Advocating for attorney advertising.

So, back in August, I mentioned that I was going to have the opportunity to debate issues of lawyer advertising before an audience of top-notch Canadian lawyers in November.  This post is something of a coda to that post as I want to, very briefly, say a word or two about that talk.

It was, as I anticipated, a highly rewarding experience and all of the attorneys affiliated with The Advocates’ Society with whom I had the opportunity to meet and speak were delightful.

During the presentation, my job was to be the one to give voice to things that those assembled might not want to hear.  So, to start things off, I broke the news to them all that we don’t pronounce Hermitage, as in The Hermitage Hotel, in the fancy manner they were wont to do.  After having dealt that disappointing blow, I gave my pitch about what regulation of lawyer advertising should be, and what it shouldn’t be.

I tried to do so with a focus on things beyond just the protections afforded under our First Amendment for commercial speech because they don’t have anything quite the same under their nation’s law.

Those points – which I will happily repeat as many times as anyone ever gives me the chance to do so — are:

  • Ethical restrictions on lawyer advertising ought to pretty much start and end with prohibiting statements that are false or actually misleading.
  • It is pretty much a universal truth that the only people who complain about lawyer advertisements are other lawyers.
  • Those tasked with regulating attorney conduct don’t particularly like spending time adjudicating squabbles between lawyers about ads.
  • Consumers don’t get worked up about lawyer advertising at least in part because they get it.  If you are paying to advertise something, you are going to emphasize its good points.
  • But consumers also don’t get worked up about it because they don’t view it the way lawyers do.  There are still people out there who simply did not know they could hire a lawyer without having to pay money or who don’t know their problem might be something a lawyer could even help them with at all.
  • Some times the way those people learn this information is because they see some kind of lawyer advertisement in one place or another and, when they do, they don’t particularly think about whether or not it is something that you would think is “dignified.”
  • If you are motivated to want to impose stricter regulations on lawyer advertisements because of a concern that there is not enough public respect for our profession and advertisements that you think should be “beneath” lawyers fosters such disrespect, then I have a suggestion of how you could better direct your energies.
  • Imagine how much more could be done to foster better respect for our profession and what we do if we all focused our energies on encouraging communication of what it is that lawyers do, the role we play in society, and what we bring to the table that can help people in times of need for legal services, including helping educate them that their problem is one that could be helped by the work of a lawyer?

Coming to praise rather than bury: NYC Bar Op. 2017-6

About two weeks ago, I had the opportunity to speak to the Tennessee Defense Lawyers Association for an hour on ethics issues, using a “hot topic” format.

One of the topics I covered was the many things there are beyond just being parties on opposite sides of the “v” in litigation that present conflicts to be managed, avoided, and addressed in handling lawsuits.

I mentioned the difficult situations that can arise as a case evolves and someone shows up on the radar screen as an important witness — particularly an expert witness — and the importance of running supplemental conflicts checks to make sure that a lawyer or her firm doesn’t first figure out the problem when learning during the deposition that the witness claims to be a client of the lawyer’s firm.  That is a scenario that lawyers sometimes don’t always think about in advance but for which there is little, if any, push back on the idea that it is a conflict about which to be concerned.

I pivoted from that topic to a similar topic — issuing subpoenas for documents to witnesses — that lawyers are more inclined to want to try to intellectualize as not creating a conflict situation because it can have the feel of a “routine” act and it also “feels” like an administrative hassle.

At the time of that presentation, I somehow had not yet seen a recent Formal Ethics Opinion out of the New York City Bar on that very topic – if I had seen it I certainly would have pointed to it — because it is a very well done treatment of the issue.  The question addressed in NYC 2017-6 is:

What ethical restrictions apply when a party’s lawyer in a civil lawsuit issues a subpoena to another current client or may need to do so?

Now, a word before delving into the insight that can be gleaned by all lawyers in all jurisdictions from this opinion about an important, but not dispositive, difference in the language of New York’s Rule 1.7(a).

