May 01, 2020

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith Fisher, Christina Houston

Ethics

New York County Bar Advocates Ethics Safe Harbor for Online Lawyer Referrals

By Keith R. Fisher

Bar associations and regulatory bodies in several states have issued reports or proposals recommending or suggesting significant changes in the regulation of legal services.  Spurring many of these efforts is the “access gap”— 50% of middle-class Americans and an even higher percentage of low-income Americans (86%, according to ABA President Martinez) cannot afford and thus do not receive adequate assistance for their legal problems. 

The New York County Lawyers’ Association is supporting a safe harbor in the ethics rules that would remove impediments to for- profit online legal referral or matching services (“FPLMS”).  A Task Force of the Association previously issued a report recommending that the ethics rules be changed.  The report reviewed the FPLMS industry, considered the applicable ethical rules, and studied whether consumers need protection in this regard (and if so, in what regard).

If such a movement were to extend beyond New York, then, in order to assist FPLMS entities with achieving a sustainable business model, amendments to the Model Rules of Professional Conduct would have to be considered.  Pertinent provisions include Rule 5.4(a), which generally prohibits a lawyer from sharing a fee with a nonlawyer, and Rule 7.2(a), which prohibits (subject to some common sense  exceptions for advertising, bar-related referral services, and the like) “compensat[ing] or giv[ing] anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for recommending the lawyer’s services.”   

Keith Fisher

Principal Consultent and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.