Supreme Court Regulatory Reform Proposal-Comment Period Closes July 23, 2020

The Utah Supreme Court requests comments on its regulatory reform efforts. The comment period is open for 90 days, ending on July 23, 2020. Please see https://sandbox.utcourts.gov/ and the press release for more information.

Supreme Court Standing Order

Standing Order 15: This order would establish a pilot legal regulatory sandbox and an Office of Legal Services Innovation to assist the Utah Supreme Court with respect to overseeing and regulating the practice of law by nontraditional legal service providers or by traditional providers offering nontraditional legal services.

Rules of Professional Conduct

Rules Governing the Professional Independence of Lawyer: The Supreme Court proposes repealing current Rule 5.4 of the Rules of Professional Conduct and replacing it with Rules 5.4A and 5.4B.

  • Rule 5.4A: This rule would govern lawyers delivering legal services in the traditional and conventional model. New Rule 5.4A(a) outlines the foremost duties of a lawyer – the duty of independence of judgment, duty of loyalty to the client, and duty of confidentiality – applicable to the rest of the Rule. The preeminence of these professional core values is further explained in new Comments [1] and [2] as they pertain to sharing fees with nonlawyers, with lawyers in a separate firm, and accepting referrals and payments from parties other than the client. In order to loosen the restriction on fee sharing, Rule 5.4A(b) allows a lawyer to share legal fees with a nonlawyer as long as written notice is given at the outset of the representation or before sharing fees from an existing client.
  • Rule 1.5: Paragraph (e) of this rule would be eliminated to allow dividing fees among lawyers who are not in the same firm.
  • Rule 5.4B: This rule would be applicable to lawyers participating in the pilot legal regulatory sandbox. Like proposed Rule 5.4A, the core professional values for lawyers underlying this proposed rule are stated at the outset under subsection (a). Comments [1] and [2] reiterate and clarify the importance of the underlying core values and duties of a lawyer, notwithstanding the novel arrangement with nonlawyers. Proposed Rule 5.4B(b) allows a lawyer to practice law in an organization that is managed or owned, in whole or in part, by nonlawyers, as long as (i) the client is given written notice that nonlawyers have a financial interest in the organization or nonlawyers have managerial authority over the lawyer, and (ii) the client receives in writing the financial or managerial structure of the organization.

Lawyer Advertising Rules: The Supreme Court proposes significantly simplifying the lawyer advertising rules in the Rules of Professional Conduct. Under this proposal, current Rules 7.1, 7.2, 7.3, 7.4, and 7.5 would be repealed and replaced with new Rule 7.1. Notably, this proposal would eliminate the prohibition against in-person solicitation found in current Rule 7.3.

  • Rule 7.1: Would prohibit (i) making false and misleading claims about the lawyer or the lawyer’s services, and (ii) interacting in a way that involves coercion, duress, or harassment.

Drafts for Review

Standing Order 15 (conceptualizing the pilot legal regulatory sandbox and Office of Legal Services Innovation)

Redline Rules 5.4A and 5.4B (showing the changes from current Rule 5.4)

Redline Rule 1.5 (showing the elimination of paragraph (e))

Clean Rules 5.4A and 5.4B (showing the traditional legal services delivery model and the model contemplated in the pilot legal regulatory sandbox)

Redline Rules 7.1 through 7.5 (showing the process of simplifying the lawyer advertising rules)

Clean Rules 7.1 through 7.5 (showing simplified Rule 7.1 and the reservation of Rules 7.2, 7.3, 7.4, and 7.5)

 

Utah Courts

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47 thoughts on “Supreme Court Regulatory Reform Proposal-Comment Period Closes July 23, 2020
  1. Travis Sorenson

    In regard to Rule 5.4B, it seems like a disaster waiting to happen to have a firm owned or partially owned by anyone who is not a lawyer. Non-lawyers do not understand, nor in many cases do they care, about the ethical duties attorneys have towards their clients. This has the potential to create a lot of downward pressures on attorneys to act unethically to maximize firm profits at the expense of the client’s interest. Should an attorney succumb to this pressure, the attorney could be disciplined or even lose his license, but what does the non-lawyer owner have to lose other than money? I truly hope this Rule does not does not become the new rule. It will not be a good thing for the profession, nor will it be a good thing for individual practicing lawyers.

     
    Reply
    1. MICHAEL LOVERIDGE

      If non-lawyers “do not understand . . . the ethical duties attorneys have . . . “, what would prevent the attorney from educating them? Couldn’t such an arrangement maintain and include, contractually, the attorney’s exclusive right to independently recommend legal advice and establish a reasonable fee based on current standards?

       
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    2. Robert Jonas

      Agree. I don’t think this is a good idea. There is a reason that all states prohibit non-lawyer ownership. What benefit does the public get by removing this protection and removing the liability protections that clients have? Other than low price (and do we want to make Utah the home of low price legal services where you get what you pay for), I don’t see a benefit. I see an awful lot of negatives

       
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    3. Jackie Ball

      I agree, who will hold private persons/non-attorney responsible if there is a breach of ethical duty towards a client? The proposed rule changes leave a high bar for attorneys to meet ethics wise (and rightly so) but also possess a disturbing lack of clarity on the ethical duties a private person has towards that same client. If a non attorney would like to effectively partner with an attorney in providing legal services, he or she should have some corresponding increased ethical responsibility to those same clients.

