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,

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.


The “Now You Know” ad – quite savvy or absolutely horrible?

I had been hoping I could wait a bit to write about this topic but it’s making news via the ABA Journal online today, so I’ll just plow in with this rush job of a post because I’ve already heard discussions in Tennessee about this same ad and before someone more articulate than me blogs about it before I do.

Here’s a link to the article about the Georgia dust up:.

Here, if I’ve done this correctly should be able to watch the advertisement itself at this link — “Now You Know”

For those who can’t get the video to play or who didn’t read the Georgia story above, the gist is that the advertisement explains that the fact that someone has insurance to cover liability in say an auto accident case is something that gets withheld from the jury.  (For what it is worth to those outside Tennessee, in our state insurance coverage is not even discoverable in state court although it is, of course, in federal court.)

Now, based on someone asking me about it, I thought it was already running in Tennessee, but it may only be up in Georgia at the moment.

I’m not at all prepared to weigh in on whether it presents a problem under Georgia’s advertising rules, but I feel pretty comfortable saying that it would be difficult in Tennessee to make the case that the advertisement violates any of our ethics rules.  On the first front, it is hard to point directly at any aspect of the content that would be untruthful so challenges under RPC 7.1 or similar provisions would go nowhere.  Someone might argue that the ad puts a lawyer in the position of doing something “prejudicial to the administration of justice,” in violation of RPC 8.4(d) but the natural retort to that would be, well… is it … really?  And, I suspect that the firm running the advertisement would very much like to spend time debating whether the dissemination of the information is really prejudicial to the administration of justice or not.

If there is a provision that could be fruitfully pursued, I tend to think it would be RPC 3.6(a) which prohibits lawyers from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  That rule is usually thought of as being designed to protect against publicity that would impact a particular matter, but a statement like this that would apply to all matters to some extent might just be capable of being argued to have sufficient deleterious impact to any one matter to trigger the rule.

I tend to believe that the best response to speech though is more speech, so what I’d really like to see is a defense-oriented firm cut an ad to educate the public about something like the collateral source rule.  Someone could even try to argue that RPC 3.6(c) which permits some responsive statements in order to “protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

It’d be interesting to see that play out and whether  the firm strenuously defending this current advertisement would see any problems with a defense-oriented counterpoint.




Everything’s bigger in Texas, including rule problems sometimes.

First, no argument from me that I’ve been a bad blogger this week.  I’d offer excuses, but no one likes to hear excuses.

Second, how about some actual substantive content … I’ve written in the past about ethical issues surrounding the verein structure of some of the largest law firms in the world.  Those prior discussions involved conflicts issues stemming from treatment of the verein as one firm for purposes of the ethics rules.

Within the last few weeks the State Bar of Texas Professional Ethics Committee issued Opinion 663 which reveals a new problem for lawyers practicing in a verein but a problem that is relatively specific to Texas given that it involves a pretty antiquated approach to law firm names — an approach that bars “trade names” altogether but that also gets very particular about whether a law firm name can have the name of someone who doesn’t actually practice law in that firm.

Texas still has in place a very persnickety rule about what law firm names, Rule 7.01 which reads:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that … if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.

So, what particularly was the issue – and the opinion does genericize the firm names involved but you can read this TexasLawyer article if you want to know the real details — well, the issue is a law firm, previously known as Smith, Johnson wants to operate under the name of the verein it has joined – Brown, Jones, Smith — as explained by the Committee is that there has never been a lawyer at the Smith, Johnson firm named Brown or Jones.  Kind of silly, right?  They also say it is misleading because it would make people think that all the lawyers in the firms in the verein are all lawyers in the same law firm when they aren’t really.

The outcome of the opinion also raises an interesting question of larger impact which is why did the Texas committee make the assumption it made in the first place? Everything about the opinion flows from the assumption that the Committee explains to open the “Discussion” portion:

This opinion is based on the Committee’s assumption that the lawyers in the law firms that become members of an organization that includes other law firms (in this instance a verein) are not legally determined to be members of one law firm as defined in the Terminology section of the Texas Disciplinary Rules of Professional Conduct.

The word “firm” in that Terminology section, by the way, defines a firm in an entirely circular fashion as being “a lawyer or lawyers in a private firm; or a lawyer or lawyers employed in the legal department of a corporation, legal services organization, or other organization, or in a unit of government.”

