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Innovative Law Practice: State Bar Defense and Ethics Attorney Megan Zavieh, Part II

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This is the second part of a two part interview with Megan Zavieh of Zavieh Law  and  The Playbook: The California Bar Discipline System Practice Guide  for lawyers representing themselves in California disciplinary proceedings. You can read Part I here.

Once you had the idea for The Playbook, did you take steps to validate the idea and if so, what did you do?

I’d like to say I approached this with a serious business attitude, but I pretty much dove right in.  I was so excited by this prospect that I did only minimal validation.

I did talk it out with a group of lawyers I find to be far smarter than me – the folks at TBD Law and Lawyerist.  It was supremely helpful because they pushed me past my approach of “this must be great because I think it is” and made me think through aspects of the project I wasn’t seeing.  Outside perspective was critical.

The other thing I did was look harder to see if anything like this was already on the market.  I knew my colleagues weren’t advertising self-help support services, but since my focus changed to an actual product, I needed to make sure someone hadn’t already done it.  We didn’t find anything.  (Of course that also made me nervous that I was barking up the wrong tree.)

I did spend a bit of time looking at other digital products, not just law-related ones, to see how they were delivered and what sort of content they included.

 

You wrote an excellent, comprehensive article for Lawyerist on the nuts and bolts of creating the Playbook. What amazed me most, however, is that you put it all together in 4 months. How did you keep the project on track while balancing the demands of practice and life?

I realized that without a deadline, this project was going to take on a life of its own and would never be completed.  So I set a first draft deadline of my children’s last day of school.  I spent every morning in the library – total silence, no phones – and hammered out a rough draft of one chapter each day.  With a manageable bite size piece for each day, I had a rough draft very quickly.  Then we looked at the calendar and said by the time the kids go back to school in August, we would have it done.  I announced this date on an episode of Lawyerist’s podcast for public accountability.

To get this done over a summer required a lot of scheduling and a lot of delegation.  I schedule really well, but delegating has been tough for me.  It’s something I work on constantly.  This project was great for teaching me how much better work can be when I delegate to people who know more than me about certain tasks.  I delegated to an editor who came back more than once with major revisions that made the substance stronger.  A web designer took over the design side and made the membership site really great.  And a graphic designer took on the actual text to make it sing.

While these experts were doing their jobs, I could continue my day-to-day practice with the project still moving forward.

 

What kind of reaction have you received from the public, colleagues and the bar about the Playbook?

The reaction has been really positive from my colleagues.  They have been the most supportive.  The bar has never said anything to me officially, so I can’t say that I know what they are thinking at all.  The public has been a bit of a tough sell.  I think I still need to educate the market on the existence of the product and how it is a big step up from being uninformed and self-represented.

 

What are your goals for the Playbook? Where would you like the service  three years from now – and could you see the Playbook supplanting the bespoke legal representation that you provide?

I don’t think the Playbook will ever supplant the representation I provide.  These are two different markets – the Playbook is intended for people who are never going to hire me or any other State Bar defense lawyer to represent them.  They either don’t think they need the help or can’t afford it.  My representation services will still be needed.

What I want to see is the Playbook grow in notoriety to the point that no self-represented lawyer goes into State Bar Court without it.  Any lawyer looking to help a friend in trouble should have it too.  I would like to see the online community grow so that self-represented lawyers have each other to bounce ideas off of, learn from, and support.

I’d also love to see it take off in other states.  I am admitted in three others, so I suppose I could write Playbooks in New York, New Jersey, and Georgia, but my expertise is really in California.  I hope my colleagues in other states who know their systems well will write Playbooks for their self-represented respondents.

 

As a legal ethics lawyer, I’m sure that you created an ethically compliant site. But many lawyers are nervous about setting up self-help sites or user forums either because of concerns about malpractice exposure or ethics issues like inadvertently creating an attorney-client relationship, breaching confidentiality or running into conflicts. Can you share some of the ethics red flags that lawyers creating a product like The Playbook for a more consumer-oriented practice – e.g., trusts & estates, small business, family law – should be aware of – and more importantly, what are the solutions?

One of the things I do in my practice is advise lawyers who are creating new products and methods of delivering legal services.  I find that new issues crop up depending on the creativity of the lawyer.  In general, the biggest concerns are those you mentioned – formation of attorney-client relationship, confidentiality, and conflicts.  These are issues we can work through, but we do have to apply common sense and proceed cautiously.

One way to avoid problems is simply to make a consumer-facing product, meaning one that the consumer buys and consumes much like they would buy a book at the bookstore.  This is a one-way flow of information, and while that has limitations, it is also pretty safe.  In the terms and conditions for access to the information, consumers (notice they are not “clients”) will acknowledge that they are not forming an attorney-client relationship with the author of the materials, that parties in conflict with them may purchase the same materials, and that they should not provide confidential information to the author.

