An incredibly unhelpful ethics opinion from Colorado

Were you looking for something that is very well-written but entirely unhelpful to your needs as a lawyer?  Well, you’ve come to the right place today.

Wait, I now see how that paragraph could be misconstrued in an entirely unflattering way and as an inadvertent passing of judgment on this whole blog.  Obviously, I didn’t mean that.  After all, I said “well-written.”

Anyway, what I’m actually intending to refer to is Colorado Formal Ethics Opinion 134 which was enacted in January 2018 but which was brought to my attention by a loyal reader of this space.  It likely came into his path because of some treatment in the ABA/BNA Lawyers’ Manual which I admittedly have not read beyond their headline and lead sentence, which is as follows:

Advance Agreements on Joint Settlement OK, Colorado Bar Says

A lawyer who represents multiple clients in a case can prepare for them, with informed consent, an agreement stating that a majority vote controls for settlement offers, a recent Colorado bar ethics opinion says.

That is one way to spin the Colorado opinion and draw peoples attention, but studying the opinon itself reveals that the picture being painted is far too rosy because a more fair introduction to the opinion would be:

Advance Agreements on Joint Settlement OK to Memorialize But Lawyer Can’t Enforce It in the Future, Colorado Bar Says

A lawyer who represents multiple clients in a case can prepare for them, with informed consent, an agreement stating that a majority vote controls for settlement offers, a recent Colorado bar ethics opinion says, but what would be the point?  The same opinion explains that if any of the clients later rejects the settlement and refuses to abide by the majority vote then the lawyer doesn’t have settlement authority and can’t continue to represent everybody.

I’m not kidding.  That is the TL/DR version of Colorado Formal Opinion 134.  Don’t believe me, go read it for yourself.

Now, Colorado may feel like it has given a helpful opinion because it distinguishes its opinion from some others by saying it is perfectly ethical for a lawyer to participate in preparing an agreement along these lines for jointly represented clients and explaining how Rule 1.8(g) is not triggered until some future point when a settlement is on the table for consideration.  But . . . geez.  From a practical perspective, it’s an exercise in navel-gazing because of this paragraph of the opinion:

If multiple clients agree in advance on a majority-decision rule for how they will respond to an aggregate settlement proposal, but one client in the future refuses to follow the majority’s decision, the dissenting client might be in breach of that agreement.  The other clients might have claims against the dissenting client.  This circumstance creates an unwaivable conflict for their joint lawyer due to the dispute between in the dissenting client and the other clients.  The lawyer may not take sides in the dispute, and may not seek to enforce the agreement againts the dissenting client, on behalf of the majority clients, by compelling the dissenting client to settle.  The lawyer might need to withdraw from the joint representation entirely.

Because of that, it seems hard to understand how any good Colorado lawyer armed with this opinion could ever respond to an inquiry by joint clients about putting together a majority-rule agreement with any advice other than:

Yeah, you don’t want me to go through all of that.  If anyone changes their mind later, I can’t enforce it and you probably just end up in additional litigation maybe over breaching the contract and you all just end up having to hire more and different lawyers.  So, let’s just wait until we have something in front of us to think about on settlement some day and then work it out if and when that day ever comes around.

 

 

 

Where are we when even ABA Ethics Opinions are marketed with a “clickbait” approach?

So, as promised (and even though there have been even further developments down in Florida), today I am writing about the latest ABA Ethics Opinion and whether it might provide any solace and protection for a lawyer who is being dragged by a former client online and wanting to defend herself by responding online to try to set the “record” straight.

The ABA Ethics Opinion in question is Formal Op. 479, and the answer is “no, no it doesn’t.”

Before I elaborate on that, I really do want to vent a bit (hopefully without sounding too much like Andy Rooney because I’m only 44) about the way people rolled out the release of this ethics opinion.

The ABA Journal online gave it a headline reading: “Can news on social media be ‘generally known’?  ABA Opinion considers confidentiality exception”

This then was, of course, picked up in other places, Law360 went with “Social Media Can Create Confidentiality Exception, ABA Says.”

Then I saw some lawyers on social media (lawyers who certainly should know better since they were actually involved in the opinion itself) teasing the opinion in a similar fashion.

