The legal services market has not been immune from “uberization.”1 In economic terms, uberize means “to modify a market or economic model by the introduction of a cheap and efficient alternative”2 or “to change the market for a service by introducing a different way of buying or using it, especially using mobile technology.”3
Many consumers of legal services are cost conscious: they want “unbundled” or limited-scope services, and they want to pay a flat, rather than an hourly, fee. They also want speed and convenience. The new virtual marketplaces are seen as economical ways to connect lawyers with these consumers.4 In response, Avvo, the world’s largest legal directory, launched Avvo Legal Services, sometimes called the Uber of legal services.5
Avvo Legal Services is “a range of fixed-fee, limited-scope legal services determined by Avvo and fulfilled by local attorneys.”6 The lawyer chooses which services he or she wants to offer on Avvo. A client buys a service, and Avvo sends the lawyer the client’s information. The lawyer calls the client and completes the service. Avvo then sends the lawyer the full legal fee, and as a separate transaction, the lawyer pays Avvo a per-service marketing fee.7
In its letter inviting some Wisconsin lawyers to participate, Avvo provided the following examples of the services and the fees:
“1. Living trust document review / $199 client payment / $50 marketing fee; 2. Commercial lease agreement review / $495 client payment / $150 marketing fee; 3. Create a living trust (couple) / $1095 client payment / $300 marketing fee; 4. Setup commercial lease agreement / $1295 client payment / $225 marketing fee.”
Avvo envisions its Legal Services division as a benefit to both clients and lawyers. For lawyers, “it will help them build their practices and recapture a part of the market that is being lost to do-it-yourself legal sites and services.” It also solves three of the biggest problems for lawyers: “Getting clients, billing and getting paid.”8 For clients, “it enables them to access services at a price that is both affordable and fixed and to understand exactly what services they are purchasing.”9
According to Avvo’s website, Avvo Legal Services is available in the following states: Arizona, California, Colorado, Florida, Georgia, Illinois, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Nevada, New Hampshire, North Carolina, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Utah, Virginia, Washington, and Wisconsin.10
Since July 2016, however, three ethics opinions have concluded that lawyers who participate in such a program would violate ethics rules that prohibit fee sharing with nonlawyers and would risk violating several other rules.11 While none of the ethics opinions mention Avvo, the facts of each opinion are modeled on Avvo Legal Services. These ethics opinions and some of the potentially relevant rules of professional conduct are discussed below. This discussion is designed to inform Wisconsin lawyers of the ethical concerns that have been raised regarding virtual legal marketplaces such as Avvo. It is also designed to facilitate a broader discussion of these marketplaces.
Flouting the Rules: Spontaneous Private Deregulation
Disregarding existing regulations is a key element of some contemporary business models.
Many successful platform businesses, such as Uber and Airbnb, openly disregard existing laws and regulations, which are seen as obsolete and as roadblocks to innovation. This “rule-flouting” phenomenon has been coined “spontaneous private deregulation.”30
Spontaneous private deregulation is increasing as business platforms circumvent regulations that make traditional businesses less competitive. “Today platforms such as Uber launch new transportation services with or without licenses, while Airbnb hosts skip the taxes, zoning, and safety protections that add complexity and expense to the hotel business. Other new platforms offer prepared foods without meeting the requirements that apply to restaurants regarding health inspections, food safety training, zoning, and taxation.”31
Some types of businesses are more susceptible to spontaneous private deregulation than others. Business may be more susceptible when the need for governmental regulation is minimal and when governmental regulation is ineffective.32 While governmental regulation is intended to protect consumers by providing some objective measure of quality, many successful platforms, such as Uber and Airbnb, claim that governmental regulation is ineffective and that consumers are being unnecessarily protected. These platforms argue that “consumers can dispense with traditional protections because the platform offers an alternative, possibly superior protection mechanism,” such as an online reputation system.33
Some types of businesses are also more susceptible to spontaneous private deregulation when the governmental regulation, which is intended to protect consumers, protects license holders from competition, especially when the consumers can easily acquire the necessary information.34 Information that was traditionally available to only those who held licenses is now available to everyone on the internet.
