A patchwork post for your Friday

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

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

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

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  Questions, of course, exist about whether such rules are outdated in a day and age when it is as easy as surfing the Web for someone, even a teenager, to find such information.

Questions also exist in modern law practice about whether certain ethics rules are outdated, and we will spend some time talking about that issue and related topics.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  The outdated technology of audiotape also plays a significant role in the Netflix series.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some of those obligations and the risks of modern technology might create an incentive for lawyers to make use of some outdated technology in the future as a way of better protecting client information.

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

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

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

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

“DoNotPay” Becomes HelpYouSue

I had another idea for a blogpost in mind at this stage of the week, but between travel and this story, this was the thing that had to be acknowledged today.  Yesterday’s big technology news for lawyers (sort of lost in the Apple event revealing a brand new version of what will likely become Ted Cruz’s new favorite device for viewing images he likes) is this story.

I’ve written a little bit in the past about the leading chatbot – DoNotPay.  This story  at The Washington Post details what will (I’m guessing) be something of a watershed moment in the development of the functionality of chatbots and what they can, and truly will, mean for lawyering in the near future.

In the wake of the Equifax data breach, the makers of DoNotPay launched a chatbot yesterday to allow people with just a few simple clicks to file suit in the small claims court in their home jurisdiction against Equifax over the data breach.

I usually like to think that I can add my own profound insight on an issue to make it worth reading over and above the underlying story.  Today though I’m going to primarily just point readers to the source material and then ask you to allow your own minds to ponder the possibilities this raises.  The Washington Post story was written at a time when the chatbot would only be available for suits in California and New York, but it was quickly modified to render availability nationwide, as explained in this Yahoo! article.

Once you’ve done that, check back in with me for just a moment or two.  I’ll wait right here.

Ok.  First, undoubtedly a lot of the people that will use this chatbot to file this suit would otherwise never take on this kind of matter at all.  For many others, if they pursued it at all, they wouldn’t ever hire a lawyer and would try to handle it themselves .  To that end, this is a net win in terms of access to justice (at least for everyone except Equifax).  (To the extent that these kinds of cases might get resolved before any class action suits that have already been filed and will be filed, they certainly might not be a net win for such class action lawyers.)

Second, the continuing development of chatbots in this direction will still leave plenty of work for lawyers (and create some work for lawyers that might not otherwise exist) – and not just in the form of lawyers who, for example, will show up to represent Equifax in thousands of small claims suits.

Part of this is because of the inherent differences that still exist from jurisdiction to jurisdiction over access to and proceedings in small claims court.

As one example, here in Tennessee our civil small claims court is called General Sessions Court.  There are a number of ways that it works differently from the general features described in the articles as to other states small claims courts.  We have a jurisdictional limit of under $25,000.  In our general sessions courts, you certainly are entitled to have a lawyer represent you in that court and, in fact, if you are a corporate or business entity of any kind seeking to pursue suit or defend suit, you have to be represented by an attorney.  Further, both parties to a general sessions judgment (even the prevailing party) have an absolute right to appeal the outcome and, if they do, it goes up to our regular state trial level court for de novo proceedings.  Thus, in a way, nothing that happens in our General Sessions court matters unless everyone involved agrees it mattered.

In addition to simply demonstrating how fast things are moving on these fronts, this evolution of the use of the DoNotPay bot also adds another wrinkle about how an attorney could at some point co-opt such technologies in situations where they may have a potential client with a looming timing issue in the form of a statute of limitations about to expire.  Specifically, it is not difficult to imagine a near future in which this kind of chatbot could permit the filing of suits involving other issues where a lawyer could point a brand new client -with a time sensitive matter- toward such a chatbot to get a suit filed before a statute expires and then come in, take over, and amend pleadings once the lawyer has more time to get involved.

A rare example of the perfect application of RPC 8.4(c)

I’ve written in the past about issues associated with RPC 8.4(c) and how its potential application to any act of dishonesty on the part of a lawyer — no matter how trivial or unrelated to the practice of law it might be — makes it a problematic ethics rule.  A disciplinary proceeding presently being pursued against an Illinois lawyer offers an example of a situation to which RPC 8.4(c) applies perfectly.

