Friday follow up – TIKD off by a DQ motion and the Supremes won’t stop suspending the wrong lawyers.

In the middle of Roadshowing (short break until the next stops next week) and also still trying to handle client matters to boot, so this will be a quick post.

(If you are here next week looking for the Roadshow playlist, just keep scrolling down as it can be found in the post immediately below this one.)

The dustup between the smartphone app known as TIKD and the Florida Bar has been back in the news in the legal trades recently over a motion to disqualify TIKD’s counsel filed by the Florida Bar.

On its face, it sounds like a pretty decent disqualification motion on the merits as the Florida Bar is alleging that TIKD’s counsel who is a former Florida Bar president had access during his term in office to internal information evaluating the Florida Bar’s antitrust liability exposure given its structure in the wake of the U.S. Supreme Court’s ruling in an antitrust suit against the board that regulates dentistry in North Carolina.  (You might recall that I wrote a bit about that in the past as well as it is that case that has revived interest in, and concerns about, antitrust issues for the regulation of the practice of law in unified bar/mandatory bar jurisdictions.)  That would seem like a slam-dunk in terms of disqualification if that person had been a former General Counsel or otherwise a lawyer for the Florida Bar, but the analysis may be a lot murkier if, as is the case generally of bar presidents, that the president of the Florida Bar is always a lawyer but isn’t necessarily acting as a lawyer for the organization during the term of office.

Oh, and speaking of the U.S. Supreme Court, I wrote a bit earlier this year (as many other people did) about the weirdness associated with the fact that the United States Supreme Court made the very unfortunate mistake of suspending the wrong attorney – confusing one lawyer named Christopher P. Sullivan for another lawyer named Christopher P. Sullivan.  At the time, I tried to make discussing the circumstances a bit more worthwhile substantively and not just anact of piling-on by citing that epic mistake by the highest court in the land as maybe the ultimate example of the need for people in our profession to be deliberate in their actions and take their time because what we do can have real consequences for us and for others.

As is of course true for literally billions of other people on the planet, the Clerk of the U.S. Supreme Court is not a dedicated reader of this space (or didn’t take heed of that message) as a new story came to light a week or so ago of pretty much the same thing happening again with the Court suspending a lawyer named Jim Robbins instead of a lawyer named James A. Robbins.  (Even more coincidentally, the Sullivan who was wrongly suspended earlier in 2017 practiced law with a firm called Robins Kaplan.)

Actually, to say that pretty much the same thing happened isn’t quite right, as the James A. Robbins that deserved to be suspended wasn’t actually a member of the U.S. Supreme Court bar at all.

I’ve been fortunate enough to have been admitted to the U.S. Supreme Court since December 2008 and even more fortunately it appears to be an admittee with a name, Brian S. Faughnan, that seems highly unlikely to be duplicated on (or off) its rolls.

Three-For-Tuesday.

Any old radio station in your town (most probably one playing “Classic Rock”) can provide you with a Two-For-Tuesday, but where else will you find a Three-For approach to this otherwise underrated day of the week?

First, I recently let you know that Tennessee was in play with a proposed version of RPC 8.4(g) to make harassing and discriminatory conduct related to the practice of law a violation of the ethics rules.  The Tennessee Supreme Court has put that joint petition out for public comment and has set a March 21, 2018 deadline for submissions.  So, by the time we know the outcome of the joint petition, you’ll have had the chance to go see two highly-anticipated film adaptations of very good books, A Wrinkle in Time, and Ready Player One.

Second, I’ve written recently about how rare lawsuits tend to be where a lawyer or law firm sues another lawyer or law firm over marketing activities.  There are lots of reasons that firms can tend to be reluctant to file such suits, but if you are looking for various objective indications of just how harshly competitive the marketplace for legal services is getting these days – and how much lawyers perceive their futures to be at risk – the fact that such suits seem to be happening with greater frequency is one such indicator.  Here is a link to the latest example where one advertising law firm has sued another over advertising firm over the design of billboards and whether those are serving to mislead consumers into confusion over which is which.