If you actually read the opinion, you wonder what in the world anyone was even talking about.  The term “social media” does appear in the opinion.  Once.  On p. 5, in this sentence, “Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media.”

That is not a groundbreaking statement of any sort.  It’s common sense.  It also is nowhere near the actual, helpful or relevant, takeaway of the opinion.

The takeaway of the opinion is clearly the following (forceful) reminder about how stark the obligation of lawyers to protect confidential information about even a former client is:

Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.  Information that is publicly available is not necessarily generally known.  Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).

Don’t get me wrong.  It is actually a really good ethics opinion, and it gives timely advice that lawyers need to take to heart to make sure they stay in compliance with their obligations.  It’s just a shame it was rolled out with a “click-bait and switch” message.  We’d all have been better off if it had been rolled out with the headline:  “ABA Opinion reminds lawyers that just because information about a former client has been publicized doesn’t mean it is ‘generally known.'”

And, to actually deliver on my promised topic, here’s why nothing about this opinion is going to help any lawyer who finds herself in a situation where a former client has posted something, somewhere disparaging the lawyer in a way that the lawyer thinks is unfair and she wants to respond to clear up the record by disclosing other information about the representation that puts it in context: the details that the lawyer wants to reveal to provide context won’t have been disclosed by the former client and, thus, even if the lawyer could try to claim that what the former client has said is now “generally known,” the bits he hasn’t said most certainly are not.

Thus, unless and until some exception is created in the ethics rules to allow responses to online criticism under Rule 1.6 (which I’m not necessarily advocating for), lawyers who opt to get into it with former clients (or even clients) online will need to be very careful about what they say.  Otherwise, they will find themselves in trouble – as did this South Carolina lawyer who was brought to my attention by the always wonderful Roy Simon  (Admittedly, the SC lawyer had more problems than loose lips online, but that was one of the problems all the same.)

(And, so as not to be accused of my own “bait and switch” situation, I will take a stab at juxtaposing this opinion with Opinion 478 which also came out recently.  If the treatment of the two opinions was consistent, 478 would have been rolled out by the ABA Journal with the headline:  “ABA Ethics Opinion tells judges not to go online.”

An open letter to Avvo

Dear Mark or Josh or Dan (or others at Avvo):

I am a lawyer of little relative influence but I know you are likely familiar with me because I have, time and time again here on my small platform written about the travails your business model is enduring as state after state issues ethics opinions warning lawyers who do business with you that they are acting unethically.  (And Josh has been kind enough to post comments here from time to time as well.)

It, of course, has happened again with the latest Virginia ethics opinion that has just been put out.  I won’t belabor anyone reading this with the breakdown of that opinion other than to say that it hits on many of the same problems that have been hit on by other states over the last couple of years (and a couple that come up less frequently as well).  I also know that you were actively engaged in trying to convince the powers-that-be in Virginia to not issue that opinion.  I’ve even read Dan’s oral remarks published online.

I also won’t do as I normally do and break down the analysis offered in this latest ethics opinion other than to say that this one – yet again – is correct in its interpretation and application of Virginia’s rules.  (At least it is correct as to the big, universally applicable rules impacting your current business model related to fee-sharing, payments for referrals, and the like.)  Of course it is.  These opinions keep coming out because the existing rules are pretty clear about the problems and why lawyers are prohibited from participating.

I’m also writing this as an open letter to urge Avvo – if it really is interested at heart in doing the things for the profession and consumers that it says it is interested in doing – to change its focus from trying to fight the issuance of ethics opinions in states or to then engage in criticism of those opinions as somehow incorrect or “part of the problem.”  Instead, your time and money should be shifted — if those are your real goals — to pursuing efforts to have the rules that currently prohibit lawyers from being involved with your business model changed.

You are fighting a losing battle in trying to change the outcomes of ethics opinions.  You could, however, be fighting a winning battle if you made active efforts to file petitions with the appropriate bodies in various states to propose revisions to the ethics rules that would permit participation with your service and other companies doing similar things.

For example, just about anyone who wants to in my state could file a Petition with the Tennessee Supreme Court and propose changes to the ethics rules which here are housed in Supreme Court Rule 8.  There are pretty similar processes in many jurisdictions.  (I would have thought y’all might have worked this notion out by now given how differently you’ve watched things appear to go in North Carolina where you’ve been participating in efforts to change the rules rather than efforts to try to get someone to issue an opinion that would pretend the rules don’ say what they say.)

