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A little less talk

Innovative forms of law practice being tried in Virginia

Peter Vieth//May 23, 2017

A little less talk

Innovative forms of law practice being tried in Virginia

Peter Vieth//May 23, 2017

talk_mainTalk has turned to action.

After years of conversation about alternative ways to provide legal services, several new ideas are already in place and gaining attention in Virginia.

The pathway for experimentation seems clear. A Virginia State Bar panel last week removed a cloud from over one new practice model which uses a website to offer flat fee legal services.

Another VSB committee will look at a concept intended to open the door to legal help for low-income clients. The concept of non-profit law firms offering sliding scale fees is now being tested by at least two Virginia lawyers.

Other lawyers are trying virtual law offices, where clients are served through an online portal and may never actually meet their lawyers.

Avvo in the clear

A VSB committee on May 17 dropped a proposal that would have discouraged a form of online contracting for flat-fee legal work.

Proposed Legal Ethics Opinion 1885 took aim at Avvo Legal Services, which describes itself as a web-based marketplace where consumers can buy fixed-price, limited-scope legal services from local attorneys.

Several Virginia lawyers already are participating.

The action by the bar’s Standing Committee on Legal Ethics removes the threat of an official guidance document that would have described some elements of the Avvo model as unethical.

The proposed LEO found potential problems with the reasonableness of fees, the handling of money by non-lawyers and the payment of an advertising fee. The advertising fee was seen as improper fee-splitting with a non-lawyer.

The ethics committee “voted to not submit LEO 1885 to Bar Council,” said James M. McCauley, VSB Ethics Counsel on May 17. “The committee is going to go back and study the affected rules,” he said.

An Avvo official and two others had written letters opposing the proposed LEO. The guidance document was “fatally flawed by its failure to consider the desires and needs of Virginia citizens,” wrote Josh King, Avvo’s chief legal officer.

After he was advised of the committee’s decision, King said the proposed LEO was “bad for Virginia consumers and lawyers alike, and wrong on the law.” In a May 18 email, he added, “I’m glad to hear that the Ethics Committee re-thought it.”

Other opponents of the LEO had offered similar comments.

“It reflects poorly on lawyers, as a profession, when our regulatory body puts up barriers to consumer choice,” commented Fairfax lawyer Benjamin W. Glass III in a May 4 letter.

A legal services consumer advocate group, Responsive Law, warned of possible antitrust issues.

“Without a demonstration of consumer harm, action by the Committee and the VSB that restricts new entrants and new means of delivery to the legal services industry looks less like the bar acting as a force for consumer protection and more like the bar acting as a cartel,” wrote Tom Gordon, executive director of Responsive Law, on May 5.

Two Virginia lawyers wrote in support of the proposed LEO on the Avvo business model. One of them, consumer lawyer Thomas Domonoske, agreed with the LEO’s concerns about upfront fee collection and potential fee splitting. He also said the lawyer should be involved in initial client interaction to explain the limited scope of representation.

Non-profit law firms

An idea that took root in Utah is bearing fruit around the country, including Virginia this year.

Public-service-minded lawyers are opening nonprofit law firms intended to serve clients who do not qualify for traditional legal aid but who are priced out of the general legal market.

Many such firms are patterned on Open Legal Services, a firm in Salt Lake City that has willingly shared its operating model.

One of its Virginia counterparts is the Virginia Nonprofit Law Center PC in Roanoke launched last month by Devon R. Slovensky, a former legal aid lawyer.

“I saw there was still a huge part of the community that was not being served. I wanted to get out and find some creative ways to serve that part of the community,” she said.

Slovensky’s nonprofit office accepted its first client in April, but it has not yet promoted its services. Nevertheless, seven clients have found their way to her door, she said, most with domestic issues.

Before advertising, “we wanted to get our bearings administratively,” Slovensky said.

She hopes to keep costs down with some new technology ideas. She uses a virtual receptionist and an automated intake system.

“I try to be incredibly efficient with our very limited resources.”

In Northern Virginia, Jonathan Y. Short opened Route One Legal Services in March. He, too, acknowledged inspiration from the Salt Lake City firm that sought to serve the working poor.

“We’re trying to fit that gap,” Short said.

Nonprofit firms are opening nationwide.

“I would say I have consulted with roughly four dozen across the country,” said Shantelle Argyle, a founder of Utah’s Open Legal Services.

The VSB’s Study Committee on the Future of Law Practice reportedly plans to consider nonprofit firms as it looks at various models for legal services.

Virtual law offices

Bankruptcy lawyers may be taking the lead on another new development for law practice.

About 15 Virginia lawyers are offering bankruptcy services through an internet portal hosted by Chicago-based Upright Law, according to the service’s website. Clients deal with their lawyers through a secure, online platform.

Virtual law offices are all about lawyer availability, according to experts in law practice.

“Clients will judge you more on your level of availability than on the quality of legal services,” said Jim Calloway, an Oklahoma bar official who writes and lectures on law practice management. He spoke at the VSB TECHSHOW in Richmond on April 24.

The positive aspects of virtual law offices are alluring, said Illinois lawyer Nerino Petro, another TECHSHOW presenter. You can serve clients all over your state, keep operations lean and enjoy 24-hour access to files through the website, he said.

The downside is you need to constantly interact with the system to keep clients engaged.

“You really need to be up on technology,” Petro said. “This is not something you’re going to be able to delegate to an assistant.”

Lawyers adding virtual law practice to their work must not lose sight of ethical rules, including the requirement that a lawyer explain matters so clients can make informed decisions.

“A lawyer may not upload information to an Internet portal and assume that her duty of communication is fulfilled without some confirmation from the client that he has received and understands the information provided,” reads LEO 1872, approved in 2013.

Regulatory issues

With the ethics committee’s decision to drop consideration of LEO 1885, there appear to be no pending efforts to add new regulations or guidance for alternative practice models in Virginia.

The VSB’s Special Committee on Access to Legal Services has formed a subcommittee to look at alternative means of providing legal services, according to Karl A. Doss with the VSB.

Chief Justice Donald W. Lemons said May 16 that the Supreme Court is not currently considering any rules or guidance on new practice models.

“It’s not before us yet. I think it’s better to let these things percolate,” Lemons said.

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