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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74 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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      1. Stan Jensen

        Have you had the chance to explain to your employer who is not an expert in your field (law or othewise) why his priorities will not be met because of certain codes and regulations that you will be complying with in your profession. I doubt that would be a comfortable or productive discussion.

        I have had that discussion when necessary with a client and it was in each case the last discussion I had with that client.

        I would not want to support changes to rules that make such discussions more frequent and more difficult for everyone involved.

         
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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?

       
      Reply
    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.

     
    Reply
    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.

       
      Reply
  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.

       
      Reply
      1. Alex Leeman

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

         
        Reply
  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
      1. E Lawrence Brock

        this will help more people get good Estate Planning. good attorneys may not be marketers now good attorneys can work with marketers and give more cost effective service.

         
        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.

     
    Reply
    1. E Lawrence Brock

      “Lawyers are subject to the court’s orders and discipline. Non-lawyers are not” MAKE THE NON-LAWYER owner subject to court orders and discipline. monetary sanctions and loss of ownership interest

       
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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.

     
    Reply
    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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    1. E Lawrence Brock

      I also practice estate planning. I have more than 50 years experience in the profession and I agree with these comments.

       
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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

  19. Pingback: Utah Supreme Court proposals would permit non-lawyers to own law firms and share fees with lawyers | joe corsmeier

  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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  31. Rebecca Long Okura

    In addition to reviewing all of the various materials and FAQs, I listened to a podcast with Justice Himonas and John Lund, the two individuals spearheading this movement.

    Overall, the message of providing increased access to justice is laudable and no one can deny the problem. Perhaps deregulation of lawyers such as referral fees and fee sharing, or as related to advertising, solicitation, and public communication could help open up innovation and allow attorneys to provide more services to low income clients.

    My concern is with the clear drive by the Supreme Court to allow non-lawyer companies to either partner with law firms, or go it alone, in providing legal services. While the Court repeatedly states how these types of innovations in the U.K. and Australia have not hurt the consumer, when I asked the question of whether or not any study had been done to see if this innovation would hurt small to medium sized law firms, I was told by the moderator that there was no data. The moderator declined to put my question to Justice Himonas or Mr. Lund.

    I feel that the rules of professional conduct have prevented lawyer innovation, such as easily providing online legal advice. Or the Courts themselves have made it difficult to control client costs, such as not allowing attorneys to withdraw from a case despite having only entered a limited appearance (this has happened to lawyers in my firm several times).

    Without deregulating lawyers and allowing us to try to solve the access to justice problem, the Supreme Court proposes to leap-frog lawyers and basically states that we need outside companies to solve the problem.

    Justice Himonas went so far as to state that places like WalMart could have legal offices next to McDonalds and the in-house nail salon. The idea seems to be that sole practitioners and small firms who cannot compete with Big Tech money (or Big Tech partnered with Big Financial or Big Law Firms) will be able to find work within larger corporate structures such as tech companies and WalMart. What these jobs would pay a new graduate who has $250,000 in student loans is considered irrelevant. Justice Himonas said this is the law schools’ problem and not part of this discussion.

    Justice Himonas also was the initiator behind removing the bar exam requirement for this year’s graduates. Despite opposition by many practicing attorneys in the State, this order went through. He is also the creator of the Paralegal Practice rule. Himonas has stated that he would like to remove the bar exam entirely. I could never say for certain, but one suspects that he generally finds lawyers to be overhyped, overpaid, and overvalued.

    It is easy to follow the dollars on this one. Small and mediation firms and practitioners simply cannot compete with big money. Sole, small, and medium firms tend to be the ones who currently provide services to the lowest income members of our community. Small firms currently try unbundled services and flat fees and other structures to help low-income clients, but meet with resistance because of the legal rules and structure.

    I truly do wish to see greater access to justice, but have serious concerns that the legal community is not being listened to or valued in this conversation. It seems that deregulation of some of the restrictions on attorneys advertising, communication with the public, referral fees, and fee sharing could all go into place without opening the door to non-legal practitioners.

    P.S. The Court quotes dubious stats that say that lawyers only have 2.2 hours per day to bill and that the rest is consumed by administrative tasks and business development. I don’t see how increased competition decreases the amount of time and energy lawyers need to expend on those tasks, rather it would seem to increase the business development time. I can assure the court that we are all working hard to bill more than 2.2 hours per day and so the math they quote seems inane.

     
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    1. Victoria

      Agree, listening to the webcast and reading the provided materials does nothing to demonstrate how this will increase access to justice. The data does not support this and this is an extreme change to the practice of law to just push through during a time when we cannot hold bar conferences, Q&A’s, etc. This should be held off until there is stronger data to support a change like this.

