“Need legal consulting, contracts drafted, or advice? I have experience in almost all areas of law and can answer almost any legal question! Only $5. (Educational purposes only, not actual legal advice)”
So goes listing after listing on the “gigs” site Fiverr. Fiverr is a global online marketplace offering tasks and services, beginning at a cost of $5 per job performed, from which it gets its name. The site is primarily used by freelancers who use Fiverr to offer services to customers worldwide. Essentially, people put up gigs, I’m sorry, “Gigs®,” for a variety of services that start off costing only $5.
Design a logo. Transcription. Provide a voice-over. That type of stuff.
Anyway, I’ve been aware of Fiverr’s existence for awhile, but didn’t really think much of it. But recently I saw it mentioned somewhere and clicked over to poke around as I’ve haven’t paid it much attention the past couple of years. That’s when I noticed the following while looking around:
Legal consulting…for $5. Look I get that legal services are expensive, and people want to use technology to help alleviate costs, but that’s ridiculous. There is no way you can get competent legal advice for $5. I get that pricing can then go up, but people are on there offering to write mortgages, deeds, EULAs, etc for $5, no add-ons necessary. That’s just crazy. I had to know more.
So I started poking around at the gigs offered. Many provided descriptions like at the top of this post. Some include disclaimers, others do not. I kept noticing other odd things in the gigs, especially in the profiles of some of the sellers. Before I get into the specifics, let’s take a quick detour into the Unauthorized Practice of Law (UPL).
Unauthorized Practice of Law
The practice of law in the United States of America is self-regulated. That is, there is no federal regulatory agency monitoring lawyers. Yes, there are organizations like the American Bar Association (ABA), but membership is optional and their rules are advisory only (but most states do follow them to some extent). Generally speaking, to be a licensed attorney in the USA, you must be admitted to practice, admitted to the bar of a particular state or other territorial jurisdiction, and remain in good standing and on “active” status. You can see state-by-state details and specifics here (PDF link).
But what does the “practice of law” entail? It varies from jurisdiction to jurisdiction. To give the standard lawyer answer: it depends. But let’s look at California for example.
“the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured,” People v. Merchants Protective Corp., 209 P.363, 365 (1922)
Performing service in a court of justice is pretty cut and dry. If someone is representing someone else in court, they have to be a lawyer. But there is also “advice,” “counsel,” and “the preparation of legal instruments.” Which is where things become murky and companies like LegalZoom can step in. LegalZoom manages to to not be in violation of any UPL statutes because it’s automated and not exercising judgment or discretion:
The referee compared the functionality of LegalZoom’s software to a scrivener who transcribes information without giving advice or consultation: “LegalZoom’s software acts at the specific instruction of the customer and records the customer’s original information verbatim, exactly as it is provided by the customer. The software does not exercise any judgment or discretion, but operates automatically in the same fashion as a ‘mail merge’ program.”
Which makes sense. If all a person is doing is filling out forms, without any assistance, then there really isn’t any practice of law going on. For there to be UPL, there needs to be someone who isn’t a lawyer appearing in court for someone. Or providing”advice,” “counsel,” or “preparation of legal instruments” where there was judgment or discretion involved. It tough to have a “bright line rule” for this type of behavior. It’s really the type of thing that has to be examined on a case-by-case basis. But, it’s probably not unreasonable to assume if someone who was not a lawyer was preparing deeds and held themselves out as capable of giving legal advice was brought before a court, that the court would find that to be illegal.
Or y’know, something crazy like impersonating a lawyer and stuff like that.
Hey! Let’s get back to Fiverr!
“You don’t need double talk; you need Bob Loblaw.”
While I was browsing at Fiverr, I noticed some really interesting profiles. Let’s start off with this one:
So here is someone offering to draft contracts and do legal writing for $5.
The profile claims to be Jason M. Dick, a member of “the state of New York bar.” The funny thing about state bars though, most of them have public directories. And there is no “Jason M. Dick” listed as an attorney in New York. I also took a moment to run the profile image through Tineye, the reverse image search system. It turns out that the image was scrapped from the portfolio of a photographer. The person in the picture is actually an attorney, but his name is Howard Michael, and he is a shareholder at Brinks, Gilson, & Lione. Not exactly the type of guy slumming for work on Fiverr. So here we have an example of a blatantly false and deceptive profile offering explicit legal services on Fiverr.