But this one-way street is often not what creators of digital products want to create.  We want to interact with the consumers, find out what information they need that we are not yet providing, put them in touch with each other to cultivate an active community, and have two-way communication.  In a two-way relationship, there are more potential problems.

In this vein, my biggest piece of advice for anyone considering creating a community of clients is to focus the purpose of the community on something other than legal advice.  Make it a place for clients to come together or support.  Whatever they are experiencing that led them to be a client will bring with it lots of stress.  They can benefit greatly from an outlet to vent about their ex-spouse, former client, awful prosecutor, or other major stressor in their case.  For legal advice, they should turn to their attorney (whether that is the creator of the digital product or not).

As to the legal advice side, any time you see that in the model you are developing, there is a possibility of a user providing sensitive information through the product’s platform, there is a big red flag.  Any provision of sensitive information means the user may believe there is an attorney-client relationship, the user may have been led into a reasonable expectation of the confidentiality of that information, and another user in conflict with the provider of the information may have access to the sensitive details.

For example, the forum on the Playbook could be an ethics minefield.  Users might post on the forum details of their case, questions about their specific facts, and even details that they are trying to keep out of their court matter.  If a state bar counsel chose to purchase a membership to the site, that sensitive information could be compromised.

I do expect users to utilize common sense, and Playbook’s users are all lawyers who should understand these concepts, but common sense is sadly uncommon and people under great stress do not act carefully or rationally.  So disclaimers and acknowledgments become critical.  Users are reminded not to post confidential information.  I set it up with disclaimers about attorney-client relationships – you do not form one with me when you join.  I also don’t post on the forum or give legal advice there.  It is a place for users to connect with each other.  When I have lawyer clients trying to set up Facebook groups or other online communities for clients, I advise the same thing – the lawyer should not post on the forum or provide information which could be deemed legal advice.

For some consumer-oriented practices, the risks will be smaller than they are in litigation arenas.  For example, in a trusts and estates practice, an online community of clients would seem more likely to discuss tax consequences, estate plans, the latest intestate celebrity, how to make funeral arrangements, and non-adversarial matters.  But in any litigation practice, the same concerns as I have with the Playbook would exist.

 

Based on your Lawyerist article, I know that you had some familiarity with technology. Would it have been helpful to know how to code or build a website from scratch? Now that the site is in place, do you manage it on your own, or does it require ongoing tech support?

I am proficient at technology and capable of creating a website, and I initially was going to create the Playbook site on my own.  However, as I mentioned my need to delegate more effectively, I realized that this was something I should not be spending my time doing.  For one thing, creating the Playbook was a financial cost, not a gain, so I could not afford to spend the countless otherwise-billable hours building a website that would look like a 7th grader created it (ok, a 7th grader can probably make it look better than I would have).  Plus, I have a highly skilled web designer that I like to use, and he was available.  So I delegated this one.

I do think it is useful to be proficient in technology even when you delegate, though, because it helps to understand what the technical folks are talking about.  For instance, we struggled with the membership side of the site and how to access certain materials.  I did not feel at the mercy of my technical wizards, because they would explain the problem to me in a way that I understood.  I did not understand it enough to go in and fix it, but I got the issue.  That gives me a sense of calm and trust in their work that I would not have if I did not understand it.

Like the building of the site, I mostly delegate the maintenance too.  It just makes sense to do so.  I do go in and create new user accounts to give logins to testers, troubleshoot small problems when something arises at an odd hour or on an emergency basis, but mostly I leave that to my experts.

 

If another lawyer was interested in starting a site like the Playbook for their respective practice area, what advice would you have?

I would tell them to think through what they want to create and why.  Start with the problem they are trying to solve.  Design and build from there.  I would also encourage them to finish the project and ship it without over-criticizing their work.

Plus, I would tell them that at the end of the project, they will be so glad they took it on.  Even if they never sell a single one, the experience of building it makes the creator an expert on the subject matter.  I can’t believe how many fine points and nuances I picked up creating the Playbook.  I even refer to it sometimes when I have a question – after all, I already did all the research.  I have heard similar comments from creators of other digital platforms and products.  So anyone looking to create a product will also learn so much about their area of practice.  It is well worth the time and effort.

 

What excites you most about the future of legal technology?

In a moment of stressing about what to do with my life, around age 15, my dad told me that the job I would have one day had yet to be invented.  The way the world has changed in the years since then is staggering.  He was more right than I think even he imagined when he said it.  So what excites me most about the future of legal tech is that I think we haven’t even begun to fathom the extent of the change possible.

In a more concrete way, I get really excited when I think we might make headway in changing the legal ethics rules to allow for a smoother road for tech.  I am not so naïve as to think legal tech will solve all law-related problems, but changes in the ethics rules would make experimentation with tech easier and increase the odds of developing more solutions.  The prospect of significant systemic change is really exciting.

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