I Dowd that very much.

Last week was a pretty eventful week in the area where politics and the law overlaps, and an initially bizarre turn of events that was made more bizarre by subsequent claims injected some questions of legal ethics into events on the national stage again.

What I’m talking about is all stuff you’ve likely already read about.  In short story form, it goes like this: the news of the guilty plea of former National Security Advisor Michael Flynn for lying to the FBI, followed shortly thereafter by an incredibly-unwise-seeming Tweet by the current occupant of The White House that was quickly discussed by others on-line as amount to direct incriminating evidence of obstruction of justice by that current occupant, followed then by claims that the current occupant of The White House didn’t actually write that Tweet and that, instead, the Tweet was drafted by one the current occupant of The White House’s personal lawyers, John Dowd.

Now, what do I believe in my heart of hearts happened.  That’s easy.  I’m a staunch believer in Occam’s Razor, so I believe that the same old man who has consistently, inappropriately used his Twitter account to say stupid things, spew vitriol, and retweet white supremacists and Islamiphobes tweeted something without thinking it through, and did so either without consulting with his counsel or simply with disregard for legal advice he was given about Tweeting about such things.  After that, I believe that one of his lawyers, fully recognizing just how problematic the contents of the Tweet were for his client, has decided to try to reduce the impact of the client’s admission by claiming that he was actually the author because that has, in turn, allowed him to claim to have been mistaken about what his client knew at various points in time.

I’m not writing this to claim to be the end-all-be-all on this line of reasoning actualy, but to address two things that I have seen others write about this situation that have bugged me.  Those sentiments are: (1) that it couldn’t have been written by the lawyer, Dowd, because the lawyer wouldn’t incorrectly say “pled” instead of “pleaded,” and (2) that if Dowd is lying about having been the one who wrote the Tweet then he ought to be disbarred.

I think both of those sentiments amount to hogwash.

As to the first one, I’m a lawyer – and I like to think I’m a fairly decent one – and I prefer to use “pled.”  I’ve seen people point to the AP Stylebook on “pleaded” versus “pled,” and I’m also well aware that Bryan Garner insists that “pleaded” is the proper usage.  Nevertheless, I fall into the camp of lawyers like the King & Spalding lawyer quoted back in this ABA Journal piece on its usage, who believe it is the better term to use to indicate the past tense verb form, and would certainly use it even in real-life writing.  It is not unfathomable that Dowd might fall into that camp as well.  Further, it is damn sure the better term to use on Twitter where character limits matter greatly.

As to the second one, there would definitely be an ethics violation or two (or three) for which Dowd could be charged with violating if he is lying about being the author of the Tweet in question in order to protect his client.  Nevertheless, to jump to the notion that the appropriate discipline for that would be disbarment is a bit silly.

A lawyer who would lie about the authorship of a client’s Tweet that could otherwise be an admission of a crime would run afoul of a couple of obvious rules, such as RPC 8.4(c) and RPC 4.1(a).  The ABA version of those rules respectively provide as follows:

Rule 8.4:  Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person.

The lawyer could also be subject to a charge of violationg RPC 7.1 which people often forget does not only apply to advertisements.  The ABA version of that rule provides:

Rule 7.1: Communications Concerning A Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

In this sort of context, an interesting question could be raised about whether the lawyer would also have violated RPC 3.4(a).  The ABA version of that rule provides:

Rule 3.4: Fairness to Opposing Part and Counsel

A lawyer shall not:

(a) unlawfully . . . alter . . . a document or other material having potential evidentiary value.

But, the idea that such an offense or offenses by Dowd would be punishable by disbarment is a bit silly.  A quick review online of publicly-available information shows that Dowd has never previously been the subject of any public discipline.  He’s been practicing for 50 years without even receiving a public censure.  Unless he managed to hire a lawyer to represent him who has been as sloppy as the lawyers folks associated with the current administration have hired to defend them, then I can’t imagine that outcome coming about if any disciplinary case were ever brought against him.

