by Pedro Petiz, Master's student in Law and Informatics at UMinho
▪
The 4.0 revolution has reached the legal services sector. New online platforms are emerging to connect clients and lawyers, while also providing new and innovative legal services. Nonetheless, several questions arise regarding these new businesses: Are they allowed under Portuguese law? And how are Bar Associations dealing with this new reality?
There are mainly two types of online legal platforms:
– Two-sided Platforms, where an intermediary selects the lawyers who appear on the website, defining the order in which they appear, or referring them to potential clients.[i]
– And websites providing legal services, which are provided directly or indirectly, not necessarily by lawyers.[ii] This category includes question and answer websites (https://answers.justia.com), legal chatbots (www.donotpay.com) and sites where legal documents are automatically drafted (https://lawhelpinteractive.org,[iii] http://www.a2jauthor.org[iv] or the Brazilian http://www.yousolveonline.com ).
Regarding the first type of platform, the Portuguese Bar Association has imposed a total prohibition on its use, on the grounds that they constitute “client solicitation”.[v] In my opinion, this prohibition is disproportionate and constitutes a breach of Article 101 of the TFEU.[vi]
As stated by the European Commission, professional rules “must be objectively necessary to attain a clearly articulated and legitimate public interest objective and they must be the mechanism least restrictive of competition to achieve that objective”.[vii]
The prohibition of “client solicitation” is intended to protect the contractual freedom of clients. However, an indiscriminate ban on intermediation platforms deprives consumers of the benefits of these new technologies – such as the ability to discover a wider range of legal practitioners, and of comparing them according to location and expertise[viii] – which actually increase clients’ contractual freedom. On the other hand, a total ban on such platforms imposes a disproportionately restrictive effect on competition.
In order to safeguard the public interest and the deontological rules of the profession, the Bar Association should have used other mechanisms instead of a total prohibition – such as the regulation of these platforms via new professional rules or through the implementation of codes of conduct, a kind of ISO standard, which would indicate to the public that certain websites have a minimum of seriousness and guarantees.[ix] In fact, since online legal counselling can be considered as an Information Society service,[x] one has to consider the Directive 2000/31/EC (‘Directive on electronic commerce’) which recommends the usage of codes of conduct to safeguard “the independence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of the profession.”[xi]
In France, the Regulation of the Conseil National des Barreaux[xii] has been amended to include a new title, called Prestations Juridiques En Ligne, which, among other things, regulates the registration of a lawyer on an intermediation platform.[xiii] In the Netherlands, De Orde van Advocaten has presented a detailed explanation of which rules intermediation platforms have to comply with in order to be allowed under the Gedragsregels Advocatuur.[xiv] In Spain, the Consejo General de la Abogacía Española is drawing up a specific code of conduct for these platforms, on the basis of which it will certify platforms that comply with ethical rules.[xv] As we can see, it appears that European professional associations share a common vision: despite the challenges posed by online platforms for lawyers, they have not been banned, but regulated.
As stated above, the second type of online legal platform is constituted by websites that provide legal services – such as legal advice or the drafting of contracts. These platforms would be considered in light of Portuguese law as incurring in the crime of non-authorized legal practice.
As stipulated in Law 49/2004, only graduates in law with registration in force in the Portuguese Bar Association and solicitors registered in the Chamber of Solicitors may practice the acts of lawyers and solicitors.[xvi] The scope of reserved legal activities in Portugal is quite wide, covering the judicial mandate but also legal advice,[xvii] the drafting of contracts[xviii] and the practice of preparatory acts aimed at the constitution, alteration or extinction of legal acts.[xix]
Besides prohibiting the practice to non-qualified individuals, this provision also forbids its execution when done in conjunction with lawyers, in a collective manner. As stated in article 6 of Law 49/2004, only legal persons that are “composed exclusively of lawyers, solicitors or lawyers and solicitors” or law firms, are allowed to practice acts reserved to lawyers and solicitors.
As such, under Portuguese law, if legal platforms provide legal advice and are not “composed exclusively of lawyers, solicitors or lawyers and solicitors”,[xx] or part of a law firm,[xxi] their practice will be considered a crime. As stated by OECD in its competition assessment review of Portugal, “there is no scope for using digital applications (such as artificial intelligence) systems or providing legal advice through online or digital systems (…) the entity that would make an algorithm as a legal research tool for obtaining legal advice commercially available, would be practicing a reserved act illegally, unless he were a lawyer.”[xxii]
The recent proposal by the Autoridade de Concorrência (Portuguese Competition authority) for legislative and regulatory reform for the liberal professions[xxiii] addresses some of the raised concepts . Firstly, the national authority proposes a new structure for professionals’ associations, with a change in the paradigm of self-regulation seeming to be desired. The proposal recommends changes on the governing bodies of associations: which would now consist of, in addition to representatives of the profession, academics, representatives of consumer organizations and individuals from other regulatory bodies.[xxiv] With such a constitution, it could be argued that the governing bodies of the association would be made up of “independent experts”, and thus the obligations imposed by competition law, namely article 101 of TFEU, would no longer apply.
On the other hand, this legislative project mentions the reduction of “exclusive acts, ensuring criteria of necessity, appropriateness and proportionality with public policy objectives”[xxv] and the end of the prohibition of multidisciplinary practice,[xxvi] with the goal of bringing “More innovation and diversity and more competitive prices, for the benefit of consumers”.[xxvii]
The current legal framework seems to be based on the traditional paradigm of legal services: provided mostly by lawyers, who make themselves known only through “word of mouth” and who practice their profession without partnering with colleagues from other areas.
