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.

Final thoughts for now on the Oregon report

For this last, at least for now, of the three posts I envisioned to talk about the important aspects of the Oregon State Bar Futures Task Force, I want to talk about the piece I’ve not really said anything about to date – the recommendations of the Innovations Committee of that Futures Task Force.

As the briefest of refreshers for those who may vaguely remember what that committee was intended to be about, the Executive Summary of the OSB report explained that its Futures Task Force was split into two committees and that the Legal Innovations Committee was “focused on the tools and models required for a modern legal practice.”

Now you can read the entirety of its report starting at p. 60 of the overall report, but I should warn you that right out of the gate it reads unlike most state bar work-product you may have encountered with references to products you may never have heard of and business-speak you likely never use.  Here for example is the paragraph that explains how the Innovations Committee “built” its report:

The report itself was built in Sprints, a tool that comes from the Agile project management methodology known as Scrum.  This method placed an early emphasis on “minimum viable product” for each report section, with subsections developing iteratively over the course of subsequent sprint periods.  We also conducted periodic retrospectives (another Scrum technique) to ensure that team members were feeling comfortable with the methodology.  To manage the sprints, we used the technology tool Trello and the cards for each report subsection (including items considered but not acted upon) can be found at https://trello.com/b/X7N8kKki.

Now, if that makes your head hurt, then a lot of the report probably isn’t going to be for you… unless, of course, you plan to continue to practice law for 5 or more years because then it probably is for you… whether you want that to be true or not.

The first recommendation of the Innovations committee — though numbered as 4 in the overall report — is “Embrace Data-Driven Decision Making.”  That is a recommendation that many law firms do or should adopt and that all lawyers at some level ought to as well.  As just an example, if you run your law practice taking cases on a flat fee basis but don’t know which of the types of cases you handle are the ones where you end up with the best return on investment, then you don’t exactly have the data you need to best decide where to focus your marketing efforts or which cases to be less inclined to agree to take on rather than declining on the front end.

Within this recommendation, the OSB Futures Task Force offers four subparts of the recommendation, but I only want to write a little bit about one of those:

RECOMMENDATION 4.3: The OSB and the Oregon Judiciary should adopt an Open-Data Policy.

Simply put, many of the bright ideas that focused individuals and groups can come up with to try to alleviate burdens on access to justice are made all the more difficult (if not impossible) to implement by the lack of ready access to system-wide data.

The second broad recommendation of the Innovations committee — Expand the Lawyer Referral Service and Modest Means Programs — targets Oregon-specific programs that may or may not exist in your jurisdiction and that are difficult to talk about in any universal fashion.  What I do think is interesting is to contemplate a bit about what correlation there might be between Oregon’s willingness to embrace and advocate for rule changes to permit fee sharing with nonlawyers in connection with online lawyer referral services such as Avvo Legal Services and the fact that Oregon has successfully been running a referral service that, to quote the report, was changed to a “percentage-based fee model in 2012” and, since that time, “Oregon lawyers who utilize the program have earned over $22M in fees and, in 2016, returned $815,000 in revenues to the OSB.”

The third recommendation out of the Innovations committee focused on ways to “Enhance Practice Management Resources,” specifically:

RECOMMENDATION 6.1: The OSB should develop a comprehensive training curriculum to encourage and enable Oregon lawyers to adopt modern law-practice management methods, including (but not limited to) automation, outsourcing, and project management.

The details and rationale offered by the Futures Task Force on these subjects makes for a compelling and cogent read, and I’d recommend at least reading that section (p.65-68) in full.  Hopefully, you will come away from that thinking that such an approach to teaching modern practice management would be worth pursuing perhaps in your own law firm if not something you’d very much like to see made available by your state regulatory body – though in states like Tennessee where we have a bar association that is a purely voluntary membership organization, the road map offered up by the OSB task force seems tailor made for advancement by such organizations.

The fourth and final recommendation of the Innovations committee seems to me to be the most vital piece of innovation that those invested in the practice of law can hope to see come about if unemployed and underemployed lawyers are going to be able to build better careers by findings ways to deliver legal services to under-served populations and those who have unmet legal needs.