And, on that subject, given Dowd’s other missteps along the way in this high-profile setting, it weirdly is a bit more difficult to rule out the possibility that he actually was the one who exercised the poor judgment of creating the content of, and presumably even sending, that Tweet for his client.

Advocating for attorney advertising.

So, back in August, I mentioned that I was going to have the opportunity to debate issues of lawyer advertising before an audience of top-notch Canadian lawyers in November.  This post is something of a coda to that post as I want to, very briefly, say a word or two about that talk.

It was, as I anticipated, a highly rewarding experience and all of the attorneys affiliated with The Advocates’ Society with whom I had the opportunity to meet and speak were delightful.

During the presentation, my job was to be the one to give voice to things that those assembled might not want to hear.  So, to start things off, I broke the news to them all that we don’t pronounce Hermitage, as in The Hermitage Hotel, in the fancy manner they were wont to do.  After having dealt that disappointing blow, I gave my pitch about what regulation of lawyer advertising should be, and what it shouldn’t be.

I tried to do so with a focus on things beyond just the protections afforded under our First Amendment for commercial speech because they don’t have anything quite the same under their nation’s law.

Those points – which I will happily repeat as many times as anyone ever gives me the chance to do so — are:

  • Ethical restrictions on lawyer advertising ought to pretty much start and end with prohibiting statements that are false or actually misleading.
  • It is pretty much a universal truth that the only people who complain about lawyer advertisements are other lawyers.
  • Those tasked with regulating attorney conduct don’t particularly like spending time adjudicating squabbles between lawyers about ads.
  • Consumers don’t get worked up about lawyer advertising at least in part because they get it.  If you are paying to advertise something, you are going to emphasize its good points.
  • But consumers also don’t get worked up about it because they don’t view it the way lawyers do.  There are still people out there who simply did not know they could hire a lawyer without having to pay money or who don’t know their problem might be something a lawyer could even help them with at all.
  • Some times the way those people learn this information is because they see some kind of lawyer advertisement in one place or another and, when they do, they don’t particularly think about whether or not it is something that you would think is “dignified.”
  • If you are motivated to want to impose stricter regulations on lawyer advertisements because of a concern that there is not enough public respect for our profession and advertisements that you think should be “beneath” lawyers fosters such disrespect, then I have a suggestion of how you could better direct your energies.
  • Imagine how much more could be done to foster better respect for our profession and what we do if we all focused our energies on encouraging communication of what it is that lawyers do, the role we play in society, and what we bring to the table that can help people in times of need for legal services, including helping educate them that their problem is one that could be helped by the work of a lawyer?

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.

Something to chew on during your holiday weekend.

I am nowhere near the most plugged in when it comes to lawyers on the forefront of tracking the ways in which rapid developments in technology are changing the practice of law.  I’m a bit more aware than likely most lawyers, in part because I’m constantly looking for things worth writing about here, but also because I’ve been fortunate enough over the last two years to be a members of the Tennessee Bar Association’s Special Committee on the Evolving Legal Market.

For a combination of those reasons, I’ve been reading a bit about the latest tool that Ravel Law has unleashed on the world, “Firm Analytics.”  Among other selling points that Ravel Law touts, and the one I want to leave you to think about over the weekend is:

In another first, Firm Analytics also provides rankings of firms across key variables including practice area, case volume, venue experience, and motion win rates. These leaderboards allow comparisons across substantive performance metrics, a significant innovation to traditional revenue and size rankings. As part of this launch, we are releasing rankings of the top five law firms across employment, securities, antitrust, administrative law, and bankruptcy (more below).

This is, of course, excellent information to be made available in the marketplace and with the constant creation of new ways to better, and more quickly, aggregate and synthesize data it is also inevitable for it to come into existence.

The thought I want to leave you with though is this — how crazy is it that, in many U.S. jurisdictions, if a lawyer or law firm wanted to advertise themselves using this same kind of data (win rates, success history, etc.), they would likely be opening themselves up to a disciplinary complaint under state advertising rules that prohibit lawyers from touting past successful outcomes in matters?

