f/k/a . . . the archives

May 30, 2003

Legal Ethics & Client’s Rights

Filed under: — David Giacalone @ 2:07 am

- below you will find links to our writings on legal ethics reform, client rights and related issues, plus annotated links to relevant materials on the web — FYI: We have re-produced the Original ethicalEsq About page describing the mission of ethicalEsq and introducing the Editor, David Giacalone.  

- additional posting on these topics (and many others) can be found on the Prof. Yabut’s Favorites Page; you can also search this site using the Search Box in our Sidebar, or by clicking to do a Google Search of f/k/a (by inserting a space after our URL in the search box and adding your search terms).

Note: We apologize for the formatting errors that appear on many of these pages (e.g., strange line-breaks, spacing, or font sizes, and missing images) and any inconvenience or annoyance they may cause. Our Harvard  webmaster’s switching to a new webserver in June 2006, and again in 2008 and 2009, created most of the problems.  Although the pages are still readable, we appreciate your forbearance.  In addition, the 2009 webserver change broke many internal links (to other materials on this site).  The material still exists, and we hope you will be able to use the lists below or the Search Box in our Sidebar to find the desired post or page.

On the following Pages you’ll find links to our posting on each broad topic, plus annotated listings of relevant materials at other websites:

Access to Justice/ The Self-Help Law & Pro Se Movement / Unbundling (looking for affordable solutions to legal problems in and out of court)

Class Actions (who’s looking out for the clients’ interests?)

The Lawyer Discipline System (what’s wrong with it and how to improve it)

Legal Fees (perspectives on excessive fees, contingency fees, hourly billing, value billing & value pricing, lack of price competition, new technology, etc.)

Informing Consumers (the disclosure of consumer-client rights and options for resolving a legal problem or dealing with lawyers; the fiduciary duties of lawyers to clients; lawyer advertising issues)

Organizations, Groups, Agencies Working for the Legal Consumer

Professionalism, Competence, Diligence, Zeal, etc. (how are they defined? enforced? achieved?)

Unauthorized Practice of Law (ULP) and Defining the Practice of Law (Do UPL laws protect clients or lawyers by limiting who can help solve your legal problems?)

WEAKLY Specials (punditry with a touch of whimsy, humor, irony)

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Annotated List of links on SELECT TOPICS in Legal Ethics Reform & Clients’ Rights

- scroll down to find -

  • General Ethics-related websites and materials
    Organizations and Agencies Working for the Legal Consumer
    Information for well-informed legal consumers & clients
    Lawyer Advertising
    Contingency Fees
    Unauthorized Practice of Law [ULP] & Defining the Practice of Law
    The Self-Help Law Movement, Pro Se Representation
    Small Claims Court Reform
    Unbundled (Limited Scope) Legal Services

GENERAL SOURCES of Information Relating to Lawyer Ethics & Discipline

Note: Lawyers are regulated by the State (or district or territory) in which they practice, not by the federal government.  National organizations such as the American Bar Association [ABA] may be very influential, but can only promulgate suggested or voluntary ethical guidelines and opinions.  Regulation of lawyers is under the judicial branch of government in each State.

Model Rules of Professional Conduct: Created by the American Bar Association [ABA], these model rules, or their predecessors, are the basis for lawyer ethics codes in every state, except (as of August 2010) California.    Once adopted by a State, violation of a rule subjects a lawyer to discipline such as suspension and disbarment.

ABA Center for Professional Responsibility: The mission of the Center is to provide “national leadership and vision in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.” This website is a major portal for legal ethics and client protection materials, with a large library of materials on lawyer and judicial ethics, including links to materials at other websites.  For example:

National Lawyer Regulatory Data Bank:  NLRDB is “the only national repository of information on public sanctions imposed upon lawyers in disciplinary cases throughout the United States. The Data Bank not only provides ready access to information concerning sanctions imposed on individual lawyers but also offers a means of gathering national statistics on disciplinary cases.”  Although the Data Bank conducts name searches on request for the public, it suggests that “Inquirers should begin their search with the state where the lawyer is known to be licensed. See the Directory of Lawyer Disciplinary Agencies.”