In Tennessee, and many other jurisdictions with rules patterned after the ABA Model Rules, RPC 1.7(a) reads so as to address two types of conflicts as being “concurrent conflicts of interest.” One where the lawyer would be required to represent one client in matter directly adverse to the interests of another client, and one where the lawyer’s duties to someone else (or the lawyer’s own personal interests) will impose a “material limitation” on the lawyer’s ability to represent the client.

The NY version of Rule 1.7(a) has slightly different language on each of those two fronts.  NY’s 1.7(a) indicates that a lawyer has a conflict:

if a reasonable lawyer would conclude that either (1) the representation will involve the lawyer in representing differing interests; or (2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.

And, “differing interests” is specifically defined in NY’s rules to mean “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.”  Now those NY variations on the language make it a bit easier and cleaner to see the issues created when a lawyer pursues a subpoena for records from one client for another client but so much of the opinion that explains the analysis is written not just well, but in a practical fashion that, in my opinion, allows it to resonate for lawyers in jurisdictions with the ABA Model Rule language on conflicts as well.

After surveying the landscape of earlier opinions on these subjects, the NYC opinion laid out a number of helpful conclusions:

First, issuing a subpoena to a current client to obtain testimony from that client will ordinarily give rise to a conflict of interest.  Obtaining testimony typically inconveniences the witness, involves probing a witness’ recollection, and at times may involve challenging and confronting the witness, any of which a current client may reasonably perceive to be disloyal.

[snip]

Second, it will ordinarily be a conflict of interest for a lawyer to seek to obtain documents via a subpoena to a current client.  The production of documents in response to a subpoena very often requires an allocation of resources (time and money) which the subpoenaed party would prefer not to expend.  This is all the more so when outside counsel needs to be retained, and the scope of production needs to be negotiated.

[snip]

The opinion then goes on to offer some further practical advice for lawyers to keep in mind because of their ethical obligations which the opinions lays out as:

(a) the necessity for lawyers to run conflict checks prior to serving a subpoena; (b) the potential need to decline or limit a representation, or to obtain informed consent, if a lawyer knows before being retained that subpoenaing a current client may be necessary; and (c) the retention of “conflicts counsel” to avoid the need to withdraw, or the risk of disqualification, when a lawyer learns during the course of a litigation of the need to subpoena another current client.

The opinion does go on to provide helpful explanatory details for each of those topics, and you can go read the opinion in full at this link.

 

More fuel for the advertising rule reform fire.

So, I’m getting a very wonderful opportunity to participate in a debate about lawyer advertising in November in Nashville at The Advocates’ Society annual meeting.  A throng of lovely Canadian attorneys will be traveling to our state capital for a two-day meeting.

I say all of this for two reasons:

Reason the first – today I had the chance to meet the other folks involved (albeit by telephone) to generally lay out what we might talk about.  It was a fascinating experience leaving me with the impression that just as our neighbors to the north were about 15 years behind us in allowing lawyers to advertise, they are still about 15 years behind us on the “what to do about the scourge of lawyer advertising timeline?”

In Canada, particularly Ontario, rules revisions have been recently adopted to impose more regulations on lawyer advertising with worries aimed at things like advertising second opinion services, and undignified locations or contents of advertisements including awards received, and whether lawyers can advertise for cases where they plan to then refer the matter out because they aren’t licensed in the jurisdiction or not capable of handling the matter.

Here in the United States though, the trend is hopefully now moving toward relaxing the marginalia of the restrictions and to streamlining regulations to simply, but strongly, prohibit actually false and misleading advertisements.

Reason the second — not everywhere in the United States is that necessarily the trend.  I was reminded of that fact when reading about this lawsuit filed in Utah over an application of Utah’s approach to prohibiting celebrity endorsements of a lawyer or law firm.  You can read the lawsuit filed by the firm, coincidentally doing business as “The Advocates,” here.

