Getting What You Pay For: Free Time Billing Software and Ethics

Recently there was a post in a super-secret forum for lawyers asking about a free case management/time-billing software known as Praxis for Lawyers.  Always a cheapskate, I took a moment to go over there, sign up
for an account, and take a look around the software itself.  First, it appears to be truly free.  Second, it looks like it would be functional for a solo practitioner to bill time and keep track of his cases.  Third, it could end up getting someone in trouble with the ethics panel.

I probably should have led off with that third point, right?

Let’s start with some basic legal competence and ethics.  Every 1L knows, or will quickly be made aware, of the fact that attorneys are beholden to the ethical rules that apply to their jurisdiction.  While the layman may be entirely shocked to hear the words “attorney” and “ethics” uttered in the same sentence, the fact of the matter is that we are beholden to these Rules of Professional Conduct, and that a violation of them can result in discipline ranging from a nasty private letter all the way up to turning your J.D. into the highest degree ever held by the Fry-o-Lator operator at the local McDonald’s.  Attorneys can be, and are, disbarred and suspended from the practice of law for violating these professional rules.

A big one that we have is the duty to maintain client confidentiality.  Those who aren’t legally trained may recognize this better as the “attorney-client privilege” you hear so much about.  While there is a lot to digest in that rule, and there are most definitely exceptions to it, the general rule of thumb is that an attorney cannot divulge information relating to their representation of you without your consent.  This includes, in a lot of jurisdictions, a prohibition on disclosing the mere fact that they represent a client (again, there are exceptions, but we’re talking about a general rule here).  Certainly it includes a bar against disclosing your client’s personal information.

That’s the rub.  There’s a saying among lawyers that when a client seeks free legal advice from the internet, they get what they pay for.  Normally, this means that the client is going to get advice that is free up front, but costs them thousands in legal fees and heartache after the fact.  A famous example is the guy from Reddit who followed the advice of the internet’s finest non-legal minds and consulted with every divorce attorney in his area so his wife couldn’t find one.  He got hit with sanctions in the form of fees.  You get what you pay for, folks.

So, we can establish that in the legal world, “free” is probably not the way to go, and a look at the Terms of Use and Privacy Policy confirm this by showing some concerning information.  Note, if you’re one of those people who don’t read these things, and you’re licensed to practice law:  BAD LAWYER! No!  Go back to first year Contracts and re-read ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).  We’ll wait for you to return.

Alright, so let’s start with the Terms of Use and the “Key Terms” section.  For those out there in law school, this is the contractual version of a “Definitions” statute.  The idea is to completely identify certain terms in advance of their use so there can be no dispute as to the meaning of the term later.  Of course, as lawyers we can always create a dispute, but that’s not the topic here today.  The topic here today is the definition of what Praxis for Lawyers is calling “User Content”:

 

“User Content” means all Content you submit, post, upload, publish, or transmit on or through the Platform, including but not limited to photographs, profile information, descriptions, postings, and reviews.

The Terms of Use also incorporate the Privacy Policy, so we need to head over to there.

Oh look, a section on what information they collect and how!  What does that include?

INFORMATION WE COLLECT

How we collect and store information depends on how you access and use the Platform. We collect information in multiple ways including when you provide information directly to us, when you permit third parties to provide information to us, and when we passively collect information from you, such as information collected from your browser or device.

Information You Provide Directly to Us

We may collect information from you during your use or access of the Platform, such as:

  1. When you register for an Account;
  2. When you participate in polls or surveys;
  3. When you enroll for electronic newsletters;
  4. When you request a proposal or other information;
  5. When you submit a proposal;
  6. When you make a purchase;
  7. When you fill out any forms;
  8. When you enter a sweepstakes or contest, or register for a promotion;
  9. When you transmit User Content;
  10. When you download or use one of our mobile applications; or
  11. When you otherwise communicate with us or other users through the Platform.

This list is illustrative, not exhaustive; the Privacy Policy applies to all use of the Platform.

That’s…that’s a lot of stuff.  I mean, it pretty much says it’ll collect information from forms you fill out and all user content.  Considering their “forms” that are necessary to use the program look like this:


That could…well, it could be an issue.  Because what you’d be putting in that form which they define as User Content and then transmit through the platform is by necessity client information.  And, in case you think I’m overreacting, Praxis for Lawyers is kind enough to clarify this issue:

The information you provide directly to us may concern you or others and may include, but is not limited to: (a) name; (b) zip code; (c) email address; (d) home or business telephone number; (e) home, business or mailing address; (f) demographic information (e.g., gender, age, political preference, education, race or ethnic origin, and other information relevant to user surveys and/or offers); (g) date of birth; (h) insurance information; (i) photographs; (j) information about your job, request or need; (k) documents; (l) video or audio files; and/or (m) in certain circumstances, payment and/or identity verification information

Yeah.  They’re flat out saying “this information that we’re grabbing can be someone else’s information completely.”

Why would they want this?  Well, they are reserving the right to share and sell this information:

  • Affiliate. We may share your information with any LawArmy affiliates[;] . . .
  • Consent. We may disclose your information to non-affiliated third parties based on your consent to do so. Such consent includes the disclosure of your information (a) in order to provide services or products that you have requested (please see below for more details); (b) when we have your permission; or (c) as described in this Policy, the Terms of Use, or any other legal terms governing your use of the Platform.
  • Business Transfers. As we continue to develop our business, we may sell, buy, merge or partner with other companies or businesses, or sell some or all of our assets. In such transactions or where there is any change of control of LawArmy, user information may be among the transferred assets.

You know, I’m no lawyer but…oh wait.  I am.  I am a lawyer.

In that case, this is concerning.  See, Praxis for Lawyers is free, yeah.  But the way their terms are written:

  1. They define client information entered into the system as “User Content” or information submitted to the platform:
  2. They specifically state an attorney can provide a client’s information to them for use;
  3. They reserve the right to view, access, compile, and sell this client information.
  4. They disclaim any and all responsibility for doing so.

Maybe for some other professions this isn’t a concern, but for lawyers it should be.  I practice contract law, and it concerns me, because it isn’t always what it says, it’s how it can be read.  Maybe these guys have no intention of ever doing that, but who can say what the company that buys them in a year or so may decide to do?

I like the idea, but the Terms of Use and Privacy Policy underlying Praxis for Lawyers, in my opinion, raises concerns surrounding ethics violations.  Maybe a rewritten and more restrictive terms of use will change this.  Maybe it won’t because this is their business model.  I don’t know.  I can say the possibility of client information being disclosed to third parties, and the fact that the attorney is agreeing to it by using the platform, concerns me and should concern you.

Overall, it’s enough to make me keep paying for practice management software that doesn’t have an incentive to sell my info.  I’d rather do that than run the risk of getting my ticket punched.

-BB