Directory of Lawyer Disciplinary Agencies (23 pp. pdf)  State by State information on contact information for making an ethics complaint against a lawyer.

American Legal Ethics Library: Housed at the Cornell University Law School, ALEL is a major and unique resource on lawyer ethics. As stated on its homepage, “This digital library contains both the codes or rules setting standards for the professional conduct of lawyers and commentary on the law governing lawyers, organized on a state by state basis. . . . The American Bar Association’s ethics materials are included in the library to permit the rules of a particular state to be compared with the ABA model provisions, including the extensive 2002 revisions, and with related provisions in other states.” Ethics rules are listed by jurisdiction as well as by topic.

sunEthicscovers legal ethics, judicial ethics, and bar admission issues in Florida and nationally.”  It has an extensive compilation of State and National Ethics Resources (including links to each state’s ethics code, ethics opinions, regulators, bar association, and more). For researchers, it also has a Subject Index to its past posting.

Legal Ethics Forum is a weblog that posts about news relating to legal ethics.  Its left SideBar includes many links to useful resources, groups, publications.

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ORGANIZATIONS & AGENCIES working for the legal consumer

HALT – An Organization of Americans for Legal Reform. Founded in 1978, HALT is a nonprofit, nonpartisan, public interest group of more than 50,000 members, and proudly states that it is “the nation’s largest and oldest legal reform organization. Dedicated to the principle that all Americans should be able to handle their legal affairs simply, affordably and equitably, HALT’s Reform Projects challenge the legal establishment to improve access and reduce costs in our civil justice system at both the state and federal levels, and to improve client protection and lawyer discipline.

The Legal Reformer: HALT’s Membership Newsletter This publication is available for free online, and is mailed to all HALT members. It includes articles on HALT projects and publications, as well as a roundup of legal reform news from across the nation.

Nolo.com Democracy Corner: [see update at the end of this paragraph] With the rally cry of “Let’s Fix America’s Dysfunctional Legal System,” the self-help-law publisher Nolo.com presents its wish list of changes to the legal system and legal ethics. See the Nolo Contends webpage, which describes the Nolo philosophy of legal reform: Law for All, Remove Barriers to Access, Stimulate Reform of Law. Topics covered in essays on the site include expanding small claims court jurisdiction, combating excessive contingency fees, preventing the use of rules against the Unauthorized Practice of Law to ban self-help books and software and the use of nonlawyer advisors, ending probate laws.

noloShark update: Editor’s Note (August 2010):  Since I compiled this list in May 2003, Nolo.com has taken much of the bite out of its website.  Democracy Corner, Nolo Contends, the Nolo Lawyer Joke Emporium, and its shark-lawyer merchandise and computer wallpaper are gone from the site.  Nonetheless, its Nolo Legal Encyclopedia has useful free information and FAQs, on many substantive subjects of interest to consumers or small businesses, as well as materials of interest to consumers as clients or potential clients of lawyers, or who otherwise have a legal problem and are curious about their options and rights (scroll down to our next section on Being Well-Informed Legal Consumers].

Federal Trade Commission This is one government agency that understands the importance of information and competition to consumer welfare — and refuses to let professions get off the hook with their pious paternal instincts and dubious self-regulation.

American Antitrust Institute This nonprofit thinktank has produced a Guide to Antitrust Resources on the Web that includes a major section on Lawyers and Legal Services [scroll down the page], including sections on Applying the Antitrust Laws to the Legal Profession, Defining the Practice of Law, Protecting Clients through Competition, Information and Fair Ethical Rules, and Multi-Disciplinary Practice (MDP).

Overlawyered.com: Legal Ethics in Crisis Edited by Walter Olson, Overlawyered.com covers many aspects of the legal profession’s effects on society, politics, and clients, with an emphasis on the problem of excessive litigation. Overlawyer’s ethics page includes sections on excessive fees, faulty disciplinary systems, the failure to fully inform clients, and more, with links to relevant articles, sites and reports.