One of the billboards says “Injured?  Results You Deserve.”  The other says “Injured?  Don’t stand alone.”  Now, neither one of them are exactly fabulous exemplars of good marketing I guess.  I mean, you might see the first one and think, I’m kind of a shiftless person and I’m not sure the accident was anyone’s fault.  I’d rather not get the result I deserve.  And the other one might strike you as tone-deaf if you were so badly injured that you can’t stand at all.

Either way though, let me say this, there is a movie out in theaters now called Three Billboards, and I think a good third one to put out on this Massachusetts interstate would be one that reads:  “Injured?  Not by my billboard.”

Third, and speaking of advertising, based on this recent headline out of Ontario, it appears pretty clear that my words of wisdom and encouragement to a throng of Canadian lawyers suggesting they chill out about advertising issues was not a butterfly-flapping-its-wings-bringing-about-global-change kind of moment, but more akin to the impact that a butterfly makes on the windshield of a moving car.  In keeping with today’s theme, while it is incredibly untimely as far as movie recommendations go, it is still true to say that if someone is going to force you to watch an Ashton Kutcher film, The Butterfly Effect is your best option.

A short update on Avvo ratings

You may recall, a while back, that I kvetched a bit here about my belief that Avvo’s rating system was less than a bona fide system.  The primary focus of my argument centered on Avvo’s decision to assign numerical ratings to some lawyers even though those lawyers have never claimed their profiles.  I then spent a little bit of digital space picking some examples of lawyers that I considered to be exceedingly better than their ranking and that the such ratings would actually do a disservice not only to those lawyers – seeming to “punish” them for not claiming their profile – but also to consumers trying to use Avvo to make decisions about lawyers.  While admittedly not scientifically exhaustive, my research seemed to indicate that it was a rare lawyer who could get a rating at 7 or above without at least claiming their profile.

Well, I am pleased to report that Avvo has recently changed its approach and has now returned to offering only a non-numerical rating for most lawyers who have not claimed their Avvo profile.  Earlier this month, Avvo has changed its approach and, according to Avvo’s General Counsel, “most unclaimed lawyer profiles are now rated either ‘No Concern’ or ‘Attention’ (the latter for those with underlying Avvo Ratings below a 5).”

If you go back to look at that prior post, you will see that Avvo’s General Counsel, Josh King, was kind enough to share that information in a new Comment on that post last week, but knowing that not everyone goes back and reads old posts to find new comments I wanted to make sure to prominently note the change here.

Also, in light of this change, I can follow through with what I said in a comment to that earlier post in an exchange with Josh where I wrote:  “If Avvo only assigned numerical ratings to those who claim and participate, and limited itself to the “no concern” or “concern” approach to others, I would readily agree that it was a bona fide system in the way the rules contemplate.”

Now that they are back to that sort of approach, and consumers now can’t use numerical ratings to compare apples and oranges, I think I am left where I said I would be – readily agreeing that Avvo’s rating system is bona fide in the way the rules contemplate.

Something TIKD this way comes.

So, about a week ago, the Florida Bar and The Ticket Clinic (a Florida law firm that somehow can manage to keep the lights on by specializing in representing people regarding traffic tickets) were sued in federal district court by something called TIKD.  TIKD is, at heart, an app for your smart phone.

The lawsuit alleges that the bar and the law firm have combined to damage TIKD in its business endeavors in violation of antitrust law and other unfair competition law.  Others have already written a bit about this development, but I still cannot resist chiming in because, though the litigation will likely end up amounting to nothing truly impactful, the underlying substance (or lack thereof) of the area of law being battled over with potentially such high stakes for the profession could easily be made into the stuff of a dark fantasy novel.