The practice of law is not immune. “For example, many lawyers perform services that don’t really require the personal engagement of an expensive trained professional.… Routine legal transactions are likewise becoming manageable without three years of law school, thanks to digital tools.”35
As platform-based businesses and technological innovations continue to increase, the practice of law – like other types of business – must address the challenges created by the changing business norms and the sources of competition.
Fee Sharing with Nonlawyers: SCR 20:5.4(a)
SCR 20:5.4(a) prohibits a lawyer from sharing legal fees with a nonlawyer, subject to certain limited exceptions. The exceptions fall into three general categories: payments to a deceased lawyer’s estate, payments to nonlawyer employees in a compensation or retirement plan, and payments of a share of court-awarded legal fees to a nonprofit organization that employed, retained, or recommended that lawyer in the matter. None of the exceptions apply to Avvo Legal Services.
Ethics opinions have considered compensation arrangements such as Avvo’s. These opinions “have concluded that marketing, advertising, or referral fees paid to for-profit enterprises that are based upon whether a lawyer received any matters, or how many matters were received, or how much revenue was generated by the matters, constitute impermissible fee sharing.”12
Avvo addresses the question of fee splitting on the “Attorney FAQ for Avvo Legal Services” portion of its website.
“Should I be concerned about fee-splitting?
“No. Avvo always sends you 100% of the client’s payment to the account you’ve chosen for deposits – probably your client trust account. As a separate transaction, you will pay a per-service marketing fee from your operating account. As a completely separate transaction, you will pay a per-service marketing fee.
“We know this issue is extremely important to participating attorneys. Here’s what ethics expert and Avvo’s Chief Legal Officer Josh King says on the matter:
‘Fee splits are not inherently unethical. They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment. We believe that Avvo Legal Services fees, if deducted like credit card fees, would involve the sort of technical fee split that would not create such a potential for compromise. Nonetheless, we have tried to keep things simple and clear by making the per-service marketing fee a separate charge from your operating account.’”
The fact that Avvo is paid by the lawyer in a separate transaction does not mean that the arrangement is not fee splitting: the way in which the payments are structured is not dispositive. “A lawyer cannot do indirectly what would be prohibited if done directly. Allowing [Avvo] to indirectly take a portion of the attorney’s fee by disguising it in two separate transactions does not negate the fact that [Avvo] is claiming a certain portion of the fee earned by the lawyer as its “per service marketing fee.”13
Avvo relies on the ABA Comment to Rule 5.4, which states that the limitations on fee sharing are to protect the lawyer’s professional independence of judgment. While the comments are intended as guides to interpretation, “the text of each rule is authoritative.”14 SCR 20:5.4(a), as written, does not permit a lawyer to split fees with a nonlawyer unless the split comes within one of the limited exceptions.
The primary policy underlying SCR 20:5.4(a) is the preservation of the lawyer’s professional independence. However, “the assumption that the lawyer’s payment to a non-lawyer of marketing fees amounting to 20% to 30% of legal fees earned does not interfere with the lawyer’s professional independence is, at a minimum, of questionable validity.”15 Avvo, not the lawyer, defines the type of services offered and determines the scope of the representation and the fees charged. As Ohio Supreme Court Board of Professional Conduct Opinion 2016-3 concludes: “The model is antithetical to the core components of the client-lawyer relationship because the lawyer’s exercise of independent professional judgment on behalf of the client is eviscerated.”16
Online Dispute Resolution: Internet Justice
Online dispute resolution, which uses artificial intelligence, is no longer cutting-edge technology, but, like other technological innovations and platform-based businesses, it will continue to create challenges for lawyers.
Online dispute resolution (ODR) began in the 1990s as a way to resolve disputes arising from online or e-commerce transactions and was primarily used by companies such as eBay and Amazon. It was seen as an online form of alternative dispute resolution: a way for private parties to work outside of the traditional adversarial format of the courts, using mechanisms such as arbitration or mediation to resolve issues.
