Ethics: Can I Sell That?

These days, lawyers and law firms are gradually, but increasingly, exploring what other businesses might call extending their line of services.

Can a lawyer cater to clients and nonclients alike by selling forms for contracts or construction liens? Perhaps a firm’s labor lawyers could sell the harassment prevention training they do for longtime clients to other employers as a service, even if they don’t hire them as lawyers.

Or maybe an environmental law firm wants to hire a professional—not a lawyer—to offer Phase 1 Environmental Site Assessments to firm clients and nonclients alike.

What about more sophisticated offerings, like forms powered by automation or artificial intelligence (AI), without any lawyer (or human) intervention or contact at all, allowing users to fill out and submit government forms—TurboTax for visas, anyone?

Some lawyers and law firms have done this for years, but there’s a new wave of such services being delivered or contemplated all over the profession.

Ethics, Anyone?

As a lawyer or law firm, can you do these things and comply with the ethics rules?

Yes, you can.

Of course, you’re a lawyer, subject to ethics rules, and you’d best keep your wits about you if you do.

Check In With Your Ethics Lawyer, Please

Of course, first must come the business case, but that’s not the concern of this space.

Your ethics lawyer—you might well want to consult one before attempting this at home—will point to a number of concerns.

The Rules

You might start with ABA Model Rule of Professional Conduct 5.7. Most jurisdictions have adopted it. Moreover, even most jurisdictions that have not adopted it take the same approach.

A lawyer can sell clients and anyone else law-related services other than legal services. The Comment to the Rule gives numerous examples: “title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.” Only the lawyer imagination limits the list.

In most communities, the lawyers most experienced with these arrangements are real estate lawyers with close relationships with title insurers, often serving as agents. For decades, these lawyers appropriately had arrangements where they provide a law-related service—title insurance—under proper disclosure, often through related companies.

Right behind these lawyers are those whose firms include mediators and arbitrators, who frequently do their work under agreements that track the requirements that Model Rule 5.7 lays out.

Avoiding Application Of The Rules

Why do we care about the Rule?

Model Rule 5.7 performs the neat little trick of allowing the lawyer or law firm selling such law-related services to avoid the application of pretty much all of the ethics rules in the provision of those law-related services, under certain specific conditions: if the services are either 1) provided “in circumstances that are [] distinct from the lawyer’s provision of legal services to clients,” or 2) provided by an entity different from the lawyer’s practice or firm and with clear disclosure and notice so that the user “knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.”

If these conditions are met, the lawyer advertising rules, the lawyer trust accounting rules, the lawyer conflict of interest rules, among others, do not apply to the business of selling these law-related services.

Crystal Clarity Needed

To take advantage of this, the marketing and disclosures have to be crystal clear that the customer is not in an attorney-client relationship, isn’t getting legal services, isn’t getting an attorney-client privilege and, well, isn’t getting a lawyer. And that’s true whether the lawyer or law firm sells the law-related services directly or another lawyer-controlled entity does so.

If you’re a lawyer selling forms online, you want the website— whether it’s your firm’s or not—to be very clear about these things. A simple click-through agreement can address, and have the buyer agree to, there being no attorney help available (and no human help), no legal advice given, no attorney-client relationship, no confidentiality or privilege for any information supplied. The customer needs to be told—and agree—that the lawyer is not the customer’s lawyer.

DIY Versus DIY-Plus Options

Some lawyers today are offering or exploring such services on the basis of providing the customer two options. One might be a do-it-yourself (DIY) option, under the terms described above.

Then, offered as an alternative, right next to the DIY option, might be a costlier option where the user gets some actual lawyer help filling out the form for a fee, usually under a limited-scope arrangement spelled out in a special engagement agreement. This can be done in an ethical manner in pretty much every U.S. jurisdiction.

AI As a Service

At the more sophisticated end of the spectrum, a law firm may offer access to AI-driven services that do anything from assess a user-organization’s compliance function to predict the outcome of various types of claims. Some of these services are free, some are paid; some are only for firm clients, others are for nonclients, too.

Of course, some of these services are or can be based on the law firm’s experience in its practice for clients, making this a tantalizing offering that may well convince users—free or paid—of the law firm’s expertise in a way that develops paying business for the firm. To the extent that such tools are built with or trained on client confidential information of the firm’s clients, a whole different set of issues arises beyond the scope of this column.

But the same rules apply as for the form seller.

Unauthorized Practice of Law

One more potential issue is unauthorized practice of law. Whether the service to be provided as a law-related service is a form or the result of an AI’s analysis, some thought should be given to whether the service constitutes the practice of law. Knotty issues abound in this very grey area, but do be sure to spot and clear any issues.

Insurance

Of course, ordinary prudence and loss prevention dictate the same result. No lawyer wants their new line of business to be subject to the lawyer malpractice standard of care, if that can be avoided. Confirming very clearly, in writing, that the law-related services customer is not a client should get you to this result.

Which reminds me: A prudent lawyer or law firm contemplating the sale of law-related services should talk with their legal malpractice insurance broker (and maybe the broker who handles their other insurance, too) to be sure they have appropriate coverage for the new line of services.

With luck, and a little care, you might just be able to extend the line of offering you have for clients and others, enhance your practice’s profitability, and maybe even reach some new future customers for your legal services, too.