RECOMMENDATION NO. 7: Reduce Barriers to Accessibility

The recommendation is comprised of four sub-parts but I only want to point your attention to two of those because they are essentially inextricably linked and can be thought of in a way that is more readily universal.  Those recommendation sub-parts are:

7.2:  The OSB should more actively promote the use of technology as a way to increase access to justice in lower income and rural communities.

7.3:  Make legal services more accessible in rural areas.

These recommendations include a number of concrete, and thought-provoking suggestions for how technology can be embraced and leveraged not just to make life easier for lawyers as it has been but to “bring down some of the geographic barriers that constrain access to justice,” and to emulate other industries where “[t]echnological innovation” has been used to “reduce[] the cost of products and services and made them more accessible to a broader range of customers and clients.”

One specific recommendations made in Oregon that — when you think about the vast array of actions people take in the ordinary course of life now through the use of streaming video services and online resources on a daily basis — seems ripe for serious consideration by small claims courts throughout the nation is:

Encouraging the courts to provide opportunities to conduct court proceedings through video conferencing in civil procedural cases or hearings that involve few witnesses and documents.  The use of videoconferencing can reduce the costs and burdens for parties and witnesses who have difficulties personally appearing in court due to geographic distance, lack of transportation, employment needs, childcare issues, or other challenges.

New Jersey weighs in as well, reminding us the difference between “is” and “ought.”

My last two posts have focused on the pretty wide-ranging and very thought-provoking work (and work product) of the Oregon State Bar Futures Task Force.  I do plan to return to the topics because there is more in that report worth discussion, but we are taking a break from that with this post.

Let’s move from the West Coast to the East Coast and talk today about a joint opinion issued in New Jersey last week because it offers something of a juxtaposition for discussion of the future of legal ethics.

On June 21, 2017, three committees of the Supreme Court of New Jersey – the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law — issued a Joint Opinion announcing that lawyers in New Jersey can’t get involved with Avvo Legal Services, Rocket Lawyer, or LegalZoom.  In fact, you don’t actually have to read much further than the title of the Joint Opinion to get the gist of it as it is entitled:

Lawyers Participating in Impermissible Lawyer Referral Services and Providing Legal Services for Unregistered Legal Service Plans — Avvo, LegalZoom, Rocket Lawyer, and Similar Companies

As indicated, the opinion explains that there are two problems: one that plagues Avvo Legal Services under their analysis, and another that plagues LegalZoom and Rocket Lawyer.  The message New Jersey is sending reads as one that as starkly different from Oregon’s message.

But, and here’s what makes all of this both complicated, fascinating to discuss, and extremely important:  the analysis New Jersey offers is not wrong.

As to lawyer participation in services like LegalZoom and Rocket Lawyer, which offer something that New Jersey refers to as a legal services plan — and the choice to see them that way and call them that is an important one — the problem for New Jersey lawyers is described in a way that appears much less pervasive than as to other companies operating in the space – that these companies simply are not properly registered in New Jersey.  I’ve written in the past about the barrier that Tennessee’s special RPC 7.6 can create for attorney participation in programs if they can be considered an intermediary organization.  New Jersey has a particular registration requirement for companies that provide “legal service plans.”  That rule is RPC 7.3(e)(4).

The opinion walks through each of the requirements ending with the registration requirement that appears in RPC 7.3(e)(4)(vii).  The opinion indicates that, regardless of anything else, neither of those companies have registered their plans and, thus, lawyers cannot participate.  The implication is that the only obstacle standing between New Jersey lawyers and signing up for plans offered by Rocket Lawyer or LegalZoom is proper registration.  The opinion doesn’t pull back the curtain to make plain for the reader whether there is any institutional barrier that makes it impossible for Rocket Lawyer or LegalZoom to choose to register.  But, the joint opinion certainly appears to strongly imply that lack of registration is the only problem.

As to participation with Avvo Legal Services, the New Jersey joint opinion has serious problems to point out – problems that would require a change in business model altogether to be solved.  The problems voiced by the New Jersey joint opinion are ones that have been expressed before in a number of other states and, in fact, the New Jersey opinion unsurprisingly explicitly cites to those other ethics opinions from Ohio, South Carolina, and Pennsylvania.  Avvo’s marketing fee requires a lawyer to improperly share fees with a nonlawyer in violation of New Jersey Rule 5.4.  The opinion, in a way that when truly contemplated seems like piling on, also goes after the same payment as being the payment of impermissible referral fees in violation of New Jersey’s Rules 7.2(c) and 7.3(d).