The short version of the story, laid out with a level of incredible politeness that would make even a Canadian law firm proud, is set out in the “Nature of the Action” paragraph of the lawsuit:

Plaintiffs advertise their legal services by way of live and sometimes pre-recorded interviews including statements of lawyers of the firm, radio personalities and others occurring and read during the course of regular programming of certain radio broadcasts, and during regular programming breaks (collectively, “Live Ads”).  Based on obiter dicta contained in an opinion issued November 12, 2014 by the Utah Bar’s Ethics Advisory Opinion Committee, the Utah Bar Office of Professional Conduct (“OPC”) has interpreted and applied Rule 7.2 of the Utah Rules of Professional Conduct to proscribe Plaintiffs’ Live Ads.  With respect and gratitude for the Utah Bar and its Commissioners’ service to the members of the Bar, and with deference to their discretion, Plaintiffs courteously bring this Complaint seeking this Court’s interpretation and declaration of the parties’ rights and obligations under the First Amendment’s protection of commercial speech and other implicated constitutional protections.  Plaintiffs fully intend to abide by the Utah Rules of Professional Conduct as well as the high ethical standards they have set for themselves.  While they believe that their Live Ads at issue in this Complaint are protected speech and fall within the Rules, Plaintiffs will yield to the courts’ final decision, regardless of the outcome.

Setting aside the general silliness of being worried that modern consumers will somehow be tricked by a celebrity endorsement in a lawyer advertisement, and setting aside the additional general silliness that such a concept would extend to radio hosts/DJs reading live advertisements of lawyers and law firms, the whole genesis of Utah’s position that a celebrity endorsement is prohibited by the ethics rules is a pretty interesting example of writers of an ethics opinion losing the plot.

The lawsuit doesn’t explicitly say it, but Utah RPC 7.2 does not contain any direct prohibition on a celebrity endorsement.  The closest that rule would get to such a result is either to misread and expand subsection (b) of its rule which declares:

(b) If the advertisement uses any actors to portray a lawyer, members of the law firm, or clients or utilizes depictions of fictionalized events or scenes, the same must be disclosed.

or to conclude that subsection (f) of the rule doesn’t permit paying a celebrity as being a reasonable expense of an advertisement.

What the lawsuit does explain is that the notion that Utah Rule 7.2 prohibits a celebrity endorsement in an advertisement only comes about because a total non-sequitur was thrown into a Utah ethics opinion that was issued to address the question: “What are the ethical limits to participating in attorney rating systems, especially those that identify ‘the Best Lawyer’ or ‘Super Lawyer’?”

You can go read Utah Bar Ethics Advisory Committee Opinion 14-04 for yourself here, but it truly does bizarrely just add a last sentence in an otherwise unrelated paragraph that says “a lawyer who pays a celebrity or public figure to recommend the lawyer violates Rule 7.2.”  That foray down a rabbit trail actually drew a dissent from a member of that committee to the ethics opinion which is itself not something you see every day.

Efforts to restrict lawyer ads really do cloud the minds of otherwise reasonable and intelligent folks.

As a matter of fact, yes, this potato is still hot. Why do you ask?

In October of this year, I’ll have the honor of again getting to serve as a moderator for a panel discussion at Aon’s Law Firm Symposium.  This year’s event will take place in D.C.  The topic of the panel I get to be a part of will be something of a DQ motion boot camp.  It is still months away, my guess is that we will be focusing on aspects of disqualification motion proceedings that will be harder to predict than the outcome of this case out of Mississippi should have been.

If you know a little something about conflicts, then you are probably have passing familiarity with all of the core concepts necessary to immediately predict the outcome of the scenario that was involved in McLain v. Allstate decided in the S.D. Miss.  I’ll succinctly describe the scenario for you:

Lawyer has had a long term relationship with an insurance company client.  That relationship is not as robust as it used to be as the lawyer is continuing to handle quite a few matters for them but has come to notice that no new matters have been coming from the company for quite a while.  Lawyer is contacted by a potential client who has a matter that would be adverse to this insurance company client.  Lawyer goes ahead and decides to take on the new representation but also terminate the ongoing representation of the insurance company client.  Insurance company brings motion to disqualify, and lawyer argues that insurance company client should be treated as former client and disqualification should occur only if new matter is substantially related to prior matters.

