ETHICS SPOTLIGHT
Traffic Jam on the Information Superhighway
Steven L. Fuchs, J.D.,
from the ABA Family Law Section
April 24, 1999
Ethics on the Internet
Note the title of this seminar, "Ethics on the Internet"
not "How to Improve Customer Service on the Internet,"
not "How to Better Communicate with Your Clients Using the
Internet," and not "How to Reach Potential Clients on
the Internet." Should we embrace stare decisis technology,
looking to the past for precedent which may not exist, when we
can embrace the future and develop new ways to serve?
Like a Nuisance "the right thing in the wrong place."
I believe that ethics rules relating to the Internet e.g., prohibitions
against advertising, solicitation, and unauthorized practice are
largely predicated on outmoded 19th--century notions. Dramatic
socioeconomic and technological advances during the late 20th
century have rendered obsolete certain rules, especially because
of, and as applied to, the Internet.
Legal ethics rules reflect an institutional bias against change.
But while these rules evolve at a Darwinian pace, the Internet
gene-splices our future. We now live on "Internet time,"
a period of rapid technological growth incomprehensible to our
traditional legal system. As a result, the "right" rules
applied in the wrong place (the Internet) hurt, not help the consumer.
Early Paternalism
During the Industrial Revolution, there were vast class distinctions
and educational differences between the legal community and the
general public not just in white-wigged England but here in America
too. Lawyers went to college while the average man (women were
disenfranchised) was lucky to complete high school. This imbalance
led to the paternalistic rules that we call "legal ethics."
So strong was the need to "level the playing field,"
that potential consumers were denied the benefit of lawyers' advertising
and solicitation. And I say "benefit" because an open
exchange of information and ideas can only benefit a free society.
The Social Revolution: "Rock-n'- Roll is Here to Stay"
Bring on the radical 1960s, the dawning of "techmocracy"
and the Information Age. The "playing field" looks more
like rolling hills than Everest next to Death Valley as the body
politic becomes more sophisticated. College is common for the
vast middle class (including women); lawyers and country bumpkins
alike watch the same network TV shows; Ralph Nader empowers a
new consumer movement; and Dr. Spock becomes just one of several
thousand self-help authors.
Ed Sherman starts the self-help law movement with his workbook,
How to Do Your Own Divorce in California (1971). He
and Steve Elias establish Nolo Press, a leading publisher
of self-help law books. The Supreme Court decides Virginia
State Board of Pharmacy (1975) holding that commercial speech
is constitutionally protected.
The year 1977 brings us Bates v. State Bar of Arizona. For
the first time in history, heretofore-autonomous (read "politically
unaccountable") bar regulators are astounded to learn that
(1) there is something called the "First Amendment"
and (2) it encroaches on their plenary authority. Regulators begrudgingly
bring their rules into compliance.
The 1980s brings "dial-a-lawyer" in which a "client"
calls a lawyer, uses his or her credit card, and gets some legal
advice thus transforming legal services into a commercial commodity.
Where we are--or should be--now!
Enter the 1990s. A new invention, the "graphical interface,"
brings the Internet into the living room. Like the printing press,
which eventually led to the Reformation and widespread education,
the Internet will spur its own revolution democratization and
disintermediation of information, unbundling of services, and,
ultimately, disintermediation of goods and services. Finally,
a near-level playing field between lawyer and layman.
(1) Democratization and Disintermediation
of Information
(a) Democratization: No fancy education
or training is necessary to access the estimated 100-million
Internet pages. Nor is an expensive subscription to Lexis/Nexus
necessary to research the law. Internet search engines are the
"Shepard's Citations" of the masses. The public now
has access to almost the same resources as the legal community,
and lawyers are posting materials written for laymen.
(b) Disintermediation: The average
person can post and his or her counterpart around the world can
readjust about anything without the contribution of, or interference
from, the historical intermediary, the editor. We are decorating
our cave walls in new ways, but without censors or critics.
(2) Unbundling of Services - Empowered by all this
information, self-help will become more commonplace. With interactive
forms, instructions, and child support calculators on-line, some
clients may need no more than a "coach" to look over
the paperwork, give an opinion, or draft a QDRO. Ethics regulators
may object to these nontraditional attorney-client relationships,
but, ultimately, the public will decide.
