Lawyers (but really judges) in a #meToo world.

I was fortunate enough to be invited to speak last week at a half-day seminar that was called a “#meToo CLE” and was focused on legal and ethical issues for lawyers in the environment that now exists after #meToo went viral.

I was the only male speaker at the seminar and fully recognize that still might have been one too many male voices for the topic.  Nevertheless, it was an honor to participate all the same.  Sitting through the two hours of presentations before mine was a thought-provoking time as it helped to drive home many systemic problems still prevalent that become overwhelming to think about.

Some of my time spent talking through ethics issues for lawyers in a #meToo world focused on Tennessee’s rejection of a proposed RPC 8.4(g) and how that leaves us in a position where there is little, if anything, in our ethics rules to address toxic conduct by lawyers when representation of a client is not involved.

I spent some of the time talking about the fact that there is more, significantly more, built into our judicial ethics rules not only to stop judges from engaging in this kind of behavior but that also requires at least some form of what would, strictly speaking, be classifiable as judicial activism — doing what must be done to stop others from behaving in this fashion.

Specifically, we have adopted RJC 2.3 Bias, Prejudice, and Harassment – patterned after the ABA Model —  and it requires the following of judges in Tennessee:

(A)  A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C)  A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Tenn. Sup. Ct. R. 10, RJC 2.3 (all emphasis added by me)

This obligation of judges not only to personally avoid engaging in harassment both on and off the bench but also to stop others within their control, including lawyers, from doing so has stayed on my mind after the seminar for two reasons.

The first is the recent news of the release of this working group report that was submitted to the Judicial Conference of the United States declaring, among other things, that federal judges “have a special responsibility to promote appropriate behavior and report instances of misconduct by others, including other judges.”  The working group report also recommended that existing codes of conduct need to be revised to make clear that retaliating against someone who reports misconduct should itself be treated as judicial misconduct and that the obligations of confidentiality that court employees have do not extend so far as to prevent them from reporting misconduct.

The second is that we’ve got some contested judicial elections going on in Tennessee and I’m very curious whether any candidates will make this topic into a campaign issue.  Candidates for elected judicial positions are often very constrained in what they can say about how they will go about their jobs because of the problems associated with staking out public positions on matters they will have to later adjudicate.  Judicial ethics rules are rife with restrictions on campaign speech,  such as rules prohibiting promises or pledges about how they would rule on a particular case or on a particular legal question that may come before them.

But, this issue, and particularly, what a candidate might plan to do in keeping with his or her ethical obligations once on the bench to police bad behavior and not permit court officers to engage in harassment would be something that might well move the needle with some voters and would not be the kind of statement about issues relating to cases that judges should shy away from in order to avoid having to recuse in the future.

On wellness: An indirect explanation of last week’s lack of content

Content is a hungry beast.  I starved it last week.  Apologies.

It was really a bit of a rough week to let things get away from me and not be able to write anything because there were actually quite a few things worth delving into that happened.  Perhaps the biggest piece of news actually came the same day that I had a speaking engagement at a CLE for in-house counsel here in Memphis.  There were California in-house lawyers with the hosting corporation who were attending remotely and I apologized at the outset for the fact that the differences between their rules and Tennesssee’s were going to make their next hour of time pretty wasted and, also, mentioned that they were certainly striving to change their rules but then saying that we all strive toward lots of things …  implying that they’d never manage to adopt rules that look like the ABA Model Rules.  That very same day California was able to announce that, after 17 years of effort to get there, rules patterned after the Model Rules are being adopted and will become effective in November 2018.  I can’t write much more about that in any meaningful way because I haven’t had time to study any of it, so I won’t.  You can read the first wave of information about what those rules will look like here.

I’m also not going to “write” today about any other ethics topic of interest.  But, I do want to ask for 6 minutes of your time today in the name of the important issue of attorney well-being to watch the clip you can get at the link I’m posting below. (I promise this is not me trying to “pivot to video.”)

The last 12 minutes of the 2017 Ethics Roadshow

I shared this story about me for the first time during last year’s Ethics Roadshow after staying quiet about it for more than 7 years.  If you didn’t attend, or you didn’t stay for the last 12 minutes, then you won’t have seen it.  It offers an indirect window into why there was no new content offered here last week.  (Also, I know I said I’m only asking for 6 minutes of your time.  My personal story starts at the 6 minute mark on the clip.)

All things considered, I remain very lucky.  Client obligations and family obligations come first in terms of what gets accomplished.  After that, speaking engagements and all that entails comes next.  Pretty much everything else, including this blog, ends up third on the depth chart.  Sometimes I’m not deep enough to get that far down in the chart.