How will lawyer fare?

I have no doubt you answered this correctly.  Not well, the lawyer will not fare well.  The lawyer will get disqualified.  The court will explain that a lawyer cannot drop one client like a “hot potato” in order to transform them into a former client so that you can take on representation of a new client.

Thus, for you Dear Reader, almost all of the contents of the seven-page order disqualifying this lawyer will come as no surprise.

What might come as a surprise to you – it certainly surprised me — is that the federal judge who ordered disqualification actually included a sentence praising the lawyer involved for how he handled the situation. Specifically:

[Lawyer] undertook commendable efforts to insulate himself from a conflict of interest by declining to discuss or investigate McLain’s claims until after [Lawyer] promptly and formally terminated the firm’s relationship with Allstate.

I know people often accuse me of being stingy in terms of doling out praise, but that sentence just leaps off the page as trying too hard to find something nice to say.  Commendable seems a stretch.  Particularly so given that when you work your way back earlier in the opinion itself where it lays out the chronology of events, you will find that the lawyer in question had the new client sign a contract with his firm on October 11, 2016 and, then, on October 12, 2016 sent the letter that attempted to drop Allstate like a tuber of elevated-temperature.

If any aspect of the lawyer’s effort is commendable (and I’m still stretching the utility of the word itself), it would be the whole not-being-very-Machiavellian about it angle.  A truly Machiavellian type would have done more to attempt to manipulate the timeline of events.  Perhaps, having the new client execute an engagement letter, only after the lawyer had time to send the letter to terminate the current client relationship.  I’m not sure that not doing that qualifies as “commendable” exactly.  But it’s something.  As long as it was very close in time, the potato would still be hot and the outcome unchanged, but … like I said it would be something.

A glimpse into the world of consumer-facing legal services providers

Yesterday, I had the pleasure of serving as a moderator at a CLE event in Nashville focused on developments in the world of consumer-facing legal services providers.  There are a world of companies – predominantly existing only online — that have an increasing presence in the lives of people in need of legal services and answers to their legal questions who, often otherwise, would not reach out directly to a lawyer to try to obtain help for their problems.

The full event was a 3 hour long seminar covering several topics, but the panel I moderated encompassed an hour of conversation with Bob Aicher of ZeekBeek, Matt Horn from Legal Services Link, and Dan Lear from Avvo.

Now, if you are reading this, you’re likely already familiar with the various aspects of Avvo’s footprint in the marketplace.  You may not know as much, however, about ZeekBeek or Legal Services Link.

In some ways, they do quite similar things but the approach is different.  Both operate as an online platform through which people in need of legal services can connect with lawyers who are willing to provide services.  ZeekBeek partners exclusively with state bar associations and, thus, in those states comes across as an entity that has the imprimatur of the state regulatory body and also — for a fee — provides its participating lawyers within a state a different platform for making referrals of work to other lawyers.  Legal Services Link monetizes its provision of a market place for consumers to ask questions and obtain legal advice and representation from participating lawyers by allowing lawyers to view questions for free but requiring lawyers who want to interact with the consumer by replying and answering their inquiries to pay an annual membership fee for that privilege.

While each of the three representatives had differing views on the topic of whether they versus those they compete with are able to do what they do in a way that the participating lawyers can be assured of compliance with the ethics rules, it was very interesting (though not surprising) to hear all three of them agree that the ethics rules that relate to their services are desperately in need of change.

It was a very interesting and engaging discussion.  The good news for you, if you are interested in checking it out, is that you can view the entire program by registering/purchasing it at this link from the TBA.  (As of now there is no way to just pay for the middle hour which was the program I moderated, but should that change I will update this post.)

 

Bad ethics opinion or the worst ethics opinion? New York State Bar Ethics Opinion 1110 edition

Again, not fair actually.  This NY ethics opinion isn’t in the running for being the worst ethics opinion and isn’t even truly bad and actually, I guess, not even wrong.  But it does point out a really bad flaw with respect to the language of the particular NY rule it applies.