I can’t guarantee how successful you would be in obtaining satisfactory rule revisions in jurisdictions but I’d bet a shiny quarter or two that your batting average will be greatly improved upon how you are doing in terms of favorable ethics opinions versus unfavorable ethics opinions.

I reckon that this open letter will likely have the same effect of most open letters written by human beings, but . . . at least I’ll still feel better for having said it.

Frustrations with Formal Ethics Opinion 2017-F-164

Recently (and one of the frustrations I have with this opinion I am now writing about is, that “recently” is about as specific as I can pin things down in terms of the date of issuance), the Board of Professional Responsibility in Tennessee issued a Formal Ethics Opinion giving some guidance on the ability of a Tennessee lawyer to be a part of a multi-state law firm using a trade name.

It is, on the whole, an adequate ethics opinion in that it essentially gets the answers to the questions it raises correct, but it is more frustrating than it is adequate given how it addresses the issues and, as hinted at above, how it was surfaced by the Board as having even been issued.

First, here are my frustrations with the substance.  Here are the questions FEO 2017-F-164 tackles:

I. Do the Tennessee Rules of Professional Conduct allow a partnership between a Tennessee Professional Services Corporation and a Florida Professional Services Corporation?

II. Can the partnership ethically use a trade name?

III. Can the Florida office of the partnership ethically lease space from SETCO Services, a title company?

Admittedly, the Board gets the answers to each of these questions correct.  Those answers are, of course, “yes,” “yes,” and “yes.”  But the opinion does not do the best job of showing its work as to some of the answers, completely ignores the fact that the questions being answered also can’t be addressed without taking a look at Florida’s analogous ethics rules, and, as to the third question, misrepresents to an extent how RPC 5.7 actually works in Tennessee, appears to assume more facts beyond the facts indicated in the opinion.

As further background to understand my griping, here is the entirety of the facts provided by the Board about the request that has been directed to them:

The requesting lawyer proposes a 50%-50% partnership between a Tennessee Professional Services Corporation (PA) and a Florida Professional Services Corporation (PA) that will operate under a trade name, SETCO Law. The Florida PA will lease space from SETCO Services, a title company, for which the requesting lawyer is in-house counsel, in Destin, Florida. The Tennessee PA will lease space from another law firm, Brannon Law, located in Memphis, TN.

The proposed Firm will have a separate computer system, including secure email system, apart from SETCO Services and can only be accessed by employees of the Firm. The Firm will have its own logo which will be conspicuous within the building. All clients, before engagement with the Firm, will be provided with a written engagement letter that provides in detail that SETCO Law is an entity separate and apart from SETCO Services and Brannon Law and that engagement with the Firm is in no way tied to any affiliation with SETCO services or any services provided therefrom.

The first two questions are readily capable of dispatch under Tennessee’s rules given that we are very reasonable on questions of trade names and, of course, do not present any unreasonable barriers to lawyers being part of a multi-state law firm.  However, it is exceedingly unhelpful for this opinion to be issued and make no reference to the fact that a lawyer seeking guidance about the second question needs to take a look at Florida’s ethics rules as well and that makes no reference at all to the fact the lawyer ought to also be educated about RPC 8.5 and how that rule provides for choice of law determinations when more than one jurisdiction’s ethics rules may be applicable to the conduct of a lawyer.

The method of addressing the third question though presents the most frustrating piece from a substantive standpoint.  This is because the third question only asks whether or not the law firm’s Florida office can lease space from a title company.  The answer to that question is: of course they can.  The first paragraph of that part of the opinion gets the answer exactly right:

No ethical rules restrict the location of the office of a lawyer. Nothing prevents a lawyer from entering into a landlord-tenant relationship and having an office in the same building as a land title company.

Unfortunately, it doesn’t stop with those two sentences but instead offers further advice and guidance about RPC 5.7 with respect to law related services.  That advice and guidance is fine – in a vacuum but this opinion isn’t in a vacuum – but the opinion reads as certain things being mandatory in order to be able to lease the space, rather than being explained as being important in evaluating whether or not acts undertaken by a lawyer affiliated with the title company can be treated as providing services that are separately distinct from the delivery of legal services so that only some, but not all, of the Tennessee ethics rules apply to that conduct.  Nothing about RPC 5.7 requires a lawyer to do any of those things simply to be able to lease office space from someone.