While others have written about this new federal court lawsuit where TIKD is the plaintiff, and there is some decent media coverage of it at The Washington Post and in some Florida news outlets, I want to just flag for your attention the existence of another lawsuit in Florida involving TIKD, but that was brought against TIKD seven months earlier in state court by one of the defendants in the TIKD suit, The Ticket Clinic.

You can read that full lawsuit at this link.  The gist of it though is also one for unfair competition.  The law firm, Gold & Associates d/b/a as The Ticket Clinic sued TIKD and its two owners claiming TIKD engages in false and deceptive advertising and is itself engaged in the unauthorized practice of law.  You can judge for yourself, but those particular claims to me seem dubious at best.  TIKD seems to do exactly what it advertises it will do and hires lawyers rather than tries to practice law.  But in the midst of those questionable claims, the suit still finds the nub of a true problem: unfair competition for lawyers trying to compete with (rather than work with) TIKD.

While it is the suit TIKD has filed pursuing the Florida Bar and The Ticket Clinic for antitrust violations that is currently getting all the media attention — folks who want to be “disruptors” in the legal industry are certainly using it as an opportunity to attack the entire concept of the regulation of the practice of law — the lawsuit filed by The Ticket Clinic as plaintiff forces a reader to think about the flip side of that problem by pointing out that what TIKD is doing to market its service, and convince people to use it, is making guarantees and promises that lawyers are prohibited from making under the ethics rules.

Specifically, paragraph 12 of the complaint points out a number of aspects of the TIKD business model that allow for unfair competition, which includes TIKD:

b) making guarantees to pay financial penalties imposed by courts and/or the “full cost of their ticket”;

[snip]

g) promising to “cover the full cost of your ticket no matter the price – even if the cost is higher than what you paid us;”

Paragraph 28 of the complaint further drives the point home:

In promising to pay a fine if they lose at no additional cost, TIKD, RILEY and BERTHOLD make a promise that a lawyer or law firm cannot possibly make, and they essentially “rob Peter (those persons whose cases are dismissed with no fine or court cost after
paying TIKD 75-80% of the fine stated in the citation) to pay Paul (those persons who are directed to pay the fine in full or greater, with costs)” which is a “house of cards” that will eventually fall, leaving clients with no remedy.

The story in The Washington Post also helpfully reinforces that these are important aspects of what makes TIKD a desirable service for which to pay:

TIKD, which launched in February, works this way in Florida: A driver who gets a traffic ticket can contact the company on a cellphone and be offered a one-time charge below the amount of the ticket. TIKD connects the driver with an independent attorney for no additional costs or fees, and the attorney handles the case without the driver having to appear in court.

If the ticket is not dismissed, TIKD pays any fines, and if the driver gets points on his or her license, TIKD will fully refund the one-time charge.

It is undeniably correct that the ethics rules would never let a lawyer make the same arrangements with a client.  It also seems pretty clear that without the ability to make those financial guarantees the app would lose pretty much all of its luster.  Thus, regardless of what you may think about the merits of any claim that The Florida Bar and The Ticket Clinic are engaged in some coordinated effort to hurt TIKD, it appears undeniably correct that there is a fundamentally unfair competitive advantage to being able to make the kind of financial guarantees that the app is making and which any lawyer would have to risk their license to match.

A reckoning in the legal industry is going to have to take place at some point relatively soon, but part of that reckoning absolutely has to be a level playing field in the area of providing legal services.  Either the same rules and restrictions will have to apply to all those operating in the space or those rules ought to apply to no one operating in the space.

The notion that the reckoning could be ushered along more quickly because of a fight over an area of legal representation that most firms have first-year associates handle for free as a perk for clients (i.e. getting speeding tickets dismissed) and involves a firm run by a lawyer who has been embroiled in litigation over a nearly $20,000 tab at a strip club and whose firm is being investigated for taking money to falsify traffic school certificates is just absurd enough to fit in with the rest of the fundamental absurdity that plagues 2017.

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?