What seems like an exceedingly long time ago now, I was first inspired to title a post with this “Bad or Worst” title.  I did so when I wrote about what I thought truly was a woeful ethics opinion — and one that I cannot believe anyone even asked about in the first place — in which the Ohio Board of Professional Conduct imposed some ridiculous limitations on the ability of a lawyer to communicate with attendees at a seminar or continuing legal education presentation.

The subject matter of NY State Bar Ethics Opinion 1110 is similar – whether New York’s ethics rules on advertising, and derivatively solicitation, apply to a situation in which an attorney wishes to invite people to come to a seminar that he would put on regarding intellectual property issues.  As the opinion explains:

The inquirer, an intellectual property lawyer practicing in New York, plans to conduct online webinars and live seminars on topics within his principal fields of practice for persons who may have a business interest in those topics and a need for legal services.  Inquirer contemplates identifying persons fitting that description by use of commercially available business listings, including such listings on government agency web sites, such as business entity lists.  Admission to the webinars and seminars may be free or may be for a fee.

The opinion then lists a litany of questions it has to resolve to determine whether this can be done, but the core question is whether the seminars would be advertisements and, if so, whether they would be solicitations.  Now the opinion goes on at some length about ways that the lawyer could limit what is said or done at any such presentation so that it would not even qualify as an advertisement, but, eventually, it does the practical thing and assumes that the lawyer would likely during the seminar say things that would amount to talking about his “skills or reputation” sufficient to make the seminar an advertisement.

Assuming it is an advertisement, the opinion then also quickly gets to the conclusion that the seminar would be a solicitation — and that it would be an in-person solicitation, and, thus, the attendees would have to be limited to “close friends, relatives, former client(s), or existing client(s).”

This is the moment where, inside my head, there is the sound of screaming.

It is one thing to have an ethics rule that imposes strict prohibitions on in-person solicitations.  That’s fine.  It is also fine to have an ethics rule that requires, as to written solicitations, certain requirements about those.  I often disagree with the details of what states require as to disclaimers or font sizes, but I can be swayed not to get up in arms about the requirements.  It is another thing to have a rule that creates such a strict definition of solicitation to justify writing an ethics opinion that would say that someone who accepts an invitation to attend a seminar is being subjected to a solicitation at the seminar they could have just chosen not to attend.

The closest that New York’s RPC 7.3(b) gets to carving out communications that are initiated by a person who isn’t a lawyer from being a solicitation is the language that states that solicitation . . . “does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.”

But the inanity of the outcome articulated by this ethics opinion is pretty epically demonstrated by analogy to an actual written solicitation letter to a targeted potential client.  Assume that a lawyer sends one of those, and complies with all the bells and whistles in such a written communication as to what the envelope cannot say, the font size, the disclaimers at the beginning, and mandatory language, but the recipient then decides — “hey, I’m interested in hearing what a lawyer could do for me” and proceeds to go to the lawyer’s office to ask for a meeting.  Everything that happens then is.not.a.solicitation.

The rules regarding in-person solicitation seek to protect potential consumers of legal services from overreaching by lawyers.  That is the espoused rationale.  I often, with tongue-in-cheek, will explain at seminars that such rules exist because when we graduate law school we have been imbued with superpowers as to persuasion that allow us to convince mere mortals to do things that they otherwise would never do but for our incredible superpowers.  (I can often then use the exception to the rules against solicitation for lawyer-on-lawyer solicitation to explain that since both sides have equal superpowers there is no need for the protection.)

But, in the conceptual situation evaluated by this formal ethics opinion, if the recipient of the invitation to the seminar doesn’t want to be in a room where a lawyer is speaking about the area of law in which they practice, they.can.just.not.go.to.where.the.seminar.is.happening.

What is missing from the text of New York’s rule to prevent this sort of result is the language that we have here in Tennessee in RPC 7.3(a)(3) indicating that an in-person or real-time solicitation of professional employment from a potential client is not prohibited if “the person contacted . . . has initiated a contact with the lawyer.”