For example, let me pick a state at random and not a state that has any reason at all to be in the news, Montana.  If a law firm in Montana or a lawyer there decided to aggregate this data and tout their win percentages, they’d likely be at risk of seeing bar regulators accuse them of violating either or both of these provisions in Rule 7.1 prohibiting communications about a lawyer’s services that:

(b) is likely to create an unjustified expectation about results the lawyer can achieve;

(c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits.

A tale as old as time.

Stop me if you’ve heard this one … it’s about a lawyer getting into trouble for overbilling … where there are examples of the lawyer even trying to claim to have billed more than 24 hours in a day.

You probably stopped me somewhere in there because you have heard it before.  The legal profession is filled with people who bill their time fastidiously and honestly.  The legal profession also has among its ranks some folks who don’t.  A West Virginia lawyer subjected to a two-year suspension from practice is among the “don’t” and, remarkably, almost got a much lesser suspension, in part, simply because he was not among the worst overbillers that a West Virginia agency – Public Defender Services – was dealing with.

That context is actually part of what makes this particular incident really worth writing about because it is another unfortunate example of discipline for overbilling coming up in a context where some people can often try to argue it away as being somehow more understandable — lawyers who are trying to make a living off of court-appointed work at unfairly low hourly rates.  The problem, of course, is that not only is that still not a particularly good excuse for deceptive billing practices but it also is counter-productive to how much more difficult it makes it for people who want to advocate for better compensation arrangements for such lawyers to gain traction.

I tend to think the frequency with which lawyers get caught for over-billing in connection with court-appointed work isn’t necessarily a matter of those lawyers being more prone to doing so as much as it is that they are more prone to getting caught because there is effectively one “client” able to see all of their time records and, literally, do the math that the clients of lawyers in private practice serving a variety of clients aren’t as readily positioned to do.

Overbilling was not the only ethical flaw of the West Virginia lawyer made the subject of this 40-page opinion of the West Virginia Supreme Court of Appeals — interestingly enough his other problems involved missing deadlines and neglecting client matters and even includes an interesting side excursion into his suffering from low testosterone which manages to make the inflated billable numbers from prior years seem even more . . . nope, I’m not going to go for blue humor.  At least not today.

For those who don’t want to read a 40-page opinion about this kind of conduct, just a few of the highlights in terms of both the egregious nature of the billing practice and the really pretty remarkable testimony about how he stacked up compared to other lawyers in terms of Cooke-ing the books (We know while I may shrink at going blue I always rise to the opportunity for word play.)

First, here are the lawyer’s overbilling highlights uncovered by the Executive Director of West Virginia’s Public Defender Services:

  • “found to have exceeded fifteen billable hours a day on thirty-one dates from mid-January, 2014 to mid-September, 2014.” (NB: the lawyer’s claimed low testosterone problems were stated to be during and around August 2014 and the West Virginia court most certainly paid attention to that time line to point out that it was interesting that he claimed to be sleeping 10 to 16 hours a day when he couldn’t meet certain deadlines so that, at most, during the relevant time period he couldn’t bill more than 8 to 14 hours a day.)
  • “on four dates he submitted vouchers for twenty-three or greater billable hours and on two dates he submitted vouchers for greater than twenty-four hours” (including billing 27 hours on December 26)
  • “billed 2,568.5 hours, 2,279.3 hours, 2,671.2 hours, and 3,259.46 hours for the years 2011-2014, respectively. These billable hours equate to an average daily billable rate of 7 hours, 6.2 hours, 7.3 hours, and 8.9 hours, for 365 days.”
  • “rarely billed activity at less than .2 hours (12 minutes); the only .1 (6 minutes) entries are attempted phone calls and, occasionally, a hearing. Review of any and all documentation or correspondence, including email, is billed at a minimum .2 hours. Virtually every hearing entails billing .3 hours for “waiting in court,” which affords a higher hourly rate.”
  • “On April 17, based on Cooke’s accounting of his time utilizing his schedule and the court’s docket, in the two-hour window from 1:00 p.m. until a 3:00 meeting at the jail, he billed a cumulative 4.3 hours of “actual time”; the activity billed all consisted of travel, waiting in court, and attending hearings. Similarly, on August 18, Cooke’s incourt schedule shows hearings at 9:00, 9:30, and 10:30 with the docket resuming at 1:00. The matters which were scheduled in the three-hour window from 9:00 a.m. until noon, were billed at a cumulative 6.1 hours. Additionally, matters beginning at 1:15 p.m. on that date were billed at additional 7.2 hours and consisted solely of waiting in court, reviewing “court summaries” while waiting, and attending hearings.”
  • when first called on to explain certain aspects of his billing, he said he couldn’t do so because Public Defender Services hadn’t provided him the information he needed and ” his own time-keeping system would not permit him to retrieve that information.”

