I always knew I’d be headlining music festivals one day.

That’s not true at all. I never even imagined I’d be the headliner at a music festival.

After this year’s AmericanaFest in Nashville though, everything has changed.

Well, that’s actually still pretty misleading as I was not the headliner at AmericanaFest.

I did, however, get to be a speaker during AmericanaFest, as part of a panel along with Professor Tim Chinaris. Ours was neither the most high-profile and well-attended session of the conference, but we did talk for 90 minutes about a timely topic in the world of legal ethics.

Unlike loads of other parts of this post, the two-immediately preceding sentences are neither false nor misleading.

Other programming events at the CLE conference portion of AmericanaFest included a session (featuring the daughter of June Carter Cash as a panelist) focused on the upcoming PBS series from Ken Burns about the history of country music, a lunch session involving a conversation with Grammy award winner Brandi Carlile, and a session focused on combating internet monopolies featuring another Grammy award winner, T-Bone Burnett.

Professor Chinaris and I spoke about the new ABA Model Rules revisions addressing lawyer advertising and the current trend toward modernization of such rules across the country. Ours was definitely the best presentation during AmericanaFest on that subject.

Of course, to make that last sentence entirely truthful and not the least bit misleading, I should add that ours was the only presentation during AmericanaFest on that subject.

This post has been much more amusing for me to write than it probably has been for you to read. But, to the extent it can end up being a constructive effort at making any coherent point relevant to legal ethics, that point would be this: if a lawyer were seriously (rather than in jest) making any of the various kinds of false or misleading statements written above in order to advertise their services, the only ethics rule that would be necessary to have a way of imposing discipline for such conduct would be a rule such as ABA Model Rule 7.1.

Model Rule 7.1: Communications Concerning A Lawyer’s Services.

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.

If this post can be allowed to make one other coherent point relevant to legal ethics, it would do so by quoting a piece of the report and recommendations from the Utah Work Group on Regulatory Reform that (as mentioned in this earlier post) the Utah Supreme Court approved explaining the need to rework Utah’s ethics rules related to lawyer advertising:

The main concern should be the protection of the public from false, misleading, or overreaching solicitations and advertising. Any other regulation of lawyer advertising seems to serve no legitimate purposes; indeed, it is blunt, ex ante, and — like so many current regulations — neither outcomes-based nor risk-appropriate.

Really big goings on in California.

And, no, in the title I’m not referring to the leak of information about the California Bar essay topics before the bar exam. Although that story is certainly bananas.

You’ve likely by now read at least something somewhere online about the most recent product coming out of the California State Bar Task Force on Access Through Innovation of Legal Services, consisting of tentative recommendations that has been formally put out for public comment. Most of the usual places where you can readily get good news about issues relevant to (or related to) the practice of law have done a piece of some sort about it.

It really is a significant step in the national discussion about what the regulation of the practice of law ought to look like moving forward and, if you have the time, the full 250-or-so-pages of report and related attachments is worth a read and available at this link. (To be clear, if you only have time to read one report spanning hundreds of pages, it should be The Mueller Report. The future of legal ethics in this country isn’t going to be of much importance if we can’t get a handle on just how badly the rule of law is currently being threatened by our institutions (Part 2) and just how little faith and confidence we can have in the integrity of our elections process (Part 1). So, if you are a lawyer and still have not read that report yet, then you need to do so.)

(If you have time to read two massively long reports, then the ATILS report should be the other one.)

There is so much about the ATILS proposal, and its variants, that is worth writing about that I’m pretty certain I’m going to end up dedicating a few posts to the subject matter – though spread out a bit so as not to only write about it and nothing else for too long a time period. Aspects of what is being discussed are really substantial changes to the way things work now and will most certainly be scrutinized and subjected to significant debate.

To start off though, I want to just talk about two aspects of the report that ought to be much less controversial both because it is an easy jumping off point and because, on their own, they give a glimpse into how fast things are moving these days.

Now you may recall that California only very recently (effective November 1, 2018 as a matter of fact) revised their ethics rules in an overhaul that more closely resembles aspects of the ABA Model Rules. In so doing, California became the very last U.S. state to do so. But getting there took more than 17 years. With those revisions, California adopted a version of ABA Model Rule 1.1 on competence and adopted ethics rules related to legal advertising that at least followed the numbering and overall framework – with some deviations – of ABA Model Rules 7.1 through 7.5.

