500: A Multimedia Extravaganza.

So, in my most recent post, I ended by acknowledging that there was a milestone upcoming and that it seems like a circumstances creating odd pressure.

I have now managed to do this for more than seven years and by my best guess there is roughly 500,000 words of content on legal ethics now available on this site.

So, what could one hope for to accomplish with a 500th post to feel like it is a successful one? Something engaging? Something discussing important information? Something perhaps involving shameless self-promotion of sorts? Something touting a great organization I am lucky to lead at the moment? Something that involves a subject matter that might change the profession?

Sometimes life steps up and provides an opportunity to do all of those things at once.

Robert Ambrogi, a much more famous blogger than me and who also is the host of a well-known podcast, was kind enough to extend an invitation to me to appear on his LawNext podcast and discuss the origins, motivations, and other issues addressed in APRL’s recent proposal to overhaul and replace ABA Model Rule 5.5.

You can give that episode a listen at the link below:

LawNext: Ep 162: Is the End in Site for State Limits on Law Practice? (libsyn.com)

(Or, and it is always fun to hear me say this in my head when I hear it said on so many things I listen to, you can get it wherever you get your podcasts.)

Requiring lawyers only to disclose whether they have malpractice insurance can do more harm than good.

So, this is an issue that states continue to “struggle” with from time to time, and the latest I am aware of is Vermont. Michael Kennedy has alerted the public to a pending proposal in Vermont that is now out for public comment that would require Vermont lawyers to disclose on their annual registration statements whether they have or do not have malpractice insurance.

The problems I have with all of these kinds of proposals, including ones that go further and require lawyers to actually have malpractice insurance, are the focus of today’s post.

But, first, just to be clear, I obviously recognize that ideally all lawyers everywhere would recognize that having malpractice insurance is better than not having malpractice insurance and that there are likely far too many lawyers practicing who do not have any malpractice insurance. Also, I want to admit that — while almost all of the information is anecdotal – I have no doubt that most consumers of legal services just blithely assume that the lawyers that they retain actually have some form of insurance coverage.

While all of that is true, I have a strong opinions that trying to regulate and require it in the ways that states have tended to do is not a helpful approach to the issue and, particularly when all that is sought to be required is disclosure of coverage vel non, can actually end up hurting rather than helping consumers.

Here’s why I say that. Given that the predominant nature of lawyers’ professional liability insurance is that it is issued on a “claims made and reported” basis, I don’t think that making available to a consumer information about whether, during a discrete window in time, a lawyer has an available insurance policy actually provides useful information. The notion that a lawyer may have had coverage at a particular date in the past does not give any clear reason to believe that the lawyer has a policy in place for a time frame that is relevant to when an act or omission might have occurred nor whether it covers any particular conduct nor any information about whether the attorney has provided timely notice to make sure not to lose coverage for the particular set of circumstances. And, if we assume the consumers will make decisions about whether to hire a lawyer based on whether or not they might have insurance that could help pay for any mistakes, the disclosure could well be unhelpfully misleading.

Here is the moment where I admit that I am now hopelessly old, forgetful, and sadly self-referential. I just spent some time trying to find someone that had eloquently made the point more clearly about how this kind of requirement could be counterproductive and even misleading. In so doing, I found … I’ve already done this and forgot. Sigh. So, here’s a link to that post from what is now almost 7 years ago.

Admittedly, actually requiring lawyers to obtain and have in place malpractice insurance is not a failsafe solution either, but if the concerns expressed by the jurisdictions that require notice of status are really to be addressed, it is a remedy that comes significantly closer to addressing the concern than does merely requiring notice of status at a given snapshot moment in time.

APRL is leading the way toward modernizing the practice of law.

Yesterday was potentially a very big day in the world of lawyers and clients. I am very pleased to report that yesterday the Association of Professional Responsibility Lawyers released a proposed overhaul of Model Rule 5.5., called on the ABA to take action to adopt it, and disseminated a very thorough and detailed Report explaining why the kind of reform called for by the rule proposal is both entirely justified and long overdue.

I have spent some time over the last 24 hours talking with a few reporters about this development, and I intend to update this post with links to stories as they come out. But talking the situation through with reporters has also, I think, helped me distill down a bit how best to describe the potential significance of this proposal and how strikingly different it is from the sort of “stop gap” measures that exist today with respect to various ethics opinions that have been put out by states during the course of the pandemic.

