At UniCourt, we stand for improving access to justice and finding new and innovative ways to offer affordable legal services to consumers and businesses. By refusing to actively supervise the New Jersey legal ethics authorities, the Supreme Court of New Jersey failed to live up to the mandates of Midcal articulated by the Supreme Court of the United States, and may have opened the anti-competitive ban of Avvo Advisor up to further potential antitrust scrutiny.
To prevent private monopolies, the Sherman Antitrust Act imposes severe civil penalties on any violators, and the question arises whether the N.J. Bar Association is immune from this liability when it “protects” its members from competitive practices by banning services such as Avvo’s. In North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S. ___ (2015 ), the U.S. Supreme Court ruled that a state licensing board can only maintain immunity from antitrust laws when there is “active supervision” of the board by the state.
Using the guise of fee-sharing impropriety as a sword and shield to remove Avvo’s innovative service from the legal market in NJ does not protect consumers. It protects the financial interests of lawyers unwilling to engage in innovative ways to improve access to justice for the over 9 million residents of NJ.
The easy to use flat fee model Avvo Advisor offers consumers presents a threat to the billable hour model ingrained in many lawyers, and challenges the notion that you need to pay hundreds of dollars to obtain effective legal advice and representation. As with many restraints on trade by state bar associations, the actual quality of service the consumer receives is not squarely being attacked. Instead, it is the specter of a lawyer’s independence being threatened by sharing fees with a non-lawyer, which would indirectly impact the end consumer.
This same argument has been used time and time again to protect the legal profession from the forces improving and enhancing services provided in other industries. If lawyers can make it through 4 years of college, 3 years of law school, and pass a state bar exam, it would stand to reason that they are intelligent enough to protect their independence while also sharing a portion of their fees with referral or marketing service providers who helped them obtain new business.
Banning Avvo Advisor to protect the profits of lawyers afraid of innovation hurts consumers who need easy and affordable access to legal services, and it unfairly penalizes lawyers eager to use new business models to grow their practice and improve access to justice in the legal marketplace.