New York - and several other states - continue to stifle public access to legal information and affordable legal services.
After New York successfully dragged itself, and its consumers of legal services, back into the caves for some more time by prohibiting a virtual office to out-of-state attorneys while allowing the same to in-state attorneys, it continued its protectionist policies by issuing an "ethics" opinion "cautioning" New York-licensed attorneys from participation in the referral services of AVVO - an online marketing device where people exchange opinions about lawyers, seek free legal advice from attorney-volunteers, and are referred to attorneys who are willing to take their cases.
The reason why New York state considers a referral that it would be "unethical" for an attorney to use a referral by AVVO?
The rule against "profit-sharing" between attorneys and non-attorneys - which in itself makes no sense, but referral services are not legal services.
AVVO's representatives correctly pointed out that there are anti-trust and 1st Amendment implications that the New York State bar associations fails to consider, hiding behind its reluctance to make policies - which it is making anyway.
Of course, NYSBA is not a disciplinary authority in New York State, but I bet that this opinion would be considered in a disciplinary proceeding against an attorney.
I have just one question about all of these under-carpet noises: why wouldn't the government allow ITS OWN SOVEREIGN, consumers for whose benefits attorney licensing is established are not allowed to decide how to pick their own court representatives and which marketing source to use for that purpose?
After all, the U.S. Supreme Court has ruled more than 2 years ago already, in North Carolina Board of Dental Examiners v FTC, that regulation of any market by market participants without neutral state supervision may be a violation of antitrust provisions of federal law?
And, a federal court has ruled that regulation of a market by a competitor is a violation of due process as to other competitors?
Might there be a concern that then the big fat pie of occupational licensing, created under the guise of "helping" consumers, will fall apart?
Not to mention that there is a presumption of knowledge of the law in this country, so it is counterintuitive (stupid) to pretend that a person is presumed to know the law in order to be put in jail, but should be presumed to not know the law in order to be "protected" from having an opportunity to choose an independent court representative he trusts for the same criminal proceeding that presumes his knowledge of the law to be put in jail.
Attorney licensing, as any other occupational licensing, is revealed more and more as an outmoded and unlawful method of protecting a group of entrenched individuals from competition - to the detriment of consumers.
And, in treatment of AVVO as an "unethical" source of referrals, the otherwise supposedly progressive New York is, by the way, behind other states that allowed such referrals, allowing their consumers to use services of lawyers who are approved by online consumer ratings and participation in pro bono consultations online.
Wasn't licensing introduced, after all, to HELP consumers in their own marketing and choice of attorneys? Only through a PRESUMPTION of fitness through licensing - which is far from perfect.
Isn't it better to rely on statements of ACTUAL FITNESS from former clients, and upon actual performance of attorneys through their pro bono consultations online?
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