       
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  32. Leonor Perretta

    I am concerned about non-lawyers providing legal services specifically in the area of Immigration Law which is already regulated by federal law. For decades, non lawyers have been “practicing” immigration law without a license and harming consumers. Many consumers cannot complain because they have been removed from the country. The harm they suffer from unscrupulous immigration service providers is often removal to a country where they have not been in years and where they fear persecution. I ask that you be wary and cognizant of federal law when approving innovations in the immigration law area. There are already many online platforms, assisting with the preparation of immigration forms. What they often fail to understand is that each question on that form, may trigger a ground for denial, so assisting someone to fill out immigration forms is tantamount to giving immigration advice when the consequence for inaccurate immigration advice may be deportation. Immigration law is extremely complex and as I have noted, the consequences of doing it wrong are grave. In many cases, it is difficult enough for an experienced immigration lawyer to analyze some cases, let alone someone who is not a lawyer. Immigration is not a subject that can be simplified and innovated in the way you are seeking. I am not concerned about competition as I am as busy as I can handle (at least prior to COVID-19), but I am concerned about the people who could be harmed by a state endorsed non-lawyer practice of immigration law.

     
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  33. J. Bogart

    I do not see the point of the requirement of disclosure of the corporate form and roles of non-lawyers. What is the information to be used for? Why would it affect a decision to retain a firm or lawyer?
    In general, like Mr. Roberts above, I support the changes. Providing financial resources is essential for expanding access to legal services in the US. That entails enabling lawyers to join with other professionals.
    I doubt that OPC is up to policing these operations, however.

     
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  34. Mark Woodbury

    I find myself torn on the proposed rule. On one hand, it does seem like there are interesting possibilities that would be opened up by partnering with non-lawyers. Working with an accountant or investment adviser to establish a “one stop shop” for estate planning, business formation, or tax services could be good for everyone involved, both the professionals and the clients. I know that I could charge less for an estate plan if I didn’t have so much advertising overhead to get the client in the door in the first place, and pooling resources with those other professionals could accomplish that.

    On the other hand, I wonder if this is moving to fast to be able to evaluate the problem properly. According to the FAQ, for example, 93% of family and civil cases involved at least one unrepresented party. This number sounds big, obviously, but how big of a problem is it, really? Why is it important that every litigant have an attorney appear on their behalf? In how many of those cases did a suboptimal or unjust outcome result? Why is “was unrepresented for the litigation” the same as “denied access to justice?” Would having both parties represented in all those cases have made any difference in the outcomes? I am sure that in some cases a party was disadvantaged because they didn’t have a lawyer, but was it in enough of them to justify such a radical change? What kinds of cases are included in “family and civil” cases? When I was doing divorces, I got a lot of default judgments, which resulted in child support being set by statute and statutory visitation. I don’t really think the ultimate outcome would have been different if the other party had hired an attorney and answered the petition. If probate cases are included in that, I can say that almost all uncontested, simple, run-of-the mill probate cases involved a party who is not represented. The PR hires me, I file a petition, the court sends out notice, nobody objects, and the matter is probated. Often multiple parties in such cases are unrepresented, but it’s not an “access to justice” issue. Everyone just already agrees on how to probate the estate. Same with many divorces: they get on OCAP, fill out the paperwork, get their divorce, and it’s fine. Are there horror stories about people doing their own divorces? Absolutely. I know because I’ve had to fix some of them. But is that common, or are those isolated instances? I don’t know, but I’d like to know before we forge ahead with such a drastic change in the name of “access to justice.”

    It’s also possible that in many of those cases, the people how are unrepresented have already consulted with an attorney. How many? I don’t know. I do know that I talk with a lot of people who end up not hiring me. I’m sure that for some of them it’s the cost, but for some of them it’s just that there’s not much for an attorney to do. Either their case is too far gone, or it just was a terrible case to begin with, or something else. Going back to family law, on more than one occasion I looked over a petition, asked the potential client if they thought that sounded fair, and then told them that it seemed very reasonable and that if they were ok with it, they should just sign a stipulation and enter it. Child support is set by statute, you’re getting 40% of the overnights, and she’s going to sell the house and divide the money. Sounds about right. I never entered an appearance or collected a fee, but those people were not “denied access to justice.” They just didn’t really need a lawyer.

    I’m not opposed to measures to expand access to good legal advice, but this seems like a drastic change that doesn’t have an obvious causal link to the problem. Is the primary driver of this problem cost, and is the primary driver those costs that non-lawyers don’t own firms? The answer to the first question, in my mind, is “probably, but maybe not.” The answer to the second question, I think, is “probably not.” My best guess is that the cost of legal services is driven by two things: the supply of lawyers and the complexity of the legal system. I don’t see how allowing non-lawyers to split fees solves either problem. It seems to me that expanding on existing reforms would be a more direct way to address the problem. Things like expanding the LPP program. Frankly, I think it’s a little early to be evaluating the effect of that program. It takes time to establish a whole new profession, and maybe, if we are patient, that program can solve a lot of the problem. Maybe not, but it’s only been like a year; I think we should give it a chance to work.

    Furthermore, if having a lawyer is so important that not having one counts as denying a person “access to justice,” maybe our legal system is to complex, and we ought to be looking at more fundamental reforms, ones that simplify the legal system to that “access to an attorney” is not synonymous with “access to justice.” I don’t have any ideas, but if the system is so complicated that an attorney absolutely needs to be involved in every case, then maybe it’s just too complicated. In that case, we’re kind of just hacking at the leaves instead of the root.

