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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.”

APRL’s supplemental advertising overhaul proposal

Back in June 2015, I dedicated a post here to praising APRL’s proposal to streamline ethics rules imposing outdated restrictions on lawyer advertising.  A proposal that recognizes that lots of states currently have advertising restrictions on the books that could not survive a constitutional challenge and that aren’t really even being sought to be enforced and that seeks to have the ABA revise Model Rules 7.1, 7.4, and 7.5 and replace them instead with a revised Model Rule 7.1.

At that time, the APRL proposal was limited to a focus on trying to overhaul the provisions that address general advertising in public media.  APRL has now issued a supplemental report that turns its attention to the over regulation of restrictions on solicitation, including targeted written communications directed at potential clients.

The entire proposal is worth reading, and you can download it from here, but these are the highlights:

Much like the prior proposal, the APRL supplemental report proposes to collapse a number of provisions in the ABA Model Rule down to one revised rule, Model Rule 7.2 which would replace the provisions in current Model Rule 7.2 and Model Rule 7.3.  The two most significant aspects of the proposal are: (1) a revised focus on what kind of communications should be treated as prohibited solicitations; and (2) two new exceptions to even those prohibited solicitations.

Rather than continue with a framework that treats “real-time electronic contacts” as an equivalent of an in-person solicitation and, therefore, prohibited generally, APRL suggests that the prohibition should really only apply in-person, live-telephone, and things that are the digital equivalent of face-to-face encounters and not things that are the digital equivalent of targeted mailings.

The two new exceptions are if the person being solicited is a sophisticated user of legal services or if the communication is one authorized by a court order requiring notification in a class action.  The second exception was already written into a portion of the comment to RPC 7.3 in the Model Rule and is just being proposed to be moved up to the black letter of the rule and fleshed out further.  The first exception is brand new but consistent with an understanding of the motivation behind the prohibitions on solicitation in the first place — a concern that the imbalance between a person trained in persuading others and a regular person facing a pending legal need could lead to overreaching on the part of the lawyer and decision stemming from coercion on the part of the regular person.  For someone who qualifies as a “sophisticated user of legal services,” which the proposal defines in a comment to be “an individual who has had significant dealings with the legal profession or who regularly retains legal services for business purposes.”  And, yet, acknowledging that as the “evil” to be prohibited, the fact that the Model Rules already, and the APRL revised proposal as well, still actually prohibits any and all solicitations that actually involve coercion, duress, or harassment  even if the targets would other be excepted.

One other aspect of the proposal worth noting is its more realistic and detailed approach to explicitly permitting online group advertising.

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.

As with the first APRL proposal, I have no real sense of how likely it will be that the ABA will take it up and accomplish the implementation of these common sense proposals.  And, even if that happens, then the actual impact on the profession will only come about if states undertake to adopt this kind of streamlined, common sense approach to these issues.

Unfortunately, after years of appearing to move in the right direction on the issues of lawyer advertising, the path my state has taken recently has been in the opposite direction.  Our court actually, most recently, took action to expand the 30-day off limits provision that the APRL report indicates has not been widely adopted to go beyond personal injury matters into divorce filings.

Avvo Legal Services won’t work in Tennessee without RPC 7.6 compliance, but should it be so?

The evolution of Avvo from its origins as a lawyer-rating service to something with a much, much more extensive impact in the legal marketplace continued this week with the news of the launch of Avvo Legal Services.  Robert Ambrogi was, as often is the case, the first to break the news online about the development, briefly describing the nature of the service and helpfully linking to the FAQ Avvo offers attorneys about it.

The nutshell version of what exactly this is can be found in the Attorney FAQ under “What are Avvo Legal Services?

Avvo Legal Services are fixed-fee, limited scope legal services determined by Avvo and fulfilled by local attorneys.  Avvo defines the services and prices.  Attorneys choose which services they would like to offer in their geographical area.  Local clients purchase legal services, choose the attorney they want to work with, and pay the full price of the service up front.  The chosen attorney then completes the service for the client and is paid the full legal fee.  As a separate transaction, the chosen attorney pays a per-service marketing fee for the completed, paid service.

Now a writer at the Solo Practice University blog has already teed up a thoughtful piece asking some questions about fee-splitting concerns, which do seem significant when, despite the separate transactions involved there is no question that the “marketing fee” rises as the attorney fees charged rises, and whether it would be highly inadvisable for lawyers to run these transactions through their trust accounts.  I will, for the most, part omit further discussion of those two issues for now.

However, Avvo can say what it wants in its FAQ about why this service is not a lawyer referral service (just as it can attempt to analogize its marketing fee to a credit card processing fee if it thinks that might fly), but I don’t think there is any doubt that, under current ethics rules in a number of states, lawyers who participate with Avvo Legal Services will be taking on significant risk.