       
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    4. Dan Roberts

      First off, since when have our ethical and professional obligations to our clients been affected by what firm management tells us? Its always been the individual lawyer’s job to provide services in line with ethical obligations, regardless of who owns the firm. I don’t see how these amendments change anything.

      Secondly, I don’t think the downward pressures for a non-attorney owned firm would be much different from those of an attorney-owned firm. Attorney-owned firms are just as likely to be driven by fiscal metrics as non-attorney owned firms. Current law firm organizations almost always judge attorney performance based on billables and collections, so I’d say we are already guilty of upper management putting downward pressure to maximize profits. Regardless of that fact, attorneys are smart enough to self-regulate and make sure they are ethical in providing services no matter what the downward pressures of firm management are.

      Honestly, I don’t see how these amendments would change our obligations to our clients at all. I don’t see this as a relaxation of my duties to my clients, so its not going to change how I practice. I’ve worked in biglaw, mediumlaw, and as a solo-practitioner. Regardless of the firm structure, if I had been told by management to act unethically in order to increase profits, I’d head for the door immediately and never look back.

      As far as I’m concerned, anything that allows for greater innovation in the legal industry will be better for clients in the long run, and we should welcome it. Seeing as this amendment (5.4b) will be initially regulated through an experimental sandbox that is highly scrutinized so that if it does turn out to be worse off for our clients, they can turn it off. Its not permanent. Experimentation is a good thing. We should welcome it.

      Seriously. Are we really scared of an experimental regulatory amendment that will be highly scrutinized by a dedicated regulatory body whose sole goal will be to ensure increased access to justice for those whom we serve?

       
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    5. Ms. V. Faye Van Wagoner nee Farnsworth

      Personally as a non-lawyer with a fundamental human concern for the lax and financial discrimintory manner in which I, myself have observed as a “spectator” in my communities respective rooms of feigned justice, as a person who as yet has been without the need to seek or utilize the services of an attorney I am driven to infer that a non-lawyer vestment in this profession may serve as a clear check and balance for best practice versus bottom line implementation of services rendered. Our very own fore-fathers would undoubtedly in my imagination send many an attorney to the corner with a dunce hat upon their crowns. People Matter. PEOPLE matter. The rich, the poor, the elite, the laman, the man, the woman, the child, the sick, the desolate, the famished, the perp the victim(real or percieved), the granny, the gramps, the auntie, the uncle, the nephew, niece, daughter or son, persons with or without disabilities and attorneies alike…PEOPLE MATTER. Ethics are fundamental indeed, so vital that I grow weary of this term and many others being thrown about as if a person truly understands the etimology and foundation of their respective origins and the actions ancient languages and intelects were conotating in the use of them in the first wise. Today every which way I tilt my ear I witness talk full and proud but when i look at the feet of these word flingers action is all to often half-hazard, half-witted and only for a show. Integrity is what we do when no one is looking and truly I’m certain we all fall short but to do so at the expense of another is truly lacking in any sence of the words-ETHICS-LOVE-JUSTICE-MIRACLE-COOTH-EQUALITY ETC ETC A DIEU.

       
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  2. Robert Udall

    I strongly advise AGAINST adopting any rule allowing a non-lawyer to be able to share in attorney fees. This would allow non-lawyers to take advantage of clients and the services that ought to only be rendered by attorneys who have gone to law school, passed the bar exam, passed the MPRE and maintain CLE credits. I see this as opening the door to a lot of corruption – situations that may not even be contemplated at this point. There is simply way too much greed that could get in the way of justice. We’ve already seen this in the news with non-lawyers pretending to be lawyers. Utah is a respectable place to practice law, please keep it that way. Thank you.

     
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    1. Ms. V. Faye Van Wagoner nee Farnsworth

      Supposing every lawyer who is appointed by the court in service to an american citizen who may have a financial inability to pay is going to recieve rendered services in more than a miniscule and biased manner. hell anyone who doesnt make a 6 figure income and maintain a minimal and modest lifestyle cannot afford legal support without first having to sacrifice even their basic needs of shelter, nutrition or passion an a family scale. This profession as a platform to uphold and truly honor the voice of the people, individually and as a whole should not look or feel like a high stakes craps or black jack table, it should not look or feel like a crashing or rising stock holder’s parade day. Criminal law should not look like who wants to make a deal and the other side of this legal system should not misinterperat or misuse the terminology written into our great and ethical constitution, Law Of The Land, as slight of hand to uphold laws written to protect corporations as persons or entities against the people, or laws that back peddle against a PERSON’S rights ending where another PERSONS begin or to criminalize anything outside those simple parameters. Law of Land is a fail safe to ensure that our basic rights to freedom, liberty and justice for all is the law at its core. Any and all rights restrictions in effect today that go against the core values of our original and brilliant contract to ourselves as the people by the people are thus made null, void and without grounds inside the scope of that big red button-Law of the Land. I ask that you each cease and desist and put the practice of law against the God or Gods you might visit on Sunday’s or special occasions, view of justice, individual worth, works, class division, service to your fellowmen or sinner ranking systems and get right in the standings of the Missions, Visions, and Values with which all ethical and worthwhile business’ create to establish the fair and good basis for having services the people want and/or need. Our justice system should not look like a get rich quick property buying, hoarding and liquidating scam. Strategy as a word should not be allowed as any part of the core foundations of any company as the term literally means; to deceive your enemy.