As to the chilling notion that this lawyer was not as bad as others, the Executive Director testified:

I still hold firm that we were billed for duplicate—we were billed several times for the same trip, that we were billed several times from the same period of waiting in court. In other words, if he had three hearings, let’s say he waited in 17 court for one hearing while he was actually doing another hearing. That’s not properly [sic] billing. That’s billing the same period of time. So I firmly believe that that had happened, but in looking through the vouchers and everything else, it appeared to be less frequent than I had seen with other counsel. 25 The only perceived fraud or deception that still exists in my mind is the fact that he may have been value billing, that is, billing a .2 for an activity that should’ve only been a .1 or a .4 when it should’ve been a .2. However, he wasn’t billing me 3.0 for these things and he was—and he was saying 12 minutes as opposed to 240 minutes. . . . I just did not see in his case the overt deception that existed with many other attorneys. . . . He was unable to exonerate himself completely in this situation because he had failed to comply with that time requirement, but that, overall, I believe that he was zealously representing his clients and he was providing the actual services that were described even though the time allotted to them may have been—may not have been the actual time.

and he also:

gave the example of one attorney who “rubber-stamped” the same time for each day and one attorney who billed 900 hours of travel in a three-month period.

As a way of further bolstering the problem this creates for those working hard to try to get better, fairer hourly rate reimbursements in place, the Executive Director of the West Virginia program also:

explained that PDS is paying $25 million a year to court-appointed counsel that are, in his opinion, undercompensated at $45/hour for “out of court” time and $65/hour for “in court” time.14 He indicated that when requesting an hourly increase at the Legislature he was typically confronted with the fact that many attorneys were making greater than $100,000.00 a year in court-appointed work and that the legislators took a dim view of an hourly rate increase when, in their opinion, the court-appointed attorneys had given themselves a “raise” by overbilling.

Well, anyway, get back to work I guess.

Virginia’s revised lawyer advertising rules – big win for APRL’s effort to streamline the advertising rules

[In the interest of full disclosure for those who might be new here, I am presently a member of the Board of Directors of the Association of Professional Responsibility Lawyers (APRL).]

For those who aren’t new here, you know full well my personal opinion on lawyer advertising and what the ethics rules should and should not try to do in terms of regulation.

Unsurprisingly then, I was pleased to learn of Virginia’s decision to adopt new lawyer advertising rules effective July 1, 2017 and to learn that they largely do the kinds of things that APRL has been advocating should be the approach to these issues through proposed revisions to the ABA Model Rules.

You can go read the order entered by the Supreme Court of Virginia earlier this week that lays out the full text of what will now be its only rules in the 7.1 through 7.5 series, Rules 7.1 and 7.3 and accompanying Comments that will become effective July 1, 2017, but here are a few highlights:

  • Rule 7.1 will read in its entirety: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
  • Rule 7.2 has been deleted and instead any issues that it used to address are now addressed, if at all, in paragraphs of the Comment to Rule 7.1.
  • One such Comment to Rule 7.1, [2], explicitly acknowledges that the right kind of disclaimer can cure something that might otherwise be argued to be “a statement that is likely to create unjustified expectations or otherwise mislead the public.”
  • Another such Comment to Rule 7.1,, [4], explicitly acknowledges that someone could be a “specialist in a particular field of law by experience,” and that such a person can communicate that specialty as long it is not done in a way that is “false or misleading.”
  • Rule 7.3 addresses all aspects of targeted solicitations and also addresses the prohibitions on providing payment or things of value to someone for a recommendation or referral.
  • As to solicitation, Rule 7.3 makes clear that it applies only to communications that are “initiated” on the lawyer’s end.  And, appears to not attempt to prohibit in-person or real-time solicitation of clients.
  • Instead, it limits its outright prohibition on solicitation to situations where the solicitation is directed to someone who has made known to the lawyer they don’t want to be solicited or when the solicitation “involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.”
  • It does contain a provision requiring an “ADVERTISING MATERIAL” disclaimer on “written, recorded or electronic solicitation[s]” but not if they are addressed to the universe of folks ABA Model Rule 7.3 has traditionally excluded from the in-person/real-time ban (other lawyers, family members, prior professional relationships, etc.)
  • Rules 7.4 and 7.5 are deleted altogether.

Kudos to the Virginia State Bar, the Supreme Court of Virginia.  One state down, 49 more (plus D.C.) to go.

Ohio Opinion 2017-1: Too much and too little at the same time

An opinion worthy of discussion was issued in Ohio back in February 2017  but I didn’t stumble across it until this past week.  (A tweet by ALAS got it onto my radar screen.)

Advisory Opinion 2017-1 from the Ohio Board of Professional Conduct addresses advertisement of contingent fee arrangements and, in particular, it addresses the following question:

Whether it is proper for a lawyer who advertises to use statements such as “No fee without recovery” or “You pay no fee unless you win” or “There’s no charge unless we win your case” or “You pay us only when we win.”

The opinion focuses only on the distinction in a contingent fee arrangement between fees and repayment of advanced expenses and, as a result, offers the same answer to all of the examples – no.  Now even on the opinions own terms – focusing only on the distinction between expenses and fees, I disagree that all of those should get a “no” answer, but I also think that the Ohio opinion missed an opportunity to evaluate an even more significant question about these kind of statements that has always hit me as potentially problematic.

First, as the opinion explains all of these statements must be run through the filter of RPC 7.1 and a determination has to be made about whether they are false or misleading.  The Ohio opinion concludes that all of the variations of statements tackled are “inherently false or misleading” because they “omit reference to the client’s responsibility for expenses and costs” and thereby “impl[y] that the client will not be required to pay litigation costs, regardless of the outcome of the litigation..”

On one level, I think that goes too far in terms of a harsh result for the two of the four examined statements that plainly speak in terms of “fees.”  To say that those are inherently misleading is a conclusion with which I just disagree.

On another level though, I think this opinion doesn’t go far enough because it fails to address a more legitimate question of how such advertisements can be misleading.

In my opinion, three of the four statements have a problem but it is because of the use of “win” as the conditional event triggering payment of fees.  A client who pursues a contingent fee case and has a serious injury but ends up settling their case for a small amount, let’s pick $30,000 as a random amount, might very well not consider their lawyer to have “won” their case.  For me, the statement that ought to be the exemplar for use is the first one “No fee without recovery.”  And the second one ought to be acceptable if it were to say “You pay no fee unless we recover for you.”  Maybe each of those statements would be even better if “attorney” came before “fee” but I think that’s the path where a consumer is more likely to feel misled or deceived by such an advertisement rather than on the basis that there is an implication about expenses if a lawyer only speaks in the advertisement in terms of fees.

Dear ABA – Embrace reform of the lawyer advertising rules. Please.

I have written in the past about the APRL white papers providing the rationale for, and data supporting the need to, reform the way lawyer advertising is regulated in the United States by state bar entities.  You can read those prior posts here and here if you are so inclined.

Jayne Reardon, the Executive Director of the Illinois Supreme Court Commission on Professionalism, over at the 2Civility blog has posted a very thorough report on events that transpired in Miami earlier this month and that reminds folks that the deadline put together by the ABA working group looking at whether to back APRL’s proposals is March 1, 2017.