Back in February 2016, I wrote a lengthy post that was a barely-veiled critique of the arguments Avvo kept making in terms of their efforts to defend their business model over how they were trying to blur the distinction between what is, and what ought to be, when it comes to whether participating lawyers were complying with the ethics rules.

The difference between the message being sent in New Jersey and developments in Oregon may be just as simply summed up though.

Perhaps, the gap between the two approaches is only as big as the difference between what is and what ought to be.

More of me weighing in on Oregon weighing in on the future

For those that missed my post earlier this week on the release of the Oregon State Bar Futures Task Force report, you can read that post here and get caught up.

Today, I want to offer some thoughts on one of the three Recommendations made by the Regulatory Committee of the Futures Task Force.  It is likely the most important of the Recommendations but certain to be the most controversial as well.

Recommendation 2: Revise Rules of Professional Conduct to Remove Barriers to Innovation.

This recommendation is comprised of four parts.  I’ll list them in the order they are presented, even though that is not the order in which I want to discuss them.

2.1  Amend current advertising rules to allow in-person or real-time electronic solicitation, with limited exceptions.

2.2  Amend current fee-sharing rules to allow fee sharing between lawyers and lawyer referral services, with appropriate disclosure to clients.

2.3  Amend current fee-sharing and partnership rules to allow participation by licensed paraprofessionals.

2.4  Clarify that providing access to web-based intelligent software that allows consumers to create custom legal documents is not the practice of law.

Now, that third sub-part creates a spoiler for another of the three Regulatory Committee recommendations – Implement Legal Paraprofessional Licensure.  Given the way those programs have played out to date in a number of other jurisdictions, I don’t think that is going to do much to turn any tides, so for now I’m going to pass on discussing it.  (If you want to delve into it, you can read all of thoughts of the Futures Task Force on that subject and the entirety of the 90+ page report behind the Executive Summary here.)

The fourth one – making clear that certain software programs that let someone through self-help generate customized legal documents — is a perfectly fine idea and, in this day and age, seems very difficult to argue against.  With each passing day, the notion that there are certain legal problems that states cannot allow be served through software programs that do for certain legal problems what tax return software programs do for income taxes seems harder and harder to justify.  But, I’m not sure that such a clarification is what is standing between better access to legal services for consumers and where things are today.  I tend to think that, in part, because those services already exist and are in pretty wide use because companies already make them available and consumers already use them.

The first one about changes to the advertising rules is most certainly a provision I would support (and have supported in past posts).  Virginia has just done something similar with its recent rule revisions.  But again, I don’t know that this change would be something that, as a response or solution to trying to improve public access to legal services, will make any real difference.  Why do I say that?  It is currently not at all very difficult to create an online platform in which it is the consumers that make the first communication effort so that lawyers can respond to it rather than initiate it.  As long as that is true, then lawyer advertising rules prohibiting solicitation do not present any barrier at all to getting consumers in need of legal services and lawyers with the time and ability to provide the services together.

That leaves the second subpart.  And that is the one where I suggest, respectfully, all the marbles are located for lawyers.

The notion of changing the ethics rules to allow lawyers to share fees in a particular matter with nonlawyers, as long as there is full, appropriate disclosure to the consumer of what is taking place.

The specific proposal Oregon’s Task Force has offered is for its current RPC 5.4(a)(5) that only references bar-sponsored or not-for-profit referral services to be revised to read instead as follows:

(a)  A lawyer or law firm shall not share legal fees with a nonlawyer, except that

***

(5) a lawyer may pay the usual charges of a lawyer-referral service, including sharing legal fees with the service, only if:

(i) the lawyer communicates to the client in writing at the outset of the representation the amount of the charge and the manner of its calculation, and

(ii) the total fee for legal services rendered to the client combined with the amount of the charge would not be a clearly excessive fee pursuant to Rule 1.5 if it were solely a fee for legal services, including fees calculated as a percentage of legal fees received by the lawyer from a referral.