First, because readers of the blog know that I seem to always manage to quote myself when I can, here is an excerpt from my letter to the current President of the ABA that describes what APRL is proposing:

Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time. At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.

Second, while I am only one of 10 co-authors of the Report itself, I want to highlight a very important portion of that report (obviously written by someone else with better writing skills) in terms of how a fallacy about how competence as a lawyer works under the current approach to lawyering and how that feeds into a disconnect that impacts problems with access to legal services:

A lawyer’s voluntary devotion to one area of practice, however, in no way restricts the scope of the lawyer’s license in their state. An attorney with 20 years of experience, but only involving family law, who learns of a neighbor’s, relative’s, or former client’s severe car accident may agree to represent that person. Similarly, a lawyer who, following admission to the bar, works in a non-legal setting for twenty years, faces no licensing restrictions in taking on that same personal injury case as long as they have an active law license. Moreover, a newly minted lawyer immediately after passing the bar could take on a family law case, a car-accident lawsuit, and a contract negotiation with a hospital for a physician. The lawyers in these scenarios might not be the best lawyers for the job, but the Rules of Professional Conduct assume that the lawyers can educate themselves about the subject matter and competently handle the case. See Rule 1.1, cmt. [2].


The “Competency Fallacy of Rule 5.5,” however, dictates that a lawyer licensed in “State A”, who has devoted their entire career to personal injury work for example, would not be competent to represent the car-accident victim described above (without the association of local counsel) because the lawyer is presumed to be incapable of knowing or coming to understand “the law of State B.” Instead, if that State A-licensed lawyer wanted to be able to regularly represent clients with personal injury cases in State B, the lawyer would have to obtain a second license to practice law, a license issued by State B. Those who accept the current systemic issues often rely upon arguments that lawyers who wish to be able to practice across state lines more freely can simply obtain such additional licenses through reciprocity. This option to pursue additional licenses through reciprocity is not an adequate solution, and for many jurisdictions, is simply not true.

APRL’s proposal is a long-time coming but also long overdue.

If you believe that our profession’s approach to the multi-jurisdictional practice of law needs to change, I would encourage you to support APRL’s efforts and speak out to help us effectuate change in your jurisdiction. The current ABA Model Rule, along with a variety of state ethics opinions issued during the pandemic, have given some solace to lawyers about what might be okay on a “temporary” basis.

APRL’s proposal, however, would lend permanence to the idea that as long as a lawyer is transparent with their client about where they are licensed, then they could live or have an office anywhere without fear that representing a client in some other state or assisting a client with navigating and interpreting the law of some other state would be unethical or illegal. Our proposal would also improve the lives of lawyers with traditional practices who go into the office of their firm every day and live and work in the same jurisdiction because they would not have to second-guess whether a client who wants to hire them can do so without also having to enlist the assistance of an additional lawyer simply because that other lawyer is “local.”

As an earlier portion of the APRL Report explains, APRL’s proposal:

acknowledges that clients must continue to be protected from the incompetent practice of law. However, the proposal also elevates the client’s right to choose counsel to a co-equal status in the context of the regulation of multijurisdictional practice and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries that prevent clients from choosing competent counsel of their choice even if the lawyer they choose is licensed elsewhere.

A copy of my letter to ABA President Turner, APRL’s proposed Rule 5.5, and the Report can be accessed at the link below.

To date, the only story I know that is up is this first, short one from Bob Ambrogi.

But stay tuned …

Edited to add additional articles:

Reuters.

ABA Journal Online

Bloomberg Law

Above The Law

It’s hard to keep up with all the bad new laws Tennessee is cooking up.

As the title indicates, Tennessee – like almost all states under a Republican stranglehold – is currently experiencing a wave of legislative efforts to roll back progress on civil rights while also trying to make it difficult to vote them out of office by … making it more difficult for minorities to vote and have voting power. The latest you’ve probably heard about is one of our state senators seeming to praise Hitler. Yes, that guy. But in context it is both worse than that and not as bad as you are hearing. What he’s trying to do is express his support for a nasty bill to criminalize being homeless in Tennessee. His “praise” of Hitler for using his time as a homeless individual to practice his oratory skills and go on to lead a life that put him in the history books is apparently intended to be an argument for jailing the homeless to prevent the next Hitler. It is exhausting and depressing, but I’ve tried to keep up to date about how all of the constant right-wing wish list is going down, at least here in my state.