The Illinois lawyer has been in the news within the last few weeks for the repercussions of his harassment of a fellow Illinois lawyer.  The primary focus of the media coverage has been on the creation of a fake Match.com profile for the purpose of embarrassing and disparaging a female lawyer.  It was that conduct that got the lawyer — Drew Quitschau — fired from the law firm in Illinois where he had been a partner since 2012.  A Law.com story dipped its toe into the waters of some of the other online misconduct involved, mentioning that he signed the other lawyer up for a membership in the Obesity Action Coalition and in Pig International..  The ABA Journal story was a bit more comprehensive in identifying the multiple membership or subscription organizations involved in Quitschau’s abuse which also included registrations/unwanted signups for Diabetic Living and Auto Trader.

But, the full picture of the extent of Quitschau’s attack occurring from June 2016 to December 2016 is best taken in through a read of the petition for discipline filed against him last month by the Illinois Attorney Registration and Disciplinary Commission.  There also were other acts of deception and fraudulent online activity that went beyond personal attacks into professional attacks as well.

The petition explains that Quitschau created a false negative review of the female lawyer on each of www.martindale.com and www.lawyers.com, and created a false Facebook account for the sole purpose of then using that persona to post a negative review of the female lawyer’s law firm.

Based on the timing of events, it appears to be efforts at professional harm was what Quitschau first tried against the female lawyer and only thereafter did he move on to harassment that was purely personal in nature.  That conduct isn’t “worse” in any true sense of the word as the other purely personal attacks are pretty vile, but the expanded activity that focused the deception and harassment on the female lawyer’s own reputation as a lawyer certainly comes closer to being conduct that might actually also be prosecuted as violations of other ethics rules and not just RPC 8.4(c) because the female lawyer and Quitschau had been opposing counsel in seven matters during an 8-month stretch of time during his course of conduct.  .

If the Illinois board could prove any connection between this conduct and Quitschau’s representation of any of those clients, then a rule like RPC 4.4(a) — which declares that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person” — could also come into play.

Regardless, the ability to pursue inexcusable conduct of the sort Mr. Quitschau undertook should be universally agreed to be a fitting use of RPC 8.4(c).

A kind note from a satisfied client

Since I’m seeing quite a few of these notes from satisfied clients on LinkedIn, Facebook, and other places in various formats, it seems like a good time to share a touching one I received recently.

Brian,

Thank you very much for the really great work and the successful outcome.  I really appreciate you and all that you do.  I’m sure I don’t even need to say this, but I’m certainly hopeful that you have the common sense not to try to publicly share my kind, private remarks to you about my case on any social media or anywhere else.  I figure you probably know not to do this without my consent because … well, you have that obligation of client confidentiality under RPC 1.6 and posting this as some sort of “atta-boy pat-on-the-back” which is really just a kind-of-but-not-really-all-that-subtle effort at marketing and touting your excellent work and client satisfaction certainly isn’t something that would be impliedly authorized in order to carry out the representation.

Plus, if you did that, it would be just kind of … I don’t know … crass (gauche?).  The mere act of sharing it to crow is one thing I guess, but then the way social media works you’re just crying out for people to comment and say, yeah you’re great and your clients are lucky to have you, or to “like” it and provide you further validation which certainly wasn’t why I sent you this kind note.   And even if the reason I’m so excited and grateful about your work is that the matter is over and now I’m just a former client, you still have confidentiality obligations to me under RPC 1.9 and if this had become generally known as would be necessary at that point, then you probably don’t need to do this because if you are going to get accolades they would come more naturally (right?), so, I mean, again.  How about you just not with the sharing this?

I mean I guess you could try to strip down any information anyone might use from my message to you to be able to figure out who I am or what the matter was, (because remember the Comment to RPC 1.6 talks about how even disclosures that don’t directly disclose confidential information are prohibited if the disclosures “could reasonably lead to the discovery of such information by a thid person”) but once you’ve done that it truly becomes so impersonal that it doesn’t really have the impact you were hoping for, and depending on the format you use, it might even look like you’ve maybe just made the whole thing up.

And, if you don’t do something like that, then you really are placing my confidentiality rights at risk because maybe you did remove everything you needed to in order to protect anyone in your network or circle of connections from being able to figure out who it was that would have sent this, but maybe you didn’t.  If you didn’t, I’m potentially not going to be very happy about that.  Plus, you might in your introductory paragraph of your social meda “update” say something about time and place or circumstances that actually does — combined with this note — let the cat out of the bag.

