Sunday, July 13, 2008

Traffic Jam on the Information Superhighway

Traffic Jam on the Information Superhighway
Steven L. Fuchs, J.D.,
from the ABA Family Law Section
April 24, 1999
Ethics on the Internet

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Note the title of this seminar, "Ethics on the Internet" not "How to Improve Customer Service on the Internet," not "How to Better Communicate with Your Clients Using the Internet," and not "How to Reach Potential Clients on the Internet." Should we embrace stare decisis technology, looking to the past for precedent which may not exist, when we can embrace the future and develop new ways to serve?

Like a Nuisance "the right thing in the wrong place."

I believe that ethics rules relating to the Internet e.g., prohibitions against advertising, solicitation, and unauthorized practice are largely predicated on outmoded 19th--century notions. Dramatic socioeconomic and technological advances during the late 20th century have rendered obsolete certain rules, especially because of, and as applied to, the Internet.

Legal ethics rules reflect an institutional bias against change. But while these rules evolve at a Darwinian pace, the Internet gene-splices our future. We now live on "Internet time," a period of rapid technological growth incomprehensible to our traditional legal system. As a result, the "right" rules applied in the wrong place (the Internet) hurt, not help the consumer.

Early Paternalism

During the Industrial Revolution, there were vast class distinctions and educational differences between the legal community and the general public not just in white-wigged England but here in America too. Lawyers went to college while the average man (women were disenfranchised) was lucky to complete high school. This imbalance led to the paternalistic rules that we call "legal ethics." So strong was the need to "level the playing field," that potential consumers were denied the benefit of lawyers' advertising and solicitation. And I say "benefit" because an open exchange of information and ideas can only benefit a free society.

The Social Revolution: "Rock-n'- Roll is Here to Stay"

Bring on the radical 1960s, the dawning of "techmocracy" and the Information Age. The "playing field" looks more like rolling hills than Everest next to Death Valley as the body politic becomes more sophisticated. College is common for the vast middle class (including women); lawyers and country bumpkins alike watch the same network TV shows; Ralph Nader empowers a new consumer movement; and Dr. Spock becomes just one of several thousand self-help authors.

Ed Sherman starts the self-help law movement with his workbook, How to Do Your Own Divorce in California (1971). He and Steve Elias establish Nolo Press, a leading publisher of self-help law books. The Supreme Court decides Virginia State Board of Pharmacy (1975) holding that commercial speech is constitutionally protected.

The year 1977 brings us Bates v. State Bar of Arizona. For the first time in history, heretofore-autonomous (read "politically unaccountable") bar regulators are astounded to learn that (1) there is something called the "First Amendment" and (2) it encroaches on their plenary authority. Regulators begrudgingly bring their rules into compliance.

The 1980s brings "dial-a-lawyer" in which a "client" calls a lawyer, uses his or her credit card, and gets some legal advice thus transforming legal services into a commercial commodity.

Where we are--or should be--now!

Enter the 1990s. A new invention, the "graphical interface," brings the Internet into the living room. Like the printing press, which eventually led to the Reformation and widespread education, the Internet will spur its own revolution democratization and disintermediation of information, unbundling of services, and, ultimately, disintermediation of goods and services. Finally, a near-level playing field between lawyer and layman.

(1) Democratization and Disintermediation of Information
(a) Democratization: No fancy education or training is necessary to access the estimated 100-million Internet pages. Nor is an expensive subscription to Lexis/Nexus necessary to research the law. Internet search engines are the "Shepard's Citations" of the masses. The public now has access to almost the same resources as the legal community, and lawyers are posting materials written for laymen.
(b) Disintermediation: The average person can post and his or her counterpart around the world can readjust about anything without the contribution of, or interference from, the historical intermediary, the editor. We are decorating our cave walls in new ways, but without censors or critics.

(2) Unbundling of Services - Empowered by all this information, self-help will become more commonplace. With interactive forms, instructions, and child support calculators on-line, some clients may need no more than a "coach" to look over the paperwork, give an opinion, or draft a QDRO. Ethics regulators may object to these nontraditional attorney-client relationships, but, ultimately, the public will decide.

(3) Disintermediation of Goods and Services - Similar to unbundling is economic disintermediation. For example, airlines sell tickets over the Internet, thus avoiding the travel agent's 10% commission. And Maricopa County (Phoenix) has a "divorce kiosk" which also eliminates the middleman lawyers. The machine looks like an ATM. The legal consumer is prompted to answer a list of questions, pays by credit card, and the paperwork is automatically prepared for the court. Someday, the omniscient kiosk and your home computer will perform the same functions.

So Now What?

So where does this leave the legal ethicist? Or more fundamentally, where does this leave the legal profession, which is basically an intermediary? Our economic system does not tolerate market inefficiencies forever. The Texas State Bar may sue Nolo Press for the unauthorized practice of law, or require Texas lawyers to submit materials before publication but, in the final analysis, we are a consumer-driven economy and regulators will adjust or be forced to adjust their views on advertising, solicitation, and unauthorized practice. In fact, don't be surprised if you see ballot amendments relating to legal services in states like California if its legislature and regulators don't move fast enough.

New Rules for New Times

Bar regulators take a narrow view of the United States Constitution and are generally cautious to adopt new rules. They undoubtedly will see problems associated with legal self-help, unauthorized practice, partial representation, and the mass-market "commoditization" of legal services. But not being economists, regulators are not likely to conduct a cost-benefit analysis. Or worse yet, they will give, or appear to give, disproportionate weight to the economic needs of the legal establishment thus denying, or appearing to deny, the public affordable legal services. Mass education, technology in general, and the Internet in particular have made the public too sophisticated to appreciate regulators like those in Texas, who restrain trade and the free flow of information by hiding behind high-road rubrics like "protecting the public interest." (1)

Whatever the rules, the Internet itself is often beyond regulation. On-line resources from out-of-state publishers, paralegals, and public-interest Web sites are difficult to regulate without raising serious First Amendment concerns. It is not likely that a federal court will censor content-based materials, unless that federal district court is located in -- you guessed it -- Texas. (2)

Rearranging the Deck Chairs

Please don't think I'm down on all regulators. Most are public-spirited, seeking to protect the citizenry from unscrupulous lawyers. In dealing with the Internet, they are charged with the awesome responsibility of preserving order during chaos. However, like us, they think like lawyers, not economists or policy makers. While ethical problems associated with new technology will be legion, the far greater evil is to discount its many benefits. As a profession, we have to accept the inevitable democratization and disintermediation of legal services. As my 11-year-old daughter says, "Deal with it!"
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(1) We can only speculate what motivated the Texas book burners -- I mean the Unauthorized Practice of Law Committee -- who are on a book-ban-jihad against Nolo Press's self-help legal guides. In depriving the citizens of Texas of their constitutional rights, these regulators hope to achieve that most laudatory goal: "maintaining respect for, and the dignity of, our profession." Just for amusement, take a look at http://www.nolo.com/texas/index.html .

(2) See Parsons Technology (Quicken Family Lawyer case) case described (with hyperlinks of the text) at http://www.nolo.com/texas/index.html
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Steven L. Fuchs, J.D., is president and cofounder of LawTek Media Group, LLC, sponsor of the Web site, www.Divorcenet.com . Prior to forming LawTek, Steve practiced family law at the Law Offices of Sharyn T. Sooho; Newton, Mass.

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