ODR, however, is a distinct type of alternative dispute resolution because it involves the use of artificial intelligence to resolve a variety of dispute types online. For example, the Modria Platform was “built by the team that created the world’s largest online dispute resolution systems at eBay and PayPal that process 60 million cases per year.”36
While ODR is new for courts, it has become central to the discussion of the future of courts as a way of expanding services. Today, ODR is being piloted by the courts in minor criminal cases such as traffic violations or code enforcement violations, mediation, and binding resolution of disputes of many types including landlord-tenant, small claims, and domestic disputes.37
Reasonable Costs of Advertising: SCR 20:7.2(b)(1)
Lawyers are permitted by SCR 20:7.2(b)(1) “to pay the reasonable costs of advertisements.” Marketing fees calculated on the amount of the fee generated by a matter cannot be justified as the cost of advertising: the cost of advertising does not vary depending on the amount of legal fees generated.17
Pennsylvania Ethics Opinion 2016-200 provided the following analysis of a program that is based on Avvo Legal Services:
“[The] program charges participating lawyers ‘marketing fees’ ranging from $10 for a $39 ‘Advice Session’ to $400 for a ‘Green Card Application, which generates $2,995 in legal fees. Clearly, there cannot be a 4000% variance in the operator’s advertising and administrative costs for these two services, particularly since the operator does not, and cannot, have any role in the actual delivery of legal services. The variation in the amount of the marketing fees based upon the amount of the fees earned by the lawyer establishes that the non-lawyer business is participating directly in, and sharing in, the fee income derived by the lawyer. This is impermissible fee sharing under RPC 5.4(a).”18
Avvo does not advertise on behalf of a particular lawyer; instead, it advertises its own services.19
Paying for Recommending a Lawyer’s Services: SCR 20:7.2(b)
SCR 20:7.2(b) prohibits a lawyer from paying a person to recommend the lawyer’s services. Recommendation is defined in ABA Comment  to SCR 20:7.2. “A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.”20
On its website, Avvo states: “Work with highly rated lawyers, local lawyers near you.” Individual lawyer profiles prominently feature “star ratings,” on a scale from one to five stars, as well as the lawyer’s “score,” on Avvo’s proprietary “1 to 10” numerical rating system. Based on these facts (without using Avvo’s name), Pennsylvania Ethics Opinion 2016-200, issued in September 2016, concluded that “[s]uch communications fit the definition of ‘recommendations’ in the Comment.”
In addition, one of Avvo Legal Services’ FAQs is the following: “Will my attorney have the right skills and experience?”The response states: “We only work with highly qualified attorneys who are licensed to practice in your state and who have chosen to offer fixed-fee legal services.”21 ABA Comment  cautions: “To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it … has analyzed a person’s legal problems when determining which lawyer should receive the referral.”
Lawyer Referral Services: SCR 20:7.2(b)(2)
In Wisconsin, lawyer referral services are limited to those authorized by SCR 20:7.2(b)(2): nonprofit lawyer referral services or qualified lawyer referral services, which have been approved by an appropriate regulatory authority. Avvo Legal Services is neither a nonprofit lawyer referral service nor a qualified lawyer referral service.
Avvo Legal Services states that it is not acting as a lawyer referral service. “Avvo Legal Services is not a referral service. An LRS connects potential clients to lawyers based on an exercise of discretion within stated guidelines (with all of the attendant consumer harm and deception that can come from that). Avvo Legal Services is a marketplace where potential clients can choose among any of the participating attorneys.”22
The Wisconsin Rules of Professional Conduct do not define “lawyer referral service,” although other jurisdictions do. For example, rule 7.7(b) of the Pennsylvania Rules of Professional Conduct states: “A ‘lawyer referral service’ is any person, group of persons, association, organization or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers.”
Florida shares that definition, but adds the following: “or any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program.”23 If Avvo operates as a lawyer referral service, even though it calls itself a marketplace, then it must comply with SCR 20:7.2(b)(2).
Limited-scope Representation: SCR 20:1.2(c)
SCR 20:1.2(c) permits lawyers to limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. The informed consent must be in writing, except in limited instances.
Informed consent, as defined in SCR 20:1.0(f), “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” ABA Comment , which follows SCR 20:1.0, explains:
“… The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives….”