Despite the fact that California’s versions of those rules still essentially have a “wet paint” sign on them, the task force report is proposing a revision to California’s RPC 1.1 and is proposing that another pass be taken at California RPCs 7.1 through 7.5 to either put them more in line with the most recent revisions to the ABA Model Rules or possibly more in line with the less modest proposal that the Association of Professional Responsibility Lawyers made that (as written about here a time or two) started the process moving that led to the ABA revisions.

Being willing to consider such things less than a year since adopting new rules is a bit unusual on its own, but when it comes to RPC 1.1, the task force is going a bit further and proposing that California revise the language a bit even from what the ABA Model Rule says. To a large degree the proposed deviation is a bit wonky because, at heart, it stems from the age-old debate about where exactly the right lines are in terms of what Comments can be used for and what they can do when compared to the text of the rule itself. (The discussion of the motivation and issue is found at p. 18-19 of the task force report documents.)

The ABA Model Rule comment language reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and in practice, including the benefits and risks associated with relevant technology….

The California proposal would instead be:

The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.

For what it is worth, I can manage to both think that the ABA Model Rule approach does not run afoul of the balance between comment and rule but also agree with the task force proposal that if California adopted the proposed variation, it would likely be a better approach.

Now the cynical amongst us may say that these topics wouldn’t be being addressed if there wasn’t a much larger set of reforms being put on the table. And those folks are probably right … about which more later.

Asking in South Carolina and definitely not receiving.

This development in South Carolina happened last month and I saw some folks getting a little worked up about it but am only getting around to writing a little about it now. (In fairness, last month only became last month around 80 hours or so ago.) But for some people getting worked up about it, it wouldn’t actually be all that noteworthy given that all South Carolina did was adopt a comment that made plain what the rule already truly required.

Nevertheless, it makes for an interesting subject not only because of the reaction it garnered but how it came about… in response to a petition seeking to change South Carolina’s Rule 1.6 in an entirely different direction.

But, I’ve managed to get way ahead of myself with the textual throat-clearing and have started in on all of this like you know what I am talking about.

In June 2019, the South Carolina Supreme Court entered an order that rejected an attempt by the South Carolina Bar to seek to have RPC 1.6 revised to permit lawyers to make reference to published court decisions in their advertising without having to get their client’s informed consent. And, to be clear, what the bar was asking for was a very incremental level of permission. They were seeking to have the rule allow a lawyer to make reference to the citation of a published case, not the details of it, just the citation.

Now I suspect many lawyers would assume that no such revision was even necessary on the basis that they simply think that public information is public information and can be used in whatever fashion is desired. In fact, this Bloomberg article quotes someone from a law firm I used to work for saying something along those lines. That might well be a common sense approach but it is simply an entirely incorrect statement when it comes to how the ethics rule on confidentiality works.

As I’ve written about in the past (probably more times than you care to remember but most recently in August 2018), RPC 1.6 continues to impose confidentiality obligations on lawyers as to information related to representation of a client even as to the most public of events. And, what that means is, when you work through the rule and its various provisions authorizing disclosure of such information . . . there simply isn’t a provision that justifies use of the information in commercial advertising endeavors without the consent of the client.

The South Carolina Supreme Court was not interested in what the Bar was seeking. Instead, it opted to adopt a new comment to RPC 1.6 to drive the point home about what the text of RPC 1.6 already requires.

Specifically, the Court added the following new Comment [7] to its RPC 1.6:

[7] Disclosure of information related to the representation of a client for the purpose of marketing or advertising the lawyer’s services is not impliedly authorized because the disclosure is being made to promote the lawyer or law firm rather than to carry out the representation of a client. Although other Rules govern whether and how lawyers may communicate the availability of their services, paragraph (a) requires that a lawyer obtain informed consent from a current or former client if an advertisement reveals information relating to the representation. This restriction applies regardless of whether the information is contained in court filings or has become generally known. See Comment [3]. It is important the client understand any material risks related to the lawyer revealing information when the lawyer seeks informed consent in accordance with Rule 1.0(g). A number of factors may affect a client’s decision to provide informed consent, including the client’s level of sophistication, the content of any lawyer advertisement and the timing of the request. General, open-ended consent is not sufficient.

Of course, the South Carolina Supreme Court is not wrong about this. And, at a practical level, requiring client consent is not truly that onerous.