    I can see the argument for this sort of reform, but I just am not seeing how this particular change (allowing non-lawyers to own firms) addresses what we think the problem is. It does not add more lawyers to the system (increase the supply), and it doesn’t reduce complexity (reduce demand), so how does it solve the problem? More importantly, how is it a better solution than other, less disruptive possible solutions, like expanding the LPP program? What if we made it easier for attorneys to get liens on property? More security about getting paid generally leads to lower costs. I think that some of the smaller proposed reforms (allowing in person solicitation, allowing referral fees) are a step in the right direction. What if we just went with those slightly more modest items, and see if that gets us where we want? This seems like a very large, very disruptive change, which will have a lot of unforeseen consequences, and it is not entirely clear to me how it addresses the “justice gap” problem.

    I don’t want to dismiss it out of hand. Maybe it actually is a very good reform. But I don’t see the case for it yet.

     
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  35. MICHAEL LOVERIDGE

    With a few reservations, I support the proposed changes. I am not a litigator, and do not represent clients in court. My area of practice is strictly estate planning and, after practicing for 46 years, I think I well understand the need of almost everyone to have a comprehensive estate plan. That includes the old, the young, the affluent and those with modest means. Very few people would be well-served by only having a basic will, without the addition of a financial power of attorney, health care directive, proper titling of assets, and even a basic trust to control the proper disposition of insurance, retirement, and other assets.

    Of particular concern to me is the exorbitant (in my opinion) fees charged by large and small firms for basic estate planning. I appreciate the struggle firms have, especially solo practitioners with large school debt, to pay for overhead, earn a decent living, and still provide quality, low-cost services. Despite the reduced cost of computers and software, many attorneys have no choice but to price their services beyond the comfortable reach of people of modest means. Frankly, I blame the current, archaic ethics which prohibit direct solicitation because of some misguided belief that to directly approach a prospective client equates with “ambulance chasing,” or that professionalism is at odds with the very solicitation allowed by financial and insurance advisors.

    Having said that, I am hesitant to support any legal advice or preparation of documents by non-lawyers, even if reviewed by a lawyer. I do support, however, the valuable assistance a non-lawyer could provide in gathering basic personal and financial information from a prospective client to help a lawyer make recommendations directly to the client. Non-lawyers also could reduce time spent by an attorney in educating clients about the estate planning techniques and documents a lawyer might recommend, based on the client’s needs. In short, data gathering and education, normally offered solely by the attorney, could help the attorney reduce his or her time spent and justify lowering the fee usually charged. I also see nothing wrong with the non-lawyer charging a separate fee for his or her services, with the attorney independently charging a separate fee. I sincerely believe that this shared planning approach between lawyers and non-lawyers , coupled with relaxing the prohibition on direct lawyer solicitation could result in estate lawyers obtaining more clients and the clients paying lower, more affordable fees.

     
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  36. Stan Jensen

    I am completely against these proposed changes to Rule 5.4A and 5.4B allowing non lawyers to own and control law firms or other businesses providing legal advice. (which seems to be permitted as long as someone, apparently the lawyer who works for the non lawyers, can conclude he is not being influenced in his decisions, professional judgment etc. by the owners he works for, and provided there is some disclosure to the client of the fact non-lawyers are getting a portion of all legal fees and payments.)

    Allowing non-lawyers to own law firms and other businesses that provide legal services, is a bad idea and inherently undermines the provision of independent, professional legal advice which is why most jurisdictions have this prohibition.

    The addition of some prophylactic lip service to independence of the lawyer as determined in his own judgment is unpersuasive and seems circular. Asking someone to conclude he is not working and providing services and legal decisions generally in a way that complies with the requests of the person who owns his firm and signs his checks seems to be asking someone to lie, or asking him to expect his need to support himself and his family to be irrelevant to his decisions and work. That is not in my experience how business in the real world works.
    Additionally, if she (the lawyer), were to agree to such an arrangement and then be pushed by her employer and improperly influenced now the lawyer is the one guilty of an additional breach and is punished for breaking the rules because she is being controlled and manipulated by the person making her livelihood possible.

    Furthermore, there has been no explanation in the related press release or otherwise to my knowledge of why or how this type of ownership structure with all of its faults and risks would ever be helpful or needed or otherwise meets any goals that were supposed to be the stated purpose of these changes, namely providing legal services for free or low cost to low income persons.

    The changes to Section 1.5 allowing more flexibility to share legal fees between firms seems like an appropriate modification and I see no harm in it.

    The change to 7.1 7.2 advertising rules seems reasonable, I don’t have a strong opinion on it.

    None of these changes seems materially connected to the proposed access to free or low cost legal fees.

     
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  37. susan strauss

    I think this is truly a terrible idea for all reasons previously stated. As an attorney we get very highly specialized training which allows us to adjust according to the nuance of every particular situation and still abide by the rules of professional conduct to allow non lawyers to practice law goes against evry fiber of my being. and then begs the question who will police them we cant even police our own now.

     
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  38. Eric Stephenson

    The “reform” measures you are proposing are anti-capitalist, will harm consumers rather than help them, will irrevocably harm the practice of law as we know it, and is based on a demonstrable lie. Proponents of this plan claim the goal is to help low-income people with legal services but that is intentionally false. There are at least a dozen ways to actually help lower the cost of legal services that will also preserve the rights of those clients. This plan does neither.