When a consumer contacts Avvo Legal Services seeking legal services, Avvo, as a nonlawyer, cannot properly assess whether the limited scope representation is reasonable, within the meaning of SCR 20:1.2(c), given the customer’s particular circumstances, and cannot properly obtain the consumer’s informed consent. “The responsibility to determine whether the prospective limited scope representation is appropriate for the prospective client, and whether the limitations are reasonable under the circumstances, falls solely on the lawyer who proposes to undertake the representation, as does the obligation to secure the prospective client’s informed consent to the limitations.”24
Advanced or Unearned Fees: SCR 20:1.5(f), (g), and (h)
Lawyers are required by SCR 20:1.5(f) to hold unearned or advanced fees in trust.25 A lawyer who accepts unearned or advanced fees may deposit the funds in the lawyer’s business account, provided the lawyer complies with the alternative protection provisions required by SCR 20:1.5(g).26 In addition, SCR 20:1.5(h) establishes the requirements for disbursing earned fees from the trust account.27
The fee rule does not permit the delegation of the possession and distribution of unearned or advanced fees. This delegation may also interfere with the lawyer’s obligations under SCR 20:1.16(d), which requires a lawyer to refund any advanced payment of a fee that has not been earned.
As the Rules of Professional Conduct currently exist, the arrangement between Avvo Legal Services and a Wisconsin lawyer raises several ethical concerns. This conclusion is not a value judgment about the quality of Avvo Legal Services or about the “uberization” of legal services: expanding access to legal services is a crucial goal of the legal profession.
Susan Cartier Liebel, a Connecticut family law attorney and the founder and CEO of Solo Practice University® (a company that educates solo practitioners about the issues and difficulties they will face in hanging a shingle) acknowledges that “there is no getting around the fact that Avvo Legal Services in its current form runs afoul of the ethics rules that govern fee-splitting and client trust accounts, at minimum.”28
“There are two different issues,” Liebel said. “As the rules stand, [the Avvo program] violates the rules. But should the rules still stand? That’s the bigger question.”29 As virtual marketplaces and technological innovations continue to increase, and as the business norms and sources of competition continue to change, perhaps it is time to discuss that “bigger question.”
1 www.elawyeringredux.com/2015/06/articles/law-startups/the-uberization-of-legal-services/; http://estrinlegaled.typepad.com/my_weblog/2015/06/the-uberization-of-legal-services-why-ignoring-it-wipes-you-out-of-the-field.html; www.translatemedia.com/us/blog-usa/uberization-legal-services-can-work/; www.lawtender.com/the-uberization-of-legal-services/.
4 For a few of these marketplaces, see RocketLawyer, LegalZoom, LegalHero, LawDingo, and Hire an Esquire. While each virtual marketplace or platform may offer similar basic services, the details of how each marketplace or platform operates do differ. Consequently, the rules may apply differently.
8 According to Avvo CEO Mark Britto: “The beauty here is we get them the customer, we get the cash up front, and they don’t have to worry about billing or tracking time. This is a shortcut to everything practice management software does. You’ve been paid and you know the services you’re delivering. What could be easier?”
9 Id. According to Avvo CEO Mark Britto: “We say to the consumer, ‘OK, we’ll tell you what it will cost, and we’ll tell you what the lawyer will do. We take down all the friction points and get the two of you together.’”
11Pa. Bar Ass’n Comm. on Legal Ethics & Prof’l Responsibility, Formal Op. 2016-200, 9/16, (hereinafter Pennsylvania opinion); Ohio Supreme Court Board of Professional Conduct Op. 2016-3, (hereinafter Ohio opinion); South Carolina Ethics Op. 16-06 (2016), (hereinafter South Carolina opinion).
12 Pennsyvania opinion, supra note 11 (citing Ohio opinion, supra note 11); South Carolina opinion, supra note 11.
13 South Carolina opinion, supra note 11.
14 ABA Model Rules of Professional Conduct Preamble and Scope .
15 Pennsylvania opinion, supra note 11.
16 Ohio opinion, supra note 11.
17 Pennsylvania opinion, supra note 11.
19 Pennsylvania opinion, supra note 11.
20 ABA Comment  states:
“Paying Others to Recommend a Lawyer
 Except as permitted under paragraphs (b)(1)-(b)(4), lawyers are not permitted to pay others for recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client development services, such as publicists, public-relations personnel, business-development staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another).”
22 Comment of Josh King, Avvo chief legal officer.
23 For example, Florida Rules of Professional Conduct 4-7.22(c) defines lawyer referral service.
“Definition of Lawyer Referral Service.
A ‘lawyer referral service’ is:
(1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or
(2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program.”
24 Pennsylvania opinion, supra note 11.
25 SCR 20:1.5(f) states: “Except as provided in SCR 20:1.5(g), unearned fees and funds advanced by a client or 3rd party for payment of fees shall be held in trust until earned by the lawyer, and withdrawn pursuant to SCR 20:1.5(h).”