Legal Reform Now!: This website has a lot of information and opinion on what ails the American legal system (including reprints from other sources), plus many suggestions on how to make things better.

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BEING a WELL-INFORMED CONSUMER of LEGAL SERVICES

Need a Lawyer? Judge for Yourself – The Federal Trade Commission, which works to protect consumers and competition, has issued this consumer guide to choosing a lawyer, including advice about keeping fees low and choosing between price and quality.

Nolo.com is a leading publisher of  legal self-help materials (books and forms, etc.). Its Nolo Legal Encyclopedia has useful free information and FAQs, on many substantive subjects of interest to consumers or small businesses.  The Nolo Legal Encyclopeida also contains materials of interest to consumers as clients or potential clients of lawyers, or who otherwise have a legal problem and are curious about their options and rights.  For example:

Working With a Lawyer

Representing Yourself in Court

Mediation

Small Claims Court

If, When & Where to File a Lawsuit

HALT’s Citizens Legal Guides & Pamphlets:  In addition to selling a number of relevant self-help books, HALT offers numerous guides and articles that are helpful regarding the attorney-client relationship and the options available to consumers with legal problems.  For example:

And see, HALT Recommends Improvements to Supreme Court of Ohio’s Consumer Guide, which has a lot of good advice about what a legal consumer guide should say.

Legal Consumer’s Bill of Rights. HALT’s Legal Consumer Bill of Rights Project was launched to educate policy makers, the media and the public about the rights of legal consumers. This project seeks to promote increased accountability in the legal profession. HALT has developed model legislation that requires attorneys to include a Legal Consumers Bill of Rights in their contracts and retainer agreements. Similar protections have already been adopted in Illinois (for matrimonial cases) and in New York. HALT’s Legal Consumers Bill of Rights spells out four basic rights that every American citizen should expect from the civil justice system – the right to control your own legal affairs; the right to affordable legal services; the right to competent legal representation; and the right to an accessible and accountable legal system

Counselors Oughta Counsel (Not Conceal) This column, by ethicalEsq‘s Editor, was published by Prairielaw.com in 2001, and shows the failure of the American Bar Association’s new model rules of professional responsibility, proposed by the ABA Ethics 2000 Commission, to ensure that legal clients are fully-informed consumers who have the benefits of competition and innovation (meaningful information and meaningful choices). [Ethics 1000 would have been a better name for the ABA project. It rejected pro-client recommendations and instead spawned ethical rules that are, in many ways, more appropriate for a medieval guild than for a group of "responsible" professionals in the Third Millennium.]

Understanding and reducing attorney fees -  a major essay from the folks here at f/k/a (February 28, 2009)

Fiduciary Duty to Disclose:  Lawyers have a “fiduciary relationship” with their clients and are obligated to ensure that the client is well-informed when making decisions.  According to the Law.com Dictionary, “A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid ‘self-dealing or ‘conflicts of interests’ in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it.”

As Prof. Lester Brickman has explained: “The principal fiduciary obligations imposed on the lawyer include the duties of confidentiality, loyalty, safeguarding property, giving disinterested advice, and acting fairly towards the client. The duties to act fairly and in a non-self-interested fashion, in particular, relate to the financial relationship between the lawyer and client. ” (The Continuing Assault on the Citadel of Fiduciary Protection, University of Illinois Law Review, 2003, at 1185-86; available at SSRN).  Such duties come into play when a lawyer is entering into a fee agreement with a client or advising on alternative ways to address the client’s problems. Learn more about fiduciary duties in f/k/a postings such as “Fees and the Lawyer Fiduciary” (02/12/04) and “The lawyer’s fudiciary obligations to disclose”  (Feb. 14, 2005).

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LAWYER ADVERTISING

ABA Model Rule 7.1 (Lawyer Advertising):

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

FTC Letter to Ala. Supreme Court on Lawyer Advertising In this detailed Press Release, which links to the fully-footnoted, 16-page Letter (Sept.30, 2002), the FTC staff addresses several proposed restrictions on lawyer advertising, concluding that they would restrict truthful and non-misleading information, and rejecting a “dignity of the profession” argument.