       
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  3. Ric Heaton

    While I applaud the justices in their search to help provide legal services to the underserved population. I do feel however that this proposal goes too far. From what I understand providers of non-legal services could market for sale their clients in need of representation.

    In a market economy, these providers would be pushing their clients to attorneys willing to pay the provider the largest amount of money. As opposed to searching for the attorney(s) best suited to handle the legal needs of the client.

     
    Reply
    1. MICHAEL LOVERIDGE

      This presupposes that the non-lawyer firm would promote an attorney based on remuneration, only, without regard to the attorney’s competence. Surely, that firm could be made to understand its shared legal responsibility for any malpractice committed by an incompetent attorney. Surely, that potential shared liability would motivate a non-lawyer firm to foster competent service over financial gain.

       
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      1. Alex Leeman

        How does a non-lawyer share malpractice liability? What is the standard of care for a non-lawyer practicing law?

         
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  4. James

    Unfortunately, the practice of “selling” clients to the highest bidder has been a problem in the past and is a current problem. The proposed change would open that up. You will instantly see medical providers offer their patients to attorneys who are willing to pay the highest price. Additionally, you will have larger law firms that can simply out spend the smaller firms. Established relationships will crumble because of greed. While I respect the end goal in mind, this is the wrong means to the end.

     
    Reply
    1. Jackie

      Agreed. The proposed changes to Rule 5.4A allowing law firms to pay referral fees to non-lawyers will effectively create a “pay to play” environment where potential clients can be sold to the highest bidder. It’s hard to see how this arrangement helps provide increased access to high quality legal services.

       
      Reply
    2. Dan Roberts

      What is the problem with a medical provider offering a “partner law firm” to patients, if that law firm provides qualified legal services that are in line with our ethical duties? How is that any different than a patient who needs legal representation who finds a lawyer because that lawyer was willing to pay for prime Google Ad-Words or billboard location?

      Just because a lawyer is willing to pay for a referral (or advertising) does not mean they are not providing ethical and qualified services. If anything, it is actually better because if it turns out a partner law firm did not provide good advice or services, it would reflect poorly on the medical firm who made the referral, and they would then be incentivized to find a new partner law firm that would not reflect poorly on them. That filtering effect does NOT occur with Google Ad-words or billboards, which is currently allowed under in the rules.

      I do not think these rule amendments increase likelihood of unethical legal representation.

       
      Reply
  5. Earl Tanner

    I am writing to comment on new Rules 5.4A and 5.4B.

    My perspective is that of a 70 year old, sole practice attorney who is seriously considering ending his career. My clientele over 40+ years of practice have been individuals and small businesses.

    The reason for accepting non-lawyers into the profession’s structure is said to be the need to make legal services more available and less expensive for people of ordinary means. I agree these goals are important and believe that legal insurance and software should be able to do just that. A defense tsunami in debt collection, eviction, divorce and criminal cases is long overdue but will tax the courts’ resources. I think it will be just as important to manage (reduce) attorney fee awards in these cases as it is to provide access to inexpensive legal defense services.

    I doubt the impact of the rule change will be limited to low budget legal services, however. Insurance defense is already tightly run by insurance companies. Higher budget plaintiffs work will probably attract non-lawyers, starting with personal injury and expanding into every other profitable area. Regulatory compliance practices such as tax, human resource, and environmental law will probably be owned and managed by non-lawyers who can provide a wider range of services. In the end, I expect that lawyers will go the way of doctors, dentists and pharmacists. Most will become employees and a non-lawyer owner/manager class will struggle successfully to arise.

    While I appreciate the intent to preserve confidentiality and the attorney’s independent judgment, it seems disingenuous. Management of attorneys includes directly and indirectly influencing attorney behavior and punishing non-compliance. Lawyers are subject to the court’s orders and discipline. Non-lawyers are not. In the end, non-lawyer owners and management will probably have more influence over the lawyer’s career and, therefore, the lawyer’s behavior. It will be interesting to watch whether most insurance companies bring defense attorneys in house or continue to hire outside firms.

     
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  6. Brawnson Rewis

    I feel that opening the state bar exam to allow legal professionals who graduated from a non-aba law school to assist those in civil matters for the first three years and any case thereafter, would greatly help open the doors for more legal professionals to offer cost-effective legal services. You could waive the in-class requirement as the ABA is already allowing more on-line courses for an ABA-Approved schools J.D., and open the door for these great professionals to take the Utah State bar. Currently, the standards and rules here bar many great professionals from practicing in Utah and it’s a shame that we are missing out on obtaining help for those that need it.