Next up we have “canadalegals” who has amazing use of capitalization in their profile. A quick Tineye search returns the following from Shutterstock:
Just a guess, but I find it highly unlikely the guy in the stock image is actually a lawyer or barrister, or whatever crazytalk type of attorney they have in Canada. I don’t want to speculate on the exact ins-and-outs of Canadian laws regarding illegal practitioners, but it certainly doesn’t sound good. Aside – do you guys really dress that way?!
Nevermind, moving on.
Here we have someone from India claiming to be a registered patent and trademark attorney. Of course…India doesn’t have registered patent attorneys, they have patent agents. Anyway, one of the gigs on the profile clearly offers “legal advice on branding, logo, trade name.” It’s explicitly offering legal advice, in English, from India, but with no distinction as to where they are licensed or what nation’s law they are licensed in. But given that they have been a member of Fiverr since 2012 and have 514 reviews, I’m going to guess they’ve provided “legal advice” to people all around the world.
Let’s look at one more example (are you catching on to the theme yet?).
Finally we have “daveparalegal” who claims to be a US attorney and legal researcher. Dave has some pretty specific information on his profile. He claims to have worked at Schwegman, Lundberg & Woessner, a boutique IP law firm. I looked around their website but could find no mention of Dave. Of course, he “previously worked there.” So I looked at Schwegman’s locations, then looked at the state bar directory of every location to see if there was a licensed attorney by the name of Dave Keane (or some variation).
I came up nil in every state, except for Massachusetts. Upon searching the Massachusetts bar directory, I found a Peter David Keane:
So, there is a registered attorney by the name of David Keane, but his current status is “Inactive,” which means he is no longer be eligible to practice law in Massachusetts. So if this if this is the same Dave Keane offering legal advice on Fiverr (which I think is unlikely), then he’s engaged in UPL.
There is something else to note on Dave’s profile, the use of the word “expert.” Lots of the legal gigs I saw included the word expert. Expert advice, expert consulting, etc. But the word “expert” has very specific meaning in regards to lawyers. We can’t just throw around words like expert or specialist unless there is good reason. Most States have some variation on the ABA’s Rule 7.4 of the Model Rules of Professional Conduct, which prevents lawyers from using deceptive advertising. So calling oneself an expert usually entails board certification of some type, usually certification that has to be recognized within the jurisdiction in which you are licensed to practice. Use of words like expert or specialist, without the requisite, recognized credentials, is usually grounds for sanctions.
The above profiles are just a few samples of the hundreds of legal gigs up for offer on Fiverr. I didn’t cherry pick these because they were the few select bad ones amongst a forest of legitimate profiles. They’re all pretty much like this. It’s listing after listing of profiles that purport to solve or address conceivably every legal claim imaginable.
A Reasonable Person
Now, I’m sure Fiverr would claim that all of the above is in violation of their Terms and they should be absolved of any responsibility. Now, if these profiles and gigs were new and taken down quickly, I might be sympathetic to that line of thought. Or if these gigs were stashed under some other heading, like “Other” or “Business Tips,” and Fiverr was unaware of them (although unlikely), then maybe I would entertain the idea. But this is not the case. Consider the following:
- Fiverr has a dedicated category labeled “legal consulting.”
- The category is included in the masthead menu of their website/app.
- Most of the”legal consulting” gigs listed include phrases and words like “legal advice,” “expert,” “legal counsel,” etc.
- There is no verification system in process as to ascertain the truth of those who hold themselves out to be attorneys.
- With a mere 10 minutes of search activity, using publically available information, many of the profiles claiming to be held by attorneys can be found to be demonstrably false.
- Some of the legal gigs on offer are from profiles that are 3+ years old.
All of the above points taken together make it difficult for me to believe that Fiverr is unaware that they have people engaged in UPL on their service. Let’s go a bit further. Take the above points into consideration along with the following:
- Fiverr is a multinational corporation, headquartered in Tel Aviv, but with multiple offices in the USA.
- Fiverr has raised tens of millions of dollars in VC funding, much of it from the USA.