Two quick technology takes – texting and more on email “bugs”

Not too long ago, I weighed in on an Alaska Ethics Opinion about the ethics of lawyers using email “bugs” that surreptitiously track what happens to an email after it has been sent.  There is a new, interesting read on the “legal or not” aspect of this technology in the ABA/BNA Lawyers Manual on Professional Conduct authored by Chad Gilles, a former lawyer who is now involved with customer strategy and legal affairs with a company called MailControl.net.  It certainly makes for an interesting and informative read, and I appreciate the short mention of a snippet of what I said here on my blog.  I was surprised in the Gilles article to read that Professor Dane Ciolino of Loyola University New Orleans had espoused a belief that it was ethical to use such technology if you were a sending lawyer and, for what it is worth, I’ve now gone and read Ciolino for myself on the issue  and … well, color me still unconvinced.

For what it is worth, the notion that Gilles explains that the jury is out on whether the conduct — using mail bugs — also runs afoul of one or more federal statutes (think the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act) leaves me more confident that my conclusion that the conduct is unethical is on the right side of things.

On an unrelated note — other than being related by way of the broadly encompassing “technology” category — Thomas Spahn and I will be doing a teleseminar on January 20, 2017 focusing specifically on a variety of ethical issues that can arise in connection with lawyers using text messaging to communicate with clients and each other.  I haven’t been fortunate enough to do a seminar with Tom in a few years and am looking forward to discussing this topic with him.

I’ve also spent a little bit of time — unsuccessfully — trying to re-find a case/situation that was reported on within the last couple of years involving a lawyer who saw part of the contents of a text sent to a judge because the judge’s phone was laying out on the bench and it lit up and the first part of the message was viewable.  I can’t remember if it was the lawyer who got in trouble for the snooping or the judge because of what was on the text, but I remember it happening.  It serves as a great teaching tool for thinking about turning off the “preview” function for texts on your smart phone, but only if I can properly reference it.

If anyone reading this, recalls it or is more proficient at finding it before January 20, I’d appreciate you shooting me a message of where to find it.  And, either way, if you have the time please feel free to sign up for our teleseminar — it is being offered through a variety of bar entities so you should be able to find it with a google search, but here’s a link to one state bar where you can sign up for it.

 

My 200th post: Living in a “post-fact” world?

So, not a milestone for some, but, for me, it feels like an achievement to have made it to my 200th post.  And because I’m a sucker for wordplay, I’ll use a “post” milestone to talk about an issue I’ve written about a good bit before but with a twist that also involves the word “post” but as a prefix.

If you’ve been paying attention at all to U.S. politics, you may have seen some discussion about how we seem to be living in a “post-fact” world and lots of accompanying criticism about how the media has played a large role in making it easy for prominent people to simply refuse to acknowledge facts and then inculcate beliefs in those who support them or identify with them that such facts are not actually facts.

Well, here’s something of an example — but in the world of legal ethics — of just how easily it is for that kind of thing to seem to happen.

So, in late October, the Montana Supreme Court put an order out for public comment about potentially adopting the new ABA Model Rule 8.4(g) addressing harassment and discrimination by lawyers in conduct related to the practice of law.  The Montana Supreme Court has floated adopting the entirety of the ABA Model Rule black-letter language such that if adopted, Montana’s 8.4(g):

would provide that it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

You can read the Montana Supreme Court order here.  The deadline for public comments is actually today and, within the last few days, there was some publicity in Montana about the proposal.

This story is what has prompted me to write.  The reporter has included a quote from a law professor at a Montana law school who stakes out the position that the rule would suppress free speech and who is quoted as saying:

“There’s a wide variety of attorneys from a wide variety of backgrounds that are opposing this proposed rule, not necessarily on faith based reasons, but on the ability to ask questions in depositions and determining who should be seated on a jury. So it’s raised concerns amongst all types of attorneys.”