     
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  7. Danielle Hawkes

    I used to work in the insurance industry. I was a key manager in charge of communicating what the C-level board wanted to the IT department. In that role, we designed a system that automated a program that started earning our company $1,000,000 overnight. That money came from home owners paying their premiums. I was proud of what we had worked hard to do. But I it only took me about a week after turning the system on to realize that we weren’t helping anyone. Within a week of starting the system, I despised what I was doing. I’ve attended the CLEs on these new rules. I am not a fool. I know how to turn this into a $20 million dollar idea. But I left that job to shoot for the stars at law school. I was a first generation kid from a poor single mother with a disability background. I am a woman and have huge dreams of what women are starting to accomplish in professions previously run by men. I did it (and we women are starting to do it!) I became a lawyer. I still don’t make what I could have easily made in the insurance job. But I love it. I work directly with people every day. I help solve impossible problems. I sit across front hem while they cry. I tell them to get into recovery when their drinking is hurting their kids. I get about 80% of my family law cases on their way without ever seeing the courtroom. I feed my family. And my son and daughter will look up to me in a way I never had anyone to. And yes, I spend hours and hours each week teaching people how to use the forms that already exist and telling them they don’t need me for their simple case. The system is a pain, but not because of me, but because of all of the unnecessary forms and steps involved. I spend hours and hours at free legal clinics helping people wade through it. I spend even more reading and briefing caselaw and then sharing those briefs with my colleagues. I spend hours spitballing with my colleagues on professional groups about impossible problems and brainstorming solutions. I am not confused about justice. I have spent so many hours working on social justice issues that I cannot even count them. I get it. But I hope the decision makers will get my story too. My work is not worthless. What I do is important. I have helped many families as well as the court. My career and the path thereto should not be devalued. I did not leave the soulless insurance industry just to end up working for the Walmart of professions. More importantly, I would not have left that job for another soulless behemoth of a career. I would have just stayed out. The law is about people and stories. That is important and I think this and other rules like it are hurting our profession (possibly on purpose to make us cheaper) but will hurt our communities in turn.

    We need to work in access to justice issues. We should start with simplifying the processes. Not with devaluing a profession of helpers.

     
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  9. Jason Velez

    Full disclosure I am a lawyer and a technology developer seeking admission into the sandbox.

    As a practicing lawyer for 20 years I believe this regulatory reform represents an expansion the market for legal services to people who are not using lawyers when they could or should.

    Most people do not know how to interact with the legal system or lawyers for that matter. Their perceptions are often negative towards the profession. Hence a tremendous educational curve is required to inform the public about quality lawyers that are willing to charge a reasonable fees.

    The reality is that education or marketing of legal services is very expensive. Without the access to outside capital and traditional business operations and incentives, we as lawyers, and I speak to my experience as a small firm lawyer, are caught in a bit of an endless loop between getting the work in the door, finishing it on time and making a living. From my own experience these often can be difficult to balance.

    There is a bit of an inherent conflict in the practice of law and the business of law that both technology and additional capital will improve.

    For these reasons I support the proposed regulatory changes.

     
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    1. MICHAEL LOVERIDGE

      You wrote: “The reality is that education or marketing of legal services is very expensive. Without the access to outside capital and traditional business operations and incentives, we as lawyers, and I speak to my experience as a small firm lawyer, are caught in a bit of an endless loop between getting the work in the door, finishing it on time and making a living. From my own experience these often can be difficult to balance.”

      I would have thought that only allowing mass advertising (i.e., tv, etc.) to the public, as opposed to direct, person-to-person solicitation by a lawyer, would have motivated a discrimination suit against the Bar. Plaintiff lawyers can afford expensive advertising. Small/solo firms usually cannot.

       
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      1. Jason Velez

        I believe we are addressing the same point. Solo and small firms cannot be competitive in the marketing space. At the same time the public doesn’t benefit when the primary messaging is personal injury law. I envision a marketing/education program that highlights the availability of quality free, low-cost and paid services for all areas of the law, not only injury law. Also, important is creating an opportunity for solo/small firms to participate by offering “bite size” pro bono opportunities.

         
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    2. Matt Robar

      As a small firm lawyer you should rethink your position. Large companies having control over lawyers and law firms will not help small firms thrive or give access of quality services to low-income people. Large companies will re-sell your work for pennies on the dollar and instead of providing quality service and true legal analysis will shoehorn everything into a template system. Consumers will be taken advantage of in a way we have never seen before and because of arbitration clauses and class action waivers large companies use they won’t even be able to seek redress when they are harmed by low quality services or even outright malpractice. They won’t even be able to file a Bar complaint because the companies aren’t lawyers.

      New lawyers are also going to be eaten alive if these changes are implemented. Their salaries will drop exponentially and many will be forced to commit or play along with unethical practices to assure their corporate masters get the profits they seek. It is naive to believe that non-lawyers will assure their attorney employees act ethically when profits, dividends, and multi-million dollar bonuses are at risk.

       
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      1. Dan Roberts

        Regarding your comment: “New lawyers are also going to be eaten alive if these changes are implemented. Their salaries will drop exponentially and many will be forced to commit or play along with unethical practices to assure their corporate masters get the profits they seek. It is naive to believe that non-lawyers will assure their attorney employees act ethically when profits, dividends, and multi-million dollar bonuses are at risk”

        First of all, we should not base our determination of whether a bar rule is good or bad on its affect to lawyer salaries. Bar rules are not there to protect the lawyer’s pocketbook, they are there to protect clients from unethical practitioners. The fact that attorneys are using the bar rules to prevent competitive innovation is the entire reason why states are considering rule changes like those set forth above.

        Secondly, “profits, dividends, and multi-million dollar bonuses” are already driving law firm management policies. Whether a lawyer acts ethically or not should not be determined by who the firm manager is.

