CBA Record

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/.

BY JOHN LEVIN Unauthorized Practice–An Antitrust Perspective O ver the years, this column has discussed how high fees were pricing low and moderate indi-

much pay for legal services, and reducing consumers’ choices.” Of course, there is the countervailing issue of consumer protection and “[t]he Agencies recognize that licensing require- ments and scope-of-practice policies can have valid consumer protection justifi- cations. Some circumstances and tasks require the knowledge and skill of a person trained in the law. Policies to protect con- sumers in such situations are legitimate.” Where does this leave the organized bar–and the individual lawyer? First, we must now add anti-trust issues when considering the problem of access to law. The bar must use common sense on when to assert the issue of unauthorized practice. Merely because a person provides a service that involves the application of the law does not necessarily mean that the person is practicing law. As the letter states, we must ask whether there is the application of specialized legal knowledge and whether an attorney-client relation- ship exists. As individual practitioners, we must recognize that there will be downward pressure on business in those areas of the practice than can be adequately provided by trained para-professionals or smart computer programs. ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit- tee can help. Submit hypothetical questions to Loretta Wells, CBA Government Affairs Direc- tor, by fax 312/554-2054 or e-mail lwells@ chicagobar.org.

offers consumers access to interactive soft- ware that generates a legal document based on the consumer’s answers to questions presented by the software.” Certain con- sumer protections were also to be included. The enabling legislation was in the form of North Carolina House Bill 436. On June 10, 2016, the staffs of the Fed- eral Trade Commission and the Antitrust Division of the Department of Justice sent a joint letter to the North Carolina State Senate supporting House Bill 436 and sharing their views on the definition of the practice of law. While not directly appli- cable to Illinois, the letter shows trends in current thinking. Crisis in Access to Legal Services The letter states that there is “a well-known crisis in access to legal services for millions of American consumers, especially for low- and middle-income people. Surveys have repeatedly shown that many low- and middle-income Americans cannot afford the services of a licensed attorney, despite a generally increasing number of lawyers. This seeming paradox of unmet legal needs and an abundance of lawyers continues to persist.” The letter also states–as a general princi- ple–that the “staff believe that ‘the practice of law’ should mean activities for which specialized legal knowledge and training is demonstrably necessary to protect consum- ers and an attorney-client relationship is present. Overbroad scope-of-practice and unauthorized-practice-of-law policies can restrict competition between licensed attor- neys and non-attorney providers of legal services, increasing the prices consumers

viduals out of the market for legal services and how technology might help ameliorate this situation. In January 2016, this column discussed the 2015 U.S. Supreme Court case of North Carolina Board of Dental Examiners v. FTC, which holds that a state regulatory board is subject to the antitrust provisions of the Sherman Act if the board members are active participants in the industry regulated by the board. These seemingly disparate elements came together in the context of the conflict between Legal- Zoom.com Inc. and the North Carolina State Bar over whether LegalZoom’s web- based services were the practice of law. LegalZoom and the North Carolina Bar had been at odds over whether LegalZoom’s activities were the unauthorized practice of law in North Carolina. Following the decision in North Carolina Board of Dental Examiners v. FTC , LegalZoom sued the North Carolina State Bar for damages for “unlawful monopolization” under the Sherman Act. This suit prompted a settle- ment between the State Bar and LegalZoom under which, in part, the parties agreed to support legislation amending the defini- tion of the “practice of law” to exclude the “operation of a Web site by a provider that John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

50 OCTOBER 2016