    My practice is focused on helping consumers against the banks, credit card companies, and other large companies. By implementing these proposed changes you will destroy consumer protection jurisprudence. The whole point of consumer protection laws (and one of the stated goals of your so-called “reform”) is because banks, credit card companies, etc., take advantage of consumers and consumers cannot afford legal assistance. Instead of helping consumers, however, this plan will effectively be giving control of consumer protection to the companies that are already egregiously harming consumers. Rather than improving access to legal outcomes you will be depriving consumers of access to legal services. Legal services provided by these companies will be subject to jury waivers, arbitration clauses, and class-action waivers which are all 100% anti-consumer but inevitable under your plan.

    The so-called “reform” will allow large firms and corporations to push out small firm and solo practitioners from being competitive because the small firms and solos will not be able to charge high enough prices to stay in business and compete with the marketing budgets of large companies with multiple streams of revenue. Utah lawyers are already notoriously low on their hourly rates but the only lawyers who will survive the aftermath of your plan will be the large firms handling the corporate work of the companies that will be taking over the practice of law. The only jobs for the rest of the attorneys will be at $20.00 per hour working in cubicles on mindless repetitive tasks for their corporate masters. Instead of helping low-income consumers obtain legal services you are creating low-income attorneys. True, a few entrepreneurs will emerge but their business models and ideas will be ultimately be taken and exploited by the non-attorney corporations to harm consumers with arbitration, class-action waivers, and jury waiver requirements in their contracts.

    Indeed, with this model in place, all attorneys will actually serve the companies they work for rather than the actual clients. Ethical requirements like diligence, communications, and control of a client’s case will all be supplanted by company marching orders and profit margins. Diligent quality legal service will give way to template-based services that can be handled by uneducated drones. Individual clients will be hard-pressed to get anything even resembling competent legal work.

    Your proposal is also unnecessary. Low-income consumers are not disproportionately served. There are legal aid clinics, low-profit and non-profit law firms, and other attorneys serving these clients. If you want real reform, equalize the budgets for legal defenders with the prosecution budget in criminal cases. Paying the two sides equally in that arena would be true and effective reform if you actually want to help low-income individuals.

    Most attorneys in the solo and small firm sphere handle pro bono cases. We won’t anymore if you allow non-attorney ownership or control of law firms and legal services.

    With corporations taking over, legal services will be turned into cookie-cutter template-based trash because corporations will open firms or add services to their existing business that degrade and dehumanize the practice of law. Clients’ will be enrolled by the thousands without concern whether they actually need the services or not. Rather than being able to work with an actual attorney they will be handed off to low-level customer service agents, chat-bots, automated help menu systems, and automated phone systems that keep clients on hold for hours. If you doubt me, try to talk to an actual person at ADP. They intentionally prevent you from ever speaking with someone in customer service. If you think we have an ethical problem with communicating with clients now, wait until you put large banks and other corporations in charge. There is absolutely no way a large company can or will communicate with clients as effectively and personally as we can now. Cookie-cutter email responses and programmed chat-bots will not cut it but that is exactly what we will get. Even when clients actually speak with real people those people will be mostly customer service agents constrained by checklists and telephone scripts. They won’t be trained or allowed to provide individual advice as attorneys are now.

    Your sandbox will not catch these problems, and many others, for at least two reasons. First, it won’t be designed to catch actual problems. It will be designed to conceal these issues so the proposal will succeed. Second, these problems will be concealed on the corporate end as well.

    This reform is akin to socializing the practice of law and it will destroy the free market as I am sure the proponents (who are all big firms and corporate shills) intend. You are shifting billions of dollars a year worth of legal services from individuals to large corporations. That will not better serve the poor but will instead give the banks, credit card companies, insurance companies, etc., (the proponent’s clients) control over the poor and allow them to exploit the poor for additional profit.

    I will also point out that allowing comments on this proposal is a total sham. Nothing anyone says will stop it. The proponents are simply going through the motions. I attended a CLE on this last year and it was obvious the proponents were ramming this down our throats. They didn’t care about any opposing viewpoints and that opposition was futile because the foundations for this plan are already in place. This so-called “reform” is a foregone conclusion.

     
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  39. Dean Collinwood

    I have read the regulatory reform plan carefully. While I appreciate the effort being made to improve access, I believe it is very unlikely than any of these proposed reforms will achieve that goal. When I was working on a PhD at the University of Chicago, I wrote my dissertation on white collar labor unions, specifically labor unions in higher education. I was puzzled as to why professors with advanced degrees and high status in the community would spend their time picketing around campuses. Didn’t they already have a lot of “faculty governance” authority? Against whom were they complaining if they had considerable decision-making authority themselves? Turns out, the colleges that were unionizing were those where the administration of the college had been drawn from the business world, rather than from academe: MBAs and people with other kinds of administrative training, but not academics, not people who understood the life of the mind and its attendant culture.

    Those executives did not understand the spirit of academia; they tried to run things like businesses instead of places of learning. They so violated the culture of academics, that the faculty took to the streets to protest.

    I believe something like that would be the result were non-lawyers allowed to meddle in the legal profession. Law offices need to be owned and run by licensed attorneys, not business people.

    The other proposed reforms also lack merit. People do need access to high quality legal representation. But rather than dilute quality e.g., allowing paralegals to practice law (an earlier unfortunate and misguided change), the Court should improve access so that everyone, rich or poor, can get the best. The proposals coming out of the Court of late have the potential of creating two classes of lawyering: one of high quality for people with money, and one of low quality for the poor. That is not equal access to justice.