That is an action that would, overnight, make pretty much every technological innovation already available (or even conceivable) viable for lawyers to participate in as a way of delivering legal services to consumers and businesses.  It would also allow many existing operators in the legal space to spend less time on trying to come up with workarounds about not being engaged in making referrals in their business model to try to assuage concerns that lawyers who use their platforms will be the subject of disciplinary complaints.

In short, that recommendation appears to me to the one that must be discussed and debated and decided on before any evaluation can be made about what any of the other ones might mean or accomplish.

If Oregon follows through, it seems difficult to speculate that one or more other states won’t follow.  And, if the experience of those states shows that full disclosure of the sharing arrangement, plus compliance with the other ethics rules requiring exercise of independent professional judgment and not allowing interference with that judgment, then it will seem very difficult for any jurisdiction to argue against doing the same.

It is inherently a controversial topic because the prohibition against fee sharing with nonlawyers is viewed by many as a bedrock principle of our profession.  But — if the underlying premise of that bedrock principle is restated as preserving the independent professional judgment of lawyers from undue influence by others — then the Oregon proposal that would allow fee sharing, require fulsome disclosure to the consumer involved about that arrangement could still readily be expected to serve that bedrock principle and protect consumers while benefiting consumers because – though not highlighted in the Report, RPC 5.4(c) would still be in force as well.

(c) A lawyer shall not permit a person who
recommends, employs, or pays the lawyer to render
legal services for another to direct or regulate the
lawyer’s professional judgment in rendering such legal
services.

Existing models of the online approach to pairing lawyers and consumers in need of legal services could almost all be placed into this bucket and, thus, lawyers using these services would still have maintain their independent professional judgment and refuse and resist efforts to compromise it.

The Future of Legal Services – Oregon weighs in

I was given an opportunity to provide a Legislative Update piece in the Spring 2017 issue of TortSource a publication of the ABA Tort Trial & Insurance Practice Section.  The focus of the Spring 2017 issue is “Evolving Legal Markets” and, although the authorship is Tennessee-heavy, I think you will find all the articles to be worth a read if you can get access.  There is a piece on artificial intelligence, a piece on consumer-facing legal services provided by non-lawyers, a piece on predictive coding, and one on online dispute resolution.

My piece focuses on questions of UPL and responses by states to challenges posed by the companies that compete with lawyers for clients and I’ll share with you the conclusion section:

Other jurisdictions may choose to take more strident approaches, but it would appear that the best path forward for leveling the playing field for lawyers is to seek the adoption of regulations that will require companies providing such legal services to consumers to adhere to the same ethics rules as lawyers. The ABA’s Model Regulatory Objectives for the Provision of Legal Services (A.B.A. Resolution 105, Feb. 2016) provide one template for states to consider to pursue such a path forward.

That conclusion feels more prescient than it truly was because, this past week, the Oregon State Bar Futures Task Force issued its report on the Future of Legal Services in Oregon.   Oregon is often discussed a rainy part of the U.S., and the volume of materials provided as the end product of the Futures Task Force is something of a deluge — the Executive Summary alone spans 15 pages of material.  You can read the Executive Summary here.

There is so much content of note in the work the OSB Futures Task Force has performed that I foresee spending a few posts discussing aspects of it, but today I want to start with a discussion of the findings of one of the two committees that made up the task force.

But even before discussing those two items, some background about the Futures Task Force and about the structure of the report and recommendations is in order.  First, the origin of the task force itself:

In April 2016, the OSB Board of Governors convened a Futures Task Force with the following charge:

“Examine how the Oregon State Bar can best protect the public          and support lawyers’ professional development in the face of            the public evolution of the manner in which legal services are            obtained and delivered.  Such changes have been spurred by              the blurring of traditional jurisdictional borders, the                            introduction of new models for regulating legal services and              educating legal professionals, dynamic public expectations                about how to seek and obtain affordable legal services, and                technological innovations that expand the ability to offer legal          services in dramatically different and financially viable ways.”

Second, the first step that was pursued as to the Task Force once created:

The Board split the Futures Task Force into two committees: a Legal Innovations Committee, focused on the tools and models required for a modern legal practice, and a Regulatory Committee, focused on how to best regulate and protect the public in light of the changing legal services market.

The end result was that the Regulatory Committee has made three recommendations and the Legal Innovations Committee has made five recommendations.  I plan to definitely write further, and in more detail, about the Regulatory Committee recommendations.