Public Citizen Comments on Ky Bar’s Proposed Advertising Rules This press release (June 2, 2003) describes PC’s Comments, with links to the full document (a comprehensive, fully-footnoted, 29-page-pdf. submission), and to letters sent to FTC and DOJ requesting an antitrust investigation. PC concludes that the Rules would go too far, violating the First Amendment and raising antitrust concerns.

ethicalEsq on Lawyer Advertising.  We’ve frequently covered the profession’s battle against lawyer advertising. Their “Dignity Police” stifle competition, innovation and especially lower prices in the name of professional dignity and client protection.  You’ll find discussion and many links here.

Overview: Attorney Ads: This essay by David L. Hudson, Jr., research scholar/attorney for the First Amendment Center is an excellent history of First Amendment cases dealing with lawyer advertising, including links to the decisions essay.

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  • CONTINGENCY FEES

Contingency fees — which take a portion of the proceeds received by an injured client ["no fee unless you win"] — can serve a useful purpose, but are often excessive in comparison to the work performed and risk assumed by a law firm.  See the 4-part f/k/a essay on the Ethics and Economics of Standard Contingency Fees: Part I (Market failures); Part II (risk matters); Part III (do “standard” fees still exist?); and Part IV (ethical duties)

Brickman Testimony on Contingency Fees (March 23, 2000) Cardozo Law professor Lester Brickman presented these comments to Ethics 2000 on the need for explicit rules that would help prevent excessive contingency fees by linking fees to risk and informing clients of their right to choose other fee options, such as hourly or flat fees, and to negotiate the level of a contingency fee.

Florida Statement of Client’s Rights for Contingency Fees Among other information, clients in Florida must be told that there is no set percentage for a contingency fee and they are free to negotiate the fee level with their lawyer.(reprinted here at f/k/a)

Injured Consumers’ Bill of Rights for Contingency FeesethicalEsq‘s summary based on the ethical and fiduciary obligations of lawyers (April 1, 2005)

Sue City: The Case Against the Contingency Fee (Policy Review, Winter 1991) . This article by Walter Olson is excerpted from “The Litigation Explosion: What Happened When America Unleashed the Lawsuit,” with some new material added.

Pricey Contingency Fees In this June 2000 article from Prairielaw.com, David Giacalone, ethicalEsq‘s Editor, shows (quite persuasively) how the use of a “standard” contingency fee violates existing codes of ethics and ethical opinions, while enriching lawyers at the expense of their clients.

Common Good: Early-Offer Settlement Proposal In May 2003, a national coalition led by Common Good filed legal petitions in 13 states proposing to change the rules governing the contingency fees charged by lawyers in “early offer” settlements in personal injury cases. In addition to reducing the fees received by lawyers in these situations, Common Good believes the proposed change would reduce court congestion, and increase the incentive to settle rather than litigate certain liability claims. “Most importantly, the change will increase the settlement proceeds going directly to accident victims.” See our posting P/I Lawyers v. Common Good” (May 30, 2003)

A New York Times article (5/25/03) has a balanced discussion of the issues. And see Miami Herald coverage of the proposal (Jan. 3, 2004)

The ABA and the Standard Contingency Fee: Protecting Fees Rather than Injured Clients. In this Open Letter to the FTC on the ABA and Contingency Fees (dated April 11, 2002), and published at HALT), your Editor, David Giacalone, details bar association actions to prevent competition over personal injury fees, by removing existing (although ignored) ethical restrictions on the use of the “standard contingency fee.” [republished at f/k/a here]

FTC and Class Action Fees (FTC press release, June 26, 2003) The Federal Trade Commission has been working to keep class action fees in line with the risk taken by the lawyers involved and to assure that injured consumers are adequately compensated and protected.  Click for a thoughtful speech by Commissioner Thomas B. Leary, “The FTC and Class Actions“; the Washington Post also has an article on the subject (Sept. 30, 2002).