I am a proud member of APRL – actually presently I’m even fortunate enough to serve as a member of its Board of Directors – but was not able to make it down to Miami for our meeting and the ABA meetings this year.  If you are a reader of this blog, you know that my view is that the only advertising rule that ought to be necessary is a version of RPC 7.1 that states, as does the ABA Model:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Period.  Full stop.

Now Jayne’s report from the ground mentions that some folks criticized or complained about APRL’s proposal because it would not apply only to advertisements by lawyers.  To me that is a feature, not a bug.  As I’ve also written and spoken about, RPC 7.1 is violated when a lawyer sends a fraudulent bill to a client saying they spent more time on something than they really did and that’s a good thing.  It also, for example, applies to lawyers who lie on their resumes as we saw with this recent instance of lawyer misconduct.

The concern expressed by someone that it could result in discipline against a lawyer politician (presumably one who would have to have lied about some aspect of their personal history I guess) does not give me much pause because if it were so applied it would likely fail First Amendment scrutiny because of the higher standards afforded to protect political speech rather than constitutional speech.

While I think RPC 7.1 ideally is the only rule that ought to exist, I recognize that people are going to insist there be some restriction on in-person solicitation so I also support APRL’s proposed approach to having an additional rule, over and above RPC 7.1, to address that.  As I’ve said before, my only quibble with APRL’s proposal on that front is as to how it defines a sophisticated user of legal services:

If I had one criticism of the APRL proposal, it is with the way it defines a sophisticated user of legal services.  The second part about regular retention of legal services for business purposes is likely where it should have stopped, as the first portion of the definition is pretty amorphous and subject to manipulation.  For example, would a recidivist offender who has gone through repeated jury trials and spent many years in prison someone who would qualify as having had significant dealings with the legal profession?  Seems like a pretty clear argument could be made that the answer would be yes.

I’m going to send this post in to the ABA working committee as my own personal comment.  If you have a viewpoint on these issues (whether it jibes with mine or not), I’d encourage you to send your thoughts as well to them at this email address: modelruleamend@americanbar.org.  (Unless you don’t think lawyer advertising rules are strict enough already.  Then I’d encourage you to stay busy doing other things.  Kidding, just kidding.  But more like Al Franken’s kidding on the square actually.)

Bad ethics opinion or the worst ethics opinion? New York State Bar Ethics Opinion 1110 edition

Again, not fair actually.  This NY ethics opinion isn’t in the running for being the worst ethics opinion and isn’t even truly bad and actually, I guess, not even wrong.  But it does point out a really bad flaw with respect to the language of the particular NY rule it applies.

What seems like an exceedingly long time ago now, I was first inspired to title a post with this “Bad or Worst” title.  I did so when I wrote about what I thought truly was a woeful ethics opinion — and one that I cannot believe anyone even asked about in the first place — in which the Ohio Board of Professional Conduct imposed some ridiculous limitations on the ability of a lawyer to communicate with attendees at a seminar or continuing legal education presentation.

The subject matter of NY State Bar Ethics Opinion 1110 is similar – whether New York’s ethics rules on advertising, and derivatively solicitation, apply to a situation in which an attorney wishes to invite people to come to a seminar that he would put on regarding intellectual property issues.  As the opinion explains:

The inquirer, an intellectual property lawyer practicing in New York, plans to conduct online webinars and live seminars on topics within his principal fields of practice for persons who may have a business interest in those topics and a need for legal services.  Inquirer contemplates identifying persons fitting that description by use of commercially available business listings, including such listings on government agency web sites, such as business entity lists.  Admission to the webinars and seminars may be free or may be for a fee.

The opinion then lists a litany of questions it has to resolve to determine whether this can be done, but the core question is whether the seminars would be advertisements and, if so, whether they would be solicitations.  Now the opinion goes on at some length about ways that the lawyer could limit what is said or done at any such presentation so that it would not even qualify as an advertisement, but, eventually, it does the practical thing and assumes that the lawyer would likely during the seminar say things that would amount to talking about his “skills or reputation” sufficient to make the seminar an advertisement.