While we are witnessing the emergence of new technological legal services in countries such as Brazil, France, Germany, Spain and the UK – that enable consumers to access justice more easily -, it seems that Portugal is still clinging to traditional practices, and it is being left out of this digital revolution.
Hopefully, the recent legislative project by the Autoridade de Concorrência could pave the way for a much-needed reform.
[i]Council of Bars & Law Societies of Europe, “CCBE GUIDE on Lawyers’ use of online legal platforms, available at https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/DEONTOLOGY/DEON_Guides_recommendations/EN_DEON_20180629_CCBE-Guide-on-lawyers-use-of-online-legal-platforms.pdf
[ii] Council of Bars & Law Societies of Europe, “CCBE GUIDE on Lawyers’ …
[iii] “LawHelp Interactive is a website that helps you fill out legal documents for free. It’s simple: we ask you questions and use your answers to complete the documents you need, no lawyer necessary” (my emphasis).
[iv] “Access to Justice Author (A2J Author®) is a cloud based software tool that delivers greater access to justice for self-represented litigants.”
[v] See Conselho Regional do Porto, Parecer Nº 6/PP/2017-P, 16 February 2017. Available at https://www.oa.pt/upl/%7B7e01641a-6cce-4f8c-8425-e854b727f0ff%7D.pdf . “The registration of a lawyer on a platform that promotes contact between lawyers and clients, such as the so-called (…), constitutes a disciplinary offence for violation of the duty not to solicit clients.”
[vi] Treaty on the Functioning of the European Union
[vii] European Commission, “Report on Competition in Professional Services”, COM/2004/0083 final, 09/02/2004, https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A52004DC0083.
[viii] See De Autoriteit Consument & Markt, “Gedragsregels advocaten mogen opkomst online platforms advocaten niet belemmeren” Free translation: Lawyers’ rules of conduct lawyers should not impede the attendance of online platforms “, 13 of December 2018, available at
[ix] As indicated by Louis Degos, Chairman of the Foresight and Innovation Commission of the CNB. See Agefiactifs, “Prestations juridiques en ligne, la réponse du Conseil national des barreaux“, 3 November, 2016. https://www.agefiactifs.com/droit-et-fiscalite/article/prestations-juridiques-en-ligne-la-reponse-du-75103
[x] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000. Recital 18 (a contrario) “activities which by their very nature cannot be carried out at a distance and by electronic means, such as the statutory auditing of company accounts or medical advice requiring the physical examination of a patient are not information society services.”
[xi] Directive 2000/31/EC, article 8 (1).
[xii]Réglement Intérieur National de la profession d’avocat, available at https://www.cnb.avocat.fr/fr/reglement-interieur-national-de-la-profession-davocat-rin
[xiii] See Réglement Intérieur National de la profession d’avocat, Article 19.4.2 – “Avocat inscrit sur un site Internet ou une plateforme en ligne de référencement ou de mise en relation”
[xiv] See Nederlandse orde van advocaten, Code of Conduct 2018, available at https://www.advocatenorde.nl/document/nova-code-of-conduct-gedragsregels-2018
[xv] “el CGAE trabaja en ese sentido. «Estamos trabajando en un código de conducta y, quien se adhiera, contará con un sello de cumplimiento que aportará confianza en sus servicios»”, in See Pedro Del Rosal, See Pedro Del Rosal, “La ‘uberización’ llega al mundo del Derecho”, El País, 6 Nov. 2018, available at https://elpais.com/economia/2018/11/01/actualidad/1541090769_034925.html
[xvi] Article 1(1) of Law 49/2004, of 23 of March.
[xvii] Idem, Article 1(5)(b).
[xviii] Idem, Article 1(6)(a).
[xix] Idem, Article 1 (6)(a).”
[xx] Idem, Article 6(1).
[xxi] Idem.
[xxii] OECD (2018), OECD Competition Assessment Reviews: Portugal: Volume II – Self-Regulated Professions,OECD Publishing, Paris.https://doi.org/10.1787/9789264300606-en, page 88.
[xxiii] Autoridade de Concorrência, “Plano de Ação da AdC para a Reforma Legislativa e Regulatória para as profissões liberais”, 6 July 2018, http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Documents/AdC%20Impact%202020%20-%20Plano%20de%20A%C3%A7%C3%A3o%20da%20AdC%20-%20Propostas-Chave%20-%20Profiss%C3%B5es%20Liberais.pdf
[xxiv] Autoridade de Concorrência, “Plano de Ação da AdC para a Reforma Legislativa e Regulatória”, page 28, Available at http://concorrencia.pt/vPT/Estudos_e_Publicacoes/Politicas_Publicas/Documents/Relatorio%20AdC_%20Plano%20de%20A%C3%A7%C3%A3o%20da%20AdC%20para%20a%20Reforma%20Legislativa%20e%20Regulat.pdf
[xxv] “Em regra, a reserva de atividades deve ser reduzida, em respeito por critérios de necessidade, adequação e proporcionalidade com vista ao cumprimento dos objetivos da regulamentação profissional em causa” in Autoridade de Concorrência, “Plano de Ação da AdC para a Reforma Legislativa… page 29.
[xxvi] “Propõe-se que o legislador elimine a proibição da prática multidisciplinar em sociedades de profissionais de advogados e permita a criação de «estruturas de negócios alternativas», “Autoridade de Concorrência, “Plano de Ação da AdC para a Reforma Legislativa… page 35.
[xxvii] Idem.
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