Should a lawyer in Tennessee, for example, want to participate in this arrangement (assuming a future roll out here), the likely outcome of any scrutiny would be that the lawyer would violate RPC 7.2(c) unless and until Avvo Legal Services can manage to obtain approval as a registered intermediary organization under our RPC 7.6.

This becomes clear when you look at each of those two Tennessee rules.

Our RPC 7.2(c) generally prohibits a lawyer from “giv[ing] anything of value to a person for recommending or publicizing the lawyer’s services” but provides 4 specific exceptions.  Two of those exceptions are unquestionably unavailable with respect to Avvo Legal Services (publicity in exchange for charitable sponsorships/contributions or purchase of a law practice).  One of the exceptions involves the usual charges of a registered intermediary organization permitted by RPC 7.6.  The other allows payment for “the reasonable costs of advertisements permitted by [RPC 7.2].”

Now, perhaps a lawyer handling cases through Avvo Legal Services could muster an argument that the “marketing fee” being paid is just the reasonable cost of an advertisement.  But nothing about the way Avvo Legal Services describes the program lends itself to such a view as everything about the explanatory materials point to the idea that the lawyer is paying for a result — a paying client — and not just an advertisement.  It’s also paying more for a more lucrative client engagement.  From paying $40 to earn $149 in attorney fees, up to paying $400 to earn $2,995 in attorney fees.

Nevertheless, paying the “marketing fee” could be justifiable under RPC 7.2(c) if it is the “usual charge” of a registered intermediary organization.

Given how broadly Tennessee RPC 7.6(a) defines the term “intermediary organization,” it seems difficult to figure a way that the Avvo Legal Services program would not meet the definition:

An intermediary organization is a lawyer-advertising cooperative, lawyer referral service, prepaid legal insurance provider, or a similar organization the business or activities of which include the referral of its customers, members, or beneficiaries to lawyers for the provision of legal services to the organization’s customers, members, or beneficiaries in matters for which the organization does not bear ultimate responsibility.

Whether or not Avvo Legal Services becomes properly registered will matter to Tennessee lawyers not only because then they could ethically pay a “usual charge,” but also because a Tennessee lawyer would be ethically prohibited by RPC 7.6(b) from “seek[ing] or accept[ing] a referral of a client, or compensation for representing a client, from” Avvo Legal Services unless several specific things were true.  For today’s purposes, the most significant would be that Avvo Legal Services would have to have “registered with the Board of Professional Responsibility and complied with all requirements imposed [on it] by the Board.”  RPC 7.6(b)(iv).

Tennessee lawyers can check, at any time, the list of entities that are properly registered with the Board in this respect at this link.  You’ll see that Avvo Legal Services is not on that list; of course, their current roll out explains that they are only launching in a few cities to start.  Presumably, Avvo Legal Services might pursue registration under our RPC 7.6/Supreme Court Rule 44 before opening the program up to lawyers in any Tennessee cities.

But should it have to?  What really is the rationale that would be used to justify why this sort of service should be off-limits to lawyers?

In jurisdictions that do not have Tennessee’s approach under RPC 7.2(c) and  RPC 7.6, this service may be more viable, albeit still burdened by a few thorny issues regarding arguments that this is fee sharing or what role Avvo Legal Services has (an agent/fiduciary for the client or an agent for the attorney or what exactly?) while it holds money paid by the client for the rendering of legal services.

Unlike Tennessee’s RPC 7.2(c), the ABA Model Rule does not include the words “or publicizing” and only imposes restrictions on the ability to pay someone for “recommending the lawyer’s services.”  Further, language in the Comment  to ABA Model Rule 7.2 further distinguishes between “recommendations” and “channeling” of work to the lawyer, as [5] indicates that while payments for recommendations are off limits altogether but that paying others for “channeling work” is only a problem if the channeling is “in a manner that violates RPC 7.3.”  Further, that same Comment elaborates that

a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rule 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services).

Yet, even with that seeming additional flexibility in jurisdictions that track the ABA Model Rules approach, issues would remain that will depend significantly on how the program actually works — particularly the consumer side of the interactions.  The very next sentence of that Comment exhorts that a lawyer “must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral.”

A review of what appears to be the consumer-side FAQ for Avvo Legal Services does not contain any explicit disclosure of the fact that the attorney providing the service will be paying Avvo Legal Services for getting to work for the client.  In addition to what it doesn’t say, it has some language that could be construed as at least “implying” a recommendation of the particular lawyer doing the work:

You will work with the lawyer you selected during checkout. For phone call advice sessions, you can also choose to speak to the next available lawyer. In that case, Avvo will connect you with a highly reviewed attorney who is experienced in your topic area and licensed to practice in your state.