Assuming it is an advertisement, the opinion then also quickly gets to the conclusion that the seminar would be a solicitation — and that it would be an in-person solicitation, and, thus, the attendees would have to be limited to “close friends, relatives, former client(s), or existing client(s).”

This is the moment where, inside my head, there is the sound of screaming.

It is one thing to have an ethics rule that imposes strict prohibitions on in-person solicitations.  That’s fine.  It is also fine to have an ethics rule that requires, as to written solicitations, certain requirements about those.  I often disagree with the details of what states require as to disclaimers or font sizes, but I can be swayed not to get up in arms about the requirements.  It is another thing to have a rule that creates such a strict definition of solicitation to justify writing an ethics opinion that would say that someone who accepts an invitation to attend a seminar is being subjected to a solicitation at the seminar they could have just chosen not to attend.

The closest that New York’s RPC 7.3(b) gets to carving out communications that are initiated by a person who isn’t a lawyer from being a solicitation is the language that states that solicitation . . . “does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.”

But the inanity of the outcome articulated by this ethics opinion is pretty epically demonstrated by analogy to an actual written solicitation letter to a targeted potential client.  Assume that a lawyer sends one of those, and complies with all the bells and whistles in such a written communication as to what the envelope cannot say, the font size, the disclaimers at the beginning, and mandatory language, but the recipient then decides — “hey, I’m interested in hearing what a lawyer could do for me” and proceeds to go to the lawyer’s office to ask for a meeting.  Everything that happens then is.not.a.solicitation.

The rules regarding in-person solicitation seek to protect potential consumers of legal services from overreaching by lawyers.  That is the espoused rationale.  I often, with tongue-in-cheek, will explain at seminars that such rules exist because when we graduate law school we have been imbued with superpowers as to persuasion that allow us to convince mere mortals to do things that they otherwise would never do but for our incredible superpowers.  (I can often then use the exception to the rules against solicitation for lawyer-on-lawyer solicitation to explain that since both sides have equal superpowers there is no need for the protection.)

But, in the conceptual situation evaluated by this formal ethics opinion, if the recipient of the invitation to the seminar doesn’t want to be in a room where a lawyer is speaking about the area of law in which they practice, they.can.just.not.go.to.where.the.seminar.is.happening.

What is missing from the text of New York’s rule to prevent this sort of result is the language that we have here in Tennessee in RPC 7.3(a)(3) indicating that an in-person or real-time solicitation of professional employment from a potential client is not prohibited if “the person contacted . . . has initiated a contact with the lawyer.”

Lying about everything is an awful way to go about life.

No, stop, this is not a post about politics.  Not sure why you’d think that just from the title…

It’s Groundhog Day here in the United States.  As a person of a certain age, Groundhog Day makes me think of the Bill Murray movie more than the actual parlor trick with a rodent that happens in Pennsylvania, so mining a situation that happens over and over again (unfortunately) in the world of ethics feels like low-hanging fruit.  That situation:  Lawyers losing their license over the willingness to lie.

But, today’s entry involves a lawyer on his way to being disbarred from practicing law in Michigan for conduct of an extent that (fortunately) you don’t see every day.  The conduct is level of mendacity that is difficult to imagine explainable as anything other than an actual psychological condition — someone who comes across as a pathological liar or a sufferer of narcissistic personality disorder.  Again, stop, why do you keep trying to think about politics in this post.  You should stop being so weird about this.

The lawyer in question is a gentleman named Ali Zaidi.

Now, before grabbing snippets of the Opinion issued by the State of Michigan Attorney Disciplinary Board that details the lengths and breadths of Mr. Zaidi’s false statements that cost him his license, the subject matter of some of the falsehoods gives an opportunity for a brief reminder about an aspect of the ethics rules not always spoken about or focused upon.