And that would be bad enough but, again, the opinion completely overlooks or ignores that the office space lease question involves the office in Florida and so there is no compelling analysis given why it would be Tennessee’s RPC 5.7 that would govern at all, rather than Florida’s version of any such rule.

Having now unburdened myself on the substantive flaws, I’d like to offer a quick word about the frustrating problem with the process.  For whatever reason, the Board of Professional Responsibility did not publicize the issuance of this opinion until they happened to insert it in a regular quarterly publication that is a much larger document.  And even then what has been published is an unsigned, undated version of the opinion.  Seems very difficult to understand why that approach was undertaken.

Should you want to go read for yourself the undated, unsigned Formal Ethics Opinion 2017-f-164, you can do so at that link.

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.

 

An ethics opinion from the Coinhusker state

Answering the question that was undoubtedly on the minds of every lawyer practicing in that state, the Lawyer’s Advisory Committee of the Nebraska Supreme Court issued Ethics Advisory Opinion for Lawyers No. 17-03 making clear that, yes, lawyers can accept payment from clients in the form of Bitcoin or other similar digital currencies.

I don’t exactly know what to make of this opinion.  I’m not normally a list maker, but here’s a quick pros and cons lists to label my feelings.

Pros:

  1.  It offers a pretty good explanation of what Bitcoin is and how it works.
  2. If you are a Nebraska lawyer interested in the answer to the question it definitely gives you a definitive answer.
  3. It is well written.
  4. It demonstrates how adaptable ethics rules for lawyers are that they don’t have to be changed simply because new technology arises that didn’t exist when the rule was first created.  (But see con #3.)

Cons:

  1.  I don’t know who this opinion is really for in terms of usefulness.
  2. Nebraska? Surely that wasn’t the state with a pressing need to be the first to issue an opinion on this topic.
  3. It incorrectly treats using property to pay an attorney fee differently than when the property involved isn’t Bitcoin.
  4. It entirely overlooks the most important aspect of lack of confidentiality in terms of impact on such a payment arrangement.

Since expanding on the “cons” is always a bit more fun as a writer, let me do that.

Who is the opinion for?  Why would any lawyer today be willing to accept Bitcoin as a form of payment?  Most answers to that question that I can come up with require the lawyer to be something of a believer in its use as a financial system.  If the lawyer in question happens to practice in Nebraska, that seems a pretty solid bet.  If that is true, then to some extent the opinion gives with one hand but takes away with the other by saying that a lawyer can accept payment in Bitcoin but then has to immediately convert the payment back into dollars.  If a lawyer is willing to put his or her faith into the Bitcoin currency system (and obviously the client must already have faith in that system), then why require them to immediately convert that client’s payment to dollars?

The answer to that – according to the opinion — is that Bitcoin is classified as property under the law and not as a currency and has the potential for rapid fluctuation in value.  But… shifting to the third con on the list… why should accepting this kind of property with fluctuating value as payment for services be treated so differently than other forms of property?

While we likely wouldn’t need a regulatory body to issue an ethics opinion on whether lawyers can accept payment in the form of gold or silver (of course they can), would we be comfortable with such an opinion declaring the lawyer has to immediately sell that property to turn it into cash?  If gold and silver seem too unwieldy for the thought exercise, then how about shares of stock or stock options.  (Let’s assume those would be otherwise done in compliance with restrictions such as Model Rule 1.8(a) and (i).)  Stocks can certainly fluctuate significantly in value and always have the potential to do so very rapidly.

Would you agree with an opinion that says a lawyer would have to immediately trade shares of stock for dollars because of the risk of rapid increase in value or decrease in value?  Why can’t two or more grown-ups negotiate an agreement for compensation in the form of property with a fluctuating value just because one or more of them is an attorney?  Why wouldn’t the lawyer taking on the risk of decrease in value play a role in evaluating reasonableness of the fee?