    I urge the Court to abandon all the proposed reforms.

     
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  40. Greg Anjewierden

    I am a Utah-licensed attorney and I fully support the proposed changes. I have had too many people (mostly debt collection defendants) come to me with a need for legal help with no ability to pay. I take as many pro bono cases as I can, but pro bono work alone has proven an unsustainable solution to this problem. There are innovative software-based solutions that can improve access to justice, and these rules will help such solutions. A regulatory sandbox is an excellent method of monitoring any potential problems that may arise.

    I’ve read all of the comments above. It seems to me that many lawyers are worried about losing their jobs or their salaries. In response I would say that innovation always has the potential to put some people out of business, but also the potential to create new and more jobs, very possibly for those same attorneys whose current firm may go under. And lawyers have proven so far to not be able to solve the access to justice problem under the current rules.

    As for the ethical issues, what is stopping attorneys now from doing the unethical things they fear will happen under the new rules? I suspect it isn’t that all lawyers are inherently ethical. For many attorneys it’s fear of losing their license. These rule changes don’t allow unauthorized practice law. This means there is always a lawyer involved, even in cases where a non-lawyer is providing services. That lawyer’s license is on the hook for any unethical conduct. And there always remains the ability to sue a non-lawyer. Many comments above suggest that lawyers will feel pressure to act unethically at the request of a non-lawyer. If there aren’t any lawyers willing to violate ethical rules, those non-lawyers will have no one to work/share fees with. If non-lawyers engage in the unauthorized practice of law, there are still protections for that.

     
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  41. Richard Green

    I am generally in favor of fostering innovation to increase access to legal services. One thing about the sandbox gives me some pause. I note that in the Standing Order creating the sandbox there is a deliberate disdain for theoretical considerations of consumer risk in favor of “actual” risks “supported by evidence”. However, the creation of new legal services models will likely create new risks for which there is little to no historical evidence of harm–the only potential evidence would be harm suffered in “real time” by consumers being served by sandbox applicants. I find it ironic and a little disquieting that the only recourse offered for harm suffered in the sandbox–civil litigation or criminal prosecution–is one to which the target population has limited access outside the sandbox.

     
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  42. J. Bogart

    I wonder if the Committee has looked at the statutory limits on corporate form for professional services by lawyers. It is not clear they permit (or if they bar) the sort of arrangements being contemplated.

     
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  43. JT

    There is little detail as to how this would look like in practice. It sounds fine on paper, but practical day-to-day issues that would arise seem to be overlooked. The sandbox approach does not seem to provide sufficient safeguards to the consumers and ultimately those that need representation. Similarly, the information associated with the grant funding is limited. Who is going to pay for the oversight and what are the risks/rewards to an attorney who tries a new method and fails? Or, what recourse would a represented person have against “sandbox” idea and program? What will this do to malpractice insurance costs for practicing attorneys?

     
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  44. Wesley Felix

    The consequences of the proposed changes to the rules cannot be predicted, because no serious empirical research has been done. This is especially true with respect to a minuscule market like Utah operating under the unique circumstances of the American legal system. We’re just knocking down blocks.
    But there are several developing themes that the proposed changes make clear: 1) the Supreme Court neither respects nor cares about the opinion of the Utah Bar. More than 70% of the litigation section, for instance, disagrees with the proposed changes. The Supreme Court has indicated that it simply doesn’t care; the changes will be implemented regardless of any input from the Bar. 2) Consistent with diminished respect for practicing attorneys, it appears that there will be a more general assault on all regulations implemented to insure the quality of practicing attorneys. It appears inevitable, for instance, that the Supreme Court will eliminate the bar exam and make the practice of law open not only to non-attorneys, but to any attorney who graduates from any law school. 3) this whole-scale assault on the profession is premised on the belief that market barriers to entry inflate the incomes of Utah lawyers above those that would be attained in a free market. This belief is transparently false. The average income of a Utah lawyer is around $74,000 or less. Unlike physicians, there are no real barriers to entry — we cannot and do not control the number of newly admitted lawyers. In fact, the only objective evidence as to the legal labor market indicates that there are more lawyers minted each year than there are jobs for lawyers. See, the U.S Bureau of Labor Statistics for 2019. Because the reforms are based on a demonstrably false premise, achieving the stated goal, increased access to justice, is entirely unlikely. There is an oversupply of lawyers. Increasing the supply, ceteris paribus, is unlikely to decrease the cost of legal services. This is especially true when the cost of legal services is tied more to access to clients with large legal expense budgets than to any meaningful competition on price. In this respect, the legal labor market is more like the market for real estate agents, than the market for physicians or even accountants.
    This relatively basic fact is simply ignored by the reformers. Willful ignorance of this fact leads proponents to claim that a bar card is somehow a golden ticket to wealth, or more perniciously, to assert that any opposition to the proposed changes must be protectionist or narrowly self-interested. This blindness masks an implicit agenda: to diminish the political power of the bar and the legal profession. From a conservative perspective this agenda is comic — the only likely outcome of the reforms is chaos and corruption. From a liberal perspective the agenda is tragic — because liberals join the “reform” effort in an attempt to advance social justice and instead become fellow travelers in an alt-right goose step. 4) Finally, the proposed changes are like much of what has passed for gender and racial progressivism over the last 20 years. They create a pretend problem in order to avoid actually dealing with the systemic issues that make the current legal system a kind of farce in which justice plays very little role. This trend — whenever possible avoiding the obvious — is consistent with trends across the current political landscape.
    On the positive side, the proposed changes will inevitably happen, but they won’t create anything more than confusion. And we’re pretty confused already — so why not a random toss of the salad?