- We can’t know the specifics as they are a private company, but speculation is that Fiverr pulls at least $1 million in revenue per month.
- Fiverr has in-house legal counsel, to review all services/products for legal compliance that it rolls out.
That’s to say, Fiverr has the money and expertise to know if they are engaged in supporting activities like deceptive attorney advertising and UPL. But given everything above, I find it inconceivable that Fiverr is unaware of that there are people on their site engaged in deceptive attorney advertising and UPL. Now, I’ll grant you Fiverr’s general counsel’s background is in Israeli law. But by most accounts, the “Israel Bar Association (IBA) vehemently enforces these [UPL] rules.” The IBA doesn’t mess around when it comes to cracking down on UPL within their own country, so I find it hard to believe that Fiverr’s general counsel is unaware of the problems in supporting deceptive attorney advertising and UPL.
Furthermore, laws and regulations regarding UPL do not just focus on those actively engage in UPL, but people who support those engaged in UPL. If you are found to be supporting parties engaged in UPL, then you are at fault as well.
But of course, even if Fiverr was blithely ignorant of all of this, there is the long recognized maxim in law:
Ignorantia juris non excusat – “Ignorance of the law is no excuse”
As it stands today, I think any reasonable person would agree that Fiverr appears to be a hotbed of unethical, deceptive attorney advertising and UPL.
Why Do I Care?
Am I concerned that Fiverr is stealing potential clients away from my firm? Of course not. Anyone who is looking to have a legal matter resolved for $5 is not the type of person I want as a client. We’re not in competition in the slightest. But there are people out there looking for legal advice, some of whom are likely turning to Fiverr.
I care about this because part of being a self-regulating profession is ensuring that people are not taken advantage of when seeking legal advice. It’s a duty of attorneys to protect the public from those who would take advantage of the public using the legal system.
Going after individual abusers on Fiverr is likely worthless. People will just abandon their profiles and create a new one. It would be playing a game of whack-a-mole. Given VPNs and other technology, it’s unlikely that many are even in the USA.
But Fiverr is.
And Fiverr is the enabler of all of this. Now, Fiverr might try and shield themselves with Section 230 protections, claiming they were merely the “provider” of a service and should not be held liable. Yet, Fiverr is not merely a provider. The entire premise of their service is to promote and enable transactions while taking a 20% cut of any fees exchanged. This moves them from being a mere provider of computer services to being an active participant.
Allowing them to continue to do so also encourages other companies and services to set up legal marketplaces in which unauthorized practitioners can flagrantly violate the law and offer inept, harmful legal advice to the public. If they are not checked, then it will only be a matter of time before more marketplaces such as the one they provide become common. What to do about it?
- There are hundreds of these profiles offering legal advice to the public in the USA, each of which is likely an individual violation of each state’s UPL.
- Deceptive attorney advertising violations can incur penalties from $1000 to $10,000 and beyond per jurisdiction.
- UPL violations can run from $1000 to $10,000 and beyond per jurisdiction.
- There are also often criminal penalties classifying UPL misdemeanors or felonies.
Given all of the above, I wouldn’t think it’s stretch for the State Attorney Generals to get together, form a class action, and then bring the hammer down on Fiverr.
If you’re a lawyer, or a member of the general public, concerned about unethical advertising and UPL, here is a list of the contact information for the Attorney General’s offices for every state in the USA. Cracking down on services such as this is the only way to prevent the public from relying upon inept, unauthorized legal advice that will do more harm than good.
As I’ve said before, it’s a good idea to Lawyer Up Before You Startup. Talking to lawyers may be annoying because it’s expensive and they like to say no a lot. But there’s also likely a pretty good reason they are rejecting your startup ideas and not just because they like being a wet blanket.
If you’re at a startup somewhere and want to save yourself a headache, go find a real lawyer (I do consulting, holla at me).
UPDATE: Scott Greenfield weighs in as well.
UPDATE 2: In a bit of serendipity, Amazon sues 1000 Fiverr users.
UPDATE 3: Josh King (who commented already below), has a post on 230 interpretations regarding the above situation at his blog. Interesting thoughts and I have some quibbles which I’ll address soon. I didn’t go too far into 47 USC 230(c)(1) category as this post was already nearly 3000 words long, but looks like that might have to happen.