However, given the connection to lawyer advertising generally that this development has, it is worth pointing out that South Carolina is still a generally bad jurisdiction when it comes to that topic. Partly, this is because it still refuses to recognize at a fundamental level what the purpose of advertising actually is by having this kind of requirement in its RPC 7.2(a):

All advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.

New Lunar Year, New Lunar Rule?

Okay, the title is something of a stretch to acknowledge that today marks the beginning of a new lunar year, the Year of the Pig. Nothing about what I have to say relates to the moon or anything Lunar.

But I did want to continue one part of the discussion begun in Las Vegas last month, and truly follow through on my insistence about how what happens in Vegas shouldn’t just stay in Vegas this time, by sharing the text of a proposed new Model Rule that I drafted and that we kicked around during a panel discussion at the APRL Mid-Year Meeting.

The general topic is what to do with the rules, if anything, to address the reality of online lawyer matching services and other similar platforms that are benefiting consumers by helping connect consumers who are willing to pay a certain price point for legal services and lawyers who are willing and able to deliver those services at that price point but that are always in tension with the current ethics rules because of restrictions on lawyers providing compensation for referrals or recommendations and related restrictions on fee sharing.

We have a rule here in Tennessee which I believe to be substantively bad, but the architecture of the rule is pretty good if you change its goals. Sort of like an old house with really good bones but simply god-awful interior decorations. That rule is RPC 7.6 and imposes certain registration requirements and limitations on things denominated as “intermediary organizations.” Long time readers of this blog, might remember this post about how I believed RPC 7.6 applied to Avvo Legal Services back when that was still in operation.

The rule I have drafted as a conversation starter uses the architecture of the Tennessee rule but is designed to provide a more permissive and more flexible approach to the topic.

Implementation of such a rule would likely also require changes to Model Rules 5.4 and 7.2 to make clear that payments to intermediary organizations are not prohibited as fee sharing or prohibited by the restrictions on payment for referrals, and the accompanying Comment would likely need a paragraph to make clear certain things that are not intended to be swept up as an intermediary organization, but carts and horses and all of that.

The draft is posted below, all feedback is most welcome.


Proposed Model Rule 7.7:  Intermediary Organizations
(a)  An intermediary organization is a lawyer referral service, lawyer matching service, or other similar organization which engages in referring consumers of legal services to lawyers or facilitating the creation of attorney-client relationships between consumers of legal services and lawyers willing to provide assistance.


(b)  A lawyer may make a payment to an intermediary organization, including a payment that would be considered sharing of an attorney fee with an intermediary organization, in connection with any referral or facilitation of a relationship with a client as long as:


                (1)  The relationship between the lawyer and intermediary organization is fully disclosed to the client including, if requested by the client, the amount of any payment made by lawyer to the intermediary organization;
                (2)  The cost to the lawyer of any payment to the intermediary organization is not passed on to the client; and
                (3)  The lawyer does not permit the intermediary organization to direct or regulate the lawyer’s professional judgment in rendering legal services to the client.

Texas Two Steps Forward…One BIG Step Back

I have written in the past about the fact that I am fortunate to be the Chair of the Tennessee Bar Association’s Standing Committee on Ethics and Professional Responsibility. Because our committee is currently beginning a process of chewing over whether to try to recommend changes to the advertising rules in Tennessee, I’ve been trying to pay closer attention to developments in other states. Specifically, trying to pay closer attention to whether the revisions to the ABA Model Rules inspired by the work of APRL are moving the needle in the correct direction.

Long time readers of this space will know that my long-espoused view is that the only real rule needed in terms of lawyer advertising is a prohibition on false or misleading communication. The ABA Model Rules have moved closer – but not all the way of course — to that kind of approach.

Today’s post is about the fact that the Texas Committee on Disciplinary Rules and Referenda has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.

You can read the proposed revisions here.

The short version is that these proposed revisions seem like a very positive development in a few respects as to regulation on lawyer advertising. The biggest positive is that these changes would replace wholesale the kind of improper categorization of certain statements that can be made truthfully (like comparison of one lawyer’s services to another or discusses past results obtained for clients) currently housed in Texas’s Rule 7.02(a) with a revised Rule 7.01 that isn’t perfect in terms of just prohibiting actually false or misleading communications but is better.

Unfortunately, the other piece of the short version is that the Texas revisions would still perpetuate a very pernicious and unnecessary barrier to speech in the form of filing requirements and payments in the form of filing fees for any advertisements that are not limited to certain types of “pre-approved” information.