So, anyway, thanks for getting me that extension of time.  Sorry for being such a scold.

[name redacted]

These are the kind of messages that make being a lawyer worth it all.

Happy Friday!

On second thought, “this” is the least discussed ethics rule.

Many moons ago (look at me and my topical thinly-veiled 8/21/17 Eclipse reference), I wrote a post about Model Rule 2.1 being perhaps the least discussed ethics rule and why maybe it shouldn’t be.  But, a recent news item about a relatively humdrum topic, a relatively large multi-state law firm (Husch Blackwell) announcing that it has named a new CEO who is not lawyer, got me thinking about another ethics rule that much more likely is, hands-down, the least discussed ethics rule.  That rule is Model Rule 5.4(b)(2).  Unlike Rule 2.1 though, Rule 5.4(b)(2) is deservedly never made the subject of discussion because if it were paid attention to, then one of two things would be true.  Either it is an essentially meaningless rule or it’s a rule that tens (if not hundreds) of thousands of lawyers throughout the U.S. violated by showing up to work today.

You probably might have some trouble thinking what the rule in question says so I’ll help you out.  It’s this one:

(d)  A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation.

We have this same language in Tennessee in our RPC 5.4(d)(2) and, odds are, you do too in whatever state where you happen to be reading this.  Now, if your law firm is organized as a corporation, then no worries under any circumstances because the “other than a corporation” language at the end there makes it clear that a corporation can have a nonlawyer in an officer position.

If you practice law in a firm that is organized as a professional limited liability company, or a limited liability partnership (for the record, Husch Blackwell happens to be an LLP) or some such similar entity, and you have someone – not a lawyer – in a position like a Chief Marketing Officer, or a Chief Financial Officer, or a Chief Operating Officer, or a CEO, then … well the existence of this rule is unfortunate, unless it can be said that none of those entities qualifies as a “form of association.”

If they don’t qualify, then what exactly is the purpose of this rule?  Why should only lawyers practicing in an “association of attorneys,” but not organized in one of these other formal business entity forms be prohibited from having a nonlawyer be an officer?

If such limited liability entities do qualify as associations under the rule, then what exactly is the reason for still having this rule on the books anywhere?  Particularly given that 5.4(d)(3) already effectively prohibits the actual harm by prohibiting practicing even in a firm that is a corporation if “a nonlawyer has the right to direct or control the professional judgment of a lawyer.”

There are a significant number of firms these days that have someone who isn’t a lawyer serving in one of those roles managerial roles as an officer, and I’m certainly not aware of any instances of any bar regulator seeking discipline against lawyers practicing with those firms on that basis.  (For what it is worth the ABA’s Annotated Model Rules of Professional Conduct that I have handy [Sixth Edition] declares that “Rule 5.4(d) prohibits a lawyer from practicing in any for-profit entity in which a nonlawyer has an ownership interest, a position of responsibility, or a right to direct the lawyer’s professional judgment.”)

So, like I said, probably for the best that this is the least discussed rule.

Does Avvo provide a bona fide lawyer rating?

A number of folks have already written about how New York has dealt another setback for Avvo Legal Services in the form of NY State Bar Ethics Op. 1132 which found that New York lawyers could not participate in Avvo Legal Services because payment of Avvo’s marketing fee amounts to payment for recommendation of services in violation of New York’s Rule 7.2(a).

You can read the full opinion here.  You can read some other pieces elaborating on the opinion here, here, and here.

The opinion is notable not just for its potential influence and the number of lawyers it impacts but because it is the first opinion weighing in on Avvo Legal Services that explicitly ties together the rating service that Avvo provides and has long provided with the Avvo Legal Services platform that has more recently come to pass.

In doing so, the New York opinion went ahead and analyzed the Rule 7.2(a) question assuming that Avvo’s lawyer ratings were bona fide ratings.  It made the point that, if they were not, then other issues would arise regarding lawyer participation with Avvo and lawyer touting of ratings issued by Avvo but went ahead and assumed they were bona fide.

I want to spend just a moment to tackle that assumption and offer my own opinion on the subject.  Are Avvo’s lawyer ratings bona fide?  No.  Of course they are not bona fide.  They are not bona fide because your only hope of having a high rating is to work with them and cooperate with them.