But, as indicated, for now I just want to talk about the findings made by one of the two committees, the Regulatory Committee.  I want to focus on them because, I think, they reveal just how universal the situation is that is faced in U.S. jurisdictions and, in turn, this means that the work product of this Oregon group has obvious potential application as a road map for action just about anywhere.  The Regulatory Committee made these nine findings:

  1. Oregonians need legal advice and legal services to successfully resolve problems and to access the courts.
  2. Consumers are increasingly unwilling or unable to engage traditional full-service legal representation.
  3. A significant number of self-represented litigants choose not to hire lawyers, even though they could afford to do so.
  4. Self-help resources are crucial and must be improved, even as we take steps to make professional legal services more accessible.
  5. Subsidized and free legal services, including legal aid and pro bono representation, are a key part of solving the access-to-justice gap, but they remain inadequate to meet all of the civil legal needs of low-income Oregonians.
  6. Despite the existence of numerous under- and unemployed lawyers, the supply of legal talent is not being matched with the need.
  7. Oregonians’ lack of access to legal advice and services leads to unfair outcomes, enlarges the access-to-justice gap, and generates public distrust in the justice system.
  8. For-profit online service providers are rapidly developing new models for delivering legal services to meet consumer demand.
  9. To fully serve the Bar’s mission of promoting respect for the rule of law, improving the quality of legal services, and increasing access to justice, we must allow and encourage the development of alternate models of legal service delivery to better meet the needs of Oregonians.

The question I would leave you with today is:  any reason at all to think that the first 8 items described would be any different if the discussion was about your state and its consumers rather than Oregon and Oregonians?  And, if not, then how could you think that the item identified in 9 isn’t something that your state is going to have to pursue as well?

 

Monday memories

Now, I admit, you may be of the opinion that a blog that has only existed for just a bit longer than 2 years probably has no business trying to recycle past posts as flashbacks or memories or what-have-yous.  But, I’ll make you a deal:  you start your own blog and you get to do whatever you want on that one.

A few events that have been prominently in the news in the American South, including in my own city, have led me to want to re-post something I wrote back on May 18, 2015 and that, perhaps, you didn’t read when I first wrote it.  The fact that today is Memorial Day has also provided additional “synergy” for my decision today.

The events and the topic are: Confederate memorials and the efforts in New Orleans and elsewhere to take them down.  The most recent news item that has prompted me to decide to re-run today something I wrote two years ago is this news out of Alabama that the Alabama legislature has passed a bill to make it illegal to take down a Confederate monument.

If you are looking for an even longer, and admittedly more eloquent and better read on the overall issue, I would commend you to the transcript of the speech given by the Mayor of New Orleans earlier this month which you can find here.

If you are just looking for the “how could there ever have been a legal ethics component to this topic” piece, I am pasting below my piece, originally published here on May 18, 2015, that was titled “Things I Don’t Understand” below (and that you will be shocked to learn also involved an Alabama law).  And if you are among the few who read this piece when it was first posted, and are reading today, thank you for your patronage!

(I will also add that this re-posted pieces is actually as much about “click-bait” headlines as anything else and, thankfully, those are not something that we have any reason to continue to worry about either:

I was not born in the South but have lived here for the overwhelming majority of my life.  I’ve never understood, however, the uniquely Southern interest in the history of the Civil War.  And, I don’t mean just at the role-playing levels of Civil War re-enactment events but even at the more subtle levels at which it is fervently studied but not seemingly for the purpose of trying to learn lessons from history to avoid repeating history.  It has always puzzled me that anyone would present that time period in American history as anything other than the darkest time in the history of our nation and something for which we should be ashamed and reluctant to speak about it unless absolutely necessary.  But that’s just me, your mileage may vary.

So when I saw this headline at the ABA Journal online “Lawyer removes Confederate flags from civil war cemetery, sparking calls for disbarment,” I thought for certain that reading it would leave me overwhelmed with more sentiments I cannot understand.  But having read it, what I really cannot understand is why the ABA would present such a misleading title.  Having now read the news sources to which the ABA Journal links (the most thorough of which seems to be this one), none of them really contain anyone willing to actually call for the lawyer’s disbarment.

