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Think Legal Ethics Rules Hold You Back? 5 Ways to Test Your Ideas

By Megan Zavieh

Frequently, I speak with lawyers with grand ideas. Also frequently, when these lawyers present their ideas, they preface it with something like, “If the rules would let me I would [big idea].” Or they end with, “But of course I can’t because of the ethics rules.”

I’ve talked before about the misperception that the ethics rules are what hold lawyers back from innovation.

Can I Do That?

Risk-averse lawyers fear the ethics rules and use them as a crutch to bolster their belief that they cannot buck trends or go outside the norms of traditional law practice. So if you want to challenge this notion that the rules prohibit your grand idea of how to innovate in the delivery of legal services, here are five steps to take.

(Jess Birken and I ran through this on an episode of “Lawyers Gone Ethical” and I mentioned it during a brief Facebook Live interview with Kevin O’Keefe while at Clio Cloud Conference.)

Five Ways to Vet Your Big Idea

1. Analyze whether the thing you are considering doing is practicing law.

The ethics rules regulate the practice of law. They have some applicability to lawyers engaged in other activities (see your state’s version of ABA Model Rule 5.7), but it is a threshold question whether you are practicing law in your innovation. Not everything law-related is practicing law. You may have much more freedom than you think.

2. Read the ethics rules.

It amazes me how many lawyers have not actually read the ethics rules in their state. They may not say what you think they do. Read them in their entirety, and read the comments, too. When you have read them and identified those that concern you with your innovation, learn more about those rules. Good places to look are ethics opinions in your state and at the ABA level concerning those specific rules.

3. Look at the competition.

Unless your idea is completely novel, someone out there is probably working on an iteration of it. They probably also have ethics concerns. Many innovators will address ethics issues directly on their websites. For example, LawClerk has extensive information on the ethics of outsourcing substantive legal work.  These other innovators will often provide some initial shortcuts for you in your own analysis.

4. Consult an ethics lawyer.

Find someone in your state who makes it their practice to geek out on the ethics rules. A good resource is the Association of Professional Responsibility Lawyers (APRL) where you can locate lawyers around the country.

5. Iterate.

When you have identified the real issues (if there are any) and gathered the relevant authorities, go back to your idea. Perhaps the original version is totally prohibited by the ethics rules after all; iterate on it. Consider alternatives, figure out workarounds. Go back to the original purpose of the innovation and see how else you can achieve it without running afoul of the issues you have encountered. And when you have revamped the idea, go back to step 1.

Don’t Do This

It is only fitting that the list of things to do be followed by two things not to do.

  1. Do not ask only your friends. If ethics is not their specialty, you will not get a definitive answer. Ask them, but use their information only as guidance in the overall analysis. A friend saying you can or cannot do something is not going to save you down the road.
  2. Do not assume the competition has it right. I highly recommend looking to the competition for guidance, but do not assume that they are doing things properly or have come to the right conclusions in their analysis. Not everyone has put as much thought and effort into this as you are doing.

Take Heart: Innovation Is All Around Us

The ethics rules are a necessary component of the regulation of our profession, but their true aim is to protect the public, not stifle innovation.

Even without the regulatory reforms currently being considered around the country, a ton of innovation has been happening over the past several years. These innovators are not all violating ethics rules. So do not dismiss your idea without giving it the analysis it deserves.

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. Her latest book, “The Modern Lawyer: Ethics and Technology in an Evolving World,” (ABA 2021 ) covers how to run a modern practice while staying in line with current ethics rules. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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