This Florida lawyer should not have “Went for It”

I had it in mind that I might write a little something about the Pennsylvania lawsuit against the Morgan & Morgan firm over lawyer advertising issues, but Karen Rubin and the fine folks at The Law for Lawyers Today beat me to that punch with a nice piece at their site that you can read at this link.

So, instead, but still staying on the general theme of lawyer advertising issues, I’m going to focus just a bit on a story coming out of what is often thought of as “ground-zero” in the U.S. when it comes to the battle over lawyer advertising issues — Florida.  It is a tale of a lawyer who is being suspended for one year over conduct involving solicitation of a client.  (Should you want to, you can read the full per curiam opinion of the Florida Supreme Court in Florida Bar v. Dopazo here.)

The opinion mostly focuses on the question of what was the right amount of punishment, deciding to increase the suspension from the 60 days that was recommended to a full one-year suspension.  That isn’t my interest for today.  My interest for today is to use this case as a reminder of a few things in the context of larger issues that are going on in the world of lawyer advertising (and, in particular, the APRL effort to persuade the ABA to revise the Model Rules to streamline the restrictions on both general advertising and solicitation).

Those who study questions of legal ethics or attorney advertising or both will remember that the only U.S. Supreme Court case to uphold a restriction on attorney advertising efforts as constitutional is Florida Bar v. Went For It.  The restriction upheld there was the 30-day off limits concept for soliciting representation by mail from folks affected by disaster or traumatic personal injury in any fashion.

Dopazo’s conduct not only ran afoul of prohibitions on in-person solicitation but was well within that kind of 30-day off-limits period and would have been prohibited in any form or fashion.

In March 2007, days after her son suffered traumatic brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center  by Dopazo, who successfully solicited her to become a client of his for a fee.  There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf.

No one who is out there actively advocating for revisions to the ethics rules addressing lawyer advertising and solicitation is pushing a rule revision that would permit this kind of in-person solicitation in a hospital even if a jurisdiction did not also have some version of a 30-day off-limits period.  Even those of us who question the fairness of 30-day off limits provisions because they only prohibit communications from one side of things -_ the side seeking to provide representation — are in favor of restrictions on in-person solicitation by lawyers of strangers.

Those of us who are actively advocating for changes though are very much in favor of trying to not have these sort of situations — which can be adequately addressed by simple prohibitions — drive the discourse to try to justify more expansive restrictions on commercial speech.  Among the many reasons for that are the kinds of unnecessary and unneeded restrictions that can come to pass because of expansions of such concepts.

Using my own state as an example, over time our rule imposing a version of the 30-day off limits provision has now been expanded to prevent lawyers from sending letters to strangers offering to provide representation in a divorce matter within 30 days of the filing of a divorce.  I’ve written in the past about the problems I have with that concept (if you click through that link which gives you an electronic/pdf-ish version of The Memphis Lawyer magazine from 2015, you’ll need to go to pages 14-15 to read the column).

So, unquestionably, this Florida lawyer’s situation is one that the ethics rules ought to prohibit.  But the fact that such conduct was engaged in does not provide a basis for saying that the rules aren’t in need of reform.

(N.B. You might be asking yourself why in the world a lawyer is being disciplined in 2017 for misconduct that happened in 2007.  The opinion elaborates that it was not the target of the solicitation who complained about Dopazo but rather that the Florida Bar only learned of the incident in 2011 as a result of the findings of an FBI investigation of this lawyer over alleged payments to non-lawyers for a client recruitment scheme involving medical clinics.  Interestingly, the delay in the prosecution of the case from 2011 to 2015 was, in fact, taken into account as a mitigating factor when concluding that the appropriate discipline was a one-year suspension.)

A patchwork post for your Friday

Today’s content will be an original recipe of (1) part shameless self-promotion; (2) two parts serious recommendations to read the writings of others; and (3) pop culture recommendations for your downtime this weekend.

First, the shameless.  I am pleased to announce the plan for this year’s Ethics Roadshow.  Here’s the promotional piece you will soon see making the rounds to explain this year’s endeavor.