And, of course, no one should.  Even if you have a problem with him removing the flags and want to go so far as to raise questions about whether the conduct is in violation of the Alabama law regarding real and personal property in cemeteries and graveyards, it is difficult to get to a disciplinary violation from there, much less one for which disbarment would be in order.  Alabama, like Tennessee, has a version of RPC 8.4 patterned after the ABA Model Rules that treats the commission of crimes by lawyers even when not acting as a lawyer as grounds for discipline if the criminal act is one “that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”  Comment [2] to the Rule does the best it can to try to stress the point that lawyers, like all other human beings are personally answerable to criminal laws, but “should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.”   This most certainly is not that.

I think the “click-bait” nature of the ABA Journal’s headline comes closer to being “conduct involving . . . misrepresentation” that would run afoul of RPC 8.4(c) then the removal of flags, bagging them up, and leaving them at city hall to be picked up by the owners comes to being a violation of RPC 8.4(b).

An inside-baseball view of judicial ethics and the media

For today, an interesting (at least I think it is interesting) story about a judicial ethics scenario and the ability of media to “shape” a story and how that ability can transform a question of judicial ethics.

About three weeks ago, I spoke with a print reporter with The Nashville Scene about questions he had on a story he was working on about a part-time judge of the General Sessions environmental court in Nashville.  This particular court, among the cases it hears, are ones over using property for purposes of short-term rentals (think Airbnb) without obtaining the required permit to do so.

The reporter’s issue involved the fact that this court would adjudicate the question of whether a property owner was pursuing this endeavor without being properly permitted and that the part-time judge in question owned several properties that were properly permitted.  The reporter was interested in my view on whether this created a disqualifying conflict for the judge under Tennessee’s judicial ethics rules.

We talked for a good bit and, ultimately, I explained my view that — based on my understanding of what the court could (and could not) decide — that the answer was “no, not a disqualifying conflict.

You can read The Nashville Scene story, which contains a fair representation of what I had to say, here.  A few days later, as the public attention on this story continued to grow, I got a call from a reporter with a TV station in Nashville who wanted to know if I’d be willing to do an on-camera interview for a story they were doing on this situation.  He said he saw The Nashville Scene story, knew my view, and wanted me to elaborate on that for the story they were doing.

We worked out a set-up so that we could do a Skype-video interview for his use and managed to talk on camera for maybe 15 minutes or so.  And I again laid out these points in significant detail about why, in my view, this simply wasn’t a conflict.  (I’m biased, but I recall giving a really good explanation of how different the scenario would be if this particular court had the power to hear challenges to the permitting system itself on constitutional or other grounds, for example.)

Cut to the story that actually aired, which you can watch here.  I’m not in it.  Normally, I’m extremely cool with situations, even where I’ve given of my time to a media outlet, where I end up on the cutting room floor.  That’s just life.  But, when you know in advance what I am going to say and I go out of my way to make things happen on your time frame, it is a little more personally frustrating.  But, I swear, I’m not writing this to vent my personal frustration or make this about me.

Instead, the reason I think any of this is interesting at all is the impact that the kind of one-sided TV segment had on what happened next… which is that the judge in question ended up resigning the position citing the fact not that there was originally a disqualifying conflict but because:

“because I believe that the public has an absolute right to feel that their court system is fair and impartial and that recent misleading media reports could call the Court’s fairness into question.”

Now, was that all there was to the story?  No.  I’ve now come to learn in the process of writing about this that there was an intervening news story regarding whether or not the judge was also violating a provision of the ordinance his court was enforcing.  You can watch a story about that here.  I’ll admit I haven’t even tried to dive deep enough into an understanding of the ordinance involved to know whether that is the equivalent of a traffic court judge who happens to get caught speeding or something more serious.  Also, my opinion is, of course, only my opinion and is not dispositive of what the right answer to the question should have been… but as a “participant” in this process, I thought it would still make for an interesting word to the wise about how stories on ethical questions can manage to be “framed” for public consumption in ways that ultimately can heavily impact the outcome.

Two short updates for a Tuesday

Late last month, I focused a post on a West Virginia lawyer who ended up staring down a 2-year suspension over chronic over-billing.  If you missed that post, you can read it here.  If you read it, you will recall that one of the items discussed was that the Executive Director of the West Virginia Public Defender Services agency had indicated that particular lawyer was not even among the worst offenders.