     
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  45. John Smith

    California is currently studying this same concept for their state. Why not let them go down the road first?

    There is no prize for who does it first. No gold stars. Maybe an ego boost for those suggesting it, but with the huge potential for the legal system to turn into the medical system as it relates to party finances, we should remember that there is no legal medicaid.

    They tout their suggested changes as a way to help give access to low income individuals, however the last page of their report calls into question whether their “reform” will actually help those low income individuals. Without a definite answer in the positive, it makes little sense to push this reform this hard and this fast.

    This is not a sandbox, but Pandora’s box.

    Why not hold off for now, let California take the leap of the cliff and wait to see if they land on a ledge below or plummet to their demise. If it works, then great and let’s get on board.

    Perhaps Utah won’t be seen as innovators or get a fancy write up in the ABA Journal, but that’s okay. There’s no prize for being first anyway.

     
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  46. Lucas Adams

    This is a bad idea. I have family that work in Dentistry and they have told me that Dentists, by a strong majority, dislike this same amendment which has already occurred in Dentistry.

    This will lead to the destruction of the small firm or solo practicing attorney. As a solo attorney my job and livelihood is at stake. I have worked for firms and for companies, and based upon the needs of my family, I elected to start my own practice. Before you rule or provide your opinion, think about how this will affect those people, friends, and attorneys you know.

    We can learn from the mistakes of dentistry. Why not do it? Please don’t support the proposition.

     
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  47. Jessica Andrew

    COMMENTS OF THE UTAH ASSOCIATION FOR JUSTICE ON THE PROPOSED REGULATORY REFORMS CONCERNING THE PRACTICE LAW

    The Utah Association for Justice believes in access to justice. There is more that our organization, our state bar, and our State can and must do to increase access to justice in areas where legal needs are being met only inadequately. We stand behind the efforts of the Utah Work Group on Regulatory Reform (“UWG”), the findings outlined in the UWG’s report, and the UWG’s efforts to deliberately, carefully and thoughtfully open the door to new and innovative ways to narrow the access to justice gap.

    The proposed regulations represent some significant changes to the way legal services have historically been provided. Understandably, these changes can make some lawyers wary. UAJ leadership has encouraged UAJ members to submit individual comments to the UWG’s proposals. The UAJ has also solicited input from members to form the UAJ’s formal comments on the proposals. Those comments are submitted here.

    We here identify a few areas of concern, together with suggested clarifications or remedies to the stated concerns.

    Law Firm Ownership by Non-lawyers

    The main area of concern our members expressed was proposed Rule 5.4B, which would authorize non-lawyers to hold an ownership interest in law firms. The proposed amendments and Standing Order 15 do include some excellent protections, such as requiring at least notification to the Innovation Office, and possibly also application, should the non-lawyer ownership be more than a minimal change. The proposed amendments also require that non-lawyer ownership not affect the lawyer’s professional independence of judgment, loyalty to the client, and confidentiality, and that written notice be given to the client of the non-lawyer’s financial interest in the firm. We suggest two clarifications to strengthen these protections, and one specific addition relative to owners who may also be case witnesses.

    First, we suggest clarification of the language of Rule 5.4B(b)(1) and (2) to require “specific” disclosure of the non-lawyers with financial interest or managerial authority, not just a “generic” disclosure. The currently proposed language can be read as allowing for a generic disclosure that is nothing more than a recitation of the rule, such as “one or more nonlawyers hold a financial interest in this law firm and exercise managerial authority of the lawyer.” A generic disclosure, which does not identify the non-lawyer owners or managers, does not materially aid the clients in determining whether it is in their best interests to retain the law firm or lawyer, where the identity of non-lawyer owners or managers may matter very much to the client. The client may have a legal, business or social conflict with the non-lawyer owner, or may disagree with its business objectives or stated political or moral positions. In short, there are any number of reasons the client may not wish to retain the services of an organization owned or managed by that specific non-lawyer. A “specific” disclosure which names the non-lawyer owner or manager would give the client the information necessary to make this determination.