My basis for having this opinion is not solely about on my own experience.  But, an examination of my own rating with Avvo is an admittedly good place to start explaining my opinion.

I have never “claimed” my Avvo profile nor contributed any information to Avvo to assist in building the profile they have put together on their own for me.  (Interestingly, a few times after I have written posts here about problems with Avvo Legal Services I have gotten multiple, repeated calls from Avvo trying to assist me in improving/completing my profile and offering how to claim my profile.)  When you go search me up on Avvo you will see that they have afforded me a 6.7 rating out of 10.

Now, admittedly all lawyers are egotistical and none of us are truly capable of objectively evaluating are own worth, but …  You can probably say many negative things about me but I don’t think you can say I’m a 6.7 out of 10 when it comes to being a lawyer.

I’ve been listed in Best Lawyers in America every year since 2009.  In 2017, Best Lawyers listed me as its Appellate Lawyer of the Year in Memphis.  I’ve been listed as a “Super Lawyer” by Mid South Super Lawyers since 2011 and for two out of three years before that (2008 & 2010) I was listed by that publication as a “Rising Star.”  I have been AV rated by Martindale Hubbell since at least as early as 2010.  (It’s rating of me is 4.7 on a scale of 5).

All of that information is readily, publicly available and could be gathered and evaluated by Avvo without any input from me and without any need for me to confirm or claim my profile.  But I haven’t claimed my profile and, they’ve pegged me as a 6.7 out of 10.

Just to make clear that my opinion on this isn’t solely based on my own personal experience/situation.  Let me offer a few more examples that are impossible to reconcile with the concept of Avvo offering a bona fide rating system.

Christine P. Richards, the General Counsel of FedEx – she gets an even lower rating than I do, at 6.5.

Also getting a 6.5, Bill Freivogel the conflicts-guru in the ethics world behind Freivogel on Conflicts.  Barbara Gillers a fantastic lawyer with a prominent law firm in New York and who is the incoming Chair of the ABA Standing Committee on Ethics and Professional Responsibility also gets the same 6.7 rating I do.

Or, how about Abbe Lowell the prominent D.C. lawyer who is now representing Jared Kushner.  He gets a 6.6.  Or, here’s a fun one, the lawyer heading up the special counsel investigation into the President, Robert Mueller?  He too is just a 6.5.

But Avvo’s own general counsel, Josh King?  Well, Avvo gives him a 10 rating.

Dan Lear, an attorney who also works for Avvo, he gets a 9.2 rating.

Oh, I can tell you one that they have gotten correct though, Roy D. Simon, who happens to be a member of the NYSBA committee that issued this most recent ethics opinion also gets a 10 rating from Avvo.

(N.B. While I have no misgivings about my level of readership or influence, on the off chance any of these ratings gets changed subsequent to this post, the ratings indicated above have been confirmed as of today’s date and print outs of the pages are on-file with yours truly.)

Speaking again of rarer occurrences

Last week I dedicated a post to highlighting some topics of note that I hadn’t written about in a while.  This is another such post as the Tennessee Supreme Court has again taken action on its own initiative to increase discipline against an attorney beyond a result that both the accused attorney and the prosecuting entity had decided not to even appeal.  I previously wrote about such an occurrence back in April 2015.

Any time it happens it’s an interesting outcome because for lawyers in such proceedings, and the lawyers who represent them, the possibility always looms in the background when handling a matter but does not frequently occur.  As the opinion explains, Tenn. Sup. Ct. R. 9, § 15.4 imposes a duty on the Court even if no one has appealed to “review the recommended punishment provided in such judgment or settlement with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case.”

This more recent instance has occurred to a Nashville criminal defense lawyer by the name of Paul Walwyn and you can read the full ruling here.

The nature of case against the lawyer reads in a pretty straightforward manner:

This case arose from Mr. Walwyn’s representation of Jonathan Gutierrez in a first degree murder trial in 2011. At the time, Mr. Walwyn had been licensed to practice law since 1996 and had been practicing criminal law for fifteen to sixteen years. Following
Mr. Gutierrez’s convictions for first degree murder and four counts of aggravated assault, he was sentenced to life in prison and four consecutive four-year sentences, for a total effective sentence of life plus sixteen years. Mr. Walwyn filed a motion for new trial,
which was subsequently denied on September 30, 2011. However, Mr. Walwyn did not file a notice of appeal in Mr. Gutierrez’s case until May 8, 2015, even though the Tennessee Rules of Appellate Procedure require that a notice of appeal be filed within
thirty days.  The trial court appointed new counsel, Mr. Richard Strong, on June 3, 2015.  The Tennessee Court of Criminal Appeals subsequently accepted the late-filed notice of appeal in the interest of justice. See Tenn. R. App. P. 4(a).