The ABA Journal online has a piece up that is apparently about one such even worse offender who has skipped out on bail regarding the criminal charges he is facing over his rampant over-billing (including billing more than 24 hours on 17 different days) and is suspected to be a fugitive in a much more temperate part of the world than West Virginia.

Over a larger time period and with a bit more frequency, I’ve written a little bit about the ABA Ethics 20/20 revisions to the Model Rules — admittedly through the lens that those revisions were being considered and then adopted here in my home state of Tennessee.  If you’ve been looking for a really good window into what the technology-focused aspects of the Ethics 20/20 revisions mean for your law practice, you are in luck because the ABA Standing Committee on Ethics and Professional Responsibility has now put out Formal Ethics Op. 477 which pretty much provides exactly that.

It is a good opinion – it’s getting a lot of attention in the legal media for establishing new standards but that’s not quite right.  It doesn’t really establish anything new but it does do a really good job of focusing lawyers’ attention upon the logical repercussions of the Ethics 20/20 revisions and the risks that lawyers need to be acutely aware of when communicating with clients.

It is also worth noting — particularly given the last few days of ransom ware news (and one other high-profile instance of information that was promised to be kept secret being disseminated under questionable circumstances) that user error continues to be a leading cause of unintended disclosure of (or complete loss of access to) confidential information whether technology is involved or not.

It should go without saying that there is only so much a lawyer can do to try to guard against those kinds of risks.

Wisconsin rightly says no to name dropping without consent.

Earlier this week I criticized what I consider to be a pretty bad ethics opinion that was issued by Rhode Island.  To balance things out a bit, I want to write about an ethics opinion out of Wisconsin that gives the correct answer to its query – Wisconsin Formal Ethics Opinion EF-17-02.  That opinion correctly explains that because of the broad swath of confidentiality created by Rule 1.6, even the names of clients qualify as confidential information and, therefore, a lawyer can only disclose the name of a client if in advertisements or materials circulated for marketing or any other personal purpose if the client has given informed consent to the disclosure or some other exception within Rule 1.6 applies.

In issuing this opinion, Wisconsin had to withdraw an older opinion that provided guidance that the names of clients were not confidential information, Wisconsin Ethics Op. E-93-5.

Lots of lawyers (not just in Wisconsin) do not immediately grasp that this is the correct result — that the identity of a lawyer’s clients is itself confidential information.  A lot of times they don’t do so because doing so requires recognizing that there are a lot of things lawyers do that they really shouldn’t without getting their clients approval.   The Wisconsin opinion uses the example of talking about the fact of a representation as a cocktail party as an example, but there are less obvious ways this issue crops up.  Lawyers often don’t think twice about providing information about the details of their prior representations as part of responding to requests for proposals from insurance carriers as part of trying to become approved as panel counsel, for example.  Some lawyers will rationalize their approach on the basis that they are only disclosing information that can already be found in public records, but the Wisconsin opinion rightly makes the point that Rule 1.6 doesn’t remove the obligation of confidentiality for the lawyer merely because the information is available in a public record.

I’ve often attempted to explain the policy choice that Rule 1.6 enshrines for lawyers along these lines.  Imagine you are a family law attorney.  Now in order to file a divorce complaint for a particular client you are going to have to disclose in the filing a lot of details about your client’s life that they really hope no one finds out about.  Members of the public certainly could go down to the courthouse or go online if the court has electronic records and read all of the sordid details, but the client definitely hopes people don’t.  The ethics rules stake out a position – at least jurisdictions that have the ABA Model Rule version of Rule 1.6 do — that even though the lawyer has to put those things in the public complaint, lawyers are going to be charged with not talking about those things without the client’s consent to do so.  I then often ask lawyers to think about how a conversation would go if you called your client and asked them for permission to offer up the interesting anecdote about their situation.

The ramification of that policy choice ends up being that the rule errs on the side of confidential treatment even for things that many clients might not even expect could be confidential and that’s the reason, for example, that firms who circulate materials about representative clients, whether on their website or elsewhere, need to get client permission to do so.

While Wisconsin’s opinion is praiseworthy on its substance, Wisconsin should still get criticized for its insistence on shielding its formal ethics opinions from the public and providing access to them only for members of the Wisconsin Bar.  That’s a silly and outdated approach.