Michigan, like most jurisdictions, has a version of Rule 7.1 that makes it unethical for lawyers to make false statements about themselves or their services.  Lots of lawyers think of that rule – Rule 7.1 —  as applying only to advertising – because it is housed in the 7s – but it actually applies to any communications by lawyers.  An example I’ve used from time-to-time at seminars is to make the point that a lawyer who sends inflated bills to a client wouldn’t only violate RPC 1.5 but also would run afoul of RPC 7.1 because the contents of the billing statement would be a false and misleading communication about the lawyer’s services – specifically about the amount of time the lawyer spent providing those services.

With that more academic pursuit behind us, here are the snippets from the order that show the scope of the falsehoods this to-be-disbarred Michigan attorney used in bringing about his own downfall:

failing to correct his resume during his employment with one firm; submission of fraudulent resumes to a potential associate, a staffing consultant to fill a position with another attorney, and the Bank of Montreal; repeated failure to provide his correct address to the State Bar; misrepresentations in and related to respondent’s website for Great Lakes Legal Group; and misrepresentations in his answer to the Request for Investigation.

The order lays out in pretty significant the extent of the falsehoods in the various resumes which included claims to be licensed in two states where he wasn’t, claims to have worked as a summer associate at three firms where he never worked, claims to have earned an undergraduate degree from Harvard which he didn’t, and claims to have competed in an Olympics for a U.S. Field Hockey Squad of which he was never a member.  Beyond his resume claims, the lawyer also practiced law under the name of a law firm, Great Lakes Law Group, which he later admitted wasn’t really so much an actual law firm as an “idea that is still in progress.”  The panel also even threw shade on parts of the lawyer’s resume not proven in the proceedings to be false in a footnote that lists other claims in terms of education and work history about which the panel is clearly quite skeptical.

This lawyer also did his cause no favors by representing himself and parts of the order focus on things that were said during the defense of the case that were also false like his reason for not showing up for hearings.  But, he may have even done himself more damage when he was present and involved in the hearings:

[PANEL MEMBER 1]: Where do you live now?

MR. ZAIDI: I currently-my-to establish clarity on that, this has been a source of some issues and concerns, I will be in Texas. My whole goal after my tenure ended in Michigan is

[PANEL MEMBER 1]: See, it’s not a trick question. Where do you live now?

MR. ZAIDI: I have a place. It’s not a simple answer. I’m trying to explain to you and give you that answer as well. Texas was a goal, which is why I always put Texas. She mentioned my current address is in New York. And even when I called [the State Bar of Michigan] and I updated my- I let her know that Texas – that address in Addison, Texas is still the best address for me.

[PANEL MEMBER 1]: Who lives there?

MR. ZAIDI: It’s my family business. And the reason – and part of the reason – let me explain to you why­

[PANEL MEMBER 1]: So it’s not even a home? It’s a business address?

MR. ZAIDI: Yes, it’s a business address.

[PANEL MEMBER 2]: What is your family business.

MR. ZAIDI: My Dad owns some restaurants.

[PANEL MEMBER 2: So you gave the address of the restaurant in Texas?

MR. ZAIDI: No, it’s not a restaurant. It’s basically his office where he operates and there are other offices there. It’s just basically a big office building. And that’s where ­

[PANEL MEMBER 1]: When did you come to Michigan for this hearing?

MR. ZAIDI: I came this morning.

[PANEL MEMBER 1]: Where did you fly from?

MR. ZAIDI: I didn’t fly. I drove.

[PANEL MEMBER 1]: Where did you drive from?

MR. ZAIDI: I drove from Toronto.

[PANEL MEMBER 1]: What are you doing in Toronto?

MR. ZAIDI: Well, my wife lives in Toronto. And I live in Toronto for the most part, but I travel routinely to Lewiston where I’m trying to establish some business there.

[PANEL MEMBER 1]: Where’s Lewiston?

MR. ZAIDI: It’s in New York.

Not to say that having a lawyer represent him during the proceedings would have let this lawyer be spared disbarment, but not representing himself was clearly the only possible way that outcome might have been avoided.