The opinion explains that the facts it had been provided about the verein’s role in a way that would seem to support the conclusion that it was not one firm:

The verein provides some administrative services to each of the member firms and coordinates certain activities of the firms, but it does not provide legal services to clients. The lawyers who are members of the Texas law firm and who are licensed in Texas are not partners or members of the other law firms in the verein. The lawyers in the Texas law firm do not share profits, losses, or liabilities with the lawyers in the other law firms in the verein. The lawyers in the Texas law firm have no authority or vote in the actions of the other law firms in the verein. The law firms who joined the verein are not merged as a result of joining the verein.

So, in an interesting way, this Texas opinion truly is the flipside to the disqualification ruling involving Dentons that I wrote about so long ago.  That judge decided that because Dentons held itself out to the world as one firm, it should be treated that way under the ethics rules as to conflicts.  The Texas opinion says that you can’t hold yourself out to the world as one firm because you aren’t really one.

And, if you happen to be in the Murfreesboro area today and happen to be a legal professional, you could come hear me speak about the “12 Commandments of Social Media for Legal Professionals.”


“En” to the . . . ah . . . to the no, no, no!

So, blame my children for the Meghan Trainor reference, but it is a catchy tune and, actually, not the worst of messages of female empowerment.  Nevertheless, it fits my ramblings today too well for me to resist.

A blurb about a trademark infringement suit involving an Atlanta law firm that operates under a trade name caught my eye this week.  You can read a Law360 story about it here, but know on the front end that the headline is incorrect and that the reason it is incorrect is the core of my not-fully-formed point.

The short form of the story is there is this Atlanta law firm that operates under a trade name of Trusted Counsel, technically Trusted Counsel Ashley LLC.  Law firm use of trade names is not universally accepted in terms of advertising regulations, of course, as there are some states that simply do not permit their use.  In Georgia, trade names can ethically be used as long as they include the name of at least one attorney in the firm (hence the “Ashley” reference) and “does not imply a connection with a government entity, with a public or charitable legal services organization or any other organization, association or institution or entity, unless there is, in fact, a connection.”   Tennessee’s version of RPC 7.5(a) is simultaneously more, and less, permissive as there is no requirement that a name of a lawyer be included but a clearer provision that no trade name can be used if it would violate RPC 7.1 (i.e. be false or misleading).

The law firm, Trusted Counsel (which interestingly is the only part of the firm name apparently that has been trademarked by Trusted Counsel Ashley) has been operating since 2003.  That firm has sued a much newer arrival to the Atlanta marketplace, Entrusted Counsel LLC, claiming trademark infringement, Lanham Act violations, and even cybersquatting.

Now the headline in the Law360 story was that a Georgia law firm had been sued, but even the actual lawsuit doesn’t go so far as to make that allegation (though clearly the plaintiff hopes you will draw that inference), instead the lawsuit (which you can read but not print off at this site on Scribd) asserts that the source of the infringement and the reason for confusion is that both Trusted Counsel and Entrusted Counsel provide “legal services.”

It took me fewer than 5 minutes of clicking around on the web to see that Entrusted Counsel is a consulting outfit owned/operated by someone who is not a lawyer.  Now, I’m admittedly not an expert in trademark law so the fact that Entrusted Counsel isn’t a law firm and can’t practice law may not mean squat with respect to the merits of the trademark suit, but it certainly is an interesting little fact given all the recent hew and cry over the ABA resurfacing — albeit briefly and to no avail — the discussion about whether the ethics rules should be revised to permit outside, nonlawyer investment in law firms.

I can’t help wondering, if the roles were reversed, what would lawyers say if a consulting shop, owned by a nonlawyer, sued a law firm that had a similar name for trademark infringement.

Speaking of advertising regulations, the other tidbit making waves and news in legal circles this week is that New Jersey has decided to weigh in, yet again, on “accolade advertising.”  Quite a few years ago, New Jersey attempted to put its arms out and hold back the tide of “superlative” or “accolade” advertising among lawyers.  The effort, as it should have been, was ultimately futile.

