Category Archives: BAR UPL antitrust

Online mechanic’s lien settlement software company Zlien settles Ohio unauthorized practice of law complaint

Hello and welcome to this Ethics Alert blog which will discuss the recent (July 20, 2016) Order approving the settlement of an Ohio unauthorized practice of law (UPL) complaint filed by the Cleveland Metropolitan Bar Association (CMBA) against an online mechanic’s lien settlement software maker called Express Lien, Inc. (d/b/a Zlien) and dismissing the complaint.  The case is Cleveland Metropolitan Bar Association v. Express Lien, Inc. dba Zlien et al, case number Case No. UPL 15-01.  The Ohio Supreme Court UPL Board’s Order approving the settlement and dismissing the complaint is here:  http://www.supremecourt.ohio.gov/Boards/UPL/settlement/UPL15-01.pdf

The CMBA filed the UPL complaint in May 2015 against Express Lien Inc. (Zlien) alleging that it was enabling non-lawyers to practice law in Ohio.  Zlien claimed that its platform streamlined the process of filing lien documents by facilitating the filing of those documents by its users and that it was not engaging in or enabling UPL.

According to the Order, the UPL complaint alleged that Zlien was illegally practicing law when Zlien “Director of Client Experience” Gretchen Lynn allegedly prepared, signed and attempted to file a lien against an Ohio property on behalf of Midwest Interiors LLC. The complaint stated that Ms. Lynn was not a lawyer in Ohio and Zlien was not registered with the Ohio Secretary of State.

The Cuyahoga County Fiscal Office rejected the lien because it was filed 33 days past the 75-day window to file.  The CMBA then initiated an investigation which led to the filing of the complaint.  Zlien stated that the affidavit was completed using aggregated information and it is “a technology powered scrivener” that “merely copies verbatim” user provided information.

In response to the UPL complaint, Zlien file a lawsuit in Louisiana federal court in July 2015 against the CMBA, the Ohio State Bar Association, and other entities and individuals alleging, inter alia, that the Bar was attempting to unconstitutionally restrict commercial or political speech and engaging in unfair trade and competition practices in applying and enforcing Ohio’s UPL statutes.  Zlien’s federal lawsuit is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/express_lien_complaint.authcheckdam.pdf

Zlien’s federal complaint cited to the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners which struck down the enforcement of regulations by North Carolina’s dental board, which had attempted to prohibit teeth whitening by non-dentists.  In that case, the Supreme Court stated that the regulation of a profession by licensees in the same profession violated federal antitrust laws.

The UPL settlement agreement states that Zlien has agreed not to sign any mechanic’s lien affidavits unless it is a party or can practice law in the jurisdiction.  The company also agreed not to select the property descriptions inserted in lien affidavits or advise customers on which property descriptions to use.  Zlien also agreed to require its users to sign generated lien documents themselves rather than appointing the company to sign for them through power of attorney.

Zlien issued a public statement through its chief legal officer related to the settlement: “Technology has advanced to the point where it can put groups that change at a slower pace – like bar associations – in unfamiliar and potentially uncomfortable situations.” “Software can’t practice law, and people still need lawyers for certain tasks, but things that technology can do are not the things for which lawyers are required.”

Bottom line:  This is more fallout from the U.S. Supreme Court’s 2015 North Carolina dental whitening decision and also involves an online legal document generator/provider. The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015) and the opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.  My Ethics Alert blog discussing the case is here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/  and a recent list of other cases which have been filed after that decision is here:  https://media.nasba.org/files/2015/12/2016-0714-Board-Immunity-Cases-Table.pdf

Stay tuned and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Bar antitrust, BAR UPL antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Non-lawyer practicing law, North Carolina Dental Board, North Carolina dental whitening case and UPL, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit, Zlien UPL lawsuit and settlement

Washington State Bar suspends some ethics opinions because of antitrust concerns arising from 2015 U.S. Supreme Court opinion

Hello and welcome to this New Year’s Eve 2015 Ethics Alert blog which will discuss the recent decision of the Washington State Bar to suspend some ethics opinions because of antitrust concerns arising out of the U.S. Supreme Court’s February 2015 opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  I previously blogged about the Supreme Court’s decision here: USSC NC dental licensing opinion, the LegalZoom antitrust lawsuit in North Carolina based upon the USSC opinion here: LegalZoom filed antitrust lawsuit against NC Bar and the settlement of that lawsuit here:  LegalZoom settles antitrust lawsuit against NC Bar.