(3) Disintermediation of Goods and Services - Similar
to unbundling is economic disintermediation. For example, airlines
sell tickets over the Internet, thus avoiding the travel agent's
10% commission. And Maricopa County (Phoenix) has a "divorce
kiosk" which also eliminates the middleman lawyers. The machine
looks like an ATM. The legal consumer is prompted to answer a
list of questions, pays by credit card, and the paperwork is
automatically prepared for the court. Someday, the omniscient
kiosk and your home computer will perform the same functions.
So Now What?
So where does this leave the legal ethicist? Or more fundamentally,
where does this leave the legal profession, which is basically
an intermediary? Our economic system does not tolerate market
inefficiencies forever. The Texas State Bar may sue Nolo Press
for the unauthorized practice of law, or require Texas lawyers
to submit materials before publication but, in the final
analysis, we are a consumer-driven economy and regulators will
adjust or be forced to adjust their views on advertising, solicitation,
and unauthorized practice. In fact, don't be surprised if you
see ballot amendments relating to legal services in states like
California if its legislature and regulators don't move fast enough.
New Rules for New Times
Bar regulators take a narrow view of the United States Constitution
and are generally cautious to adopt new rules. They undoubtedly
will see problems associated with legal self-help, unauthorized
practice, partial representation, and the mass-market "commoditization"
of legal services. But not being economists, regulators are not
likely to conduct a cost-benefit analysis. Or worse yet,
they will give, or appear to give, disproportionate weight to
the economic needs of the legal establishment thus denying, or
appearing to deny, the public affordable legal services. Mass
education, technology in general, and the Internet in particular
have made the public too sophisticated to appreciate regulators
like those in Texas, who restrain trade and the free flow of information
by hiding behind high-road rubrics like "protecting the public
interest." (1)
Whatever the rules, the Internet itself is often beyond regulation.
On-line resources from out-of-state publishers, paralegals, and
public-interest Web sites are difficult to regulate without raising
serious First Amendment concerns. It is not likely that a federal
court will censor content-based materials, unless that federal
district court is located in -- you guessed it -- Texas. (2)
Rearranging the Deck Chairs
Please don't think I'm down on all regulators. Most are public-spirited,
seeking to protect the citizenry from unscrupulous lawyers. In
dealing with the Internet, they are charged with the awesome responsibility
of preserving order during chaos. However, like us, they think
like lawyers, not economists or policy makers. While ethical problems
associated with new technology will be legion, the far greater
evil is to discount its many benefits. As a profession, we have
to accept the inevitable democratization and disintermediation
of legal services. As my 11-year-old daughter says, "Deal
with it!"
-------------------------------------------------------
(1) We can only speculate what motivated
the Texas book burners -- I mean the Unauthorized Practice of Law
Committee -- who are on a book-ban-jihad against Nolo Press's
self-help legal guides. In depriving the citizens of Texas of
their constitutional rights, these regulators hope to achieve
that most laudatory goal: "maintaining respect for, and the
dignity of, our profession." Just for amusement, take a look
at http://www.nolo.com/texas/index.html .
(2) See Parsons Technology (Quicken Family Lawyer case)
case described (with hyperlinks of the text) at
http://www.nolo.com/texas/index.html
-------------------------------------------------------
Steven L. Fuchs, J.D., is president and cofounder of LawTek Media
Group, LLC, sponsor of the Web site, www.Divorcenet.com .
Prior to forming LawTek, Steve practiced family law at the Law
Offices of Sharyn T. Sooho; Newton, Mass.
Steve can be reached at:
VOX: 1-800-696-2026
FAX: 1-781-894-6651
E-MAIL: fuchs@divorcenet.com
© 1999 LawTek Media Group, LLC
all rights reserved
No information or materials
posted here are intended to constitute legal advice, nor can we guarantee the accuracy of
posted information, especially as to each individual situation. LawTek does not
independently check the information contained herein and does not refer or endorse any
product, service, or firm. This site does not constitute an attorney-client relationship;
local counsel should always be consulted.
Family Law Advisor® HOME PAGE
Lawyer-to-Lawyer |