Last month, the New Jersey Supreme Court Committee on Attorney Advertising issued a “Notice to the Bar,” to clarify just when, and how, lawyers in New Jersey are permitted to publicly discuss the fact that a third party has conferred upon them a rating or accolade of some sort.  What drives the regulatory impulses to seek to impose barriers on references to such ratings or accolades is, of course, the unfortunate belief that all entities that provide ratings somehow have an underhanded, “pay to play” component.  To whatever little extent anecdotal evidence can rebut such preconceived notions, I have been fortunate enough to be listed in Best Lawyers in America since 2009, to be listed as a “Super Lawyer” beginning in 2011 by MidSouth Super Lawyers, and was awarded an AV rating by Martindale Hubbell back in 2006 or so and have never paid a dime  to any of those entities to run an advertisement or even to receive a plaque acknowledging my inclusion.

Are there entities that do little by way of separating wheat from chaff other than to see if a lawyer will pay for an accolade?  Absolutely.  But, as indicated above in what it took to figure out that Entrusted Counsel doesn’t practice law, it takes about 5 minutes at most these days to go online and figure out what the score is.

You can read the entirety of the NJ guidance here if you really want to but prepare to be frustrated and to sense the begrudging nature of the whole discussion.  If you want just the short version, here is what they say a hypothetical lawyer could say in compliance with their requirements:

Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at  No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

Or, here is how it would read if that hypothetical lawyer wanted to tweet about it:

Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection met

The “Notice to the Bar,” explains that it was issued because the committee “has received numerous grievances regarding attorney advertising of awards, honors, accolades that compare a lawyer’s services to other lawyer’s services.”

I wish the NJ committee would have just hired Ms. Trainor to answer the phones, she could have told the complaining lawyers:

You need to let it go, you need to let it go.  Need to let it go.  Nah to the ahh to the no, no, no.


A Rorschach test in two parts

To pass the time during Snowmageddon (Snowpocalypse?), here’s a blogpost equivalent of an ink blot test.  Do you think either of these situations (or both) (or neither) involve situations where disciplinary authorities should be allocating resources to go after lawyers under the ethics rules?

The first inkblot:

An attorney runs advertisements for his bankrutpcy practice that say: “Keep your property.”  “Stop wage garnishments.” “Stop home foreclosure.” “Stop vehicle repossession.”  And, oh yeah, “been screwing banks since 1992.”  And, the lawyer has a current website with a bulldog picture and the words “We love to take a bite out of a banker!”  Are disciplinary proceedings in order?  Should it result in a 30-day suspension?  Should it matter whether your argument that you meant “screwing” as a connotation to thumbscrews that used to be used in debtor’s prisons sounds at all convincing?

If you were the lawyer in question, can you think of any reason you would simply consent to having the suspension order go down against you?  Would it matter if you had a past disciplinary history?  Should it?  Would it matter if the jurisdiction had some special advertising rule prohibition different from the ABA Model Rules?  Or, what if the relevant rule just prohibited making false or misleading communications about the lawyer or the lawyer’s services, including statements contain material misrepresentations of fact or law or that that omit facts necessary to make the statement as a whole not materially misleading?  Would you want to know if anyone, anywhere had actually been misled by the statements in the advertisements?

The second inkblot:

Lawyer, representing a criminal defendant she believes to be wrongly incarcerated, and in connection/cooperation with the North Carolina Center on Actual Innocence, takes a water bottle out of a house and doesn’t return it when she figures out it was not her water bottle and may have DNA on it of someone else that she is interested in having tested.  Should that be the subject matter of a disciplinary complaint?  What if she says she didn’t realize until she’d left the house that it wasn’t her water bottle?  What if you think, instead, that she knew when she took the water bottle that it was likely not hers?

Does it matter if the DNA turned out not to be helpful?  What about if, because of the attorney’s efforts, the criminal defendant was ultimately exonerated after spending 40 years in prison for a double murder he didn’t commit?  Is it obtaining evidence in violation of the rights of another in violation of RPC 4.4(a)?  Is that the kind of dishonesty that RPC 8.4(c) should exist to address?  What about RPC 8.4(d) and its prohibition on conduct prejudicial to the administration of justice?  Is it better, or worse, that the lawyer waited until finding out that the person wouldn’t submit to DNA testing before using the water bottle to run a DNA test?  Should the lawyer be admonished for the conduct?

What say you?

Official dishonesty and the consequences for lawyers – 3 of the latest examples

A common theme in many disciplinary proceedings brought against lawyers involves dishonesty.  This should not really be a surprise given that lawyers are human beings and human beings have a tendency toward being dishonest when they can get away with it.  Although there is an ethics rule that, on its face, makes it unethical for a lawyer to engage in any kind of dishonesty at all, lawyers usually only get taken to task for a category I’ll call today official dishonesty.

One such type of official dishonesty involves failure to make full disclosure in connection with an application for admission in some other jurisdiction.  The consequences of this kind of official dishonesty can be severe as is demonstrated by the one year and one day suspension now being imposed on this Pennsylvania lawyer for failing to disclose prior discipline against him when he applied for admission to the federal court in the Eastern District of Pennsylvania.  As luck would have it, the lawyer’s failure to make disclosure involved a 1996 suspension, also of 1 year and 1 day, which was itself brought about by failing to disclose a prior arrest on his original application for admission to practice law in Pennsylvania.

Disciplinary proceedings are not, of course, the only negative outcome that can result from a lawyer engaging in official dishonesty or failure to make full disclosure.  Another kind of negative outcome, discussed before in this post, involves losing out on coverage from your insurer for legal malpractice/professional liability claims.  Law360 has the story of another lawyer who, already faced with defending a legal malpractice lawsuit, is now faced with having no coverage for it as a result of a ruling this month by the Indiana Court of Appeals.

The issue of misrepresentation alleged by the lawyer’s carrier is a common one – a claim, with the benefit of hindsight, that the lawyer was aware he faced a potential claim and should have disclosed such on a 2011 renewal application.  As is also often the story, the claim about which the carrier says the lawyer should have been aware is the same one now being litigated and about which the carrier has refused coverage.  In this instance, the lawyer’s client’s case had been dismissed as a discovery sanction and that dismissal was still on appeal in the Indiana system at the time the 2011 renewal application was completed by the lawyer.  The Law360 piece grabs the salient quote from the court of appeals ruling (which actually reversed a trial court that had sided with the lawyer’s argument that he’d made no material misrepresentation):

“Therefore, because of the severity of the trial court’s remedy – dismissal of the cause – any reasonable attorney in [the lawyer’s] position would realize that his client might pursue a potential legal malpractice claim against him should the Supreme Court affirm the trial court.”

For lawyers, there are quite a few ethics rules that are implicated by acts of dishonesty, RPC 3.3 (false statements to tribunals), RPC 4.1 (false statements to third parties), RPC 7.1 (false statements about the lawyer or their services) but the rule that has the broadest reach, and to which I referred at the beginning of this post, is RPC 8.4(c).

That rule says that “[i]t is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  Unlike many other ethics rules, the text of RPC 8.4(c) does not limit itself to things done in the course of representing a client.  Figuring out what it does, and does not, actually apply to can be less than an exact science.  For example, I’m confident that I’ve never violated RPC 8.4(c) by telling my kids when they were young that Santa Claus was real nor by bluffing in a friendly game of cards.  But figuring out where the lines are realistically drawn on other issues of dishonesty unrelated to anything the lawyer is doing in the practice of la involves a case-by-case analysis, but if there is an “official” component to the dishonesty, you can count on RPC 8.4(c) finding a way to apply.

A Maryland lawyer learned earlier this month that the price of having been dishonest about something unrelated to his law license was disbarment.  The lawyer in question established an LLC called Carefree Construction Services within a few months after becoming a lawyer and then performed home improvement work through the LLC.  The lawyer, however, was not properly licensed in Maryland as a home improvement contractor and was actually using his brother’s license to do the work without his brother’s permission.

In its opinion, the Maryland court, citing another 2014 decision, expressly addressed the fact that the dishonest conduct had nothing to do with practicing law was of no consequence and that the conduct did violate RPC 8.4(c).  The court also explained that since the conduct involved a misdemeanor (performing the home improvement work without a license) that it considered the lawyer to have committed the kind of criminal conduct that violated RPC 8.4(b) as well.

The opinion also went to some length to explain that, in its totality, the lawyer’s conduct amounted to a violation of RPC 8.4(d) – conduct prejudicial to the administration of justice — and that determination also played a role in ramping up the discipline meted out.  The lawyer had filed a number of lawsuits for non-payment against home improvement customers who had learned of his unlicensed status and, as to one such set of customers, threatening them by email and “attempt[ing] to leverage his position as an attorney to intimidate” the customers into paying him more money.  One example quoted in part in the opinion, involves the lawyer, in an email exchange, with the dissatisfied and fully-informed customer, writing:  “Are you forgetting, I AM A CONSTRUCTION ATTORNEY.  There is nothing about construction law that you can learn on the internet that I am not an expert on.”

Kickstarter worked for the potato salad guy, but it is more like a nonstarter for fledgling lawyers.

It was about two years ago when a man from Ohio put up a Kickstarter to raise $10 to make potato salad and ended up receiving tens of thousands of dollars in donations.  I’m sure there were many people who were familiar with this concept before then, but for me that was the first I’d heard of the online phenomenon of crowdfunding.  Most recently, it seems like a good bit of the news on crowdfunding has been of the weird variety where people use it to raise money for police officers who shoot unarmed people.

I never thought I’d see lawyers interested in using crowdfunding to actually permit them to set up a law practice.  I didn’t think I’d see it for two reasons: (1) the ethics rules prohibiting nonlawyer investment in law firms would never allow something like that; and (2) if you are going to hope a collection of strangers with too much money on their hands will throw some your way, why wouldn’t you leverage it to do something much less stressful than practice law?

Yet, yesterday I read the stories about the new law school graduates drowning in student loan debt who were kicking around the idea and the resulting New York State Bar Association ethics opinion.   It is not entirely clear why this opinion, written and issued back on June 29, 2015, is just now surfacing in the news, but in tooling around and reading a few stories about the opinion I came across a second unexpected development —  much of the reporting on this opinion appears to be giving it a positive headline as if the newsworthy aspect of the opinion indicates that maybe a lawyer could pursue this.

Yet, thoughtful reading of the opinion demonstrates that is the wrong sort of headline.  The NYSBA opinion explains that from what it can decipher there are 5 types of crowdfunding endeavors.  One is sort of just syndicating a loan with many, many small loans from individuals for a project that might not get a large amount of funding from a bank or other institutional investor.  The committee spends no time talking about the ethical implications of that option because that still would just be more debt for these new law grads and the law grads making the request indicated that they were interested in crowdfunding to avoid being saddled with additional debt.

Two of the other five approaches, the investment model and a royalties model, are ones the committee explained are nonstarters from an ethics perspective because they involve either (the investment model) nonlawyer ownership in the firm in violation of RPC 5.4(d) or they amount to an arrangement in which there would be fee sharing between lawyer and nonlawyer in violation of RPC 5.4(a).  These obvious answers to the ethical issue are one of those two reasons stated above that I didn’t think I’d see lawyers exploring this model.

Finally, the two other types are the straight, no-strings-attached donation approach and the “reward” model, where you are overpaying for some small item in return approach.  As to the donation approach, the committee did not see any ethical problem with it.  (Also they were kind enough to not explicitly state that the only chance this would work is if you threw in an offer of some potato salad.  And, if you didn’t actually follow the potato salad story back when it happened, the guy did end up throwing a big party with the proceeds and giving some funds to charity so that at least had something of a happy ending.)

As to the reward model, the inquiring lawyers said that perhaps they would offer an informational pamphlet or agree to provide pro bono services to some charitable organizations.  The committee says that could be ethically viable but that there were some land mines, like making sure the informational pamphlet didn’t offer legal advice and complied with advertising restrictions and making sure that, if offers were made to do pro bono work for a charitable organization, that the lawyer could remain available to do so ethically.  In addressing this approach, the committee offered a call-back to a 2011 opinion it issued about “deal of the day” websites like Groupon.

What is really disappointing is, having gone to all of the trouble of putting out an opinion on this topic and even referencing its prior Groupon analysis, it might have actually been more helpful to address a variation on the reward approach which might be economically viable.  Could lawyers put up a crowdfunding offer where anyone who contributes say $50 today receives $200 in free legal services from this firm at any time in 2016?  Such an approach might just provide the level of seed money needed to start up the infrastructure of a law practice and might, assuming the lawyer can develop some regular clients (who weren’t also investors), allow the lawyer to eventually turn a profit.  Such an approach also would, in theory, be no more perilous from an ethics perspective than the Groupon situation.

But, really, the most valuable thing this ethics opinion does — in a fairly easy to observe way — is to lay bare how the absolute restriction on nonlawyer investment in a law firm goes way beyond what would be necessary to protect the espoused public interest being served — which it says in the Comment to the Rule is “to protect the lawyer’s independence of professional judgment.”  The regulatory concern is that if lawyers practice in a law firm that is controlled by non-lawyers then the lawyers will not adhere to their ethical obligations and will instead allow themselves to be directed to do whatever is necessary for the firm — and therefore the investors — to turn a profit.  Yet, if a law firm raised $50,000 in start up capital $25 at a time from 2,000 investors, would you really be worried that any of those 2,000 individuals would be in a position to control or direct the independent professional judgment of the lawyers in the law firm?  No, of course not.

APRL Advertising Revision Proposal and the NOBC Meeting

I had the opportunity last Friday to attend the joint APRL/NOBC program put on during the National Organization of Bar Counsel meeting in Chicago (which also happens at the same time as APRL’s annual meeting, which happens to run at the same time as the ABA Annual Meeting).  The joint program focused on APRL’s white paper proposing to revise the ABA Model Rules addressing advertising with a new version of RPC 7.1 serving to replace several, but not all, of the existing ABA Model Rules in the 7 series addressing advertising.  You can read my short-form thoughts on the APRL proposal in an earlier post here.

I certainly found the discussion and comments that were made during the joint program to be encouraging as the sentiment of all who spoke, including audience members, ranged from effusively supportive to generally supportive with a believed need for some tweaks.  It is, of course, dangerous to assume that the dynamic of those willing to speak up was indicative of the room as a whole.  As to those who kept their thoughts to themselves, it is nothing more than tea leaf reading to try to determine whether their silence stemmed from support, indifference, or opposition but a lack of interest in making their feelings known.

That being said, I do think important things can be gleaned from what was said by those who served in roles as bar regulators or bar counsel.  Although each individual gave the expected disclaimers that they were not speaking for anyone officially, those folks on the NOBC side of things did seem to be truly aware of the notions that: (1) the regulations on advertising have gotten far removed from things that actually exist to protect consumers of legal services from being actually deceived by lawyers; (2) for the most part, consumers do not complain about lawyer advertisements; and (3) that to the extent existing restrictions prevent dissemination of information about availability of legal services that is contrary to the interests of the public and that access to justice ought not be hampered by regulations that attempt to “protect” consumers from things that consumers do not consider to be at all “harmful” to them.

Time will tell whether this effort will gain further traction — and a lot will depend on whether the ABA powers-that-be will back the proposal and I know some lawyers who are quite skeptical about that prospect — but, for now, I remain optimistic that this pendulum will continue to swing in the right direction.


Hopefully this will be the first step in streamlining the regulation of lawyer advertising

I commend to your reading a very well done, thorough, and I think (hope) persuasive report from the Association of Professional Responsibility Lawyers regarding the subject of lawyer advertising.  Although none of us were on the Lawyer Advertising Committee that put this together, several of us on the committee are members of APRL.   You can download a copy of it here.

The report manages to confirm many things many lawyers have long believed about the nature of who complains about lawyer ads, highlights the impossibility/impracticability of trying to comply with varying state regs in the communications landscape in 2015, and calls for revision of the ABA Model Rules toward essentially just the existence of an RPC 7.1 to address lawyer advertisements online and in the real world to focus regulatory restrictions and enforcement upon actually false and deceptive advertisements.  It also calls for some means of primary regulation for advertising violations that would not also constitute a violation of RPC 8.4(c) other than through efforts to impose discipline.

I have long believed, and stated on a number of occasions at seminars and the like, that if I were put in charge as a benevolent dictator, the only ethics rule that would exist to address public advertising by lawyers would be RPC 7.1: “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.”

Thankfully, with this report, a much more influential group of lawyers has said much the same thing.  I have been a member of APRL for more than a decade, but this may be the moment I am most proud to be able to say I am a member of this organization.