But a very recent judicial ethics opinion that just came out, and that tries to put a genie slightly back into a bottle, has alerted me to a different kind of bad law that has been enacted in Tennessee. Tennessee is a state with judicial elections for all of our state trial court level positions and we have retention (yes/no) elections for our appellate court positions.

Particularly for lawyers, judicial elections are … I think the technical word is “icky.” Particularly when it comes to fundraising issues. Up until this year, Tennessee has threaded the needle of the notion that if you are going to have judicial elections, judges and judicial candidates are going to need to raise money for campaigns, and the primary people they are going to hit up are lawyers who practice before them by allowing judges to form campaign committees and allowing those campaign committees to solicit contributions but prohibiting judges from being personally involved in any of that through a judicial ethics rule. As I also wrote about a long time ago now, rules restricting judges from personally soliciting contributions is something that the U.S. Supreme Court has actually affirmed as entirely constitutional.

Well, thanks to the passage of SB 2010/HB 1708 judges and judicial candidates in Tennessee are now allowed to personally solicit money for their campaigns. Tennessee’s first judicial ethics opinion of the year, 2022-1, confirms that the impact of this new law is to override the only direct prohibition in the judicial ethics rules against this conduct. That analysis is not rocket science in any fashion as the judicial ethics rule prohibiting such conduct begins with an opening clause stating “Except as permitted by law….” The opinion also tries to warn and discourage judges and judicial candidates from doing what they are now authorized to do, but it does so only in a breezy, perfunctory fashion. In fairness, it isn’t clear whether spilling any more ink attempting to spin out scenarios where judges importuning lawyers directly to fill their campaign coffers could lead to increased motions for recusal and increased risks of engaging in improper conduct impacting other cases would make the difference in terms of what happens next in terms of which judges and judicial candidates continue to try to insulate themselves from the fundraising process and which do not, but it would have been nice to see something a little more in-depth.

And, speaking of a bit more in-depth, it is also deeply curious to see that the opinion acknowledges that one of the judges concurring in the opinion only concurred in part but does not elaborate on what parts are being disagreed with. The fact that the judge in question is one of the judges in Shelby County (where Memphis is located) who has decided they are not running for re-election adds to the intrigue a bit.

Some different COVID news.

It is safe to say, at this point, that most of the United States, and particularly southern states such as mine, are treating the pandemic as being over. Whether it actually is or is not remains to be seen. If it is over, its lasting effects will certainly live on.

This post isn’t exactly about any of that though. A few months ago, I recall doing a telephone interview with a reporter that was focused on trends in discipline. I recall discussing my best guesses for what we might start seeing and how the pandemic would likely be central to that. A different part of my conversation fed into the actual article, so I’m now having to work from the most ephemeral of sources — pandemic memory (pandemory?) but my recollection is that I talked about two possible things likely to occur. One was an increase in disciplinary complaints of the potentially legitimate variety given the strains experienced by lawyers in trying to pivot to living at work, coping with the stress of navigating a pandemic, and potential for missing deadlines and other failures that could coalesce around the struggle. The other was an increase in potential disciplinary complaints of a less legitimate variety where clients try to blame their lawyers for things that were actually being caused by the pandemic itself, including delays in court proceedings, court rulings, and other similar delays in transactional settings. I also mentioned, of course, that even those less legitimate complaints could take hold if the lawyers involved had been less than diligent in communicating with their clients along the way.

What I didn’t say anything about in that conversation was whether lawyers might catch any breaks with respect to errors that they make during the pandemic simply because the errors occurred, you know, while trying to get through a pandemic.

With this post, I’d just like to highlight the surprising fact that there are at least two such incidents that have made it onto my radar screen. Two is certainly an insufficient sample size to claim any sort of trend but discussing them together is still worthwhile.