But, you might say to yourself, I just read that the proposed rule, if adopted, would have a sentence that says: “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”  And, also since you read the blog, it probably means you keep up enough with these issues to know that the ABA Model Rule, at least, has specific language in an accompanying comment even addressing peremptory challenges, but that even if Montana isn’t also looking at adopting the comments, as long as what the lawyer does in jury selection is “legitimate advocacy,” it ought to be protected.  Yet, the news article contains no push back against the law professor’s statement and not even a competing quote from someone saying the actual rule would raise no such issues.

How can that be?  Well, there is a fairly easy and revealing answer that is pertinent to a number of much larger issues going on in the world around us these days (in my opinion).  The news article, describing the rule for the public, merely says this about the content of the proposed rule:

Proposed rule 8.4 (g) states: It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

So, the news report simply omits two of the sentences of the proposed rule including the one that contradicts the law professor’s stated concerns.  Thus, regular folks would have no idea of the rest of the content of the proposed rule when reading the story and certainly no reason to question why the law professor would be willing to make claims that appear to be contrary to clear language in the rule.

Sigh.

(And, if you are in Chattanooga or Knoxville, I’ll be doing those stops on the Ethics Roadshow next week and ABA Model Rule 8.4(g) is one of the topics on the menu for discussion.  It’s not too late to register and attend if you are so inclined.)

ABA Ethics 20/20 revisions. New York adopts some; Tennessee proposal still pending.

Roy Simon, the Chair of the NY State Bar Association Committee on Standards on Attorney Conduct, was kind enough to include me on an email last week and, as a result, I learned that New York’s proposed adoption of certain aspects of the ABA Ethics 20/20 revisions was approved, effective January 1, 2017.  Back in 2015, New York adopted certain revisions to Comments to the Rules consistent with Ethics 20/20, but the proposal to change the rules themselves required Court action.  You can read the details of the revisions that were adopted in this PDF: order-adopting-black-letter-amendments-to-part-1200-eff-jan-1-2017.  As with many jurisdictions, New York has picked up the move to a black letter duty in Rule 1.6 to “make reasonable efforts” to safeguard confidential information but not adopted several of the other Ethics 20/20 black-letter revisions  For example, New York has not adopted the Ethics 20/20 revision to acknowledge in Rule 1.6 the need to disclose certain information in connection with lateral moves and mergers in order to comply with the concomitant duty to avoid conflicts under Rule 1.7.  The Comments adopted in 2015 in New York did pick up the Ethics 20/20 revisions to the Comment to Rule 1.6 on that topic, however.

The Comments adopted back in 2015 also included the new paragraphs in Rule 1.1 that are touted by many as establishing a duty of technological competence for lawyers.

I wrote back in the late part of the summer about the TBA’s petition to the Tennessee Supreme Court proposing that Tennessee adopt almost all of the ABA Ethics 20/20 revisions.  The deadline for public comments expired in November 2016, but not before our disciplinary body, the Board of Professional Responsibility, filed comments proposing a number of additional amendments to be layered upon the TBA proposal.  Several of the BPR proposals, all of which you can read here (starting at page 2 of the linked PDF), are puzzling.

The TBA filed a response/reply to the BPR’s comment arguing against the majority of the BPR proposals.  The TBA’s response is not yet up at the Court’s website, but as I was one of the signers of it, I happen to have a copy, and you can read it at this link:  petition-bpr-comment-response

This situation regarding the pending proposal is one of the 12 developments I’ll be covering, including a detailed discussion of some of the puzzling pieces of the BPR proposal, during this year’s Ethics Roadshow.

The first stop is this morning in Memphis, and I’ll be doing it again tomorrow in Nashville.

 

DC Ethics Opinion 370 – Y’all knew I wouldn’t be able to resist

So, the D.C. Bar has come out with a far-reaching, sort of two-part ethics opinion addressing lawyers and social media usage.  Opinion 370 (Part 1) can be grabbed here.  Opinion 371 (Part 2) from here.  Opinion 370 has lots of really good parts, but much of the publicity it has received to date revolves around something it throws out for lawyers to bear in mind and be wary of that hasn’t really been said by opinion-writing entities before.