The opinion reveals there were some factual wrinkles, including questions about how (in)frequent communication with the client was during the delay in noticing the appeal and that a TV interview the lawyer provided after trial meant he shouldn’t handle the appeal, but the primary focus of the disciplinary matter was on the 3 1/2 year delay in filing a notice of appeal.

Originally the hearing panel imposed a one-year suspension with all of the time served on probation rather than active suspension.  While that used to be an acceptable framework in Tennessee, the rules changed within the last few years and, now, if an attorney is to be suspended they must have an active period of suspension of no fewer than 30 days.  Because the hearing panel managed to overlook the rule changes, disciplinary counsel filed a motion to have the judgment altered to comply with the rules.  In response, the hearing panel altered the punishment not by imposing 30 days of active suspension but by reducing the punishment to a public censure along with certain conditions, including a practice monitor.  Thereafter, Mr. Walwyn (not surprisingly) did not appeal and neither did disciplinary counsel (surprisingly).

The Court exercised its Section 15.4 obligation to review, however, and indicated it would consider increasing the punishment.  After that point, the Board – which is allowed a second bite at the apple in such a situation – did begin to advocate to the Court that Mr. Walwyn should be suspended.  The Court agreed and imposed a 12-month suspension with 6 months of active suspension and 6 months on probation with a practice monitor as well as imposing some additional CLE requirements as the final sanction.

In the end, the driving force was the fact that the attorney had previously been disciplined several times for very similar conduct.

Prior to this disciplinary hearing, Mr. Walwyn had been disciplined on five separate occasions. In 2003, he received a private reprimand for failing to file a proposed order for four years. In 2004, he received a public censure for filing a proposed order late
in a child support and custody case, filing a notice of appeal in a criminal case five days late, filing an appellate brief sixty days late, and failing to file a timely petition to this Court, resulting in the petition being denied as untimely. In 2006, he received a public
censure for failing to timely respond to Disciplinary Counsel. As a condition of his guilty plea, Mr. Walwyn was required to undergo a law practice management evaluation by another attorney; audit the law practice management course at the Nashville School of
Law; and complete six additional hours of CLE hours on subjects related to client relations, the management of a law practice, the Rules of Professional Conduct, or disciplinary actions of the Board of Professional Responsibility. In 2006, Mr. Walwyn received a private informal admonition for neglecting to have a default judgment set aside and for failing to provide an affidavit to Disciplinary Counsel. Finally, in December 2015, Mr. Walwyn was suspended from the practice of law for six months, with thirty days to be served on active suspension and five months to be served on
probation. See Walwyn v. Bd. of Prof’l Resp., 481 S.W.3d 151, 161-62, 171 (Tenn.2015). Mr. Walwyn was still completing this probation at the time of his disciplinary hearing in this case.

Loyal readers of this blog (or at least those with eidetic memories) will recall that December 2015 suspension of Mr. Walwyn as being the case in which his lawyer articulated the “rambling and bordering on incoherent” attack on the structure of the disciplinary system in Tennessee.  (That same lawyer represented Mr. Walwyn in this matter as well.)

Finally, having received a bit of feedback from a fellow ethics nerd as a comment on my post about my perceived delay in a California disciplinary case last week, I also want to mention that this case also shows some of my perspective as to timing.  A review of this latest Walwyn matter will show that the time between the filing of the formal petition for discipline and this ultimate outcome from the Tennessee Supreme Court, even with all of the added procedural hurdles involved, was just under 2 years.

It’s been a while.

Today I’m going to splice together two short discussions about topics that I haven’t mentioned in a while.  (And, for any fans of the podcast U Talking U2 to Me that are out there, you do have to read the title of this post to sound like the first words of this remake right here.)

I have not written in a while of an instance of a lawyer getting into disciplinary trouble over saying too much in the process of withdrawing from a client representation.  But it’s happened again, so it’s worth reminding people not to do that.