And, finally, the opinion talks a bit about confidentiality issues involved in payment via Bitcoin from a third party rather than the client, but completely overlooks the fundamental risk to client confidentiality created by accepting payment in Bitcoin from a client.  Such a transaction — necessarily because of the very architecture upon which Bitcoin is founded as the opinion does explain — is an open transaction for which confidentiality cannot be reasonably expected much less guaranteed.

Somehow the opinion  doesn’t manage to advise lawyers to make sure the client understands that – unlike cash or checks or wire transfers or even credit card payments — the fact of the client’s payment of money to a particular lawyer and all of the implications that payment entails is available to anyone sophisticated enough to understand how to delve into the Bitcoin ledger system.

So, in the end, sure the opinion says that a lawyer can accept payment in Bitcoin, but under this framework why would anyone ever do so?

A three-part discussion of LA County Bar Op. 528

Though news to me much more recently, the LA County Bar Ass’n Prof’l Responsibility and Ethics Committee issued an  interesting ethics opinion back in April on a wrinkle that can arise in the tripartite relationship created in insurance defense situations.  You can read the whole thing here, but its summary is pretty to-the-point:

When an attorney engaged by an insurance carrier to defend the interests of an insured obtains information that could provide a basis for the insurance carrier to deny coverage, the attorney is ethically prohibited from disclosing that information to the insurance carrier.  In such a situation, the attorney must withdraw from the representation.

In honor of it being an opinion that hinges on California’s approach to the tripartite relationship, I want to divide this post into a three-part discussion of it.

Part the first: it certainly appears to get the answer right from a California perspective.  The answers appear clear and correct given California’s approach to the question of who is/are the client(s) when an attorney is retained by an insurance company to represent an insured.  While all jurisdictions have reached agreement on using the term “tripartite relationship,” to describe insurance defense arrangements, California is a jurisdiction that treats it as truly being one in which the lawyer involved has two clients, both the insured and the insurance company, and the duties to each are “equal and potentially competing.”  Working from that premise, then the particular scenario confronted in the opinion is certainly one that causes the ultimate result — the lawyer  being prohibited from telling one client the important information learned about the other client’s situation can no longer represent either client and has to move to withdraw.  Though the specific scenario is presented in a way that raises some immediate questions given that it involves the existence of a document and its authentication through a request for admission.  For example, does the opinion just assume both authenticity and that the insured would tell the lawyer not to let the insurer know?

Part the second:  While that is the correct result given California’s approach to the “who is the client?” issue, the outcome is more revealing for serving to demonstrate the folly of the approach California follows.  In Tennessee, for example, the tripartite situation exists but the lawyer only has one client, the insured.  The insurance company hiring the lawyer to defend the insured is not a client of the lawyer.  There are, of course, still thorny ethical issues that can arise (see below) but at least in the scenario in question, the lawyer’s path forward is both clear and one that permits continued representation of the lawyer’s only client and a focused effort to try to use the document to establish the statute of limitations defense.

Part the third:  On the California side of things, what in the world happens next in the scenario to keep things from just playing out the same way all over again?  Because the withdrawing lawyer will not be in a position to tell the insurance company the reason for the withdrawal, the whole scenario is likely to simply repeat itself when the insurance company retains a new lawyer to represent the insured.  That lawyer will eventually learn of the same information – be prohibited from disclosing to the insurance company — and then lather, rinse, and repeat.  Or, at least, that’s how it will go unless either the lawyer shirks the duty of disclosure to the insurance company or the insurance company figures out what is going on that is causing the withdrawals and goes ahead and makes a definitive coverage decision.  Either way, it is a particular example that paints a much more favorable picture of approaches to this relationship structure in which the lawyer’s only client is the insured.

(In fairness, the particular scenario examined in the opinion could be pretty readily spun out just a bit further to demonstrate how no system for this would be perfect by exploring what would happen if the the insured was trying to demand that the lawyer attempt to settle the case for the insured without disclosing to the insurer that the reason for seeking settlement prior to having to respond to the request for admission was to avoid defeating coverage.)

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.

Does Avvo provide a bona fide lawyer rating?

A number of folks have already written about how New York has dealt another setback for Avvo Legal Services in the form of NY State Bar Ethics Op. 1132 which found that New York lawyers could not participate in Avvo Legal Services because payment of Avvo’s marketing fee amounts to payment for recommendation of services in violation of New York’s Rule 7.2(a).