The first involves a clear example of a disciplinary body using the pandemic itself as a mitigating factor in determining an appropriate level of discipline for a D.C. lawyer. Because it came to my attention through Mike Frisch’s site, and because I have been awful in the past of saying that out loud when it is true, I will simply point you to his post and excerpt it below:

We recognize that much of 2020 was a particularly challenging time when COVID related deaths, illnesses, lockdowns, and social restrictions were at their peak without an end in sight. Therefore, we also considered your reaction to the pandemic as a mitigating factor in the context of your misconduct. Our consideration of this factor is heavily influenced by the timing and nature of your misconduct, coupled with the proactive remedial measures you took to cope better with the pandemic. 

The other involves something that seems much more extraordinary… a Rhode Island court forgiving a lawyer for missing a statute of limitations by a couple of days. The possibility of lawyers missing deadlines because of COVID was something I discussed with the reporter; particularity issues associated with trying to keep track of when time was running or tolled in states like Tennessee where our Supreme Court entered and then extended emergency orders that tolled certain deadlines but did not toll others. The possibility that courts might just exercise judicial power to simply give a free pass for missing a statute of limitations though was not something I envisioned as possible.

In an attempt to try to avoid the doghouse I’ve placed myself in as to Mike Frisch, I will clearly state that I only heard about the Rhode Island ruling because of an email alert from the Hinshaw law firm. You can read their content about that decision here.

Confidentiality and credit cards

I have written here in the past about a number of ways that a lawyer’s obligation of confidentiality imposes limits on their ability to do certain things that others can do and even as to subject matter where it seems highly unfair. Most frequently, this issue arises when talking with lawyers about what they can and cannot do when a client or former client takes to social media to criticize the lawyer’s work.

The problem for lawyers is that the attorney ethics rules do not treat a public disclosure by a client or former client as a waiver of the ethical obligation of confidentiality in the same way that other law treats such disclosures as waiving attorney-client privilege. Thus, while RPC 1.6 offers some exceptions that allow lawyers to disclose otherwise confidential information, those exceptions are cabined.

Because online dustups on social media are not “proceedings” and because even though they can be characterized as a “controversy” responding to criticism online does not involve establishing a “claim or defense” in the way the rule contemplates, most jurisdictions and ethics authorities agree that a lawyer cannot rely upon RPC 1.6(b) to disclose details about the representation of a client or former client in order to try to refute, for example, an unfair negative review online.

Another area, not as often discussed here or most other places, where this “unfairness” of RPC 1.6 can rear its head is for lawyers who accept credit card payments from clients. This unfairness also only comes to pass if the lawyer feels like they are being hard done by a dissatisfied client but can have very harsh results if the lawyer hasn’t addressed the issue in their engagement contract with the client.

If a client or former client initiates a chargeback with the credit card company to contest the lawyer’s ability to retain the funds previously paid, RPC 1.6 will also tie the lawyer’s hands in trying to provide and produce information that the credit card company will ask for in that process and can result in the lawyer getting shafted on payment and having to then decide whether to sue the client for the fees.

This will be the case because a dispute with a credit card company is also not a “proceeding” as contemplated by RPC 1.6(b) and, although certainly a controversy between the lawyer and the client, most authorities will also conclude that responding to inquiries from a credit card company does not involve establishing “a claim or defense” as the rule envisions.

So, what is a lawyer to do? Well, the ease and convenience of allowing clients to pay for attorney fees using credit cards is obviously a huge net-positive for many lawyers. So simply refusing to accept such payments is not a realistic answer. Lawyers also cannot try to get their clients to contractually agree that they will not dispute payment or never initiate a chargeback procedure. Any such provision would be likely to be viewed as draconian and unenforceable. But what lawyers can do is include a provision in any engagement contract that makes clear that in exchange for the lawyer agreeing to accept payment for services by credit card the client provides consent, in advance, that in the event of any dispute about that payment or the initiation of any chargeback efforts the lawyer may disclose to the credit card company whatever information they reasonably believe is necessary to demonstrate the validity of the services provided.

Another ethics opinion that wouldn’t be required if all lawyers were good (or at least chaotic-neutral) lawyers.

There has been A LOT of stuff going on this week in the world of legal ethics. I will refrain from dedicating an entire post to try to tie this plea I made in a post back in December 2020 to these two developments, here and here.

Instead, I want to talk a little bit about a recent ethics opinion that comes out of Washington state and that address an unfortunately recurring issue that has unfortunately been made the subject matter of multiple ethics opinions which unfortunately also conflict with each other.

