermediaries who provide value to the creators of intellectual property.

26
Sep 2012
AUTHOR admin
CATEGORY

Blog

COMMENTS No Comments

Changes to the Justice System – the Impact of Technology

I am a member of the eLawyering Task Force of the American Bar Association’s Law Practice Management Section (LPM).   LPM is one of the ABA’s sections which houses thousands of lawyers who pay attention to the business of being a lawyer.  Recently, there has been a lot of comment on the email threads from task force members about LegalZoom’s legal battles. Richard Granat, one of the eLawyering Task Force co-chairs, and a long time friend, posted recently in the email list – much of what he wrote is public information, and a good bit summarized the activities of the Task Force in the early 2000s when I was the Task Force Reporter.  Richard noted a couple articles on the LegalZoom battles and they provide a good background for the debate.

See:
http://www.charlotteobserver.com/2011/10/06/2667208/firm-that-offer…
http://www.forbes.com/sites/danielfisher/2011/10/05/silicon-valley-…

What does this mean for lawyers?  In this day and age, lawyers have to be concerned about being shut out of the business of law practice all together, as more and more consumers of legal services are looking for alternative ways to meet their legal needs.  The Internet has disrupted the legal profession’s near exclusivity to provide legal services by giving people access to legal information which is free.  Businesses have been set up to capitalize on this trend, such as NOLO press (how to books on everything from making a will to incorporating a business to getting a divorce), LegalZoom, Rocket Lawyer and many more.  In other words, the real question facing lawyers is – what business are we in?  Are we in the business of providing legal services, access to legal information, both, or something else?  Businesses that define themselves as solely providing legal information should arguably not be subject to the same regulations as lawyers, but their services will impact lawyers if the legal profession doesn’t differentiate itself and highlight the value added by the lawyer-client relationship.

When I was very active in the early days of the Task Force, I was part of the team that organized the events which led to Richard’s interactions with the president of the American Bar Association, Alfred P. Carlton before the Federal Trade Commission.  In those early days of our Task Force (2001 and on), the ABA started a movement to develop a uniform definition of the practice of law.  If ‘how to books’ with interactive CDs supplemented by online help could be brought into the definition of what is the practice of law, then it was thought that these ‘services’ could be regulated.   At the time, the Federal Trade Commission, based on anti-competition laws, warned the ABA not to use regulatory efforts to restrain the growth of these types of services.

Here is a resource that Richard  compiled previously with links to relevant documents:
“Efforts to Define the Practice of Law by the Organized Bar” – Excerpt from this page: http://www.directlaw.com/Unauthorized_practice_of_law.asp

All of this talk is centered around one aspect of the justice system – legal information.  Legal information leads to conduct which has legal implications, such as writing contracts, forming businesses, filing papers with courts and so forth.   The issue here is what happens when legal information has either a technology or human interaction add-on that helps the consumer “customize” their legal conduct for their particular circumstance.  The question that the legal profession is raising is whether or not this additional “customization” should only occur in the context of a lawyer-client relationship.  There are many business out there that say that consumers should be given the choice of whether or not they should have to pay a lawyer for this “customization” – they argue, why not allow for a consumer to get a lower scale of advice, which is more affordable, but doesn’t come within the context of a lawyer-client relationship.  Which ultimately begets the question: is access to a lower quality brand of justice superior to none at all?

I will reserve an analysis of this perplexing question for a later post, but will stress the following point, most eloquently summed up by wiser men then I (Bachman Turner Overdrive)- “You Ain’t Seen Nothing Yet.”  Greater access to legal information is only a small step to a greater systematic change to the legal profession that is being induced by technology.  Here, we are merely talking about the very initial stages of how the law is practiced- obtaining information.  But larger questions are right around the corner, such as where will justice be dealt and under what parameters.