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  • UNAUTHORIZED PRACTICE OF LAW [UPL] & the Definition of the Practice of Law

FTC and DOJ on Defining “Practice of Law” The Federal Trade Com’n and Dept. of Justice presented joint comments (12/20/02) on the ABA’s draft Model Definition of the Practice of Law. The federal antitrust agencies concluded that the proposed definition was overly broad and would injure consumers and competition. The agencies urged the Task Force to permit lay competition that is in the public interest and craft an appropriate definition after careful review of the harms and benefits of lay participation in providing law-related services.

ABA Task Force on the Model Definition of the Practice of Law The Task Force made its Recommendation and Report in March ’03. An appendix included State Definitions of the Practice of Law .

Lawyers Try to Reestablish Their Monopoly [scroll down to 2nd article; formerly at Nolo.com] This article, by attorneys Stephen R. Elias and Ralph Warner, describes and decries current efforts before the ABA to define “the practice of law,” and gives a brief history of the organized bar’s efforts to keep nonlawyers from performing law-related tasks.

Lawyer vs. NonLawyer In an article appearing in Legal Times (02-03-2003), James C. Turner, Executive Director of the legal reform group HALT, argues against the ABA’s proposed model rule defining “practice of law” and its corollary of “unauthorized practice.” Turner says the proposed model rule “poses a major threat to the rights of millions of American consumers who choose to handle their routine legal tasks with the help of nonlawyer resources.” In 2002, HALT opposed attempts by Arizona attorneys to curb competition from non-lawyers by expanding the definition of the “unauthorized practice of law.”  See HALT’s Unauthorized Practice of Law Project [UPL] for more information and links, including the HALT testimony before the ABA Task Force, and testimony submitted to various State bodies.

Scriveners in Cyberspace In this Hofstra law review article (44 pp., pdf), Prof. Catherine J. Lanctot takes a close look at the issues raised by online document preparation (especially interactive programs that present solutions to a consumer’s individual fact situation) and the regulation of the unauthorized practice of law. Included is a detailed history of the organized bar’s attempts to prohibit nonlawyers from providing consumers with law-related information and services. Also, see Prof. Lanctot’s article in the Duke Law Journal, (Cited: 49 Duke L. J. 147) Attorney-Client Relationships in Cyberspace: The Peril & the Promise.

Nolo v. Texas This article contains a brief summary of the battle between Nolo.com and the Texas bar — when Texas lawyers tried unsuccessfully a few years back to ban Nolo’s self-help publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law. [note: This article is no longer available at Nolo's website.  You can find a summary of "Texas v. Nolo" in Appendix B (second document in App. B) of Richard Granat's eLawyering Taks Force testimony to the ABA task force on the definition of the practice of law.]

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THE SELF-HELP LAW MOVEMENT (including pro se representation)

