On the 16th December 2020 the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility released a formal opinion to help lawyers to better understand the application of model rules to lawyers practising remotely, this is particularly for those working from jurisdictions in which they are not licensed.
Formal Opinion 495 provides guidance when a lawyer may practice the law for which they are licensed while physically in a different jurisdiction. The guidance has stated that if a lawyer is physically present in a jurisdiction in which they are not licensed to practice — and the local jurisdiction has not determined such practice is unauthorized – the lawyer may practice if they meet the following guidelines:
- They do not establish an office or other systematic presence in that local jurisdiction.
They do not “hold out” a presence or availability to perform legal services in that local jurisdiction.
They do not actually provide legal services for matters in that local jurisdiction.
The opinion notes that providing local contact information on websites, letterhead, business cards or advertising are examples of communications that would improperly suggest a local office or local presence.
Read the full guidance here.
A challenge against a ‘legal bot’ mounted by the Hanseatic Bar Association Hamburg – a self-governing body representing over 10,000 lawyers in Hamburg, has proved successful in the regional court of Cologne. In October the court found that the bot, an online contract generator, was in effect providing legal services. They ruled that this was in breach of German laws on the unauthorised practice of law.
For more information click here.
The Law Society of Saskatchewan has announced amendments to the Legal Profession Act, 1990, effective from 1 January 2020. The Law Society is an independent regulator with the core mandate of the protection of public interest.
In 2017 the Law Society and the Ministry of Justice established the Legal Services Task Team, comprised of lawyers, member of the public and other non-lawyers working in legal services, as part of the strategic plan to increase access to legal services. The task team was asked to explore the possibility of non-lawyers being allowed to provide low-risk legal services.
The team’s recommendations included clarifying the definition of the practice of law, and identifying what constituted unauthorised practice of law; expanding the list of exemptions to the unauthorised practice provisions; and creating limited licenses that may be granted by the Law Society on a case-by-case basis.
Amendments to the Act which have been introduced include: a clearer definition of the practice of law and allowing limited licensing, the first example of this approach in Canada. The Law Society of Saskatchewan Rules were also amended to include an expanded list of exemptions to unauthorised practice. The Law Society is attempting to identify further groups and individuals providing limited legal services, who are not lawyers, that may not fall neatly within the new list of exemptions.
The Society is hoping to encourage low-risk providers to self identify to be considered for exemptions, especially as the Society has historically not pursued low-risk providers. The Society feels that self-identification will allow for more effective management and regulation of such providers.
Further information about the reforms is available here.
What are the ethical implications for lawyer mediators, arbitrators and dispute resolution providers when the lines between the roles of lawyers and the non-lawyers who are representing clients in dispute resolution become blurry? Traditionally, non-lawyer advocates (hereinafter NARs) have represented clients in the negotiations, mediation and arbitration of legal matters without cause for concern. Yes, labor union representatives, sports agents, and special education advocates are three familiar examples of non-lawyers who represent clients in negotiations, mediations and arbitrations, informing clients of their legal rights. Routinely, the lawyers and neutrals presiding over the dispute resolution procedure have warmly welcomed these non-lawyers, viewing these non-lawyers as valued participants who provide their clients beneficial subject matter expertise to help resolve the legal dispute at hand. However, that welcome has now turned tepid and tentative as FINRA and its neutrals question the ethics of some of those non-lawyers who are representing clients in FINRA arbitration.
The FINRA-NAR issue is actually a reflection of a broader problem: How do we ensure access to justice for all? For many, the escalating costs of retaining lawyers presents a barrier in their quest to access justice. In lieu of lawyers, some are seeking a more affordable alternative and are turning to NARs. This topic calls into question whether we truly believe in the clients’ right to self-determination in which they are free to choose their own representative when participating in a dispute resolution procedure or whether we adopt a more maternalistic stance, believing clients need to be protected when selecting a representative.
We are also forced to confront the limitations of access to justice for all and the remedies we are willing to support to right this egregious wrong. Yes, this problem is also entrenched in the politics of maintaining the exclusivity of the legal profession. Ultimately, however, this issue forces us to personally consider as lawyer mediators and arbitrators what it means to us to maintain a dispute resolution procedure of integrity.
Download full paper
Citation: Greenberg, Elayne E., Acts Like a Lawyer, Talks Like a Lawyer…Non-Lawyer Advocates Representing Parties in Dispute Resolution (Spring 2018). NYSBA New York Dispute Resolution Lawyer | Spring 2018 | Vol. 11 | No. 1; St. John’s Legal Studies Research Paper.