This is the 13th year that Brian Faughnan is performing the Ethics Roadshow for the TBA, but that is NOT actually the reason for the “13 Reasons Why” title.  This year’s program “Ethics Roadshow 2017 The Mixtape:  Thirteen Reasons Why Ethics Issues are More Complicated Than Ever.” is so-titled because of the presenter’s slavish devotion to being influenced by pop culture.

This past year, a highly controversial show largely about teen suicide and its consequences aired on Netflix.  “13 Reasons Why,” was based on a much less controversial book but the series was heavily criticized for – among other things – violating the “rules” in the world of television for how (and how not) suicide is to be depicted.  Questions, of course, exist about whether such rules are outdated in a day and age when it is as easy as surfing the Web for someone, even a teenager, to find such information.

Questions also exist in modern law practice about whether certain ethics rules are outdated, and we will spend some time talking about that issue and related topics.  We will also discuss the problems with substance abuse, stress, and mental health issues that plague our profession and put our members at risk of self-harm at rates much higher than the general population and other professions.)  The outdated technology of audiotape also plays a significant role in the Netflix series.  (It is also making something of a comeback in the music industry.)  We will spend time talking about the ethical obligations of lawyers when it comes to use of technology and whether some of those obligations and the risks of modern technology might create an incentive for lawyers to make use of some outdated technology in the future as a way of better protecting client information.

And, we will cover it all in a format that had its heyday when cassette tapes were king – the “mixtape.”  Your presenter will curate the order of topics for you with any eye toward your three-hour listening experience.

If you are a Tennessee lawyer (or a lawyer who practices in a nearby state) interested in attending, all of the stops will take place in December 2017 and you can find them and register for them at these links: Memphis, Nashville, Knoxville, and Chattanooga. You can also register for video broadcasts of the program in Jackson and Johnson City.

In terms of reading recommendations, go check out yesterday’s post from Karen Rubin over at The Law for Lawyers Today on a follow up to an issue I’ve written about – the problems with protecting client confidentiality in a world in which border agents are demanding access to electronic devices and their contents.  Karen writes about a lawsuit filed by an organization near and dear to me that is challenging the practice.  Also go check out the latest blogpost from Avvo’s General Counsel, Josh King, about the intersection of First Amendment issues and the issuance of ethics opinions.  While I don’t know the details of the discussion at a New York event he references, I do know some of the players that were there and I can’t help but wonder if what Josh is interpreting as a bad take on the issue of constitutional challenges and certain concepts being settled actually stems from a more fundamental disagreement about whether saying lawyers cannot pay referral fees to non-lawyers is actually a restriction on commercial speech at all.  If not, then it doesn’t require intermediate scrutiny in terms of any First Amendment challenge but is merely reviewed on a rational review basis.  And, I’m guessing the point someone was trying to make was that others have tried and readily failed to say that states don’t have a sufficient interest in regulating the practice of law to prevent letting lawyers pay non-lawyers for making referrals.

Finally, recommendations for a more pleasurable way to spend your weekend. If you happen to have Netflix, I actually do (albeit sheepishly) recommend checking out the 13 Reasons Why series.  Less sheepishly, as to the efforts to bring the mixtape concept back, I wholeheartedly recommend exploring some of the online mixtapes that Lin Manuel Miranda, the creator of Hamilton has curated.  You can grab one of them 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.

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.)

Here’s something you don’t see every day: Brave Law Firm sues a competitor.

I’ve written here pretty frequently about issues of lawyer advertising.  I am too lazy today to try and go find links to other posts of mine in which I have stated that the overwhelming majority of disciplinary complaints filed over lawyer advertisements are filed by other lawyers.  Not always competitors, sometimes lawyers on the other side of the v, but just about always by lawyers.