        A non-lawyer manager will lose their job just as quickly as a bar-licensed law firm managing partner if they implement a policy that leads to a huge malpractice suit, so saying that it is “naive to believe that a non-lawyer will assure attorney employees act ethically” does not seem correct to me.

        In my view, if a technology company is now able to “revenue share” with lawyers, which leads to greater technological innovation, which then leads to more efficient legal services, which then means that someone is more likely to use an actual lawyer rather than trying to DIY through LegalZoom (*shudders*) because the lawyer is more efficient and thus not as expensive, then this is a huge win for the Bar because it allows more people to get access to better legal advice.

        Full Disclosure: I am a technology-minded practicing corporate attorney who is excited about the prospect of partnering with non-lawyers. I am excited about being able to create a technology platform that could streamline legal processes in a scale-able way that makes my legal services less costly to clients. And I am excited about potential new revenue streams that these rule amendments may open up for partnering with non-lawyers. I am excited that my practice can become more scale-able because I can make more by working less (though that shouldn’t factor into whether a Bar rule is good or not)… I apologize to future generations of lawyers if these amendments reduce your first year salaries out of law school.

         
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  10. Marc Randazza

    The changes to rule 5.4 are a terrible idea. This will not lead to greater access to justice, but rather a consolidation of legal services just like you’ve seen silicon valley destroy every other thing it has touched. Now, losing retail to Amazon is not the worst thing for justice, but can you imagine when 90% of lawyers must practice on Amazon, or not practice at all?

    If you want access to justice to be improved, there is a better way to do that — stop requiring law school and implement an apprenticeship program. Lawyers without debt and 3 years of lost income are able to charge less. You can create more innovation by lowering barriers to entry for would-be lawyers.

     
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    1. Dan Roberts

      But Amazon did create greater access to retail for more people. It also seems like “Amazon”-izing legal services might increase access to those legal services as well, wouldn’t it? These rules aren’t decreasing our ethical obligations to our clients, so why are we opposing them? If the amendments are allowing for more innovative ways to provide legal services, is that a bad thing? It seems like a good thing.

       
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  11. Marc Randazza

    Your proposed changes to 7.1, in contrast to your proposals on 5.4 are very good. The current rules are byzantine and vague and used in a selective and technophobic manner. the new rule is much better, but still lacks a bit of precision. Therefore, I would suggest that you have a process whereby cases of first impression can only be subject to a counseling letter, which would be posted somewhere, creating a body of guidance for lawyers. Otherwise, I can see these rules being still selectively enforced in a way that takes advantage of the vagueness.

    But, all in all, the new rule would be far better than the old one.

     
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  12. MICHAEL R. LOVERIDGE

    I write from my experience as an estate planning attorney. Almost everyone needs a comprehensive estate plan (i.e., trust, will, power of attorney, proper titling of assets, etc.), and that includes clients of every net worth, including young married/single parents. Yes, I am willing to defend that view! However, despite the barrage of information about estate planning available, most clients do not know how to determine which documents or procedures are appropriate for their situation. Nor do they know which attorneys are qualified to help them or what constitutes a reasonable fee. Many opt for a simple will (which is, generally speaking, useless) or resort to self-help or misleading non-lawyer sources, such as LegalZoom. Or, they are left to pay (in my opinion) extremely high fees. For example, I have seen fees for basic, simple living trusts range from $1500 to $5000. This confusion and the high fees are a major deterrent to people (especially the less affluent) wanting to protect their assets and loved ones. Perhaps this partially explains why most Americans die without a will.

    I remain convinced that if attorneys were allowed to approach prospective clients directly, without coercion , and present reasons why those clients should plan their estates, more people could be helped. To those who oppose this method of solicitation, what is a better method? Small firms/solo practitioners usually cannot afford mass advertising; large firms may not need any marketing. I believe that relaxing the prohibition against direct solicitation could be regulated in some manner akin to the way insurance agents and financial service providers are regulated by the Insurance Commissioner, the SEC, etc. Surely the Bar is intelligent enough to provide a similar way to protect the public rather than maintaining a system that leaves those we are sworn to help “in the dark.”

     
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  13. Dennis Ferguson

    I believe this changes are unwise. We have already experienced the commercialization of our profession. We have had to defend against the legislative attempt to tax our services as a commodity. Now we must defend ourselves from our own Supreme Court? This will lead to further erosion of our profession and any modicum of differentiation between lawyers and those who have not endured the rigors of law school and who are not held to legal ethical standards.

     
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  14. T. Felt

    SUPPORTER. As a member of the public without a professional interest in the legal services market and as a consumer who has repeatedly experienced the access-to-justice gap, I support these drafts and applaud the effort to improve access to justice in Utah. It is long overdue.

    Standing Order 15: To ensure public confidence and diverse perspectives, I urge the Supreme Court to appoint public membership to the Innovation Office that is independent of services providers and the legal profession, and capable to provide expertise and represent the perspective of consumers of legal services.

     
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  15. Laurie Harris

    I am a paralegal and applaud Utah in being at the forefront of legal reform. Many friends/neighbors/friends of friends have come to me for legal advice, which I am unable to provide, not because I don’t know the answers or have guidance for them, but because I am not licensed to practice law. These people simply can’t afford an attorney, and are left floundering in our society. I am a believer in the philosophy that when help is provided to one, all benefit.

