Whose Client Is It Anyway?

Rob Jordan’s recent Above the Law column, The (Alleged) Uber-fication of Legal Services  comprehensively compares the latest crop of  lawyer match-making services and platforms designed to connect consumers and small business clients to lawyers. One of the characteristics that Jordan examines in distinguishing between services like Upcounsel, Priori, Law Kick or Law Dingo is “data compilation” — i.e., the ability of the platforms to aggregate information about user transactions and sign-up and retention rates. That’s valuable information both for product promotion and also attracting outside capital (not to mention, a potential revenue stream).  Yet only sites like Priori and UpCounsel, which offer a platform for managing attorney-client relations, retain this information. By contrast, sites that simply “introduce” lawyer to clients but allow interaction to take place off-platform don’t have data as to who many clients actually purchase legal services beyond the initial payment for a consult.

Jordan’s observation piqued my interest for another reason as well. After all, if attorney-client interactions all take place on a branded platform, then whose client is it anyway? That was one of the concerns/complaints of a disgruntled ATL commenter who made this point on another post about one lawyer’s experience using UpCounsel:

You didn’t at all mention the BIGGEST drawback of UpCounsel, which is that they prohibit you from EVER working with that “client” again — they mistakenly believe that is that it is “THEIR” client, and if the client ever contacts you outside of their platform attempting to hire you, they will kick you off their servers and terminate/suspend your account. So, for the rest of your relationship with that client, you will be working “within” their platform. They refuse to grasp the concept that this is illegal under Rules of Prof. Conduct and that clients have a CHOICE as to who they hire to represent them.

Assuming that a platform imposes this type of restriction it is hardly illegal. Indeed, the policy described by the commenter (and shown here, under Para 6), the departing client situation much as a law firm would.  Consider a client who says to his big law attorney, “Hey, I want to hire you, but don’t want to pay big law rates or deal with your pompous firm.” The lawyer couldn’t represent the client after-hours and continue to work for the big law firm; instead, he’d have to leave the firm to represent the client – just as a lawyer has to leave the platform to serve a client independently.

Except – UpCounsel isn’t law firms, and participants aren’t employees or shareholders. So whose client is it? On the one hand, participating platform lawyers still have full responsibility for representing clients and presumably, must carry malpractice insurance and apply conflicts checks before taking on representation. So that suggests, the attorney client relationship lies with the participating lawyer. On the other hand, the reason that matchmaking platforms place restrictions on the lawyer-client relationship is because they believe that they have a proprietary interest in the client.

The question of the attorney client relationship has important implications for matters like malpractice liability, client conflicts and confidentiality. A different models emerge, each will have a different spin and lawyers need to ensure before participating that applicable restrictions don’t interfere with their right to serve and advice clients.