As a Tennessee lawyer, I only know about what the new Wisconsin opinion says because the fine folks at ABA/BNA reported on it.  Presumably, as they always do, they did a good job and, thus, if you go read their article here then you, like me, can know what Wisconsin had to say in construing its ABA Model Rule-based ethics rule on confidentiality.

Coming full circle, while I can’t stand the substantive outcome offered up by that Rhode Island opinion discussed earlier this week, at least Rhode Island allows for public access to the ethics opinions it issues.  For as long as there continue to be jurisdictions like Wisconsin that shield theirs from view, then offering public access will continue to deserve praise in Rhode Island and elsewhere.

What not to do when opposing counsel dies.

Awful things seem to be afoot today.  So let’s talk about an awful thing.

Earlier this week I sort of criticized a federal judge in Mississippi for trying too hard to find something nice to say about a lawyer who was having to be disqualified for dropping a client like a hot potato when the Court called the lawyer’s actions in not delving too far into the new client’s case without first terminating the existing client relationship “commendable.”

That seemed overly generous to me, as I explained in that post about at tuber of elevated temperature here.

But perhaps it is all a matter of what sort of lawyer conduct you compare it to because if you compare that lawyer’s behavior to the behavior of the Tennessee lawyers necessitating this post, the Mississippi lawyer’s conduct does seem commendable.

Here is s link to the Shao v HCA order entered by a Tennessee circuit court judge in Nashville reprimanding lawyers for what is really, truly pretty vile litigation behavior.  I’ll just pull from the opinion because Judge Brothers says it pretty succinctly (for context, the motions being referenced below are the plaintiff’s motion for default judgment, defendants’ motion for extension of time to file an answer, and defendants’ motion for extending time to respond to discovery):

These motions are unfortunately clouded by the untimely and unexpected death of Michael Geracioti, who was counsel of record for these defendants.  Mr. Geracioti died in the early morning hourse of March 16, 2017, and one of his associates, Linda Natheson, advised counsel for plaintiff of his passing.  On that same day, at 12:48 pm, counsel for plaintiff, Brian Cummings, sent an email to Ms. Nathenson expressing his condolences and alerting her to outstanding items due in several cases.  Three hours and ten minutes later, at 3:38 pm, counsel for plaintiff filed the instant Motion for Default Judgment.  Four days later, on March 20, 2017, plaintiff’s counsel, Brian Manookian, sent a letter to Ms. Nathenson threatening to assert a claim of $8,000,000.00 against her clients, her law firm, and the estate of Mr. Geracioti.

This Court is profoundly disappointed in the conduct of plaintiff’s counsel and the timing and manner in which the Motion for Default was presented.  Being a zealous advocate does not mean that one abandons all sense of professionalism, courtesy and common decency.  It is clear that counsel for plaintiff was attempting to gain a tactical advantage by aggressively pursuing the claim for default on the very day of Mr. Geracioti’s death; despite the fact that all parties had been actively engaged in pretrial proceedings and plaintiff’s counsel never complained after striking the original motion.  Such behavior operates as an estoppel to the current claims of prejudice.

It is with regret that this Court must reprimand all of plaintiff’s counsel for conduct that is unbecoming members of the Bar and officers of the court.  Hopefully counsel will apply this constructively and thereby avoid such reprehensible behavior in the future.

Hopefully.

I’ve written it before that a lot of jams lawyers get themselves are avoidable by trying to stick to the principal of Don’t.Be.An.Ass.  This is another one of those situations and, as a reminder of how that rule is entirely reconcilable as Judge Brothers’ hints with being a zealous advocate, here are the words of Comment [1] to RPC 1.3 explains:

 A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.  A lawyer is not bound, however, to press for every advantage that might be realized for a client.

Comment [3] to that same rule further explains:

A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.

Now, I understand that the litigation at issue appears from the caption to be a wrongful death lawsuit, and it is certainly possible that these lawyers’ client was the primary force pushing for these actions, but you would hope that most lawyers would have the ability to explain to a client pushing for such actions that the repercussions of an order such as this from the judge overseeing their suit is far more prejudicial to their case than simply not pursuing such tactics would have been.