The Washington State Bar Association has issued Advisory Opinion 202201 that addresses a question regarding whether a lawyer’s communication with a represented opposing party violated RPC 4.2 when the communication occurs through using “reply all” on an email thread where the opposing party’s lawyer cc’d their client on a communication to the lawyer.

The opinion gets to, what I continue to believe is the absolute correct answer, it depends. But the factors on which it depends help demonstrate why this is not something lawyers should be doing unless they have reached a prior understanding with the opposing lawyer in question. The opinion offers helpful bullet points listing these kinds of factors, including the prior course of conduct of the parties and counsel and the nature and subject matter of the communication at issue.

The conclusion of the opinion essentially involves offering “best practice” guidance:

To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.

What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion. Of course, not all jurisdictions take the same view as Washington. Last year, New Jersey issued an ethics opinion on the topic that concludes that implied consent is always present when the sending lawyer includes their client as a cc in the communication with the other lawyer.

Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.)

Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.

And, in reference to the title of this post, the unfortunate reasons opinions like this continue to be necessary in no small part comes from the fact that there are lawyers out there that will purposefully cc a client on a communication in hopes of trapping the other lawyer into allegedly unethical conduct by replying without removing the client from the thread and, likewise, there are lawyers out there that will take advantage of a reply all with the other lawyer’s client to talk about subject matter other than what the thread involves.

Don’t be those lawyers.

Should racists be permitted to practice law?

This is a question I’ve asked in the past. It is not instinctively an easy question to wrestle with. It can easily boil over into various slippery-slope arguments and accusations regarding risk of inviting concepts of the “thought police” and the like.

But another news item invites the question back into the arena for further discussion. This ABA Journal online story details efforts of two criminal defendants to seek relief from their convictions/guilty pleas because of information that has emerged indicating that the Massachusetts lawyer that represented them in their cases was a racist. That lawyer was appointed to and assigned to these cases through Massachusetts’ public defender agency.

In terms of the facts of the matter, there are at least two interesting wrinkles.

One, the lawyer in question has now passed away and cannot speak further in the matter to defend himself. Two, the proof of the asserted racism on the part of the deceased lawyers come from a variety of Facebook messages believed to be attributable to the deceased lawyer.

The posts in question are collected at the link above, but also appear in an affidavit filed by the public defender agency through which the lawyer was appointed to the cases. (Unless you are truly looking for offensive stuff to read, I would skip the link though.) As happens at a surprisingly frequent rate, these posts were easily accessible because the lawyer left his Facebook profile set to public access rather than limiting his posts to being viewed only by his Facebook friends.

Both of the defendants seeking relief — are African American males of the Islamic faith. One seeks leave to withdraw a guilty plea while the other is seeking a new trial in a case in which he was convicted of armed assault with intent to commit murder.

One of the avenues of pushback that arises in kicking around issues regarding whether racist beliefs are so inherently disqualifying for someone to be a lawyer or not tends to be lots of examples, both historical and verifiable and anecdotal, of lawyers being able to represent clients that they found to be repugnant or clients who had horrible racist or even genocidal views directed towards a class of people that would include the lawyer.

There is certainly no question that open-minded, non-racist lawyers are entirely capable of representing, for example, people who are racist. But those examples don’t really move the needle.

What there do not seem to be are examples of things working out well in the opposite direction. Examples of situations in which a racist attorney is able to competently and zealously represent a client who is a member of a group that the racist attorney hates and thinks is “lesser” than they are.

Now, are the lack of those examples simply a lack of data that is out there and exists — perhaps in part because there are few examples of people who are attorneys but who are open about their racist views? Or do such lawyers simply turn down all such cases where they would have to represent someone outside of the group with which they align themselves? (And that might be something they are simply required to do after all under RPC 1.16 and 1.7 if their own personal interests would create a significant risk of material limitation on the representation.) Or is the lack of such examples an inevitable consequence of the inherent problem?

