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Solo and small firm lawyers account for roughly 65 percent of all attorneys. Still, not all solos and smalls innovate – some are simply too busy serving clients; others are too practical to innovate just for the sake of looking cool. But there’s another far more serious obstacle to solo and small firm innovation that many futurists overlook: ethics regulations which have a chilling effect on solo and small firm lawyers, according to the article What’s Needed for Solos & Smalls To Innovate? A Legal Ethics Safe Harbor & Crowdsourced Ethics via myShingle.com.
According to the article, it’s no coincidence that many of the innovations in the legal profession are non-law firm entities that aren’t subject to ethics rules. As a result, these companies can push the ethics envelope without fear of serious repercussions. By contrast, if a solo or small firms experiment with a new approach to serving clients, like a virtual office space or a networking arrangement, they can lose their license or reputation if it turns out they made the wrong call (like the Connecticut solos who were prosecuted for ethics violations for participating in Total Attorneys’ lead gen program).
So what guidance can be provided to solos and smalls, as well as insulation from punishment making the wrong decision? The article goes on to say there are 2 ways – ethics safe harbors and crowdsourcing ethics opinions.
1. Ethics Safe Harbor: States would create a safe harbor within ethics rules to protect lawyers from disciplinary sanctions if they can demonstrate that they were diligent in researching the ethics rules associated with their action and made a reasonable decision based on their analysis. A call to the ethics hotline would not suffice to trigger the safe harbor; rather, lawyers would need to produce a formal opinion letter from an ethics attorney or submit their own research and analysis of the issues.
2. Crowdsourced Ethics: A safe harbor protects solos and smalls who make the wrong choice – but it won’t necessarily advance the state of the law or provide broader guidance. That’s where ethics crowdsourcing comes in. Lawyers could select a question to research and analyze in exchange for CLE credit. Lawyers from different jurisdictions could also work together to collaborate on a single analysis instead of having a separate decision issue from each state. Over time, the profession would develop a body of advisory law on ethics that would evolve with new technologic developments while educating lawyers and providing them with real guidance.
If solos and smalls really want innovation to happen while protecting what makes the profession special (confidentiality, loyalty to the client, competency and zealous representation, among other things), they need to make legal ethics and compliance more manageable. Ethics safe harbors and crowdsourcing ethics analysis are one way to bring more lawyers on board and more importantly, to preserve what’s best about the legal profession rather than destroy it entirely.
What do you think? Are restrictions around safe harbor and crowdsourcing ethics holding you or your firm back from innovating?