Sharing Law

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Discussion

by Janelle Orsi:

"What do you call a lawyer who helps people share, cooperate, barter, foster local economies, and build sustainable communities?

That sounds like the beginning of a lawyer joke, but actually, it’s the beginning of new field of law practice. Very soon, every community will need a specialist in this yet-to-be-named area: Community transactional law? Sustainable economies law? Cooperation law?

Personally, I tend to call it sharing law.

...

The evolving nature of our transactions has created the need for a new area of law practice. We are entering an age of innovative transactions, collaborative transactions, crowd transactions, micro-transactions, sharing transactions—transactions that the legal field hasn’t caught up with, like: Bartering. Sharing. Cooperatives. Buying clubs. Community currencies. Time banks. Microlending. Crowdsourcing. . Open source. Community supported agriculture. Fair trade. Consensus decision-making. Cohousing. Intentional Communities. Community Gardens. Copyleft.

At present, there is not much literature explaining the legal implications of these kinds of transactions. To those of us who have made this our area of practice, many of the legal questions in this new field sit unanswered on our giant to-do lists. One-by-one, client-by-client, we are making headway. As the ground swells with people adopting more sharing and cooperative work and lifestyles, we can look forward to a growing body of law and literature on the subject.

At the same time, the answers will never be clear cut, and lines we have grown accustomed to will be increasingly blurred.

Until we evolve a new set of legal definitions, we’ll dance uncertainly around the lines between “income” and “gifts,” between “own” and “rent,” between “employees” and “volunteers,” between “work” and “hobby,” between “nonprofit” and “for-profit,” between “invest” and “donate,” and so on. Our clients may have outside-the-box livelihoods and organizations, but it’ll still be the job of lawyers to help them fit into boxes that are traditional enough to comply with the law.

The growth of “community transactional law” or “sharing law” has implications not just for what lawyers practice, but how they practice—how they interact with clients, deliver services, determine fees, work with conflicts of interest, and so on. Working in this field will require not only the skills of legal analysis, but also the skills of open-mindedness, clear communication, collaboration, and an understanding of the role that human needs and emotions play in collaborative transactions. Collaboration between lawyer, client, and community is key. A lawyer brings legal knowledge, while a client brings practical knowledge, and the community provides the forum for the transactions. To the extent information is shared in all directions, thoughtful and innovative transactions will emerge.

Lawyers typically don’t freely share sample documents because charging for documents is a primary way that lawyers make money. Lawyers in this new field will need to develop new revenue models that encourage sharing of information. The free flow of information and open-sourcing of legal documents will ensure better informed clients, better quality and widely-available documents, and communities that are empowered with an understanding of what is possible.

Lawyers can also use sharing to make legal services more affordable, and therefore accessible, to clients. A lawyer sharing office space can keep overhead and fees far lower than a law firm built to look like the Emerald City. A lawyer open to receiving payment in time dollars will make legal services accessible to a broader range of clients.

A large component of lawyers’ work is drafting documents, like contracts and agreements about how organizations will function. In a world where people form babysitting co-ops, community gardens, open source creative projects, and other decentralized, participatory, fluid, and adaptable group projects, documents clearly describing these arrangements will be indispensable.

That is, if people can understand them. In a typical lawyer-client transaction, the lawyer might prepare a document that the client looks at, often reluctantly and quickly. The document is then put into a filing cabinet, never to be seen again (unless someone sues someone, in which case everyone hires more lawyers to interpret the appallingly long and confusing paragraphs).

Documents should be living tools for a sharing organization.

...

In a more sharing world, attorneys might more frequently represent groups of people, rather than just individuals and business entities. In these situations, an attorney might simultaneously play a role as a lawyer and a facilitator.

This deviates, to some extent, from traditional models of practice.

For example, if three unrelated people decide to purchase a house together, and approach an attorney to draft their shared ownership agreement, the attorney might insist that each party will need his or her own attorney. Simultaneously representing multiple parties to the same transaction can put an attorney at risk of violating ethical rules because the parties’ interests could come into conflict with each other. Furthermore, joint representation means that each individual client will not have his or her own zealous advocate. (In case you wondered, “zealous,” is a word right out of lawyers’ rules of professional conduct.)

Zeal, however, may not be the most important thing clients are looking for in a sharing lawyer. Perhaps they want one attorney who can learn about everyone’s needs, help explain the benefits and risks for each person, mediate any conflicts that do arise, explain the legal framework, and then guide the group in developing a plan that works for everyone. Often, facilitating the growth of an open and trusting relationship among parties will be far more important than lobbying for favorable contract terms for a single party.

At the same time, when the stakes are high, giving attention to individual interests will be essential. To this end, sharing law has much to learn from “Collaborative Law,” which has been applied primarily to divorce cases, and sometimes to the preparation of prenuptial agreements. In the collaborative model, each party is represented by an attorney, and thus has an advocate helping to assert that party’s interests.

Typically, however, the attorneys are also trained mediators, and the parties come to the negotiating table in an open and cooperative spirit. In the same way that the collaborative approach has been used in negotiating prenuptial agreements, it could be applied also to co-ownership agreements, partnership agreements, and other situations where parties must balance concern for their own interests with the desire to come together and collaborate." (http://www.yesmagazine.org/new-economy/cooperation-law-for-a-sharing-economy)


Example

"In small pockets around the country, lawyers are beginning this work. Recently, Oakland-based attorney Jenny Kassan and I co-founded the Sustainable Economies Law Center, an organization that creates a space for this new field to develop, generates tools and resources for the public, and provides learning opportunities for law students." (http://www.yesmagazine.org/new-economy/cooperation-law-for-a-sharing-economy)