Another good opinion from the ABA SCEPR

This was not what I originally planned to write about today, but … here we are all the same.

Today, the ABA Standing Committee on Ethics and Professional Responsibility released a new opinion and, because it relates to social media, it is generating a good deal of discussion online.  It is being rolled out and discussed as being of interest to lawyers who blog or tweet or otherwise participate in social media, but it actually is yet another opinion sending a message that all lawyers need to remember.  That is because it is another opinion from this body – in a relatively short period of time – emphasizing how broad the scope of client confidentiality is under Model Rule 1.6.

The key piece of the opinion worth knowing (mostly because it applies to lawyer communications in just about any forum or medium of any sort ranging from cocktail parties, to CLEs, to social media) is this:

The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a). Rule 1.6 does not provide an exception for information that is “generally known” or
contained in a “public record.” Accordingly, if a lawyer wants to publicly reveal client information, the lawyer must comply with Rule 1.6(a).

From my experience, this is a point about which lawyers cannot be reminded nearly enough.  And, it most certainly is not just a social media issue.  Though I have, in the past and far-too-snarkily written about the problem as it crops up on social media.

Interestingly, I spent most of my day today sitting through CLE programming and, perhaps coincidentally, it was the first time in a long time that I actually heard a presenter acknowledge before telling a story about a case that they had actually obtained their client’s permission to talk about the case.

Far too often, I hear lawyer presenters relate information about something they are working on at a CLE by providing so much detail about a situation that it would not take much effort at all to immediately figure out who they are actually talking about.  This latest ABA Formal Opinion also offers a helpful refresher on the problem with doing that:

A violation of Rule 1.6(a) is not avoided by describing public commentary as a“hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.

Idaho why lawyers are so often tripped up on this.

I’m writing from Boise where tomorrow I’m delighted to have the chance to speak on legal ethics for the Idaho Prosecuting Attorneys Association.  (I’m also delighted that the weather is unseasonably warm at the moment.)  Last year I had the chance to do a similar presentation for the Tennessee District Attorneys General Conference.  Prosecuting attorneys throughout the country are finding themselves more frequently in the cross-hairs of disciplinary proceedings.

But today’s post isn’t really about that, but it does help explain the selection process.  As I find myself drawn to write about a recent instance of discipline imposed on a private attorney in Idaho that involves behavior that I’ve counseled lawyers about so I know it happens to be relevant beyond just the Idaho Bar.

The case involves the issuance of a suspension order against Attorney Beckett issued at the end of January 2018, but for which the 28-day active suspension period will run during the month of February.  You can read the press release put out by Idaho State Bar Counsel here.

The underlying case was a personal injury lawsuit, and Beckett was able to get the case successfully settled for his client.  His client, though, wanted immediate access to parts of what would be forthcoming from the settlement.  Perhaps simply motivated by an effort to be accommodating, or more likely because of a failure to properly communicate with the client and manage expectations regarding how long such things take, Beckett agreed to provide two advances of the forthcoming settlement funds to the client out of his own money and from money belonging to a separate company Beckett owned.

As the press release explains, he didn’t do that in a way that was at all proper because she didn’t manage to keep the funds properly segregated to avoid commingling them with money in other accounts and also didn’t communicate to the client the available alternatives.  Despite the fact that, as the press release makes clear, Beckett didn’t charge any interest or fees for the transaction and that no other clients were harmed in any way, the conduct violated Rule 1.15 and 1.4 of the Idaho Rules and merited a 60-day suspension, with 28 days of active suspension, and a six-month probationary period.

What is interesting is that the press release makes no mention of Rule 1.8(a) governing business transactions with clients.  When I have had to counsel lawyers about inquiries from clients along these lines, that is the Rule most pertinent to the discussion for a path to actually doing what the client wants if the lawyer is insistent on providing an accommodation.

Idaho, like Tennessee, has a Rule 1.8(a) patterned after the ABA Model Rule.  Tennessee’s, for example, provides that a business transaction with a client – which is what a loan like what Beckett did would be — cannot happen unless

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Now, working through that rule is not 100% of the battle altogether, because the risk still exists that a bar counsel would argue that other provisions in the same rule, RPC 1.8(e) and (i) in Tennessee for example, would still work to prohibit such a business transaction altogether if the case has been settled but no order of dismissal ending the litigation has been entered.

Those provisions provide:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

and

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

RPC 1.8(i) has always struck me as a prohibition that can be drafted around in the transaction documents to sever any connection between the litigation and the loan, but (e) is trickier if the litigation, despite being settled is technically still “pending” at the time of the client’s inquiry.

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.”