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.


  1. Aaron de Oliveira on September 9, 2014 at 9:10 am

    Watching with great interest how this plays out.

  2. Paul Spitz on September 9, 2014 at 9:48 am

    I found the relevant provision in Upcounsel’s terms of service (Section 6(d)(3)) to be ambiguous. It could be interpreted as saying that when a lawyer takes a “Job” through the platform, all payment for that Job has to be through the platform. I don’t think it is at all clear that the language applies to further work that is set up outside the platform, directly between the client and the lawyer.

    Also, because terms of service are unilateral contracts, ambiguity will be interpreted against the drafter.

    I think the biggest issue these companies will have is the extreme mismatch between the numbers of clients and the numbers of attorneys. Lawdingo is a case in point. I signed up with Lawdingo, being told that there was “great demand” from potential clients in Ohio. There was no such demand. In fact, there was no demand at all. I cancelled after a couple of months, without securing a single client through the service. They have lots of clients in California (where I am also a member of the bar), and probably have a lot in NY, too, but there isn’t exactly a lawyer shortage there. When these companies can start meeting the needs of lawyers in the other 48 states, they might have a chance.

    Upcounsel only operates in NY and California, too. They claim to be adding Illinois, Texas, Colorado, Oregon, and Seattle at some point, but that still leaves 43 states in the cold.

    The other problem these sites have is that their owners, usually non-lawyers, have no clue about the ethical obligations of lawyers. One of the sites (pretty sure it was LegalReach) actually had a map of the US on its website, claiming that fee-splitting was legal in 49 out of 50 states. This is where the “Uber of” branding issue really comes into play. Just like Uber and Lyft, these sites have a cavalier attitude towards legal requirements about unauthorized practice of law, fee-splitting, etc.

  3. Bill on September 10, 2014 at 11:31 am

    In the last few months, several courts have shot down the “unfinished business” doctrine in the context of large law firm failures. (The trustees for the bankrupt firms tried to go after ongoing work that departed lawyers did at their new firms.) The common thread has been that clients have an absolute right to select their lawyer, and that no one “owns” their ongoing business. (Which is different than AR for work already completed.) It will be interesting to see how this intersects with an attempt to restrict future client work.

  4. Matthew Faustman on September 16, 2014 at 2:26 pm

    Thanks Carolyn for pointing this comment out. Figured your blog was the best forum to address this. UpCounsel doesn’t prohibit repeat work with clients what-so-ever. We actually encourage it! It is a better result for all parties (including us) and we have MANY attorneys working with clients on an ongoing basis with a very intact attorney-client relationship. Not really sure where this comment is coming from or how it was formulated, but it certainly doesn’t paint an accurate picture. Since we work ONLY with businesses, recurring work is part of the game, and therefore it wouldn’t make sense from a value proposition standpoint if we prohibited ongoing relationships where lawyers got to know these businesses inside and out over an extended period.

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