    I believe ethical standards are in place for many business partnerships to work within the framework provided in these reforms. Attorneys have ethical standards that are strictly regulated, it is true, but I do not believe there is a “Wild West” of corruption just waiting to happen should these reforms be enacted.

    I would also support the institution of lawyer “apprenticeships,” or alternate law school opportunities (in addition to the LPP program), such as online, or evening law school programs, to decrease legal-education costs and increase opportunities for obtaining a J.D.

     
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  17. Stephen Gillers

    I applaud the effort of the Utah Supreme Court to amend Rule 5.4. Apropos Rule 5.4B, I suggest adding a few additional conditions when a nonlawyer practices with a lawyer as described. These are taken from Washington, D,C. Rule 5.4:

    (b) A lawyer may practice law in a partnership or other form of organization in which a financial interest is held or managerial authority is exercised by an individual nonlawyer[ [DELETED] if:
    (1)DELETED;
    (2) All persons having such managerial authority or holding a financial interest undertake to abide by these Rules of Professional Conduct;
    (3) The lawyers who have a financial interest or managerial authority in the partnership or organization undertake to be responsible for the nonlawyer participants to the same extent as if nonlawyer participants were lawyers under Rule 5.1;
    (4) The foregoing conditions are set forth in writing.

    STEPHEN GILLERS
    ELIHU ROOT PROFESSOR OF LAW
    NEW YORK UNIVERSITY SCHOOL OF LAW

     
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  18. Pingback: Utah Supreme Court proposals would permit non-lawyers to own law firms and share fees with lawyers | Lawyer Ethics Alert Blogs

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  20. John W. Holt

    I do not see how these changes will address the access to justice issues the proposed changes are designed to address. These changes create an opportunity for creative non-lawyers to find ways to profit from legal services. For example, accounting firms will hire attorneys so that clients can have a one-stop shop for their estate planning/financial planning needs; personal injury attorneys can partner-up with physicians, with both professions profit sharing from medical services and judgments/settlements, etc. The under-served will continue to be under-served because these changes do not create any incentive to reach down to help tenants of slumlords, lower income individuals involved in domestic disputes, etc.

    Also, the proposed changes require attorneys to continue to abide by the rules of professional conduct, but what if an attorney is working for a non-lawyer who is not bound by these rules? The non-attorney businesses who hire attorneys will be focused on profits, not on respecting professional rules that can sometimes get in the way of profits. Avoiding conflicts of interests in these hybrid models that will be permitted under the proposed rules will be very difficult.

    Finally, I fail to see the benefit of loosening up lawyer advertising rules. It allows for puffery, exaggeration, loss of dignity, and even misrepresentation. If anything, it makes potential clients who are vulnerable even more so. A noble profession is at risk of being turned into a common service. The reputation of attorneys will not improve under these proposed rules, but will likely erode.

    In short, I don’t see that the proposed changes to the rules will solve the access to justice problems that have been identified. Other less disruptive means should be considered. Perhaps revisit pro bono requirements, offer tuition forgiveness if new attorneys focus on certain under-served areas for a period of time following graduation, bolster/support those services like Legal Aid and Legal Services, etc.

     
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  21. Thomas Scribner

    I support the efforts to get the legal system in the same “sandbox” as the rest of businesses in the information age. We as lawyers need to remain relevant and accessible in an age that changes very quickly. We are already behind the curve due to the overly restrictive and stodgy rules. When I started practicing law we could not advertise. That benefitted and harmed different classes of lawyers. Having advertising be allowed instantly turned attorneys into the most lucrative yellow pages market, and it benefitted and harmed different classes of lawyers, but it opened up the public’s ability to find a lawyer in a manner similar to all the other services they needed. Now yellow pages are irrelevant. Same with fax machines. Computers and their apps change so quickly and now perform and simplify much of our work, turning spending the afternoon at the law library, to a few minutes online. The information age has taken a great deal of specialized information and knowledge lawyers were taught in law school and made them easily accessible. We currently live in a nearly “real time” world and we need to be able to meet the changes without hobbles. Or we will continue to lose more and more of our market without the ability to compete on an equal footing.

     
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  22. Alex Leeman

    Shared malpractice? How do you sue a non-lawyer for malpractice? What is the standard of care for a non-lawyer practicing law? The most likely result of this practice model is you’ll have a non-lawyer looking to make a buck hire a bunch of brand new law school grads who don’t know any better and don’t have the clout to stand up to them. After all, these newly-minted lawyers are the lowest-cost provider of crappy legal services. Clients will get screwed. The newbie lawyers will get sued. The non-lawyer businessman who made big money of both will skate.

