I believe that Gregory is correct. I hope that some attorneys who have determined that use of Upwork does not violate the disciplinary rules of their states will weigh in.
This is not legal advice. My license to practice law has been inactive since 1995. That said, I suspect that I have more knowledge and experience of this particular issue than anyone else who might become involved in this discussion, including Upwork's attorneys.
In his initial post, Gregory mentions that purchasing leads is legal so long as the fee is fixed and not a percentage of legal fees. Ten years ago, that question had not been answered, and most in the legal field believed that purchasing leads violated the provisions Gregory posted here. I was the primary B2B writer and thought leadership advocate for the company that established the right of attorneys to pay for leads, in a 2-year, 47-state legal battle.
Many non-attorneys have weighed in in this thread and don't see the problem. That's because it is a regulation unique to the legal profession, and prohibits a practice that is fairly common in most other industries. If a roofing company refers a client to a painter, the painter might well offer the roofing company a 10% kickback on the job and no one cares. If an attorney does the same, he or she is subject to disciplinary action, including suspension or even disbarment.
There is a strong argument that Upwork isn't making referrals. The platform isn't steering clients toward any particular provider, and does provide other services for which it is compensated (marketing, escrow, invoicing, maintaining ratings, etc.). However, I'm not at all sure that matters, since attorneys aren't allowed to pay other service providers on a percentage basis, either. For example, an attorney cannot hire a paralegal and compensate her by paying that paralegal a percentage of the fees generated from a case she works on.
Similarly, Vlad's technical distinction regarding the freelancer being paid 100% and then paying Upwork makes no difference at all. In fact, that is exactly how it would work in most prohibited fee-splitting scenarios.
I believe that this, like the former perceived lead generation prohibition, is an issue that simply wasn't considered at the time the rules were written (in most states, 50 or more years ago) and that this is also an area ripe for evolution. But, as written today, I agree with the OP that use of Upwork would constitute prohibited fee splitting in most states.
I do not believe that UPL comes into play in this situation at all.
Were I in Gregory's shoes (a licensed attorney wishing to use Upwork's services), I would request an opinion from my state's attorney regulatory body. In addition to providing a clear answer, this would help to get an issue before regulatory bodies that represents an area in which the rules may be out of step with the workings of modern business and creating a prohibition that in no way serves to protect clients or society.
I'm using this thread to raise another issue because it is also within the legal niche and also (I believe) overlooked because most are not aware of the applicable laws and regulations.
I've just seen (and not for the first time) a posting in which the client is seeking a non-attorney to draft legal pleadings because he/she can't afford or is unwilling to pay for an attorney.
In every state I am aware of, it is illegal for anyone other than an attorney licensed in that state to provide this service directly to the client--and for good reason. Yet, these jobs have multiple bids, and there is no appropriate flagging option. Though I do flag the jobs when I see them, I fear that the non-attorney reviewers will have no clue as to what might be wrong with the posting, since there is no applicable checkbox and the restriction is not necessarily known to the general public.
As a paralegal, I get invited to these kinds of jobs all the time. I always turn them down and I often add a note to the client that the work would be considered practicing law without a license and the poster must hire an attorney. There are lots of these posts.
@Avery O wrote:
Could you please share this job post with me via private message so that I can review it with the team.
Avery, I know you can't comment on specific postings or clients, but it would be helpful if you could weigh back in on this general issue (what Upwork's position is on these projects that would be illegal for the provider, and how we should handle them when they appear).
Thanks for the gentle follow up! I will share any information from the team regarding this issue once I receive feedback from them.
Thank you for your patience.
I don't see this as a problem at all.
It is fine for attorneys to offer their services through Upwork, just as it is fine for writers, graphic designers and computer programmers to do so.