A week ago, the Ohio Supreme Court issued its opinion affirming a recommended one-year suspension (but with all of the suspension stayed) for a divorce lawyer who paired an affidavit with his motion to withdraw from a client’s matter.  The Ohio court succinctly laid out the problematic contents of the affidavit:

In the affidavit, he recounted communications he had had with
[the client] about the scope of his representation and his compensation, accused her of refusing to pay his agreed-upon fees “without cause,” and disclosed legal advice that he had given her. He also described [the client]’s discharge of him as “retaliatory” and alleged that it had “occurred because of [his] advice to her
concerning her objectionable and potentially illegal actions” relating to her ex-husband, which he characterized as “a problem similar to the one [he] experienced in [his] previous representation of her.”

The Ohio opinion not only cogently walks through why the lawyer’s attempted arguments that such disclosures were permitted to be made under exceptions set out in Ohio’s Rule 1.6(b) weren’t triggered, but also stresses another point too often overlooked by lawyers even when they might have justification to make certain disclosures:

Finally, even if [the lawyer] had reasonably believed that Prof.Cond.R. 1.6(b) permitted him to disclose [the client]’s allegedly fraudulent conduct, the means by which he chose to do so were improper. The comments to Prof.Cond.R. 1.6 clarify that when a lawyer believes that disclosure of client information is
necessary, the lawyer should first seek to persuade the client to take suitable action to obviate the need for the attorney’s disclosure and that a disclosure adverse to the client’s interest should be no greater than necessary to accomplish the purpose. Prof.Cond.R. 1.6, Comment 16. And “[i]f the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent possible.” Id. Here, [the lawyer] failed to notify or communicate with [the client] about the allegations in his affidavit prior to filing it, and he did not attempt to limit public access to the document.

Another topic I haven’t mentioned in a while is ABA Model Rule 8.4(g) and how it’s playing in various states.  You will recall on at least one occasion when I did write about it, I mentioned how one of the ABA’s talking points was that somewhere north of 20 states already had black-letter rules in one form or fashion making acts of discrimination unethical.

About three weeks ago, one of those states, Vermont, just decided to scrap its version of such a rule and replace it with a Rule 8.4(g) that is substantially equivalent to the ABA Model Rule.  You can read the order of the Vermont Supreme Court adopting such a rule which will become effective on September 18, 2017 here.

Robot roll call …

If I had any faith that the Venn diagram showing overlap between readers of this blog and fans of Mystery Science Theater 3000 had broad, heavy shading in the overlapping areas of the circles, then I would take this joke all the way with some clever effort at following up the title with a first line “In the not-too-distant future, next Sunday A.D.,” but I don’t, so I’m not.

In fact, at this point by having dropped off the map for a bit to pursue what was, and what I should have been realized sooner was, a fool’s errand, I can’t definitively believe that I still have any readers at all.  Hoping to do better moving forward with the regular posting.

The purpose of today’s post, in addition to apologizing into what might be a void, is to very quickly reference just how quickly things are moving in a certain aspect of the legal tech space – something that is not quite AI but seems like it, the world of chatbots.

Last week there were two pretty significant stories in the legal press regarding developments in this area.  First, the maker of DoNotPay (the most well-known/most influential legal chatbot to date) announced that not only has it made legal chatbots available at present for some 1,000 areas of law but that it has made its framework available for lawyers to use to create their own chatbots for areas of law not presently provided for.  You can read more of the details at the ABA Journal online. 

The thing that I find most interesting about this sort of development is not just the role that such chatbots can play for would-be-consumers of legal services to solve their own issues without lawyers, but the potential for lawyers to use the chatbots themselves to venture into areas in which they do not otherwise have expertise to represent clients and claim the work product generated by the bot as their own.

A second story made the rounds about another software/robot offering that is more AI than chatbot that would serve as competition for paralegals in the patent marketplace and likely – quite quickly – beyond.  Again, you can read more about RoboReview a patent drafting software product at the Journal.

Beyond the obvious upside for lawyers of access to this kind of AI and machine learning to do their own job, and the work of others that might assist them, faster and perhaps better, the existence of these kinds of products could serve to prevent lawyers from being in position to make the bad choice this Texas attorney is being alleged to have made to try to keep his legal assistant in the United States.

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.