    Second, we suggest requiring that organizations with non-lawyer owners or managers conspicuously publish the identity and nature of interest of their non-lawyer owners or managers. This suggestion first arises from our extensive experience with initial client meetings. A client meeting with a lawyer to determine whether to retain the lawyer must necessarily disclose information to that lawyer to allow the lawyer to evaluate the client and his or her case. Just as important, though, is the client’s opportunity to evaluate the lawyer to determine whether to retain him or her. A lawyer in an organization with non-lawyer owners may comply with Rule 5.4B, as drafted, by going through the entire initial meeting, and then, before the client puts pen to paper to formally retain the lawyer/organization, handing the client the disclosures contemplated by Rule 5.4B(b). If, at this last minute, the client identifies a non-lawyer owner or manager that renders the anticipated attorney-client relationship inappropriate for the client, the client has already disclosed to the lawyer details concerning his or her case, and has perhaps incurred a fee for the initial meeting. Such an experience can be an uncomfortable, and even traumatic situation for a client seeking legal help. Requiring a legal organization with non-lawyer owners or managers to publicly publish the identity and nature of the interest of any non-lawyer owners and managers in a conspicuous place (such as on its website in a conspicuous place, and/or on a database attached to the State Bar website) will protect clients from getting down the road with a lawyer or law firm whose organization is not going to be appropriate for the client.

    There is a second consideration to public disclosure of non-lawyer owners or managers. Non-lawyer ownership or management of a legal organization must be disclosed to more than just potential clients. For example, if a law firm is partially owned by a medical device company heavily involved in lobbying for laws protecting medical device companies from lawsuits, and the law firm represents one party in a wrongful death lawsuit involving a different medical device company, surely the opposing counsel is entitled to know and make the jury aware that the law firm is owned by a medical device company actively working to eliminate this very kind of lawsuit. This principle would apply whether the non-lawyer-owned law firm represented the wrongful death plaintiff or the medical device company defendant. If lawyers choose to enter business associations with non-lawyers in order to improve access to justice, those relationships should be made known to the public. If the purpose truly is to increase access to justice, then there should be no hesitation to disclose those relationships.

    Third, we suggest that the regulations disallow law firm ownership by a person or business who is likely to be a witness in the cases of clients the firm represents. This concern arises out of the not unlikely situation where a physician or other medical provider who will testify as an expert witness on behalf of a law firm’s clients is also an owner of that law firm. While it is true that such relationships could be elicited in cross-examination to argue that the witness/owner is not objective or is biased in one party’s favor, it seems unnecessary to invite that argument, and the presumably more exaggerated expert opinions that would be presented. This would not forward the interests of justice, but instead would compromise the integrity of a system that should be bound by objectivity and professionalism, not by who is business partners with whom.

    Innovation for Innovation’s Sake v. Narrowing the Access to Justice Gap

    It is clear that the proposed regulatory reforms are not intended to introduce innovation for innovation’s sake, but to narrow an actual access to justice gap. This goal is evidenced by the UWG’s laser focus on objectives-based regulation, and by a Sandbox structure that requires that proponents of a given innovation articulate how their innovation will meet the policy objective, which is to increase access to and affordability of legal services. The raison d’etre, then, of these regulatory reforms is the fact that some legal services are either inaccessible or unaffordable. Specifically, the UWG’s report identified an access to justice gap in the legal fields of: (1) debt collection (2) landlord-tenant, (3) small claims cases (disputes valued at $12,000 or less), and (4) family law.

    The UWG did not conclude that all legal services are inaccessible or unaffordable. It follows, then, that many legal services are both accessible and affordable. Consistent with the UWG’s findings and the stated goal of the UWG, we suggest requiring, as a precondition to Sandbox approval, that applicants demonstrate an access to justice need their proposal will meet, not just an innovation for an area that does not have an access to justice problem.

    UAJ is uniquely situated to comment on this point, because personal injury legal services, which most of our membership provide (including automobile crashes, products liability, medical malpractice, workers compensation and others), are an area with no identified access to justice issues. The Work Group did not identify, and we have not found, issues of accessibility or affordability for personal injury cases. That is primarily because these legal needs are provided on a contingency-fee basis, wherein the lawyer takes on all the financial risk and provides competent, full-service representation to the client. Indeed, there are few legal fee arrangements as beneficial to a client as contingent fees. The lawyer is financially incentivized to do the best work possible for the client. Where a case has merit, a lawyer can be found to take the case on a contingent fee, and the client’s legal needs are met competently and affordably.

    In light of these facts, opening the legal field of personal injury work to non-lawyers does not meet the raison d’etre of the proposed regulatory reforms. Simply, there is no access to justice gap in the personal injury field. As such, there is no justification for regulatory reform in this particular legal field.

    That we believe regulatory reform is unnecessary in this area, is not to say that innovation should not be welcome. The nature of contingent attorneys fees is such that attorneys are incentivized to be expeditious, cost-conscious, and successful for the client. Indeed, if there is a more efficient or cost-effective way of handling a PI case, PI lawyers find it and incorporate it. It comes as no surprise, then, that PI lawyers seek out and embrace innovation all the time, precisely because it increases the bottom line for both their clients and their own practices. Companies that collect and summarize medical records, or case funding lenders, or expert witness finding services, or technology for reconstructing car wrecks, abound and are used frequently to reduce costs and increase efficiency. If an innovation makes the case better for the client, PI lawyers find it. The incentives inherent in contingent fee practices already operate to the client’s best interest, and the innovations PI lawyers use, create, and seek do not need to go through the regulatory Sandbox; they are already authorized under the current regulatory scheme.

    Where the proponent cannot articulate a problem, we should not be introducing a regulatory “solution” that will do nothing but risk poor legal services for clients, or raise more issues or problems than they solve. Each application for Sandbox approval should require that the applicant identify how its proposal will meet one of the four access to justice needs identified by the UWG.