     
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  23. Nelson Abbott

    Rule 5.4B should not be adopted. We have recently seen this same trend play out in chiropractic offices across the State. The results have not been good for the profession or the consumer. Under the current regulatory scheme, the chiropractors association bans payment to third parties for referrals. DOPL does not regulate non-chiropractors. As a result, non-chiropractors start chiropractic offices, hire chiropractors to provide services and pay third parties for referrals. I currently do legal work for an insurance agent because he thinks I am a good attorney. I’ve handled his personal automobile accident case because he wanted a good attorney on his case. At the same time, when one of his clients is in a car crash he sells those referrals to a chiropractic office owned by a non-chiropractor who turns around and sells those referrals to an attorney (this part of the transaction is illegal but continues unabated. In reality, it is the attorney paying for the referral since the chiropractic office takes some of the money from the attorney as profit and passes the rest on to the agent). I’ve asked the insurance agent to refer to me because he thinks I am a better attorney and this would be in the best interest of his clients. He expresses sympathy but concludes that it is in his personal best interest to refer clients to the highest bidder. I disagree. I think referrals should be made based upon who will provide the most benefit to the consumer. Unfortunately, paying for referrals is a powerful motivator and ends up victimizing the consumer.

    If the Supreme Court allows non-attorneys to be involved in the practice of law, the Court begs the Utah legislature to begin regulating the practice of law. Right now, the Supreme Court claims to have exclusive jurisdiction over the practice of law. However, the Utah Supreme Court has no authority to regulate non-lawyers. When non-lawyers are integrated into the practice of law, the only way to ensure consistent regulation is to have the legislature step in.

     
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  24. Matt Robar

    The Supreme Court and the Utah State Bar should be protecting attorneys and their ability to practice law, not destroying or hindering them with this kind of sweeping change. These changes will not allow low-income people better access to legal services. They will allow companies to prey on low-income people by providing them with low-quality services that push real attorneys out of their own profession.

    These proposed changes will allow large companies to manipulate people into thinking they are getting true legal analysis and representation when they are actually getting cookie-cutter robot-driven services without any meaningful attorney involvement on a case-by-case basis. The changes also create a system where companies are going to water-down attorney salaries because they can hire for low wages while putting many small firms and solos out of business. Instead of protecting consumers and attorneys, these changes will hurt them.

     
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    1. Rasmussen

      I agree 100 percent with the reasons for opposing the Supreme Court’s ill advised and reckless proposals!!! What on earth is the Supreme Court thinking?! These proposed “reforms” are the worst possible idea and will only serve to harm the profession and the public; not to mention attorneys themselves who have put in the time, resources and hard work to complete law school, take the bar exam and build their practices. Exploitation, incompetence and prostitution of the legal profession will result. The legal profession is an honorable institution which should be preserved and maintained, not sold to the highest bidder. Attorneys and the public are being harmed and sold out by the Supreme Court, who is completely misguided in their misadventures. I strongly oppose these proposed “reforms”—they should not be adopted.

       
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  25. Bruce Nelson

    Rule 5.4B is a horrible idea for all the well stated reasons provided above. However, adoption of the rule change should be conditional. Using a similar argument, attorneys should then be able to practice medicine. They would be able to offer much better pricing on prescriptions and other lower risk procedures such as child birth. On the other hand, procedures such as brain surgery and organ transplants would be deemed too risky. Further, there would be no malpractice nor the high expense of medical malpractice insurance since the attorneys are not governed or controlled by the AMA.

    Regrettably, Utah’s Supreme Court is now acting like the government, trying to offer low cost services to everyone, while neglecting the attorneys and the steep sacrifice required to become such. If adopted, the law of unintended consequences, such as the Amazon effect, will prove this rule change to be a huge boondoggle.

     
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  26. Chris

    Before making such a broad change, why are’t we full utilizing the low cost service we have already? Is there something wrong with the modest means program?

    Also, if this is about access to justice, why can’t these non lawyers provide services that allow lawyers to practice inexpensively, thus, lowering the overall cost to practice which can be passed on to the client.

    I see this as a slippery slope that will spill over to other areas in Utah. Next we will have tattoo artists doing surgery, Google doing real estate transactions using Google Maps, and Facebook doing estate planning.

     
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  27. Bradley Wm. Bowen

    In my 33 years of practice I have seen many instances where elderly individuals have been placed in nursing homes against their will; where children have taken their parents assets so that the parents will qualify for Medicaid; and where a child, or some of the children, have persuaded an elderly surviving parent to deed real estate to that child or a couple of children, or to sign other documents that thwarts prior estate planning.

    Although the Legislature has enacted statutes to attempt to address some of these issues, the elderly are still being exploited, or not being allowed to live where they desire.

    Non-lawyers are inexperienced with the MYRIAD of means used to exploit the elderly, and are VERY UNLIKELY to even key in on “red flags”; actions they are being asked to take that are prejudicial to the elderly; evaluation of the competency of the elderly; or evaluation of whether undue influence is being exerted.

    Allowing non-lawyers to perform estate planning services will exacerbate the existing problems. It will further enable unscrupulous individuals to obtain inexpensive document preparation to take advantage of the vulnerable. In nearly all of these situations the elderly person FEARS offending those who are intent on obtaining their assets (before death or after death) for many and varying reasons – which include the fear that the person will stop “helping” them, or caring for them. Often the elderly person later realizes what has happened due to regaining a lucid mind; the “helper” no longer helping after they’ve gotten what they wanted; or another child learning of the “bad acts”. They feel helpless and feel they have no recourse or ability to reverse what has happened. Reversing the bad acts usually requires expensive litigation, is emotionally draining, and is difficult even when documents were not prepared by licensed estate planners. Reversing such “bad acts” will become even more difficult when documents are tacitly legitimized by having been prepared by a company or individual licensed in the “sand box”.