There are obvious First Amendment concerns as the issuance of a law license is something done by the government and evaluating someone’s views that manifest themselves through speech can be problematic when it amounts to the government favoring one form of speech over another. But, aspiring lawyers already do face inquiries into character and fitness that sometimes can straddle that line in ways that the profession seems to tolerate and, of course, lawyers often have aspects of their First Amendment rights hampered by ethics rules when they are engaged in representing a client

Nevertheless, I’m still left pondering a variation of the question I left off with over 4 years ago:

Does empowering a racist by conferring a license to practice law on them something that is inherently prejudicial to the administration of justice?

“It’s Groundhog Day… again.”

This past week included one of our nation’s most heralded fake holidays. Groundhog’s Day. Silly occasion, but still a really good movie, of course. But, playing off of the theme of repeating events and disappointing outcomes, we return to the oft-discussed topic of lawyers trying to respond to online criticism.

We’ve covered in the past in these parts that the current version of the ethics rules, in any jurisdiction using the ABA Model approach to RPC 1.6, prohibits lawyers from responding to online criticism posted by clients or former clients, even if the criticism is off base. We’ve also talked about the fact that if the criticism comes from someone who wasn’t actually a client, then the ethics rules do not prohibit a lawyer from going online to respond. We’ve also talked about how if the person is a client or former client and they lie about you online, that you could try to sue them for defamation. As to all of those approaches, we’ve also stressed that there are practical problems with doing some of the things that you could do, including The Streisand Effect.

What we’ve never directly addressed is the “could” or “should” of deciding to respond to online criticism from someone who was never a client or nonclient by deciding to file a lawsuit for defamation. This was an approach that an Illinois lawyer tried but was unsuccessful at the trial court level, having the claims dismissed as not actionable. Within the past week or so, the Seventh Circuit has now affirmed that dismissal. You can read the ABA Journal article about the ruling here. If you have more time to delve into the matter, you can read the full Seventh Circuit opinion here.

Interestingly, the underlying story is both one of a pretty unsympathetic character (the lawyer) and a story in which the lawyer stepped into puddles of his own making both in how he responded to initial online criticism and then in attempting to turn his situation into a federal case.

This lawyer’s tale of Internet woe starts, as many do, with a round of activity on Facebook. In response to the tantalizing “What’s on your mind, David?” that Facebook lays out to prompt users to post, this lawyer wrote: “Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!” This initial statement was met with a good amount of negative feedback and criticism but limited to comments and replies in the Facebook thread itself.

The lawyer, however, proceeded to — in the words of the Seventh Circuit “double down” by responding in his comments thread with:

My business with Ukrainians will be done when they stop declaring bankruptcies. If this offends
your national pride, I suggest you look for underlying causes of why 9 out of 10 cleaning ladies we’ve had were Ukrainian and 9 out of 10 of my law school professors were not. Until then, if you don’t have a recommendation for a cleaning lady, feel free to take your comments somewhere else.

Now, the problems with this approach are varied, but they include the invitation to folks to branch out with where they provided their feedback. And branch out they did. The lawsuit explains that the people he offended with his anti-Ukrainian sentiments proceeded to the lawyer’s law firm Facebook page, his Google listing, and to Yelp to offer their opinions. The various statements ran the gamut from just 1-star reviews without comment, comments about the lawyer generally as a person, and some comments that negatively characterized his ability to be a lawyer since he was seen as being inappropriately prejudiced.

The lawyer filed a lawsuit in federal court for defamation against these posters and claiming a civil conspiracy. The opinion lays out examples of posts of the vaguer variety and those of a more specific variety, but, importantly, it does not appear that anyone he sued posted a statement that was clearly capable of being read as falsely indicating that the person had ever hired the lawyer and was commenting about something specific. Just about the closest any statements came to that was someone posting a 1-star review with the only feedback indicated being “awful customer service.” The courts at both levels were entirely unconvinced that anything that written online was something other than an unactionable expression of opinion.

Perhaps, best summarized in terms of the view of that particular court, and as food for thought for attorneys anytime they contemplate suing in similar circumstances, is this excerpt:

More fundamental, we must consider the particular social context of these online reviews and what it may signal about their contents. The defendants posted their reviews on Freydin’s Law Office’s Facebook, Yelp, and Google pages, which invite unfiltered comments. We trust that readers of online reviews are skeptical about what they read, both positive and negative. But it is enough in this case that these short reviews did not purport to provide any factual foundation and were clearly meant to express the opinions of the defendants in response to Freydin’s insults to Ukrainians generally.