According to a recent ABA Journal article, the Washington State Bar Association has advised its ethics committee to stop issuing ethics opinions which could be interpreted as having the effect of restraining trade in the legal services market.  The bar stated that it suspended the opinions so it could “proceed very deliberately” in the wake of the U.S. Supreme Court’s February 2015 opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission. 

That U.S. Supreme Court decision permitted an antitrust action against the North Carolina state dentistry board for its decision prohibiting non-dentists from whitening teeth to proceed. The opinion stated that when a state board is controlled by active market participants in the market it regulates, state-action antitrust immunity cannot be applied unless the restraint of trade is affirmatively expressed by state policy and the policy is actively supervised by the state.

Bottom line:  This is more fallout from the 2015 USSC Dental Board decision.  As I have stated in my previous blogs, there have been lawsuits against state Bars in the past attacking the entity’s state action immunity.  The Supreme Court opinion refers to three specific cases and appears to suggest that these cases should be interpreted to mean that only the actions of a state entity which is actively supervised by the state (i.e. the Supreme Court in the case of a state Bar) have antitrust immunity and the rest of the entity’s actions may not have such immunity.

I wish you and yours a very happy and healthy 2016!

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under .S. Supreme Court, Attorney Ethics, Bar antitrust, BAR UPL antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer ethics, LegalZoom, LegalZoom antitrust, North Carolina Dental Board, Uncategorized

LegalZoom settles multi-million dollar antitrust suit against the North Carolina State Bar with agreement to continue operating

Hello everyone and welcome to this Ethics Alert which will discuss the recent agreement between LegalZoom and the North Carolina State Bar which will apparently settle its multi-million dollar antitrust lawsuit which was filed in the North Carolina Middle District in June 2015.  The agreement has certain conditions and would allow LegalZoom to continue operating in that state.  My Ethics Alert blog discussing the federal antitrust lawsuit is here:  https://jcorsmeier.wordpress.com/2015/06/24/legalzoom-files-federal-antitrust-lawsuit-against-the-north-carolina-state-bar-citing-2015-ussc-dental-board-case/

LegalZoom filed the antitrust lawsuit in June 2015 seeking $10.5 million in damages for the alleged antitrust violations and based on the recent U.S. Supreme Court opinion which struck down the enforcement of regulations by North Carolina’s dental board, which attempted to prohibit teeth whitening by non-dentists.  In that case, the U.S. Supreme Court stated that the regulation of a profession by licensees in the same profession violated antitrust regulations.  The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015).  That opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf and my Ethics Alert blog on the case is here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/

According to media reports, LegalZoom and the North Carolina State Bar have agreed to settle the pending antitrust lawsuit.  Under the terms of the settlement, LegalZoom will agree to have its documents reviewed by North Carolina lawyers and inform its customers that the blank templates are not a substitute for advice from an attorney. The North Carolina State Bar also agreed to allow LegalZoom to continue to operate in the state and to support proposed legislation designed to clarify the definition of the “unauthorized practice of law”. Both parties agreed to support pending legislation permitting interactive legal-help websites if the websites abide by the basic terms of the settlement agreement.

The North Carolina State Bar had criticized and fought LegalZoom’s activities since 2008, although the company had been approved to operate in the state in 2003.  Legal challenges to LegalZoom’s activities have either ended or are not being pursued in other states and the North Carolina effort was the only ongoing effort to change LegalZoom’s business model.  According to reports, LegalZoom states that the agreement is on the same terms that it proposed in 2011 but the Bar refused the offer.

According to an article in the ABA Journal in 2014, LegalZoom is planning to offer more services to consumers and small businesses, including routine legal advice using both lawyers and non-lawyers.  According a LegalZoom news release, the company is increasing its services to include prepaid legal service plans in various states in addition to preparation of online documents, and it also plans to launch more services in North Carolina and other states this year.

Bottom line:  If this settlement is approved, it would appear to be a victory for LegalZoom and its activities, with certain modifications, including the requirement that its documents be reviewed by lawyers and that it informs its customers that the blank templates are not a substitute for obtaining advice from an attorney.  We will see how this plays out in North Carolina and in the other states and jurisdictions, including Florida.

Be careful out there.

Disclaimer:  this blog is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Bar antitrust, BAR UPL antitrust, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit