Rule revision roundup.

That title is probably a thing somewhere else on the interwebs already, but I’m just lazy enough to not look it up at the moment.

So, it’s been a minute since I have written anything about the progress (or lack thereof) of jurisdictions adopting ABA Model Rule 8.4(g) and since I have written anything (other than indirectly) about whether any progress has been made on adopting the revised, modernized approach to lawyer advertising rules seen in the APRL-inspired, ABA Model Rules revision from last year.

In overlooking those stories in favor of writing about more radical proposed changes to the ethics landscape (some of which have thrown modernized advertising proposals into the stew), I’ve been highlighting a lot of activity in the western United States. But spending a bit of time on these other two topics, gives me a chance to write about happenings in the New England region of the United States.

Specifically, earlier this year (more than five months ago in fact), Maine became the second U.S. jurisdiction to adopt a version of ABA Model Rule 8.4(g) to seek to address harassment and discrimination related to the practice of law. A neighboring state, Vermont, is the only other state to have done so. Unlike Vermont, however, Maine did not adopt an exact version of the ABA Model Rule. Instead, Maine tweaked it in a few significant ways: (1) the Maine version does not include “marital” or “socioeconomic” status among the grounds for which discrimination is off-limits; (2) the Maine version does not include bar activities or professional social functions within what counts as “related to the practice of law,” and (3) it provides more detailed examples of what amounts to “harassment” and what amounts to “discrimination” under the rule. You may recall that an effort to adopt a modified version of Rule 8.4(g) here in my state of Tennessee failed miserably in 2018.

A bit more recently (only just three months ago), Connecticut became the first state to adopt the ABA revisions to the Model Rules related to lawyer advertising. You may recall that Virginia actually overhauled its rules even before the ABA took action by adopting the original APRL proposal back in 2017. In so doing, Connecticut (for the most part) has stripped its advertising regulations down to just three rules — patterned on ABA Model Rules 7.1, 7.2, and 7.3. Connecticut does still keep a couple of its additional bells and whistles (though it can be hard at first blush to know for certain because they used [brackets] to indicate deletions rather than strike-through text). One deviation that it kept was its 40-day off limits provision for people involved in accidents. Another deviation is that they have a three-year record retention requirement in their version of these rules. A few other deviations made it through as well.

If I could take issue with one choice Connecticut has made (well, technically two — seriously, don’t do the brackets thing ever again), it would be the level of unnecessary detail in the following provision about record retention:

An electronic communication regarding the lawyer’s services shall be copied once every three months on a compact disc or similar technology and kept for three years after its last dissemination.

The problem with this is … well there are several. In 2019, a whole lot of computers don’t even have CD-ROM drives any longer, but also the level of specificity and detail is both micromanagement of an unneeded degree and entirely unlikely to actually accomplish anything. As to micromanagement, just require that an electronic record be retained for the three year period – if they want to store it in a server or in the cloud or wherever, it won’t matter as long as they retain it so that if you ever need to examine it you get it from them.

And also, every three months? Both micromanagement and ineffectual, a lawyer who wants to game that system just changes an electronic communication to be shady in the middle of the three month window and changes it back in time to make the every three-month copy.

Except, of course not really, because the stories about Connecticut’s adoption of the ABA Model Rules on advertising, including this story, all buried the lede — Connecticut still requires lawyers who advertise in public media to file a copy of the advertisement in the form it is distributed with the Statewide Grievance Committee. Sigh. While this is not a “prior restraint,” it is a “prior pain-in-the-ass” (TM, TM, TM, TM) that serves little to no purpose other than imposing additional expenses and red tape on lawyer advertising.

To have both such a filing requirement and a three-year record retention requirement is among the worst sort of “belt and suspenders” arrangements.

In the end, I guess that’s part of why it took so long to actually write this post. Between reading the headlines and being a bit excited and actually studying what Connecticut did, I ended up feeling like I just got nutmegged.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So, I am rapidly approach the 4th anniversary of this blog and this is the very first time I have had a post sharing exactly the same title as an earlier post.

Interestingly (at least to me), that earlier post with that title was written on Groundhog’s Day 2 years ago. The title for this post seemed a fitting title because … well, I think it will be clear when we launch into this – but also referencing back to that older post and it having been a Groundhog’s Day themed post also is pretty appropriate because the pathological nature of the lying of this Chicago lawyer has something of a deja vu sort of feel when compared to the lying of that Michigan lawyer from the prior post.

You’ve probably already read about this story but, if not, this is your window into the story of this Chicago lawyer who has been lying off and on about having cancer for more than a decade, who has lied about having a son, and even lied about the son he never had also having the same kind of cancer that he doesn’t have but has lied about having.

The repeated lying about having leiomyosarcoma, including falsely claiming that his pretend son had the same thing, grabbed the headlines but there were at least two other karma-tempting whoppers over the years, including: Lying to his firm that he had retained an expert but that the expert couldn’t work because his daughter had been hit by a car; and lying about having to attend a funeral in Montreal to get a court extension

There really is not an awful lot I can add to the obvious reasons why this kind of tale of a lawyer going beyond the pale in terms of what they were willing to lie about, and how often they apparently were willing to lie about it, is so disturbing.

One disturbing aspect of the situation is that his lawyer, in an answer filed in the disciplinary proceedings, has said that he came up with the cancer lie because he was actually suffering from depression in 2005 and was afraid to admit to suffering from a mental illness at the time when he was applying to law school. As someone who believes strongly in the fact that our profession needs to do much better about the topic of wellness and who readily recognizes that our profession needs to do all we can to help reduce the stigma surrounding mental health issues in our profession, I’d really like to believe that explanation and be more sympathetic, but when you lie about the really big stuff it is hard not to think that you are lying about your reason for lying.

I particularly have a hard time with achieving a sympathetic point of view after reading this piece of the pleadings in the disciplinary case about this kind of false statement made nearly 11 years after applying to law school:

64. On July 25, 2016 at 9:45 a.m. Respondent sent an email to AUSA Brock, and copied to AUSA Hancock, the following message related to Respondent’s purported reason for requesting an extension to complete discovery in the Harris case: “Yes, all went well. Thanks so much for asking. He has leiomyosarcoma, a form of stomach cancer, and had to have a small portion of his stomach and GI tract removed. It sounds terrible but apparently it is a rare but also highly treatable disease. My fiance and 1 have fostered kids on and off for the last 5 or so years. The only downside is that these incredible kids are often in this situation in the first place because they have one or more serious illnesses/conditions. I normally wouldn’t share such personal information but I really do feel so grateful for yours and Gina’s support last week and think it’s important that you know what it actually meant to me.”

Answer: Admit

65. Respondent’s statements to AUSAs Brock and Hancock, as set forth in paragraph 64, that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years were false.

Answer: Admit

66. Respondent knew his statements to AUSAs Brock and Hancock, that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years, as set forth in paragraph 64, were false because Respondent had no child or foster child, therefore no diagnosis of leiomyosarcoma, and no surgery.

Answer: Admit

But the part of this whole thing that really grabbed me by the proverbial lapels and piqued my interest was the original set of circumstances that led to the lawyer coming up with the lie that he had cancer. You see cancer was the story offered to explain to The University of Chicago Law School why this future lawyer only scored a 158 on the LSAT.

Wait for it.

I only scored 160 on the LSAT. It never dawned on me that I was even supposed to be disappointed in that result, much less that I should have tried to lie about having cancer to explain the poor performance.

But, 160 is two points higher than 158; also, I wasn’t applying to the University of Chicago Law School. So, apples and oranges I guess.

If you want to read the entirety of the latest amended disciplinary complaint against Vincenzo Field, you can get it here.

Crowdfunding for attorney fees? Yes, but no.

So, since about early December of last year I’ve been trying to find a way to write about a really good, quite practical (albeit practical about a very niche situation) D.C. ethics from November 2018. The D.C. Opinion, Ethics Opinion 375, addresses the idea of using crowdfunding platforms as an ethical way for a client to afford otherwise unaffordable attorney fees.

It is easy to get in the right mindset to elaborate on why an ethics opinion is bad. I have had a hard time getting into writing about Opinion 375 because, truth be told, it is hard to write something that feels useful and interesting about a well-done ethics opinion.

But I’m writing about it today because, thankfully, along came a West Virginia disciplinary case with a development that makes this so much easier to discuss.

First, let’s get you up to speed on the D.C. opinion — “Ethical Considerations of Crowdfunding.” Now, of the various mechanisms that exist online for crowdfunding, the D.C. opinion focuses only on donation-based crowdfunding platforms — things like Go Fund Me rather than other kinds of platforms that bring large groups together to fund things in exchange for an equity stake or something similar.

The summary that starts out the opinion is largely all you really need to know about it:

Lawyers are generally free to represent clients who pay for legal services through crowdfunding. The ethical implications of crowdfunding a legal representation vary depending on the lawyer’s level of involvement in the crowdfunding. When the client directs the crowdfunding and the lawyer is merely aware of it, the lawyer incurs no specific ethical obligations although the lawyer should consider the potential risks associated with receipt of such funds and may counsel the client on the wisdom of publicly sharing confidential information. When the lawyer directs the crowdfunding, the lawyer must comply with the Rules governing a lawyer’s receipt of money from third parties. Further, a lawyer who directs the crowdfunding should be cognizant of ethical obligations regarding fee agreements, communications with donors, and the management of the funds raised.

Now, if you want to troll the depths (the D.C. Bar managed to list off 11 different ethical rules that were applicable to the situation), there is more than five pages of analysis to be had in the full opinion.

All in all, it’s well done and practical advice to address what is a particularly modern variation on the question of third parties paying a client’s fees.

So, crowdfunding is a viable option for clients to pay a lawyer … but … there are certain ways it can’t. be. used. For one thing, it can’t be used by a lawyer to get clients in the first place.

And that point brings us to West Virginia. Were I more of a delusional sort, I’d think this story was fabricated into existence Truman Show style just for my benefit. In terms of trying to appeal to me, this story has everything … (and you have to say this next part in the voice of Bill Hader’s “Stefon” character from SNL): it has a lawyer with the same name as a lawyer at a prominent firm in Memphis; the West Virginia lawyer started practicing law essentially exactly when I did [1999]; the West Virginia lawyer was serving as a treasurer [I’m the treasurer for two organizations at the moment] for a local soccer organization [ask me about soccer, I dare you, I won’t stop talking], and West Virginia’s Chief Disciplinary Counsel actually recused from the case because they are a soccer official.

Now, this West Virginia lawyer’s story isn’t really a story about Go Fund Me. Where the lawyer really went afoul of his ethical obligations was something he did long before he tried to use Go Fund Me in exactly the wrong sort of way, but that piece was the headline grabber for at least one West Virginia media outlet that wrote: “Charleston attorney suspended for 3.5 years after offering legal advice for Go Fund Me money.”

This lawyer’s original – and much more significant — transgression was that the lawyer embezzled about $12,000 from the soccer organization’s account by transferring those funds to his personal checking account. After he was confronted about his theft, he resigned from the treasurer position and repaid the money in three installment payments.

He self-reported his violation [which would have been, at minimum, a violation of West Virginia’s RPC 8.4(c) and probably (b)) and then was fired from his employment when his employer learned about the theft from the soccer organization.

After that, he tried setting up a Go Fund Me page to raise money to help him transition from being a lawyer employed at a firm to being a sole practitioner. What he offered, however, was that those who donated to the Go Fund Me would receive free legal services in exchange.

The West Virginia bar cited that conduct as being a violation of the rules against soliciting clients. The lawyer denied ever receiving any funds as a result of the Go Fund Me account in question and contended that he did not realize he had actually made it publicly-viewable.

An article in The ABA Journal online also emphasizes some of the aspects in which the Go Fund Me appeal itself was supported with false and misleading statements:

The fundraising appeal said the move was based on a decision to help children.
“After nearly 20 years of practicing law, I have finally found what I was meant to be doing,” the appeal said. “I have transitioned from an insurance defense practice to becoming a sole practitioner representing individuals and families. My primary focus is helping children who have been abused and/or neglected.”
Glover went on to say that his employer asked him to leave immediately after learning of his plans to go solo. “Given the short notice, I was not able to build up my savings, and I am now struggling to meet my personal expenses,” he wrote.
“It is my intention to return any gifts once my income become steady, and I will be happy to offer free legal advice (if I can) to my benefactors as well.”

That piece of this story is a very good reminder that, no matter the platform, rules patterned after ABA Model Rule 7.1 make it a disciplinary infraction for a lawyer to make statements about themselves or their services that are false or misleading.

Inflation is likely more widespread than you’d like to believe.

Time inflation that is. I’m certainly not an economist.

In the past, I have written about issues associated with overbilling by lawyers in a number of different respects.

Today’s post involves a rare public situation involving the admission of overbilling by a lawyer – one that comes out of Illinois and involves a lawyer who worked his way up the ladder in not just one but two prominent firms in Chicago.  The attorney, Christopher Anderson, has now been made the subject of formal disciplinary proceedings based on his own admission of inflating his time entries and billings first while at Kirkland & Ellis as an associate and later at Neal Gerber Eisenberg, ultimately achieving the status of a non-equity partner.

Anderson came clean to the powers-that-be at the Neal Gerber firm after he had been practicing there for three years in 2018.  That firm did its own investigation and decided it needed to offer refunds or credits to some 100 clients who had been made to overpay as a result of Anderson’s conduct.  The refunds, as reported in the disciplinary complaint, amounted to roughly $150,000 and stemmed from the conclusion that only 4/5 of the time Anderson had billed to clients was legitimate.  The complaint indicates that once Kirkland & Ellis learned of Anderson’s conduct and that he had been engaged in the behavior there as well worked through its own process to offer refunds to clients.

The complaint describes the nature of the scheme on Anderson’s part to inflate his billings and is what I have always believed is what happens to be the most widespread way of abusing billable hours in our profession because it is the most tempting route to travel and the one that lawyers believe is the hardest to prove is happening:

During his time at both firms, in an attempt to meet what he perceived to be the firms’ billing expectations, Respondent recorded time beyond what he had actually spent in handling client matters, knowing that the time he recorded would be billed to his client and that they would be asked to pay fees based on the records he created.  For the days that Respondent felt he had not recorded sufficient time on client matter, he increased the time he claimed to have been spent on those matter based on a number of factors, including his assessment of the likelihood that the client would object to the time he recorded.  As an example, if Respondent spent 0.3 hours on a client matter, he would record that he had actually spent 0.5 hours, or he would bill 2.1 hours for work that actually took him 1.7 hours to complete.

Not surprisingly, some immediate reporting about the situation from The American Lawyer stressed the rareness of intentional overbilling. I beg to differ on that.   Unfortunately, I think this kind of practice goes on much more often than our profession would ever care to admit.  People who act out of a feeling of pressure that their “numbers” are not strong enough or who feel like they’re being forced to accept a cut-rate hourly fee for their time can find themselves heading down this path because, unlike inventing tasks that could be proven not to have been performed, there truly is very little ability for an outsider to prove that a lawyer who says they spent 2.1 hours doing something that really only took them 1.7 hours to complete is lying to you.

Or, as more succinctly put by my friend Trisha Rich who was quoted in the Chicago media about this:


“It would be hard for somebody to catch on to (overbilling in small increments) if somebody was doing that over time, because basically our billing records are on your honor,”

Other than this particular situation in which the conduct came to light because of the lawyer’s own guilty conscience, instances usually will not be ferreted out unless the lawyer also forgets that “pigs get fat and hogs get slaughtered.”

The other interesting piece of this story is that Illinois is only charging Anderson with violations of RPC 1.5 and RPC 8.4(c), but not also charging for violating RPC 7.1.  Illinois’s Rule 7.1 certainly could have also been included in the complaint because Illinois’s version of the rule has the same language as the ABA Model Rules:  “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”

Given that Anderson essentially has admitted the misconduct, throwing an additional charge at him likely would just have been piling on, but trying to remind lawyers that RPC 7.1 doesn’t just apply to advertising but applies to a wide variety of false statements about a lawyer or their services (here, falsely stating how much time you actually worked) is something of pet peeve of mind mine. [edited to be less stupid on 1/31/19]

Texas Two Steps Forward…One BIG Step Back

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

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

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

You can read the proposed revisions here.

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

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

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

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

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

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

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

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

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

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

“No. No you’re not.”

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

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

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

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

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

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

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

“No.  No, you’re not.”

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

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

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

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

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

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

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

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

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

Your mileage may vary, of course.

 

A very good start.

My last post was filled with criticisms related to the roll out of a new ABA Ethics Opinion.  Today I’m offering a different tone and message for the ABA Standing Committee on Ethics and Professional Responsibility – a positive message offering kudos for the working draft that has now been circulated to revise the ABA Model Rules on advertising issues.

I’ve written a number of times in this space in the past about the push by APRL on this front and, although the working draft that has now been put out by ABA SCEPR does not entirely match APRL’s proposal, it adopts a significant amount of what that proposal sought to accomplish.

The working draft deletes Model Rules 7.5 and consolidates much of the regulation involved in that rules into Comments added to Model Rule 7.1.

It trims a little bit of fat from the Comment to Model Rule 7.2 and explicitly acknowledges the ability of lawyers to offer things akin to a “token of appreciation” to people who provide them with referrals and the like without violating the ethics rules.

It also removes a number of restrictions on solicitation by narrowing what is prohibited to interactions that can be described with the term “live person to person contact,” adding a new class of purchasers of legal services who can even be asked for their business live and in person, and leaving the overarching prohibitions against coercion, duress, or harassment as the line that cannot be crossed in any effort to develop business.

What constitutes “live person to person contact,” would be defined in the first two sentences of Comment [2] to the rule:

“Live person to person contact” means in person, face to face, telephone and real-time person to person communications such as Skype or Facetime, and other visual/auditory communications where the prospective client may feel obligated to speak with the lawyer.  Such person to person contact does not include chat rooms, text messages, or other written communications that recipients may easily disregard.

The new category of purchasers of legal services who would be fair game for even live person to person contact would be people “known by the lawyer to be an experienced user of the type of legal services involved for business matters.”

Model Rule 7.4 would be honed down to two provisions — one that permits lawyers to truthfully tell people what fields of law they practice in and one that prohibits lawyers from claiming to be certified as a specialist in any area of law unless the lawyer actually is so certified by an appropriate entity and the name of the entity is clear in the communication.

The APRL proposal would be an even more streamlined regulatory approach than what is being offered in the ABA SCEPR working draft in large part because the APRL proposal also would have deleted Model Rule 7.2 and 7.4 altogether and retained bits from the Comment to each of those rules that were worth retaining by relocating them to Rule 7.1.

Nevertheless, decrying this progress from the ABA SCEPR would be an exercise in letting the perfect become the enemy of the good.  And, at least one time in 2017, I am going to refrain from doing that.

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?