Illinois, apparently, does not have any anti-SLAPP mechanism’s, or, if it does, they were not taken advantage of here, but in any state that does, this kind of lawsuit by a lawyer would likely face that additional hurdle as well.

Just another follow-up Friday.

Yes, if you are about the same age as me, you can sing that title to The Bangles tune of “Just another Manic Monday …”

So, this is a weirder follow up post as it follows up on something I posted in October 2021 but involves substantive content that came into existence in July 2021 and, thus, I really should have known about and mentioned in my October 2021 post. Does that feel like the sort of confusing timeline of events you might encounter if you are watching Archive 81 on Netflix and paying full attention or the sort of confusing timeline you could encounter if you are watching Dopesick on Hulu and a bit distracted so as not to see the numbers flash on the screen? If so, fair.

So here is the elaboration. Back in October 2021, I shared the video of my FRED talk from the APRL Annual Meeting discussing a variation of a kind of scam about which lawyers really need to be aware. What I didn’t know when I gave that talk is that The North Carolina State Bar had put out a comprehensive ethics opinion on the same topic in July 2021. That opinion, 2021-2, can be viewed in full here.

It is a particularly well-done and well thought out analysis of a number of varieties of the ways in which versions of this trust account scam can happen. But it is also noteworthy because it has a very good list of some “alerts” that exist out there that lawyers can digest and bring themselves up to speed. This excerpt from that opinion might be among the best takeaways from it:

State and federal agencies have alerted the public to the existence and persistence of these counterfeit check scams for some time. See, e.g.Counterfeit Check Scams, North Carolina Department of Justice, https://ncdoj.gov/protecting-consumers/sweepstakes-and-prizes/counterfeit-check-scams/; How to Spot, Avoid and Report Fake Check Scams, Federal Trade Commission, https://www.consumer.ftc.gov/articles/how-spot-avoid-and-report-fake-check-scams. Similarly, state and national bar associations, lawyer regulatory bodies, and malpractice carriers have reported on and alerted lawyers to the reality that such scams often target members of the legal profession. See, e.g.Six Indicted in $32M Internet Collection Scam That Snagged 80 Lawyers, ABA Journal (Nov. 22, 2010), https://www.abajournal.com/news/article/six_indicted_in_32m_internet_collection_scam_that_snagged_80_lawyers/; Counterfeit Check Scams Continue to Target Law Firms, California Bar Journal (January 2012), https://www.calbarjournal.com/January2012/TopHeadlines/TH6.aspx; New York City Bar Formal Ethics Opinion 2015-3, Lawyers Who Fall Victim to Internet Scams (April 22, 2015), https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-3-lawyers-who-fall-victim-to-internet-scams; Laura Loyek, Counterfeit Check Scams are Still Snaring Lawyers, Lawyers Mutual North Carolina (March 22, 2019), https://www.lawyersmutualnc.com/risk-management-resources/articles/counterfeit-check-scams-are-still-snaring-lawyers; Joanna Herzik, Scams Continue to Target Texas Attorneys, Texas Bar Blog (July 14, 2020), https://blog.texasbar.com/2020/07/articles/law-firms-and-legal-departments/scams-continue-to-target-texas-attorneys/; E-Mail Scams and Lawyer Trust Accounts, Illinois Attorney Registration and Disciplinary Commission, https://www.iardc.org/information/alert.html. The North Carolina State Bar has also published a number of warnings to the legal profession in North Carolina about these scams. See, e.g.New Variation of Fake Check Scam Targets Law Practices, North Carolina State Bar (December 6, 2010), /news-publications/news-notices/2010/12/fake-check-scam/; Bruno Demoli, Bruno’s Top Tips: Protect Yourself from Financial Con-Artists, North Carolina State Bar Journal (Fall 2011 pp. 34 & 37); Alert: Beware of Scams that Target NC Law Practices, North Carolina State Bar (January 8, 2016), /news-publications/news-notices/2016/01/scams-targeting-nc-law-practices/. These publications describe the scenarios associated with the scams and identify the relevant warning signs to assist lawyers in detecting and avoiding such scams.

So, if you have time, you should give it a read. And, if you don’t understand either of the television show references I made above, and you have even more time on your hands and subscriptions to those platforms, go watch those shows as they are both very, very good.