26 SCR 20:1.5(g) states:
“(g) A lawyer who accepts advanced payments of fees may deposit the funds in the lawyer’s business account, provided that review of the lawyer’s fee by a court of competent jurisdiction is available in the proceeding to which the fee relates, or provided that the lawyer complies with each of the following requirements:
(1) Upon accepting any advanced payment of fees pursuant to this subsection, the lawyer shall deliver to the client a notice in writing containing all of the following information:
a. The amount of the advanced payment.
b. The basis or rate of the lawyer’s fee.
c. Any expenses for which the client will be responsible.
d. The lawyer’s obligation to refund any unearned advanced fee, along with an accounting, at the termination of the representation.
e. The lawyer’s obligation to submit any unresolved dispute about the fee to binding arbitration within 30 days of receiving written notice of the dispute.
f. The ability of the client to file a claim with the Wisconsin Lawyers’ Fund for Client Protection if the lawyer fails to provide a refund of unearned advanced fees.
(2) Upon termination of the representation, the lawyer shall deliver to the client in writing all of the following:
a. A final accounting, or an accounting from the date of the lawyer’s most recent statement to the end of the representation, regarding the client’s advanced fee payment.
b. A refund of any unearned advanced fees and costs.
c. Notice that, if the client disputes the amount of the fee and wants that dispute to be submitted to binding arbitration, the client must provide written notice of the dispute to the lawyer within 30 days of the mailing of the accounting.
d. Notice that, if the lawyer is unable to resolve the dispute to the satisfaction of the client within 30 days after receiving notice of the dispute from the client, the lawyer shall submit the dispute to binding arbitration.
(3) Upon timely receipt of written notice of a dispute from the client, the lawyer shall attempt to resolve that dispute with the client, and if the dispute is not resolved, the lawyer shall submit the dispute to binding arbitration with the State Bar Fee Arbitration Program or a similar local bar association program within 30 days of the lawyer’s receipt of the written notice of dispute from the client.
(4) Upon receipt of an arbitration award requiring the lawyer to make a payment to the client, the lawyer shall pay the arbitration award within 30 days, unless the client fails to agree to be bound by the award of the arbitrator.
27 SCR 20:1.5(h) states:
“(1) At least 5 business days before the date on which a disbursement is made from a trust account for the purpose of paying fees, with the exception of contingent fees or fees paid pursuant to court order, a lawyer shall transmit to the client in writing all of the following:
a. An itemized bill or other accounting showing the services rendered.
b. Notice of the amount owed and the anticipated date of the withdrawal.
c. A statement of the balance of the client’s funds in the lawyer’s trust account after the withdrawal.
(2) The lawyer may withdraw earned fees on the date that the invoice is transmitted to the client, provided that the lawyer has given prior notice to the client in writing that earned fees will be withdrawn on the date that the invoice is transmitted. The invoice shall include each of the elements required under SCR 20:1.5 (h)(1).
(3) If a client makes a particularized and reasonable objection to the disbursement described in SCR 20:1.5(h)(1), the disputed portion shall remain in the trust account until the dispute is resolved. If the client makes a particularized and reasonable objection to a disbursement described in SCR 20:1.5(h)(1) or (2) within 30 days after the funds have been withdrawn, the disputed portion shall be returned to the trust account until the dispute is resolved, unless the lawyer reasonably believes that the client’s objections do not present a basis to hold funds in trust or return funds to the trust account under SCR 20:1.5(h). The lawyer will be presumed to have a reasonable basis for declining to return funds to trust if the disbursement was made with the client’s informed consent, in writing. The lawyer shall promptly advise the client in writing of the lawyer’s position regarding the fee and make reasonable efforts to clarify and address the client’s objections.”
30 Benjamin Edelman & Damien Geradin, “Spontaneous Deregulation.”
36 Modria has termed itself “the Internet’s justice system.” http://modria.com/product/.
37 Joint Technology Committee (JTC) established by the Conference of State Court Administrators (COSCA), the National Association for Court Management (NACM), and the National Center for State Courts (NCSC), “Online Dispute Resolution and the Courts” (Version 1.0, adopted Nov. 30, 2016).