But, again, a question worth asking is:  should this be something the ethics rules work to prohibit?  Avvo Legal Services certainly seems to think that this endeavor can be sufficiently profitable, which strongly implies that there are a large number of consumers of legal services who would be willing to make use of such an arrangement and, ultimately, a significant number of lawyers who would be willing to provide services to such consumers in this manner and on these financial terms.  So, the larger question ought to be — if the rules governing our profession will not abide this kind of arrangement, then what is the rationale for nixing it?

Just who exactly are we seeking to protect, and why?

New “Brick and Mortar” column out this week (+ 2 other things you should read)

Unfortunately, it does not appear to be up and online as of yet at The Memphis Bar‘s website, but the latest issue of The Memphis Lawyer is out, and I have a column in it.  The column — The Revised RPC 7.3(b)(3): The Road to Constitutional Infirmity is Paved With Good Intentions — talks about a revision to the Tennessee ethics rules that has been in effect since May 1, 2015 and should be of particular relevance to family lawyers.  (Regular readers of this blog may recall reading a bit about that development in this earlier post.)  My latest column also talks a bit about one of the last U.S. Supreme Court cases from last term — Reed v. Town of Gilbert — that may lay the groundwork for all content-based restrictions on commercial speech (including most restrictions on attorney advertising) having to survive “strict scrutiny” analysis to pass constitutional muster.

Once it is eventually up online, I’ll post an update of some fashion, but if you happen to be a lawyer in Memphis and your issue is sitting in your reading pile … well consider yourself warned.

In the meantime, let me suggest two other things deserving of a read and well worth your time.  (And I see in advance the humor of me suggesting that the two items be read as I am confident they both have more readers than I do.)

Karen Rubin has a smart take on something I had no idea existed — prepackaged blog content for lawyers.  She gets the ethics analysis quite correct (of course) and avoids explicitly making the kind of snarky statement I would have made:  If you are buying prepackaged blog content to pass off as your own to assist with proving yourself to be a “thought leader,” you’re not showing much “thought” and you certainly aren’t “leading.”  The one question I still have about the whole scheme is whether Checkpoint Marketing intends to sell the same canned content to multiple lawyers?  It’s a business model that works in t.v. ads for lawyers (though admittedly it worked better before YouTube because you were less likely to ever see the same ad concept in the other markets).  If multiple lazy bloggers lawyers can each buy the same stuff, it would seem likely to lead to even a greater level of embarrassment when a simple Google search for some particular phrasing in a post would pretty quickly reveal multiple astroturfish posts from different lazy bloggers “authors.”

The second is this New York Times piece on the revelation that the human being who is serving as General Counsel of Al Jazeera America, and who has a quite impressive resume of places of employment before that might not actually have ever been a lawyer at all during the last three decades or so.  It’s a fascinating read, and the story has now triggered Al Jazeera America to suspend the gentlemen and pursue an investigation.

Coming to praise rather than to bury – West Virginia edition

Some, including possibly me, will argue that the greatest thing to come out of West Virginia is the My Brother, My Brother, and Me podcast.  But today, I write about another very positive contribution out of West Virginia, a very good, very thorough ethics opinion that overflows with common-sense with respect to social media issues for lawyers.  West Virginia L.E.O. No 2015-02 provides advice to attorneys that is as good as the McElroy brothers’ “advice” on MBMBAM is funny.

Now, this ethics opinion was actually issued a full month ago but news of it only came to me when it was picked up in other places, like the ABA/BNA Lawyers’ Manual on Professional Conduct.  If all you ever read of No. 2015-02 is the 12 numbered answers the West Virginia committee provides to the questions it poses, you’d know almost all you needed to about how practical, smart, and on-point its opinion is:

  1. Attorneys may advise clients about the content of the clients’ social networking websites, including removing or adding information;
  2. Attorneys may connect with a client or former client on a social networking website;
  3. Attorneys may not contact a represented person through a social networking website;
  4. Although attorneys may contact an unrepresented person through a social networking website, they may not use a pretextual basis for viewing information on a social networking site that would otherwise be private/unavailable to the public;
  5. Attorneys may use information on a social networking website in client-related matters;
  6. Attorneys may accept client reviews but must monitor those reviews for accuracy;
  7. Attorneys may generally comment on or respond to reviews or endorsements;
  8. Attorneys may generally endorse other attorneys on a social networking website;
  9. Attorneys may review a juror’s Internet presence;
  10. Attorneys may connect with judges on a social networking website provided the purpose is not to influence the judge in performing his or her official duties;
  11. Attorneys may advertise on a social networking website provided such advertisement complies with the requirements of the Rules of Professional Conduct; and
  12. A prospective attorney-client relationship may be formed on a social networking website.

In a way, those could be the 12 Commandments of Social Media for Lawyers.  [I’m claiming that title – that’s mine; ©; don’t anyone try to do a seminar with that title before I do; I’ve printed this blogpost out and mailed it to myself in a sealed envelope.]