The Texas proposed revisions would do this by continuing to carry forward in a revised Rule 7.04 the following requirement:

A lawyer shall file with the staff of the Advertising Review Committee of the State Bar of Texas, no later than the date of dissemination of an advertisement of legal services via public media, or the date of a solicitation communication sent by any means, including social media, for the purpose of obtaining professional employment:

(1) a copy of the advertisement or solicitation (including packaging if applicable) in the form in which it appeared or will appear upon dissemination;

(2) a completed lawyer application advertising and solicitation communication application; and

(3) payment to the State Bar of Texas of a fee set by the Board of Directors.

For context, currently the fee is set at $100. You can review the relatively invasive application form that is required and all of its bells and whistles here. In reading it you will also learn the cute part where if more than one lawyer in separate firms is involved in the same advertisement they are still each required to separately submit applications and pay multiple $100 fees.

The proposed revision would also exempt certain limited types of communications from these requirements as long as they only contain the “vanilla” categories of information pre-approved by the regulators.

Such a regulatory regime does not exist for any reason other than to fundamentally discourage advertising., should not be tolerated, and pointlessly mars any progress the Texas proposal otherwise offers.

Nevada provides lawyers yet another reason not to blow their own horn online.

I have beaten the drum for many, many years now about lawyers not understanding the true scope of their obligation of confidentiality under rules patterned after ABA Model Rule 1.6.  The ability to quickly share information far and wide online has not been helpful to lawyers who lack that understanding.  I remain astounded at how lawyers do not seem to recognize the unnecessary risk they are taking on by touting achievements in particular cases online.

Now, of course, I’m not privy to discussions between those attorneys and their clients in advance of such efforts so, perhaps, everything I see is kosher because every time I see a lawyer engage in such conduct they have gotten their client’s consent to do so in advance.

Based on my experience over the past 20 years though, I’m highly skeptical of that.  What I think is much more likely is that because these sorts of things usually never amount to any disciplinary proceedings much less instances of public discipline, this just continues to be something that many lawyers do either on the basis that the risk is minimal compared to the perceived reward or on the basis that they don’t see any risk at all.

For some lawyers, it is the misunderstanding about how confidentiality functions that can be the problem as they either aren’t aware (or simply don’t care) about the counter-intuitive fact that a public jury verdict is still RPC 1.6 confidential information as far as the lawyer is concerned.  Those transgressions can likely be forgiven by most, if not all, involved.  But, particularly when the self-congratulatory efforts in question go beyond just providing information about a jury verdict and also opt to reveal information about pre-trial settlement negotiations, the egregious nature of the breach of confidentiality is nearly impossible to forgive.  And, thanks to the way the Internet works, it is certainly impossible to forget.

Just this week, I saw one of these posts from lawyers with whom I use to practice law blowing their own horn about a very large jury verdict and revealing what the settlement offer from the defense was before trial.  I hope that they were operating with the consent of their clients or, if they happen to be reading this, that they go and at least get retroactive consent from the client involved which is better than having never gotten consent at all.

As if the risk of discipline (even if perceived to be a small risk) wasn’t enough to discourage lawyers from self-congratulatory social media postings (and if you spend any time on social media you know that it isn’t enough to discourage most), the Nevada Supreme Court provides a new opinion in a piece of defamation litigation that ought to give lawyers another reason to think very, very carefully about blowing their own horn online.

In Patin v. Lee, the Nevada Supreme Court rejected the effort of a lawyer and a law firm to stop a defamation case brought against them by a dentist.  The dentist had been one of the opposing parties of the firm’s client in a dental malpractice case.  The lawyer and law firm tried through exercise of an anti-SLAPP motion to bring the defamation case to a quick end.  They were unsuccessful though as Nevada adopted California’s approach to determining whether something written online can be considered “in direct connection with an issue under consideration by a judicial body.”  If you aren’t familiar with the general concept of anti-SLAPP statutes, then such language is likely meaningless to you.  But, if you read the opinion it will give you a pretty efficient primer on the concept of anti-SLAPP statutes (SLAPP being an acronym for Strategic Lawsuits Against Public Participation). You can read that opinion right here

From a loss prevention standpoint, let me drill down on what is readily understandable in terms of the problematic conduct by the lawyer and law firm.  The lawyer represented a plaintiff in a dental malpractice lawsuit against three defendants – a dental group and two individual dentists.  The lawyer obtained a $3.4 million verdict in favor of the client against the dental group and one of the two individual dentists.  The jury verdict against the other dentist was one finding no liability.