    Small Claims Matters

    The UWG has identified “small” civil disputes as a specific area of access-to-justice needs. The UAJ agrees with this finding and believes innovation in this area could be useful in closing the access-to-justice gap. Generally speaking, small claims litigants are pro se. To its credit, though, the Utah Small Claims Court system works well and provides good instruction and guidance to aid small claims litigants as they navigate the small claims process. It usually does not make economic sense for a small claims litigant, particularly an individual, to retain legal counsel at current hourly rates. A contingent fee arrangement is difficult, as well. Where damages are capped at $11,000, contingent fees would eat up much of the recovery, and hourly fees of even a lawyer who charges lower fees would often do the same; which is precisely why the process has been simplified for pro se litigants.

    However, there are those instances where small claims litigants are disadvantaged if they have to appear pro se; for example, when the adverse party is represented by an attorney. We wholeheartedly recommend that the Innovation Office actively seek innovations to aid pro se small claims litigants. These could be in the form of a lawyer or non-lawyer trained in the rules and procedures of small claims court and typical small claims matters, or technology innovations to offer further services online to small claims litigants, or educational resources. We would hope to collaborate with such initiatives to continue to help serve the needs of this population.

    Review of Sandbox Submissions

    We suggest that the Innovation Office maintain a list of lawyers specializing in areas of law, and that it solicit input from those lawyers when it evaluates Sandbox applications.

    One concern of our membership was the transparency of the Innovation Office. It will clearly be staffed by bright people, but no one is an expert at everything, and the matters the Innovation Office will be deciding could have significant and far-reaching consequences for clients and entire areas of the law. We are also cognizant of the fact that innovators may be disinclined to submit applications to the Sandbox if their innovations will be revealed broadly for comment.

    We recommend that the Innovation Office maintain a list of lawyers specializing in different areas of law, and call upon the specialists in a given area for comment when an innovator submits an application to the Sandbox. This will achieve the dual purpose of keeping innovations protected from more public dissemination prematurely, and obtaining the input from specialists on how a given innovation will affect clients in their area of legal specialty.

    Client Protections for Non-lawyer Representation

    We suggest that non-lawyers practicing law be required to maintain malpractice insurance and be disallowed from introducing mandatory arbitration clauses or negligence waivers.

    We further suggest that non-lawyers practicing law be required to receive extensive and ongoing training concerning the legal services they are providing, and concerning fiduciary duty, confidentiality and ethics.

    One salient problem arises when non-lawyers represent clients under retainer agreements that mandate arbitration in the case of disputes, or that include waivers or other devices to deprive the client of a remedy if the non-lawyer negligently provides incompetent representation. For example, one such agreement from another state stated: “Client agrees and understands that [non-lawyer] is not a lawyer, and is not providing legal advice. Client agrees and understands that client may at any time consult with a lawyer for legal advice.” Another stated: “Client agrees to hold [non-lawyer] harmless for any errors in legal advice provided by [non-lawyer] to Client.” If non-lawyers are going to enter the practice of law, we would propose that they be required to have protections in place for clients they represent, including malpractice insurance, and excluding contractual clauses that leave clients no remedy for malpractice.

    We look forward to collaborating with the Bar, the Utah Supreme Court and innovators to help narrow the access to justice gap in Utah.

     
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  48. E Lawrence Brock

    Comment on amended rule 1.5 fees.
    I am an attorney been licensed to practice law since 1980 in California and since 1987 here in Utah. All during my law school and undergraduate years I worked in the legal community in Los Angeles and was very aware of these ethical issues than are now considering changing.
    I support the elimination of section 7 of rule 1.5. Elimination will allow attorneys to divide a fee between the procuring attorney or referring attorney, and the attorney who is going to handle the matter.
    It is an expensive proposition to obtain a new client, and when you have done the work to obtain a new client, you should be able to receive some benefit.
    It is also better for the client if case is referred to counsel who is more familiar and qualified to handle the matter. Over the years, I have seen a number of incidents when the attorney kept a case that they were not qualified to handle. Generally, in that situation the client suffers. Had that attorney referred it out and received a referral fee, the client and, therefore, the public would have been better served.
    The new rule 7.1 appears straightforward and very reasonable, comment number six, and this rule appears to change the rule that prohibited direct one-on-one conversation with a non-client and soliciting business from them. This may lead to the situation that I remember was called capping.
    When I did personal injury work back in the 1980s in California I had a number of tow truck operators, or people working in an emergency room that came to me and said, “We will bring you cases if you pay us for the case.”
    At that time, I felt that was inappropriate and it was a violation of the rules. This note, comment six appears to allow face-to-face solicitation.
    I believe it’s about time that rule 5.4A subsection B is approved. This change will help to minimize the trust mills that take advantage of elderly people. Everyone needs an estate plan and attorneys who are expert at delivering legal services are not always expert at marketing.
    This will allow an attorney to work with a marketing person and pay them based on their production of new clients. I think this is a positive change and will result in better estate planning for many, many people.
    Rule of 5.4B will allow attorneys to work with technical individuals and share fees and, therefore, be able to deliver a product that is of higher quality and a lower cost by combining the expertise of the attorney and the expertise of the technical individuals. This is a very positive step.

     
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