True change to the justice system will come when government goes online – becomes web- based, operating in the cloud, across seamless borders, with harmonized rules.  Why does government need to go online? Several factors, including those that have led to companies like LegalZoom gaining such popularity, inform this conclusion.  First, technological advances have meant that individuals are able to access legal information online and save costs.  Instead of paying law firms thousands of dollars to file articles of incorporation, they can now do the same for $99.  Technology also allows the application of the legal information in courts, which constitutes a transition from the offer of customizable legal forms to a practice of law online.  The state of today’s technology also allows the adjudication of cases online.  The provision of information, application of that information by individuals or online lawyers, and adjudication of cases are all feasible technically, but are being hindered by a lack of buy-in from brick-and-mortar lawyers, adjudicators and bar associations.

Today, of course, consumers will continue to get LegalZoom’s legal information, and lawyers will have to continue to justify their value to keep their clients from asking why they should pay thousands of dollars for legal services rather than use legal information services.

Lawyers are worth it – lawyers bring huge value to the table.  They help build valuable relationships, they guide people and businesses through legal challenges.  But lawyers do not do themselves a service by trying to stop the legal information transformation that has all ready taken root in the marketplace.

In closing,  let me note that after leaving the Reporter role of the elawyering task force, I joined the online dispute resolution community (www.odr.info) and set up Internet Bar Organization (www.internetbar.org).  The online dispute community and Internet Bar Organization are working together to help shape an online justice system that promotes access to justice in the digital age.

– Jeff Aresty

26
Sep 2012
AUTHOR admin
CATEGORY

Blog

COMMENTS No Comments

Should There Be a Global License to Practice Law?

us-china-trade-globalization_0

The American Bar Association plays a key role in setting a policy framework that States look to when regulating the conduct of lawyers.  The current Ethics commission debates have reached an impasse on the topic of virtual practice.  See  20120619_draft_release_for_comment_rule_5_5_comment_4_virtual_practice .

But as any tax lawyer or any international business lawyer will tell you,  jurisdictional boundaries for the practice of law are problematic when either your subject matter or your clients’ business crosses state boundaries.  Tax lawyers advise on the consequences of 50 state tax laws and federal tax law routinely.  International business lawyers structure global transactions taking into account the laws of multiple jurisdictions.  I am not familiar with any state’s bar counsel questioning whether any of these lawyers are committing unauthorized practice of law violations in other jurisdictions.

So fast forward to the 21st century, any both lawyers and clients are operating web sites that are by their very nature multi-jurisdictional.  Clients aren’t regulated as lawyers are – so they have no problem selling across borders.  But, what about their lawyers?  What if a Massachusetts lawyer living in New Hampshire develops a strong expertise in e-commerce law and attracts a national following?  Of course, the reason she has that national following is because she has a virtual practice, operates a website that has podcasts, free downloads of e-commerce strategies (all with the usual disclaimers and that a lawyer-client relationship can only be established by a written fee agreement);  but if you look at the ABA Ethic Commission’s approach to virtual legal practice, they seem stuck on a 20th century notion of “systematic and continuous presence” in a jurisdiction to determine whether our hypothetical Massachusetts lawyer is practicing outside the jurisdiction where she is licensed.

The reality is that a majority of lawyers practice in solo and small firms, with their partners are licensed to  practice in one or just a couple of states.  Of course, large law firms practice nationally, either with partners licensed to practice in nearly every state, or, are part of legal networks that have partners that fill in the missing states.  It certainly seems odd that when solo and small firm lawyers are struggling economically, and, have access to cheap and innovative technology that opens up vistas, that the bar associations which set policy, chill innovation.  Small firm lawyers can not afford to fight objections by bar counsel.  Nor, are legal malpractice insurers offering policies which open up innovative practices.

Peter Erenhaft, a DC international lawyer, has been making the argument that lawyers should be able to practice globally with one license – which, of course, is how the European Union operates within its jurisdiction.  His comment to the ABA Commission can be seen here Ehrenhaft on virtual practice

What do you think?

26
Sep 2012
AUTHOR admin
CATEGORY

Blog

COMMENTS No Comments