There was some appellate wrangling in the malpractice case after the jury verdict but because the ultimate outcome on appeal did not change, that wrangling matters much less than what the lawyer and law firm decided to post on their website to tout their success in the case:

DENTAL MALPRACTICE/WRONGFUL DEATH – PLAINTIFF’S VERDICT $3.4M, 2014 Description; Singletary v. Ton Vinh Lee, DDS et al.

A dental malpractice-based wrongful death action that arose out of the death of Decedent Reginald Singletary following the extraction of the No. 32 wisdom tooth by Defendants on or about April 16, 2011.  Plaintiff sued the dental office, Summerlin Smiles, the owner, Ton Vinh Lee, DDS, and the treating dentists, Florida Traivai, DMD and Jai Park, DDS, on behalf of the Estate, herself and minor son.

The problem with this self-congratulatory post on the firm’s website — separate and apart from the normal questions that might be asked about whether the clients were consulted and consented before the post was made — is that it doesn’t mention that Dr. Lee — the person named in the caption headline and in the body of the update — was the individual dentist found by the jury to have no liability.  That dentist, in turn, is who sued the lawyer and law firm for defamation because a reader of the post in question would reasonably think that Dr. Lee had been on the wrong end of a $3.4 million jury verdict.

Those that know me know that I am not much for dropping Bible quotes but, even I have to say that this would be a pretty good place to drop Proverbs 27:2 – “Let another praise you, and not your own mouth….”

New Jersey takes a step in the right direction on advertising

With a strong tip of the metaphorical hat I never wear to Kim Ringler (a former President of APRL) who alerted many ethics lawyers to the news, I write today about a new ethics opinion from the New Jersey Committee on Attorney Advertising.

In Opinion 45, issued less than a week ago, New Jersey has softened their harsh position on whether a lawyer can hold themselves out as having “expertise” or being a “specialist” or “specializing” in an area of the law.  New Jersey’s new opinion is candid about how developments in other states involving First Amendment challenges to advertising restrictions have resulted in its new stance.  It is also fairly decent in terms of the commonsense nature of the analysis it provides.

The opinion explains that it has been prompted by a grievance filed about a law firm’s website in which the statement is made that the lawyers have “expertise” in tax law.  (I’m willing to bet the shiniest of quarters that the grievance was filed by a lawyer and not a consumer.)  The opinion provides a bit of insight into the firm and its main lawyer:

The firm concentrates its practice in tax law.  The firm’s principal lawyer has an L.L.M. in tax, is the author of numerous publications on tax law, lectures on tax law, served as an attorney for the Internal Revenue Service, and has been practicing tax law for more than 30 years.

The opinion explains that New Jersey had previously imposed severe restrictions on the use of such terms unless a lawyer had been certified by the New Jersey Supreme Court or by an ABA-approved organization.  (My own state has a somewhat similar black-letter rule in RPC 7.4 [though it does not seek to regulate the term “expert” or “expertise” and it only relies upon ABA-accredited groups.)

But, going forward… well … I’ll just let New Jersey speak for itself:

After revisiting the issue in light of recent out-of-state First Amendment decisions in attorney advertising, the Committee has now determined that lawyers may use the terms “expertise,” “specialize,” and “specialist” in advertising provided the terms are accurate and the lawyers can demonstrate the necessary education, training, and experience to substantiate the claim.

So, kudos where kudos are due, but the reason I say “a step” in the right direction rather than any sort of “leap” is that New Jersey couldn’t quite bring itself to commit fully to the common-sense outcome on this topic because it still is clinging to its prohibition on the use of the word “expert.”  It does so by ending its opinion with the following sentence:

Only lawyers who are certified by the Supreme Court or an organization approved by the American Bar Association may call themselves “experts.”

 

A tale of two ethics opinions.

So, I’ve made something of a habit of writing about ethics opinions.  Bad ones and good ones.  Mostly bad ones though.

As the trite – almost hackish – title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from a well done ethics opinion on the kind of issue that cries out for guidance in the form of an ethics opinion and the harm that can come from the kind of ethics opinion that likely should not be issued at all.

First, the good – an opinion issued out of Texas (which Karen Rubin has already written some about) that tackles a thorny problem that can confront a lawyer who has been retained by an insurance company to represent one of the company’s insureds in a piece of litigation.

The particular question addressed in Texas Opinion 669 is this:

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer retained by an insurance company notify the insurance company that the insured client he was assigned to represent is not cooperating in the defense of the client’s lawsuit?

The answer the Texas opinion provides, as difficult as it might be for insurance defense lawyers to hear, is “no.”  And, that answer is the correct one in any jurisdiction where the way the “tripartite” relationship is structured is that the lawyer’s only client is the insured and the insurance company is merely someone who is permitted to pay the lawyer’s bills as long as the lawyer complies with the state’s version of Model Rules 1.8(f) and 5.4(c).

In Tennessee, for example, RPC 1.8(f) specifically states one of the requirements for permitting the lawyer to accept compensation or direction from someone other than the client as being that “information relating to representation of a client is protected as required by RPC 1.6.” (Interestingly, the Texas opinion makes no mention of, or reference to, any of those kinds of rules but simply uses only its confidentiality rule to justify its analysis.)

The unfortunate opinion comes out of Virginia.  Virginia, you might recall, recently made a great leap forward in streamlining its rules on attorney advertising by revising its rules to look very much like the proposal circulated by APRL.  After adoption of those revisions, which became effective on July 1, 2017, Virginia’s ethical restrictions on advertising were largely capable of being described as simply prohibiting false or misleading communications.

Unfortunately, with the issuance of Legal Ethics Opinion 1750, Virginia manages less than a year later to undermine much of its progress by simply re-issuing and updating a lengthy opinion it has released on multiple past occasions that attempts, in advance and not in response to evaluating any particular real advertisement, to provide “guidance” about what kinds of advertising practices should still be avoided because of the potential to be considered to be misleading.

Unlike the Texas opinion, which answered a real dilemma that lawyers can face and for which definitive guidance can be provided, the Virginia opinion is the kind of ethics opinion designed almost exclusively to chill commercial speech.  Even if the guidance it gave on all of the topics it unilaterally decided to address were correct, it would still be the type of opinion that ought not be issued.

Certainly, it says some things that are undoubtedly true and fun to read about ways that a lawyer could engage in truthful advertising that would still be a problem because it would be misleading by omission.  I’ve spoken at seminars before where I’ve tried to make this point by saying that a lawyer whose ad truthfully proclaimed “I’ve never lost a jury trial,” but fails to also mention, for context, that they’ve never actually been involved in a jury trial is going to be at risk under any fair set of ethics rules.  The Virginia opinion grabs a slightly different version of this rich vein by explaining that a lawyer truthfully crowing that “They secured a $1 million jury verdict in case,” but not mentioning that it came only after turning down a $2 million settlement offer before trial would have disseminated a misleading advertisement.

But, even that guidance is something that really ought not be opined about unless there were an actual lawyer seeking actual guidance about just that sort of advertisement.

So many other pieces of the opinion are even worse, however.   Cautions about using actors in ads, hand-wringing over “no recovery, no fee” statements, and subtle digs at the use of testimonials by actual clients in the opinion appear to be rolled back out for no real reason other than to undermine the progress on lawyer regulation of advertising that had appeared to be achieved by streamlining the rules themselves.

“No. No you’re not.”

So, you may recall back in October 2017 I had an itch and intended to write about a lawsuit in Pennsylvania that would fit in with the recent (seemingly) increased willingness of lawyers to sue other lawyers over their ads, but since I was beaten to the punch, instead I gave you a pointer to a very good piece somewhere else about it.

If that doesn’t ring bells, you can go see that again here.

I bring that lawsuit against a firm with a significant presence here in Memphis, Morgan & Morgan, again because there has been a new development.  And, particularly, a new development that talks about something that has always bounced around my brain when I hear a particular advertisement in that firm’s stable.

First, the recent development in that lawsuit, where a local Pennsylvania law firm sued Morgan & Morgan saying that its advertising was false and deceptive because, among other things, Morgan & Morgan only has one lawyer located in Philadelphia who is claimed by the plaintiff in the suit to have little experience handling personal injury litigation.  The federal district court has declined to dismiss one aspect of the lawsuit – the allegation that the founder of Morgan & Morgan, John Morgan, is lying when he says in an advertisement that he is “your lawyer.”

Now, why this strikes me in a way I find so interesting.  Nearly every time I have heard the line in a particular radio advertisement it has struck me as such an unwise, and unnecessary, thing to say from a legal ethics standpoint.

The line is this:  “Remember this, I’m not just a lawyer.  I’m your lawyer.”

It’s a nearly Pavlovian reaction for me at this point – I hear that, and I say (out loud if I’m alone or just in my head if there are people around):

“No.  No, you’re not.”

And, then, my mind wanders a bit down the path of mulling why that statement in that advertisement feels like such an unnecessary, “own goal” kind of thing to do to yourself.

Your firm has a giant plaintiff’s practice.  Your firm is going to have lots of people make appointments and undergo consultations, and your firm is going to turn a lot of those people away.  Sometimes it might be for conflicts reasons, sometimes it might be because you don’t think they have a case worth your time.  But, either way, you’ve unnecessarily opened yourself up to, at the very least, a disciplinary complaint from someone who claims you broke your promise and violated RPC 7.1 since you actually said you were their lawyer.

Admittedly, that isn’t the exact line of thought used by the federal judge in the Pennsylvania litigation — rather, it is the notion that . . . well, let me simply quote the Court instead of interpreting:

Rosenbaum alleges John Morgan, an attorney with Morgan & Morgan, appears in advertisements stating “I’m your lawyer” and describing “himself to the consumer as a trial lawyer with over thirty years of experience” which “convey[s]” the message John Morgan and Morgan & Morgan will handle the prospective clients’ claim.  Rosenbaum alleges, in reality, John Morgan is not licensed to practice law or to legally represent clients in Pennsylvania but the advertisements do not advise prospective clients of this fact….

Accepting as true Rosenbaum’s allegations, John Morgan’s statement “I’m your lawyer” may be literally false or have the tendency to mislead viewers into believing John Morgan, himself, will represent them….

If you’d like to read the full opinion which dismisses much of the Lanham claims, you can read it here.

That part is interesting and could, of course, be argued over and thoroughly parsed since the principals of imputation of conflicts and other matters would make the statement arguably truthful in the event that someone hires the firm, at least.

But, my qualm is the importance of that italicized language right up there.  My qualm remains true even for jurisdictions in which the lawyer making the claim is licensed.   I remember doing quite a few seminars many years ago that were focused on trying to help lawyer not accidentally end up with client they didn’t want because they were not clear enough in communicating to someone that they were not their lawyer.  (There is even a now-quite-long-ago law review piece on the topic that is very good called “Accidental Clients” written by Susan Martyn.)

Admittedly, I’m not an expert in legal marketing but it still strikes me as such an unnecessarily dangerous and damaging statement that is far-too-readily capable of being characterized as false and misleading to a consumer of legal services and far-too-difficult to characterize as the kind of “puffing” that should be treated as meaningless.

Your mileage may vary, of course.

 

Change is hard. Even where it appears to be wanted.

I have been meaning to do this and am long overdue in getting to it, but you might recall back in the summer of 2017 when I wrote pretty extensively about the contents of the Oregon Futures Task Force Report, and its positive proposed changes to the ethics rules.  If you don’t, you can read those posts here and here.

In November 2017, the chair of the Legal Ethics Committee in Oregon who also was a member of the Futures Task Force was kind enough to drop me a line and update on how those proposed rules revisions were progressing.

Initially the Board of Governors of the Oregon State Bar approved the proposed revisions to RPC 5.4, 7.2, and 7.3 for discussion and voting by its House of Delegates.

After the process in the House of Delegates, in which there was quite a significant amount of debate and discussion as I am told, the proposed revisions to RPC 5.4 and 7.2 were referred back to the Board of Governors to a study committee, but the proposed revision to RPC 7.3 was passed and has been submitted to the Oregon Supreme Court so it can decide whether to adopt it or not.

While in my prior postings I discussed the RPC 5.4 proposed revision at some length, I did not provide any real detail of the RPC 7.3 change Oregon was considering beyond the fact that it would involve allowing in-person or real-time electronic solicitation, with limited exceptions.  For the record, this is what the Oregon Supreme Court now has in front of it for consideration:

RULE 7.3 SOLICITATION OF CLIENTS
A lawyer shall not solicit professional employment by any means if:

(a) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person who is the target of the solicitation is such that the person could not exercise reasonable judgment in employing a lawyer;
(b) the [person who is the] target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(c) the solicitation involves coercion, duress or harassment.

Now, you know what I know on this topic.