Here’s how the ABA Journal online headline treated it – “beware” of “social media statements on legal issues.”  Other aspects of the reporting I have seen described it as warning lawyers who offer opinions online of the potential for creating an “issue” conflict.  There’s a reason, I think, this topic hasn’t been explored much by other opinion-writing bodies:  it is a relatively silly and irresponsible take.  Regardless, given the minimal treatment of the issue that the opinion offers, even if you think there were merit to flagging the issue for consideration, the portion of Opinion 370 that “addresses” it still would be better left on the cutting room floor.

Here, in its entirety, is the analysis of this issue as a risk for lawyers from the DC Opinion:

Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer’s own financial, business, property or personal interests,” unless the conflict is resolved in accordance with Rule 1.7(c). Content of social media posts made by attorneys may contain evidence of such conflicts.

Now, to help get your bearings straight if you aren’t a D.C. lawyer, D.C.’s Rule 1.7(b)(4) is different from what is set out in the ABA Model Rules and, thus, different from what we have here in Tennessee (for example) in the closest equivalent rule, RPC 1.7(a)(2).  Our RPC 1.7(a)(2), just like the ABA Model, establishes a conflict of interest — albeit a potentially consentable one — where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

In a (stop-me-if-you-heard-this-one-before) well-done story by Samson Habte with the ABA/BNA Lawyers’ Manual on Professional Conduct, some quotes are gathered from folks pointing out that the concept of an “issue” or “positional” conflict of interest necessarily involves or requires taking contrasting positions in front of one or more tribunals and, thus, a lawyer’s public statements of opinion about a legal question couldn’t create a positional or issue conflict.

In Tennessee, for example, we address issue/positional conflicts of interests in Paragraph [24] of our Comment to RPC 1.7.  While incapable of being that kind of conflict, supporters of the D.C. Opinion warning might argue that it is still a risky endeavor to express opinions about a legal issue because the lawyer might then have a “personal interest” in how something is resolved that would materially limit the ability to represent a client.

To me, that kind of approach to the topic not only misunderstands what it means to be a lawyer representing a client but also what the rules say in a variety of places it means to be a lawyer at all.  I’ll stick for now to just the Tennessee rules though I’d venture a guess that similar principals are laid out in D.C.’s rules.

In the Preamble to our Rules, in the second paragraph, we lay out a list of things that a “lawyer” is and, included among them, is “a public citizen having special responsibility for the quality of justice.”  In the seventh paragraph of the Preamble to the Rules we say:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession.  As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law; and work to strengthen legal education.

Further, we have a rule, RPC 6.4, patterned after ABA Model Rule 6.4, that specifically makes the point that lawyers can ethically undertake service in connection with entities that seek to reform the law or its administration even though such efforts could detrimentally affect the interests of a client of the lawyer.  If a Tennessee lawyer can engage in organized efforts to reform the law even though those efforts, if successful, might detrimentally affect the interests of one of the lawyer’s clients, then absolutely they can make public statements about what the law should be without violating the ethics rules.

Now, might a client decide not to hire a lawyer who has already indicated a personal belief contrary to the client’s position.  Sure, and they’d have every right to make that decision.  But they might also make a different decision and think that, if the lawyer is willing to take on and argue their position despite past public statements to the contrary, it would make their arguments stronger.

To my knowledge. opinion-writing entities have never warned lawyers about writing learned treatises or books on legal subjects or discouraged lawyers from speaking at Continuing Legal Education events or seminars (which are these days often videotaped and archived) because of some notion that expressing an opinion about a legal issue could create an ethical conflict for the lawyer.  Seems to me that the same “logic” that drove the almost offhand reference by the DC Bar in the Ethics Opinion could be applied to tell lawyers to “beware” of such other activities as well.

One thing I hope everyone could agree upon though is: if you are going to go to the trouble of injecting this issue into what is otherwise an extremely lengthy ethics opinion, then you should have done a better job of tackling the issue comprehensively rather than simply throwing out a half-baked statement that could serve to dissuade lawyers from speaking out.