  • ABA Standing Committee on the Delivery of Legal Services has the “mandate to improve the delivery of legal services to the public, with a concentration on those of moderate income.” The information on the website is aimed at lawyers and other professionals interested in broadening access to the legal system.
  • The Pro Se Law Center website is designed as a resource center on self-representation in civil legal matters. It provides a collection of materials and resources that can be used to create legal service delivery systems that are based on the concept of “pro se” or “self” representation within federally funded legal services programs, courts, pro bono programs, and other community-based programs. Especially, delve into the links to court pro se sites state by state — to see what other states are already doing to provide meaningful self-help assistance (through computers, personnel, brochures, hot-lines, directories of attorneys who unbundle, and more) and to consider what your state or county can and should be doing.
  • Examples of Court-Based Self-Help Centers: The pioneering self-help centers provided by the courts in Arizona’s Maricopa County (with information and over 400 court forms available online, covering domestic violence, family law, guardianship, estate, dependency, small claims, and tax appeal); and, programs throughout Florida (with comprehensive family law assistance). Also, newer programs at Center for Self-Representation in the Lake County (Illinois) Courthouse (which was ridiculed as a “Lawyer in a Box” in television ads sponsored by the Illinois State Bar Association; see our“JuDee Awards” post), and the Wisconsin Self-Help Center.
  • California Courts Online Self-Help Center is an excellent example of online statewide self-help resources. It  “will help you find assistance and information, work better with an attorney, and represent yourself in some legal matters.”
  • The HALT Legal Information Clearinghouse: “The Legal Information Clearinghouse empowers legal consumers to handle their own affairs by providing free information and resources including self-help books, guides and brochures and links to other Internet sites.” LIC offers many useful self-help books and pamphlets.
  • Nolo.com was a pioneer in the production of useful self-help books and forms. In addition, the Nolo Legal Encyclopedia has useful free information and FAQs, on many substantive subjects of interest to consumers or small businesses, plus materials of interest to consumers as clients or potential clients of lawyers, or who otherwise have a legal problem and are curious about their options and rights.
  • SHLEP: The Self-Help Law Express: this website, which was founded and primarily written by f/k/a‘s editor David Giacalone (but is now under different management), offers news, views and lots of information about self-help law for the public and providers.  See the shlep Topics A to A page for a list of subject areas given significant attention.
  • SMALL CLAIMS COURT Reform noloShark
  • HALT’s Small Claims Reform Project HALT believes that one key method of improving citizen access to the civil justice system is through small claims courts — which use simplified procedures, require plain English, provide consumer aids and often prohibit lawyers — because they can help empower ordinary people to take charge of their own routine legal needs. HALT is seeking a number of reforms that would make small claims courts fulfill their promise, including increasing significantly their award limits. See Article: Small Claims Reform – A Means of Expanding Access.

    Consumers can learn small claims basics in HALT’s brochure, Citizens’ Legal Guide: Small Claims.

    Small Claims Court Information Self-Help Center: The California courts website has a lot of information about small claims courts and how the process works.  Even out-of-staters should find it useful.

    Supersize Small Claims This article, written by David Giacalone for the now-defunct PrairieLaw website (August 2000), advocates raising the limit on small claims awards to $20,000, to improve access to justice for the average consumer, saying that would be the most effective way for lawmakers to give “a big chunk of the civil justice system back to The People.”. It notes: “In a nation that loves lawyer-bashing and lawyer jokes, the lack of political support for court reform can be understood only in the context of the immense power of the legal establishment and its mighty efforts to preserve control of our justice system.”

    f/k/a on Small Claims Courts: We’ve written several postings about small claims court reform.  A representative post, with useful links, is “Are lawyers blocking efforts to revitalize small claims courts?” (August 11, 2003).

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  • UNBUNDLED LEGAL SERVICES -
  • Self-help often works best when consumers can use lawyers for discrete tasks — which requires lawyers to “unbundle” their services and offer “limited scope representation.”
  • “Unbundled” Legal Services This website offers extensive information on the need for, ethics and mechanics of unbundling services, with relevant materials from many states, papers from conferences, sample retainer agreements, and much more for the court system or law firm interested in tapping into and encouraging the unbundling phenomenon. [Note (August 2010): The UnbundleLaw website is under reconstruction, but it correctly states that you can find much more on unbundling and related issues at the ProSe/Unbundling Resource Center of the ABA Standing Committee on the Delivery of Legal Services, and through three free webcast training programs on limited scope representation from the Practising Law Institute.]
  • Handbook on Limited Scope Legal Assistance The Modest Means Task Force of the ABA’s Section of Litigation has released this “Unbundling Handbook” in October, 2003. The 155-page document appears to live up to its billing as a “soup-to-nuts” guide for the practitioner. The Forward by Committee Chair Scott J. Atlas gives a taste of the purpose, scope and utility of the document:The Handbook is a practical guide to providing legal services in a way that permits clients, who otherwise could not afford or would not choose to hire a lawyer, to obtain critical legal representation for discrete and important tasks in the course of resolving disputes. The Handbook discusses all aspects of limited-scope representation, including the formation and termination of the relationship, the performance of discrete tasks, and the ethical issues and procedural rules involved in this service method.
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