Something to chew on during your holiday weekend.

I am nowhere near the most plugged in when it comes to lawyers on the forefront of tracking the ways in which rapid developments in technology are changing the practice of law.  I’m a bit more aware than likely most lawyers, in part because I’m constantly looking for things worth writing about here, but also because I’ve been fortunate enough over the last two years to be a members of the Tennessee Bar Association’s Special Committee on the Evolving Legal Market.

For a combination of those reasons, I’ve been reading a bit about the latest tool that Ravel Law has unleashed on the world, “Firm Analytics.”  Among other selling points that Ravel Law touts, and the one I want to leave you to think about over the weekend is:

In another first, Firm Analytics also provides rankings of firms across key variables including practice area, case volume, venue experience, and motion win rates. These leaderboards allow comparisons across substantive performance metrics, a significant innovation to traditional revenue and size rankings. As part of this launch, we are releasing rankings of the top five law firms across employment, securities, antitrust, administrative law, and bankruptcy (more below).

This is, of course, excellent information to be made available in the marketplace and with the constant creation of new ways to better, and more quickly, aggregate and synthesize data it is also inevitable for it to come into existence.

The thought I want to leave you with though is this — how crazy is it that, in many U.S. jurisdictions, if a lawyer or law firm wanted to advertise themselves using this same kind of data (win rates, success history, etc.), they would likely be opening themselves up to a disciplinary complaint under state advertising rules that prohibit lawyers from touting past successful outcomes in matters?

For example, let me pick a state at random and not a state that has any reason at all to be in the news, Montana.  If a law firm in Montana or a lawyer there decided to aggregate this data and tout their win percentages, they’d likely be at risk of seeing bar regulators accuse them of violating either or both of these provisions in Rule 7.1 prohibiting communications about a lawyer’s services that:

(b) is likely to create an unjustified expectation about results the lawyer can achieve;

(c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits.

Friday Flashback – Folks still forgetting The Streisand Effect

In my early days (If a blog that has only been around for just a smidge over 2 years can be characterized as having early days.), I wrote a post with a reference to “The Streisand Effect” and the need for lawyers and law firms who are thinking about trying to take actions to shut down unfair criticism online to give real thought to whether they are just amplifying the negative publicity.  If you are interested in reading that post, you can get there from this link.

My guess is that reminding people about the concept of The Streisand Effect will never get old.  This time though, to save people a step, I’ll simply share the quote from the Wikipedia entry itself rather than making you click a link to see what we mean when we refer to The Streisand Effect:

The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. It is an example of psychological reactance, wherein once people are aware something is being kept from them, their motivation to access and spread the information is increased.

It is named after American entertainer Barbra Streisand, whose 2003 attempt to suppress photographs of her residence in Malibu, California, inadvertently drew further public attention to it. Similar attempts have been made, for example, in cease-and-desist letters to suppress numbers, files, and websites. Instead of being suppressed, the information receives extensive publicity and media extensions such as videos and spoof songs, often being widely mirrored across the Internet or distributed on file-sharing networks.

In this story at The American Lawyer (which it seems almost entirely unnecessary to state has a significantly larger readership than this here little blog), a reader will probably learn a few things.

First, the existence of a four lawyer construction firm in Houston, Texas named The Cromeens Law Firm.

Second, the existence of a negative review of the firm on Yelp as well as some others on Google.  Which armed with that first piece of new information and the second piece of new information becomes really easy to find and read.

Third, that the four-lawyer firm is worried enough about these reviews that it is willing to spend some part of its time not focused on matters for its clients but rather in pursuing a lawsuit against unknown defendants to try to make the reviews go away.

Your mileage may vary, but my view on such matters continue to be that: (a) more people will read the reviews now than they ever would have before; (b) the lawsuit is very unlikely to succeed in making the reviews disappear; and (c) contractors and subcontractors who might be making decisions in and around Houston about whether to retain these construction lawyers probably weren’t likely to be all that influenced but unless the goal of this suit is to make stories about it end up being pretty high on the list of things that turn up in an online search about your law firm, this probably doesn’t end up being a net positive.

Now, in fairness, if the negative reviews you are trying to get to go away are at the very top of what people see if they search for you online, then a suit like this might accomplish the rare “reverse Streisand” by replacing those with higher results referencing the lawsuit at least, but when I checked today several of the first hits for this law firm’s name were good ones, so . . .

 

Another Tennessee-centric offering.

Using the term “Tennesentric” would probably be more efficient, but two items involving potential rule revisions relating to ethics and lawyering in Tennessee are worth briefly discussing.  One of the two has gone out for public comment and has a deadline, while the other has just been filed with the Court and does not.

I’ve written at length in the past about Tennessee’s effort at cleaning up some problems with comity admission standards and the extended amnesty period for certain folks in need of getting properly registered as in-house counsel.

Our Board of Law Examiners has recently filed a petition, which the Court has put out for public comment, to further extend the dates and deadlines for folks to have gotten into compliance in these areas.  Interestingly, the Petition seeks to extend the time period but not all the way up until the petition itself was filed, but rather has sought a cut-off period that would be December 31, 2016.  If enacted, the impact of this rule change would appear to be to make amnesty available to in-house counsel who did not get into compliance by July 2016 but who would have if the deadline for compliance was December 31, 2016 and to afford the Board with the same flexibility in making rulings on comity applications that were filed as late as December 31, 2016 but for which the Board didn’t rule – for obvious reasons – before the end of the year.  The deadline for public comments on that proposal is April 14, 2017.

The other proposal – which has not yet been put out for public comment —  is a filing by our Board of Professional Responsibility to clarify in our Rule 9 itself that the hearing in a disciplinary proceeding is public, unless a protective order is obtained.  This has long been the practice, but the rules presently do not exactly say that.  If this petition is granted, the result would be that the rules would bless the traditional practice.  But one even better benefit of this revision, if adopted, is important for cases of potential public and media interest, because this would make clear that the Tenn. Sup. Ct. R. 30 Media Guidelines ought to govern media coverage of such proceedings.  Such a clarification would be important so that hearing panels in Tennessee understand that the attorneys of record in a case are entitled to know of a request for media coverage so that counsel can then proceed to make a timely motion to seek to prohibit such coverage under the terms of Rule 30.

Suffice it to say, this does not always happen.

You can read the BPR Petition Filed to Amend Tenn Sup Ct R 9 § 32 at the link.

Dear ABA – Embrace reform of the lawyer advertising rules. Please.

I have written in the past about the APRL white papers providing the rationale for, and data supporting the need to, reform the way lawyer advertising is regulated in the United States by state bar entities.  You can read those prior posts here and here if you are so inclined.

Jayne Reardon, the Executive Director of the Illinois Supreme Court Commission on Professionalism, over at the 2Civility blog has posted a very thorough report on events that transpired in Miami earlier this month and that reminds folks that the deadline put together by the ABA working group looking at whether to back APRL’s proposals is March 1, 2017.

I am a proud member of APRL – actually presently I’m even fortunate enough to serve as a member of its Board of Directors – but was not able to make it down to Miami for our meeting and the ABA meetings this year.  If you are a reader of this blog, you know that my view is that the only advertising rule that ought to be necessary is a version of RPC 7.1 that states, as does the ABA Model:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Period.  Full stop.

Now Jayne’s report from the ground mentions that some folks criticized or complained about APRL’s proposal because it would not apply only to advertisements by lawyers.  To me that is a feature, not a bug.  As I’ve also written and spoken about, RPC 7.1 is violated when a lawyer sends a fraudulent bill to a client saying they spent more time on something than they really did and that’s a good thing.  It also, for example, applies to lawyers who lie on their resumes as we saw with this recent instance of lawyer misconduct.

The concern expressed by someone that it could result in discipline against a lawyer politician (presumably one who would have to have lied about some aspect of their personal history I guess) does not give me much pause because if it were so applied it would likely fail First Amendment scrutiny because of the higher standards afforded to protect political speech rather than constitutional speech.

While I think RPC 7.1 ideally is the only rule that ought to exist, I recognize that people are going to insist there be some restriction on in-person solicitation so I also support APRL’s proposed approach to having an additional rule, over and above RPC 7.1, to address that.  As I’ve said before, my only quibble with APRL’s proposal on that front is as to how it defines a sophisticated user of legal services:

If I had one criticism of the APRL proposal, it is with the way it defines a sophisticated user of legal services.  The second part about regular retention of legal services for business purposes is likely where it should have stopped, as the first portion of the definition is pretty amorphous and subject to manipulation.  For example, would a recidivist offender who has gone through repeated jury trials and spent many years in prison someone who would qualify as having had significant dealings with the legal profession?  Seems like a pretty clear argument could be made that the answer would be yes.

I’m going to send this post in to the ABA working committee as my own personal comment.  If you have a viewpoint on these issues (whether it jibes with mine or not), I’d encourage you to send your thoughts as well to them at this email address: modelruleamend@americanbar.org.  (Unless you don’t think lawyer advertising rules are strict enough already.  Then I’d encourage you to stay busy doing other things.  Kidding, just kidding.  But more like Al Franken’s kidding on the square actually.)

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.)

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.

The “Now You Know” ad – quite savvy or absolutely horrible?

I had been hoping I could wait a bit to write about this topic but it’s making news via the ABA Journal online today, so I’ll just plow in with this rush job of a post because I’ve already heard discussions in Tennessee about this same ad and before someone more articulate than me blogs about it before I do.

Here’s a link to the article about the Georgia dust up:.

Here, if I’ve done this correctly should be able to watch the advertisement itself at this link — “Now You Know”

For those who can’t get the video to play or who didn’t read the Georgia story above, the gist is that the advertisement explains that the fact that someone has insurance to cover liability in say an auto accident case is something that gets withheld from the jury.  (For what it is worth to those outside Tennessee, in our state insurance coverage is not even discoverable in state court although it is, of course, in federal court.)

Now, based on someone asking me about it, I thought it was already running in Tennessee, but it may only be up in Georgia at the moment.

I’m not at all prepared to weigh in on whether it presents a problem under Georgia’s advertising rules, but I feel pretty comfortable saying that it would be difficult in Tennessee to make the case that the advertisement violates any of our ethics rules.  On the first front, it is hard to point directly at any aspect of the content that would be untruthful so challenges under RPC 7.1 or similar provisions would go nowhere.  Someone might argue that the ad puts a lawyer in the position of doing something “prejudicial to the administration of justice,” in violation of RPC 8.4(d) but the natural retort to that would be, well… is it … really?  And, I suspect that the firm running the advertisement would very much like to spend time debating whether the dissemination of the information is really prejudicial to the administration of justice or not.

If there is a provision that could be fruitfully pursued, I tend to think it would be RPC 3.6(a) which prohibits lawyers from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  That rule is usually thought of as being designed to protect against publicity that would impact a particular matter, but a statement like this that would apply to all matters to some extent might just be capable of being argued to have sufficient deleterious impact to any one matter to trigger the rule.

I tend to believe that the best response to speech though is more speech, so what I’d really like to see is a defense-oriented firm cut an ad to educate the public about something like the collateral source rule.  Someone could even try to argue that RPC 3.6(c) which permits some responsive statements in order to “protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

It’d be interesting to see that play out and whether  the firm strenuously defending this current advertisement would see any problems with a defense-oriented counterpoint.

 

 

 

Friday follow up – Sixth Circuit affirms Kentucky judicial speech case

So, I’ve been battling a bit of a stomach bug such that over the last 45 hours or so I have ingested a cup of yogurt, a sleeve of Ritz crackers, and a small bowl of chicken noodle soup.  Accordingly, this will be a short(ish) post – apologies in advance.

Back in May of this year, I wrote a bit about judicial elections and First Amendment speech issues that continue to be litigated in the context of judicial ethics rules that seek to restrict what judges can say when campaigning for public office.  I spoke about a federal court decision out of Kentucky that was the most recent instance of a federal court striking down certain kinds of provisions and that it appeared to be among the first cases to interpret an important U.S. Supreme Court case from 2015 – Williams-Yulee v. Florida Bar.

Just a little over three months has passed, and the Sixth Circuit now has already issued its ruling in Winter v. Wolnitzek affirming just about every aspect of the Kentucky district court’s decision.  While the Sixth Circuit gives much credit to the district judge for its “thorough and thoughtful opinion,” the Sixth Circuit’s opinion is no slouch in the thoughtfulness category either.

The Sixth Circuit’s opinion affirmed the ruling that, because of how the Kentucky Supreme Court interpreted the provision, the “shall not campaign as a member of a political organization” prohibition was vague and constitutionally overbroad — specifically “too vague to tightly regulate the problem and too vague to avoid scaring off permissible electoral speech.”

It also affirmed the ruling that the provision prohibiting judicial candidates from “mak[ing] speeches for or against a political organization or candidate” is unconstitutional because it extends to prevent Kentucky judicial candidates “from announcing their views on disputed legal and political subjects.”  In terms of the (perhaps) most closely-watched aspect of the case in front of it, the Sixth Circuit decided to remand to allow Kentucky an opportunity to clarify whether it will interpret “impartiality” in its “Commits clause” to mean only impartiality as to parties.

You can read all aspects of the opinion at the link provided above, but. if I had to guess, I think the most lasting legacy of this decision and the sentence likely to be quoted the most in the future is:

A State may not hold judicial elections, then prevent candidates from explaining what makes them qualified for that office.

Whether it is a good thing or not for performance of the judiciary as a whole, there are presently (and undoubtedly will be many more in the future) candidates in public judicial elections who believe strongly that part of what makes them qualified for office are their political views. their political allegiances, and the like.

Revisiting the question of whether the ethics rules need revamping as to discrimination & harassment

So, quite a few months ago, I wrote about what (I think) was the first iteration of the proposed revision to RPC 8.4 to add a black-letter rule addressing discrimination and harassment.  My verdict at the time was one of skepticism that it made any sense at all to move workplace and employment discrimination issues to the ethics rules.

The proposal has now gone through several revisions and the end product — that will be put in front of the ABA House of Delegates in August 2016, is this Resolution.  The Resolution proposes the adoption of this new RPC 8.4(g), making it professional misconduct for a lawyer to:

harass or discriminate 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 Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.

The proposal also involves the adoption of two new comments, Cmt. [3], [4], and [5] that would provide as follows:

[3]  Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system.  Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others because of their membership or perceived membership in one or more of the groups listed in pragraph (g).  Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups.  Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.  The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4]  Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business, or social activities in connection with the practice of law.  Paragraph (g) does not prohibit conduct undertaken to promote diversity.

[5]  Paragraph (g) does not prohibit legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation.  A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law.  A lawyer may charge and collect reasonable fees and expenses for a representation.  Rule 1.5(a).  Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause.  See Rule 6.2(a), (b) and (c).  A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities.  See Rule 1.2(b).

I still have some misgivings about aspects of the proposal, but I will say that my view on it has largely come around and changed from where I was back when I first wrote about an earlier version of the proposal.  It does seem from the more I read about, and hear people debate these issues, there are still very significant workplace problems presented by the way lawyers treat other lawyers, as well as those that are not lawyers but must work with them on a day-to-day basis.  I will also admit that my view has changed on the need for that, in no small part, by watching events as they have played out on the national political stage and becoming very uncomfortable in hearing the rhetoric of those who are decrying this rule proposal as somehow fostering “political correctness,” sound eerily like one of our two presidential candidates, the one who seems to think it is appropriate to demean and vilify almost all who do not look like he does.  In a world in which there can be seemingly a third of the population as a whole that embraces such an approach to life, it seems the least that an organization like the ABA can do to advocate for this kind of additional protection from harassment and discrimination to be a part of its Model Rules.

The misgivings I still have are mostly with the language and meaning of new Comment [5].  By adding “that is material and relevant to factual or legal issues or arguments in a representation,” to modify “legitimate advocacy,” it makes me think the intent is that there could be “legitimate advocacy” of some other type.  I’m not sure there is, but if there is it should probably likewise be exempt and, thus, “legitimate advocacy” without further elaboration would seem to be the right language to use.

I also wonder whether this provision would truly mean the end — for example — of family law firms that market themselves as exclusively representing one gender or another in such proceedings.  I know what my thoughts are on what should be the correct result, but I have some trouble reconciling the proposed rule and the explanation in the Comment to determine how that item would be treated.

The entire report accompanying the resolution is available at that link provided above and it is worth a read.

 

 

“En” to the . . . ah . . . to the no, no, no!

So, blame my children for the Meghan Trainor reference, but it is a catchy tune and, actually, not the worst of messages of female empowerment.  Nevertheless, it fits my ramblings today too well for me to resist.

A blurb about a trademark infringement suit involving an Atlanta law firm that operates under a trade name caught my eye this week.  You can read a Law360 story about it here, but know on the front end that the headline is incorrect and that the reason it is incorrect is the core of my not-fully-formed point.

The short form of the story is there is this Atlanta law firm that operates under a trade name of Trusted Counsel, technically Trusted Counsel Ashley LLC.  Law firm use of trade names is not universally accepted in terms of advertising regulations, of course, as there are some states that simply do not permit their use.  In Georgia, trade names can ethically be used as long as they include the name of at least one attorney in the firm (hence the “Ashley” reference) and “does not imply a connection with a government entity, with a public or charitable legal services organization or any other organization, association or institution or entity, unless there is, in fact, a connection.”   Tennessee’s version of RPC 7.5(a) is simultaneously more, and less, permissive as there is no requirement that a name of a lawyer be included but a clearer provision that no trade name can be used if it would violate RPC 7.1 (i.e. be false or misleading).

The law firm, Trusted Counsel (which interestingly is the only part of the firm name apparently that has been trademarked by Trusted Counsel Ashley) has been operating since 2003.  That firm has sued a much newer arrival to the Atlanta marketplace, Entrusted Counsel LLC, claiming trademark infringement, Lanham Act violations, and even cybersquatting.

Now the headline in the Law360 story was that a Georgia law firm had been sued, but even the actual lawsuit doesn’t go so far as to make that allegation (though clearly the plaintiff hopes you will draw that inference), instead the lawsuit (which you can read but not print off at this site on Scribd) asserts that the source of the infringement and the reason for confusion is that both Trusted Counsel and Entrusted Counsel provide “legal services.”

It took me fewer than 5 minutes of clicking around on the web to see that Entrusted Counsel is a consulting outfit owned/operated by someone who is not a lawyer.  Now, I’m admittedly not an expert in trademark law so the fact that Entrusted Counsel isn’t a law firm and can’t practice law may not mean squat with respect to the merits of the trademark suit, but it certainly is an interesting little fact given all the recent hew and cry over the ABA resurfacing — albeit briefly and to no avail — the discussion about whether the ethics rules should be revised to permit outside, nonlawyer investment in law firms.

I can’t help wondering, if the roles were reversed, what would lawyers say if a consulting shop, owned by a nonlawyer, sued a law firm that had a similar name for trademark infringement.

Speaking of advertising regulations, the other tidbit making waves and news in legal circles this week is that New Jersey has decided to weigh in, yet again, on “accolade advertising.”  Quite a few years ago, New Jersey attempted to put its arms out and hold back the tide of “superlative” or “accolade” advertising among lawyers.  The effort, as it should have been, was ultimately futile.

Last month, the New Jersey Supreme Court Committee on Attorney Advertising issued a “Notice to the Bar,” to clarify just when, and how, lawyers in New Jersey are permitted to publicly discuss the fact that a third party has conferred upon them a rating or accolade of some sort.  What drives the regulatory impulses to seek to impose barriers on references to such ratings or accolades is, of course, the unfortunate belief that all entities that provide ratings somehow have an underhanded, “pay to play” component.  To whatever little extent anecdotal evidence can rebut such preconceived notions, I have been fortunate enough to be listed in Best Lawyers in America since 2009, to be listed as a “Super Lawyer” beginning in 2011 by MidSouth Super Lawyers, and was awarded an AV rating by Martindale Hubbell back in 2006 or so and have never paid a dime  to any of those entities to run an advertisement or even to receive a plaque acknowledging my inclusion.

Are there entities that do little by way of separating wheat from chaff other than to see if a lawyer will pay for an accolade?  Absolutely.  But, as indicated above in what it took to figure out that Entrusted Counsel doesn’t practice law, it takes about 5 minutes at most these days to go online and figure out what the score is.

You can read the entirety of the NJ guidance here if you really want to but prepare to be frustrated and to sense the begrudging nature of the whole discussion.  If you want just the short version, here is what they say a hypothetical lawyer could say in compliance with their requirements:

Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process_detail.html.  No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

Or, here is how it would read if that hypothetical lawyer wanted to tweet about it:

Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection met

The “Notice to the Bar,” explains that it was issued because the committee “has received numerous grievances regarding attorney advertising of awards, honors, accolades that compare a lawyer’s services to other lawyer’s services.”

I wish the NJ committee would have just hired Ms. Trainor to answer the phones, she could have told the complaining lawyers:

You need to let it go, you need to let it go.  Need to let it go.  Nah to the ahh to the no, no, no.