    Small estates can often be administered through collection of the estate via Affidavit pursuant to UCA 75-3-1201, and/or a simple probate proceeding – even where the individual dies intestate. (Remember, a Will is only a blue print for a probate proceeding, and our intestate succession statutes generally achieve what most people with small estates desire – namely, “whatever is left goes equally to the children”.) However, because the estate is small there is motive for unscrupulous individuals to obtain the entire estate – most often through a deed before death. Further, it has been my experience that clients who desire a simple will can find a competent attorney to prepare one at reasonable cost. I have prepared many such wills “pro bono”.

    Medium sized and large estates involve a multitude of complex tax, step up in basis, trust, retirement plan tax issues, and numerous related issues that require years of training, annual continuing education, and years of experience to properly address. Clients with such estates reap many times the cost of legal services from the tax and planning benefits provided by experienced lawyers. Allowing non-lawyers to provide services to individuals with medium and large estates likely will lead to MANY BENEFITS BEING LOST that could have been secured if the client had been provided services by an experienced estate planning lawyer – all because the client wasn’t aware of the benefits that could have been provided by a licensed attorney. The axiom, “You get what you pay for” always holds true. Unfortunately, in my 33 years as a licensed attorney I have seen many clients who wished they hadn’t tried to “save a buck” – because they missed out on hundreds of thousands of dollars in tax savings, or other benefits that they would have obtained if they had simply hired an experienced attorney instead of “using forms I found on the internet”. If non-attorneys are allowed to provide estate planning services, members of the public will miss out on benefits valued at many times the cost of competent legal advice because they wanted to “just save a few bucks” – and the public will never know.

    In light of the foregoing, I see no justification whatsoever for allowing non-professionals to prepare estate planning documents.

    Allowing non-lawyers to provide estate planning services will exacerbate the existing problems; lead to more litigation; tacitly legitimize exploitation of the elderly; and HARM the public.

     
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  28. Bradley E. Morris

    The FAQ section states: “Currently, 33% of attorney time is spent on business development and 48% is spent on administrative tasks. That leaves only 2.2 hours of billable time per 8 hour work day.” That statement is so grossly incorrect that it raises serious concerns about other assumptions on which the proposed changes are made.

    The way medicine is practiced is used as a justification for these proposed changes. The practice of law and the practice of medicine are very different, and the comparison is facile

    Family law and debt collection matters are given as examples of matters that are so routine that they do not require the skills of a lawyer. That is only true of some such matters. Many of such matters not only require the skills of lawyer, but require the skills of a specialized lawyer.

    There are aspects of the proposed changes that may give non-lawyers who only have a profit motive too much influence on lawyers.

     
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  29. Nathan Searcy

    I am against the changes to Rule 5.4B for a couple of reasons.

    Firstly: Ownership by non-lawyers will almost certainly result in ongoing ethical issues. Most baffling to me is the comparison in the FAQ to non-doctor-run medicine as a positive example of this dynamic (see p. 1). Doctors in non-doctor-owned businesses settings are consistently pressured by their business’ owners to do things quickly and cheaply — and stories of how these pressures can (and do) conflict with the doctor’s ethical responsibilities to their patients abound for anyone curious enough to look. I fail to see how this dynamic would not immediately become a constant problem for attorneys working under business leaders who do not themselves have (and therefore will feel no personal need to in respect) a lawyer’s ethical duties.

    Further, I would hardly say that current price tags and forward-looking trends on medical services are some shining example of how involvement by folks outside the medical professions has serendipitously led to lower costs for the least fortunate.

    Secondly: The suggested disclosures at the end of the draft rule will be meaningless information to anyone who isn’t educated in corporate structuring, and will likely be buried in some paperwork for signature that no one reads anyhow.

    I am sympathetic to the fact that legal services are expensive. It seems to me that the cure suggested here is much worse than the disease.

     
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  30. Mark B. Rasmuson (not licensed in Utah)

    5.4A. I have a hunch the average person already assumes lawyers aren’t restricted as to sharing fees, so I think the notice requirement would primarily serve to build confidence in the profession (as do most efforts toward transparency).

    As to deregulation, this is a more risky because although clients are given notice, the Bar and other attorneys are not.

    Bad things happen in the dark, which is the reason for this type of arrangement in the first place. I think such partnerships must be explicit and listed on an attorney’s Bar profile page under “professional affiliations,” or something similar.

    Rule 1.5. I think a notice requirement to the public is more important here (even than 5.4A &B), since lawyers of different firms are by default in direct competition with each other. (Notice at the Bar level would be less important.)

    Rule 5.4B. Same comments as 5.4B and for the same reasons.

    Rule 7.1 is a no-brainer “yes” in my opinion, except that I think attorneys should be required to present or send an image of their valid Bar ID card with a QR code or other similar scannable code that gives a user direct access to the independently-maintained Bar website profile. This could be easily facilitated by the Bar, which could provide a transmittable vCard or viewable/printable QR code to the attorney through their private profile.

    This would both (a) deter non-attorneys/suspended attorneys/unlicensed attorneys from holding themselves out as licensed to practice law in Utah, and (b) deter the behavior already prohibited by the profession and (redundantly) prohibited in the proposed language.

     
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