From the wild frontiers, where IT meets law
Here are some reports from the expanding frontier of legal practice. As is often the case with technology, they come from the USA.
The main development is a consequence of those deal-of-the-day or group coupon websites, which send emails offering discounts on various products and services, which can then be bought online. If I give the name of the best-known provider (which I am loath to do, since I will then advertise it), you will immediately know what I am talking about. Oh all right, it is the model made popular by... Groupon. Apparently, lawyers are now using such sites to sell services. The question is: is it ethical?
Three US State Bars (North and South Carolina, and New York) have issued opinions saying that there is nothing wrong with lawyers providing discounted services in this way. But which lawyer would want to attract clients like this? It certainly runs counter to traditional models of referral like personal recommendation, being on a list at an advice centre, or through regular advertising. But younger people use tech-savvy methods, and so might move from buying hours at a health club to obtaining legal advice. Discounted services do not look like a great way to building a sustained practice. On the other hand, technological developments - from the invention of the telephone onwards - have caught us out with their impact on doing business.
So what are the ethical hurdles that the coupon model needs to jump? First, there is the US rule against sharing fees with a non-lawyer (for solicitors, this area falls under Chapter 9 of the Solicitors Regulation Authority’s new Code of Conduct). The State Bars concerned conclude either that there is no fee sharing, since it is just a payment for the equivalent of advertising, or that there is fee sharing but it is permissible because the website exercises no control over the content of the legal service.
Next there are questions about the formation of a relationship with the client. If a client comes to you in this way, how can you be sure that there is no conflict of interest with another client (Chapter 3 of the SRA’s Code)? Are you competent in the area of law which a particular client might want (SRA’s Principle 5)?
There are further complications if the client, having bought the coupon, does not use it. Refund the money (North Carolina)? Or keep it, on the basis that it was an availability retainer (New York)?
Finally, the coupon offer must not breach advertising rules. In other words, the discount should be real, and be able to be established by looking at the lawyer’s usual rates. Otherwise it would be misleading (Chapter 8). Also from the USA, come two interesting cases about jurors’ use of the internet, despite repeated judicial warnings about what they can and cannot do.
First, a jury foreman undertook his own internet research into what a defendant was likely to receive as a sentence - a minimum of 10 years if found to have sold 1,500 ecstasy pills to an undercover policeman - and so refused to convict, causing a deadlock in the jury. The foreman ended up with a criminal contempt conviction and a $500 fine (it would have been more, but he had recently lost his job).
And then there was even UK coverage some months ago when a murder conviction was overturned after a juror tweeted information, not about the content of the trial itself, but with his thoughts about being a juror ('Choices to be made. Hearts to be broken... We each define the great line.' ... 'It's over.' (less than an hour before the jury announced its verdict)... 'The coffee sucks here' and 'Court. Day 5. here we go again'.)
We travel swiftly onwards on the crest of the great technological wave.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs