Barn's burnt down
I can see the Moon.
~ Mizuta Masahide

Thursday, January 22, 2015

Crowdsourcing #A2J: Some thoughts on @CrowdDefend & the strategic use of #collcons & the #sharingeconomy

Yesterday, I learned about the launch of CrowdDefend, a new platform combining crowdfunding and impact legislation. This appears to be a desperately needed tool for leveling the playing field, first for socially important litigation and second (perhaps) for private lawsuits in which a monied party uses or threatens to use litigation strategies to bully the other party into submission (by either dropping the case or settling). It is an important companion piece to low-bono, pro-bono, and law school legal clinic solutions.

And it also illustrates the expanding application of the ethics of care at the heart of the outcomes-oriented sharing economy, which strives to use transactions as a means of developing a more equitable, just, sustainable and resilient society. With CrowdDefend, that ethic can be taken to another systemic level, improving social justice outcomes in our case law.

Okay, so maybe that's a bit of an overstatement for a two-day old startup, because CrowdDefend is currently an invite-only crowdfunding platform. BUT it is a perfectly reasonable statement if one takes the long view and CrowdDefend figures out how to last.

Nevertheless, as a legal eaglet and Reinvent Law devotee, I have some concerns, chiefly: what if the campaign owners (the folks who launch a case crowdfunding campaign) are the attorneys of record on the case? Some of my anxiety below is admittedly the pre-emptive nail-biting of a newbie; hopefully, as CrowdDefend evolves and grows, some (if not all) of my concerns will be rendered moot.

  • Privilege, Confidentiality and Trial Publicity. Any lawyer who ends up using CrowdDefend as a campaign owner will need to pay extra attention to the attorney/client privilege and confidentiality requirements in Model Rule 1.6 (c): "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."
  • Attorney commentary about the profession. Imprudent discussion of the counsel or judges involved in a case could also land the attorney in hot water, per Model Rule 8.2 (and maybe 3.5 a wee bit).
  • Justice or Advertising? While CrowdDefend is focused on the justice needs of clients, I wonder if it might not run the risk of becoming a form of attorney advertising deemed "undignified" by some jurisdictions. There are bound to be some attorneys who will reference their use of CrowdDefend in advertising material about their professional services and the strategies they will pursue to help their clients. The problem may arise (and perhaps should arise) when the attorney has more skill for launching a campaign than for raising funds for his clients' case. And if the attorney is the campaign owner, rather than the client, then the ethics can become especially hairy if the attorney offers levels of "perks" as authorized in the CrowdDefend Terms of Use. Provided the perks don't amount to coupons or gift certificates for the attorney's professional services, then they shouldn't be considered "advertising" under the current Model Rule 7.2, but using CrowdDefend would, nevertheless increase the attorney's professional visibility.
  • Fee-Sharing. CrowdDefend charges campaign owners a flat 7% fee on funds generated through the campaigns.  Model Rule 5.4 always surfaces in discussions around law firm capitalization and ownership, and here it has bearing on the actual cases. Does that fee constitute a kind of fee-sharing arrangement since the total amount paid would vary based on the amount of money raised (with the balance going towards covering the attorney's litigation costs)? Or would that 7%fee be considered an incidental expense for the matter?

Presumably the lawyer(s) would have their clients' informed consent prior to using CrowdDefend for their case. But one of the "perks" of donating to a CrowdDefend case, according to CrowdDefend's marketing, is that the donor will receive updates about the crowdfunding campaign and the case.
Certainly, it is possible to provide updates that are largely procedural rather than substantive because attorneys do that all the time, in compliance with Model Rule 3.6. But imprudent management of case information online could have such significant consequences (including the loss of privilege protection) due to the reach of the internet and information caching online.
If ever there were an innovation that lays bear the logic and timeliness of Lucy Jewell's call to develop a participatory legal culture around professional ethics, CrowdDefend is it. Donors and interested parties may well want more insight into the human story of the legal professionals and not just the case parties, but as things stand now in most jurisdictions, if an attorney's analysis of the other counsel or the judiciary is found to denigrate the profession in some way, that attorney risks some degree of professional sanction.
Well, my hands are good and wrung. But I am still convinced that CrowdDefend is a welcome, necessary and potentially transformative resource for access to justice. Despite my totally premature concerns, I look forward to hearing more about how CrowdDefend grows, evolves and improves social justice outcomes in our legal system and our case law.

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