While that remains true, it is rare that you ever see one lawyer or law firm sue another lawyer or law firm over advertising.  Earlier this month, one such lawsuit was filed.  That lawsuit is captioned Brave Law Firm, LLC v. Truck Accident Lawyers Group, Inc. et al. and was filed in federal court in Kansas. Here is link to the lawsuit (07914726612 brave law firm) if you desire to go read the whole thing.

There are lots of reasons why such lawsuit filings are infrequent.  The fact that in order to come up with a claim for damages a firm is likely going to have to demonstrate losing some clients to the other firm that can be traced to the advertisements in question is usually a pretty solid reason not to do it.  Instead, it is much simpler for a firm or lawyer who wants to complaint to file a disciplinary complaint because any rules infractions won’t turn on whether or not your firm was actually harmed by what the other lawyer was doing.

This suit though provides the basis for the roadmap that you’d see in terms of causes of action for such a lawsuit, including a Lanham Act claim and the relevant state law claim for tortious interference with a business relationship.

What makes the lawsuit a particularly interesting read, however, is that it levels its attacks against advertisements that defendant lawyer’s firms have made about past successes but it does not involve exactly the kind of complaints you often expect hear made about such things.  It does not undertake an assault on the advertisements as being misleading because advertising that you obtained a multi-million dollar recovery for a litigant might arguable mislead a potential client into thinking that such outcomes are achievable in their case as well.

Instead, it challenges the very veracity of the advertised outcomes themselves. The core allegations from the Complaint in this regard are as follows:

29. As one recent example, Defendants Brad Pistotnik and Brad Pistotnik Law, P.A. ran a series of advertisements touting their alleged results [NB: you can see an actual screenshot in the complaint itself but I have not included it]

30. The disclaimer at the bottom of the screen is consistent with the content of the entire ad and explicitly states that the “Amounts are gross recovery before fees and expenses.”

31. Instead, the actual “gross recovery” before fees and expenses was $387,018.00, or 16% of what was advertised.

32. This advertisement is literally false because there was no “gross recovery” of $2,400,000 by any person(s) in the case referenced in the advertisement, either before or after legal fees and expenses.

33. In addition, this advertisement is literally false as it advises the viewer that “Our past performances are no guarantee of future results” when, in fact, the “past performance” referenced in the advertisement never happened at all.

[snip]

35. As another example, all of the Defendants widely disseminated advertisements claiming that they obtained a jury verdict of $4,100,000 in a personal injury case.

36. This same advertisement also advised that the jury awarded a punitive damage award of $2,500,000 to the alleged client.

37. These advertisements were, and are, literally false as the “gross recovery” in that case was approximately $850,000.00 and the jury did not award any punitive damages to the plaintiffs.

38. Other advertisements ran by the Defendants featured other literally false “gross recoveries” via alleged verdicts including ones for $1,100,000, $845,000, and $401,000.00.

39. In addition to advertising alleged “gross recoveries” via jury verdicts that never actually happened, the Defendants also advertised purported settlements that never happened.

40. As one example, all of the Defendants advertised that they had settled a case for $9,000,000 on behalf of a former client.

41. This settlement did not happen as advertised because Defendant Bradley A. Pistotnik and the AAPLO had been terminated by the client prior to the settlement occurring and the settlement was actually obtained by another lawyer, apparently
in another state, but at various times each of the Defendants has claimed it as their own.

Obviously, if such facts could be proven, then disciplinary exposure for the lawyer responsible for such advertisements would be in the mix as well and, might I add, would be within the ambit of the kind of more limited, and more focused, ethics rules on lawyer advertising that are being advocated for adoption as a revision to the ABA Model Rules.

Given that the complaint reads like someone has provided the Brave Law Firm with some significant behind-the-scenes knowledge, it appears possible that there could be more interesting developments arising if this suit moves forward.  For example, I’d be interested to know if someone previously employed by one of the defendants now works for the plaintiff.  Unless the Brave firm got all of this information from people free to share it, then one would think potential counterclaims could get thrown into the mix in the future.