You can read the full opinion here.  You can read some other pieces elaborating on the opinion here, here, and here.

The opinion is notable not just for its potential influence and the number of lawyers it impacts but because it is the first opinion weighing in on Avvo Legal Services that explicitly ties together the rating service that Avvo provides and has long provided with the Avvo Legal Services platform that has more recently come to pass.

In doing so, the New York opinion went ahead and analyzed the Rule 7.2(a) question assuming that Avvo’s lawyer ratings were bona fide ratings.  It made the point that, if they were not, then other issues would arise regarding lawyer participation with Avvo and lawyer touting of ratings issued by Avvo but went ahead and assumed they were bona fide.

I want to spend just a moment to tackle that assumption and offer my own opinion on the subject.  Are Avvo’s lawyer ratings bona fide?  No.  Of course they are not bona fide.  They are not bona fide because your only hope of having a high rating is to work with them and cooperate with them.

My basis for having this opinion is not solely about on my own experience.  But, an examination of my own rating with Avvo is an admittedly good place to start explaining my opinion.

I have never “claimed” my Avvo profile nor contributed any information to Avvo to assist in building the profile they have put together on their own for me.  (Interestingly, a few times after I have written posts here about problems with Avvo Legal Services I have gotten multiple, repeated calls from Avvo trying to assist me in improving/completing my profile and offering how to claim my profile.)  When you go search me up on Avvo you will see that they have afforded me a 6.7 rating out of 10.

Now, admittedly all lawyers are egotistical and none of us are truly capable of objectively evaluating are own worth, but …  You can probably say many negative things about me but I don’t think you can say I’m a 6.7 out of 10 when it comes to being a lawyer.

I’ve been listed in Best Lawyers in America every year since 2009.  In 2017, Best Lawyers listed me as its Appellate Lawyer of the Year in Memphis.  I’ve been listed as a “Super Lawyer” by Mid South Super Lawyers since 2011 and for two out of three years before that (2008 & 2010) I was listed by that publication as a “Rising Star.”  I have been AV rated by Martindale Hubbell since at least as early as 2010.  (It’s rating of me is 4.7 on a scale of 5).

All of that information is readily, publicly available and could be gathered and evaluated by Avvo without any input from me and without any need for me to confirm or claim my profile.  But I haven’t claimed my profile and, they’ve pegged me as a 6.7 out of 10.

Just to make clear that my opinion on this isn’t solely based on my own personal experience/situation.  Let me offer a few more examples that are impossible to reconcile with the concept of Avvo offering a bona fide rating system.

Christine P. Richards, the General Counsel of FedEx – she gets an even lower rating than I do, at 6.5.

Also getting a 6.5, Bill Freivogel the conflicts-guru in the ethics world behind Freivogel on Conflicts.  Barbara Gillers a fantastic lawyer with a prominent law firm in New York and who is the incoming Chair of the ABA Standing Committee on Ethics and Professional Responsibility also gets the same 6.7 rating I do.

Or, how about Abbe Lowell the prominent D.C. lawyer who is now representing Jared Kushner.  He gets a 6.6.  Or, here’s a fun one, the lawyer heading up the special counsel investigation into the President, Robert Mueller?  He too is just a 6.5.

But Avvo’s own general counsel, Josh King?  Well, Avvo gives him a 10 rating.

Dan Lear, an attorney who also works for Avvo, he gets a 9.2 rating.

Oh, I can tell you one that they have gotten correct though, Roy D. Simon, who happens to be a member of the NYSBA committee that issued this most recent ethics opinion also gets a 10 rating from Avvo.

(N.B. While I have no misgivings about my level of readership or influence, on the off chance any of these ratings gets changed subsequent to this post, the ratings indicated above have been confirmed as of today’s date and print outs of the pages are on-file with yours truly.)

Practicing law like it’s espionage. NYC Bar Formal Op. 2017-5

This week the New York City Bar has put out a very important, and I think very helpful, ethics opinion to address a real, practical concern for lawyers: what, if anything, can be done to protect confidential client information when traveling and crossing the border into the U.S.?

NY City Bar Formal Op. 2017-5 lays out the issue as follows:

An attorney traveling abroad with an electronic device (such as a smartphone, portable hard drive, USB “thumb drive,” or laptop) that contains clients’ confidential information plans to travel through a U.S. customs checkpoint or border crossing. During the crossing, a U.S. Customs and Border Protection (“CBP”) agent claiming lawful authority demands that the attorney “unlock” the
device and hand it to the agent so that it may be searched. The attorney has not obtained informed consent from each client whose information may be disclosed in this situation.

The opinion makes the point that with the change of administration such searches of travelers and their data has increased exponentially:

In recent years, searches of cell phones, laptop computers, and other electronic devices at border crossings into the U.S. have become increasingly frequent. According to the Department of Homeland Security, more than 5,000 devices were searched by
CBP agents in February 2017 alone. By way of comparison, that is about as many U.S. border searches of electronic devices as were undertaken in all of 2015, and just under a quarter of the
approximately 23,877 U.S. border searches of such devices undertaken in 2016.

The entirety of the opinion is worth a read to see how it offers its guidance about things a lawyer might do at the time of demanded search to protect client confidential information, and to hear its additional important message that lawyers have an obligation under RPC 1.4 to contact all affected clients after such a search takes place.

The aspect of it that I want to focus on, however, is to expand on some of the practical advice it offers as to things a lawyer could do before going through customs at the border to lower risk of disclosure.  Particularly, this passage:

The simplest option with the lowest risk is not to carry any confidential information across the border. One method of avoiding the electronic transportation of clients’ confidences involves using a blank “burner” phone or laptop, or otherwise removing confidential information from one’s carried device by deleting confidential files using software designed to securely delete information, turning off syncing of cloud services, signing out of web-based services, and/or uninstalling applications that provide local or remote access to confidential information prior
crossing to the border.  This is not to say that attorneys traveling with electronic devices must remove all electronically stored information. Some electronic information, including many
work-related emails, may contain no confidential information protected by Rule 1.6(a). Even when emails contain confidential information, the obligation to remove these emails from the
portable device before crossing the border depends on what is reasonable. As previously discussed, this turns on the ease or inconvenience of avoiding possession of confidential
information; the need to maintain access to the particular information and its sensitivity; the risk of a border inspection; and any other relevant considerations.

Now, as to that sentence about some work-related emails may not contain confidential information protected by RPC 1.6(a), it is worth remembering that New York has a different RPC 1.6(a) than most jurisdictions as it comes closer to retaining the old “confidences and secrets” regime.  In most other jurisdictions, where RPC 1.6(a) covers any information related to representation of a client, then it is difficult to imagine any work-related email involving client matters that wouldn’t be protected as confidential under RPC 1.6(a).

And, for that reason, when I’ve had to help people try to work through this question, my advice has been consistent with what the New York City opinion is saying albeit perhaps stated more succinctly – delete the mail application from your smart phone until you get through the border.  Then reinstall it.  As long as your work email is stored on a server somewhere, then you should have no loss of data at all.

The only inconvenience caused is that for the time between deleting it and crossing through the border, you will have no access to email. Using the balancing factors compared to the risk of the violation of client confidences, this seems like a small inconvenience.  Simply deleting the mail application for a period of time also has the benefit of not placing the lawyer in the position of trying to “reason” with customs officials and argue with them over whether they need to be doing what they are doing.

As to other kinds of electronic data, the solutions are not as simple as with email.  Text messages are particularly concerning as deleting those or removing access to those from your device for even a short period of time would result in the loss of that data.  Generally speaking, the New York City opinion does a good job at explaining some of a lawyer’s options.  One option that the opinion doesn’t exactly spend a lot of time discussing is obtaining the consent of clients in advance.  One potential way of doing so could be standardizing provisions into engagement letters with clients to address this topic.

This unfortunately appears to be a topic that will only become more difficult to deal with for lawyers who travel frequently.  As an example, within the last month there have been stories in the media that Homeland Security is contemplating requiring all reading material be removed from carry on and put in bins for the purpose of potential review by TSA agents.  Travel is already a stressful endeavor, but as a lawyer if that were to come to pass there would be almost no way to take anything on a flight to have or review without running a real risk of loss of client confidentiality.