Regulating Electronic Legal Support Across State and National Boundaries

Abstract

Technology and globalization are changing the practice of law and creating new challenges for lawyer regulation. Middle-class litigants who struggle to afford legal services — but are comfortable using online resources — are increasingly seeking and finding legal support online. State and national boundaries dissolve in the online marketplace, making it easy for attorneys to provide services to litigants in other jurisdictions. Differences in national economies make it cost effective for both clients and lawyers to engage in transnational practice, so that attorneys in India and other jurisdictions can offer legal support and advice to American litigants for as little as $22 an hour, and paraprofessionals for less than $10 an hour — significantly less than the $150-an-hour billing floor found in many U.S. jurisdictions. The growing globalization of online legal services suggests that bar regulators who truly want to protect the public will have to become more open to onshore computer-assisted legal services.

This article, prepared for the University of Akron’s Miler-Becker Symposium “Navigating the Practice of Law in the Wake of Ethics 20/20: Globalization, New Technologies, and What it Means to be a Lawyer in These Uncertain Times,” argues that these changing practices will require significant collaboration between online legal service providers and bar regulatory officials. This relationship, however, has not always been a good one. Many jurisdictions have only reluctantly allowed attorneys to provide limited representation to pro se litigants, and states have objected even more forcefully to electronic legal assistance, charging companies like LegalZoom under laws prohibiting the unauthorized practice of law. These efforts, though aimed at the protecting the public, also contain an element of protectionism — and the line between protecting the public and protecting lawyers’ economic livelihoods is not an easy one to draw.

Nevertheless, there is room for collaboration: both legal regulators and the online intermediaries that facilitate lawyer-client connections would benefit from identifying and excluding harmful or fraudulent actors. It is true that individual clients may not be able to evaluate the quality of the legal services they have been provided. After all, the very theory of lawyer regulation is founded on the notion that clients cannot themselves evaluate the quality of the professional they hire, and so the market cannot ensure a base level of quality — regulation must do that. But in the aggregate, some of the online services call that assumption into question. By crowdsourcing and publicizing a wealth of information about legal service providers’ job history and client satisfaction, these sites offer prospective clients a much more effective way to evaluate potential attorneys. Although regulatory officials are unlikely to be able to stem the flood of online legal service providers, they can also use these pre-existing informational networks to assist in their public protection efforts.

Keywords: Technology, Globalization, Legal Ethics, Litigation, Access to

JEL Classification: K41