The rest of the opinion (which spans 24 pages) addressing the details and nuances of these 12 answers is infused with the same kind of practical guidance and wisdom the numbered answers would lead you to expect.  It strikes all the correct notes in terms of understanding issues like: the line between advising clients on how to change privacy settings and engaging in what could be spoliation; the fact that public portions of a person’s online presence (whether they are a represented party, an unrepresented party, or a juror) are fair game; and the fact that judges and lawyers can be friends and interact socially in real life and in just the same way could be friends and interact on social media.

Even better, it highlights a few other nuances not often discussed which is the need for lawyers to remember the potential implications for trial publicity, and compliance with RPC 3.6, when they post content to social media platforms, and that there are some ways that interactions through social media platforms (like, for example, comments on Facebook posts and replies to comments) could amount to real-time electronic communication treated more like a phone call than an email under RPC 7.3.

I think the West Virginia committee managed its task so well, in large part, for two reasons.  First, the opinion makes clear that it starts from the premise that social media and social media websites are just another means of communication.  Second, it was written as a byproduct of a mindset that recognized that the very first of the general ground rules the opinion should address is the role that a lawyer’s ethical duty of competence under RPC 1.1 plays with respect to the social media landscape:

[I]n order to comply with [RPC 1.1], attorneys should both have an understanding of how social media and social networking websites function, as well as be equipt [sic] to advise their clients about various issues they may encounter as a result of their use of social media and social networking websites.

Frankly, this weird regional/archaic spelling of “equipped” is one of my only quibbles with the opinion at all.  The other quibble – and really the only one of substance – is that I think the opinion goes too far in terms of imposing a duty on a lawyer to “verify the accuracy of any information posted on [the lawyer’s] social networking websites,” especially given the difficulty in reconciling that with what the opinion says immediately before that (“Although attorneys are not responsible for the content others post on the attorneys’ social networking websites….”)  If the opinion had just left the obligations to “(1) should monitor their social networking websites [and] (3) must remove or correct any inaccurate endorsements,” then it would have equipt me with almost nothing to quibble with at all.

Go read it.  Then print it out and keep it handy.  It’s good.

Bad ethics opinion or the worst ethics opinion? – Ohio 2015-2 edition

Let’s play a little game called:  Bad ethics opinion or the worst ethics opinion?

Earlier this month, the Supreme Court of Ohio Board of Professional Conduct issued Opinion 2015-2 about whether/how a lawyer presenting at a legal seminar can distribute brochures to prospective clients and whether the lawyer can answer legal questions posed by the attendees at the end of the seminar.  You can go read the opinion here.  Go ahead, go read it.  I’ll wait.  You’ll probably figure out its multitude of flaws on your own, but if you don’t, you can come back here and continue reading.

So, now that you’ve read it (or just moved straight to this next paragraph to get the skinny), the Ohio Board concluded that a lawyer speaking to prospective clients at a legal seminar can make brochures and firm materials available somewhere near the exit but cannot personally hand the materials out.  That’s stupid, but not necessarily stupid wrong.  Just stupid in the general way that attorney ethics rules which appear to assume pliability of other human beings can end up being a bit stupid in their application a lot of the time.  Unlike the next topic, it at least stems from a plausible reading of Ohio’s RPC 7.3.

It’s the second conclusion offered by the Board that is stupid wrong.  Here’s the question being addressed by the Ohio Board –

May a lawyer stay after a seminar to answer follow-up questions of attendees or meet with attendees who sign-up to meet with a lawyer in advance of a seminar?

This should be a fairly straightforward question to answer, right?  Lawyer gives a talk to large group.  Lawyer doesn’t say to large group – “hey, hire me.”  Rather, lawyer attempts to demonstrate knowledge of area of law in hopes that s/he will convince one or more people in attendance that they might do well to retain lawyer for services.  At end of presentation, grown-up, functional, human being voluntarily approaches lawyer to ask a question.  What does the Ohio Board say about what can happen next?

A lawyer may not remain after a seminar to discuss personalized legal needs of attendees, even if attendees sign up to meet with the lawyer in advance of the seminar.  Instead, if attendees wish to meet with the lawyer, the attendees should be directed to call the law office and schedule an appointment to meet with the lawyer, or be instructed to contact a lawyer of their choice.

Seriously?  As part of the ultimate explanation for their conclusion, the Ohio Board states that “[t]he lawyer cannot be the person to initiate contact with the prospective client following a presentation at a legal seminar.”

Which of those words is it that the Ohio Board does not understand the meaning of?  It seems pretty clear that they don’t know what the word “initiate” means.  There could be others that are tripping them up, I guess.

If the person has come up to the lawyer at the end of the seminar and asked a question, the lawyer has not initiated the contact.  This is not rocket science.  The ability of the Ohio Board to get this so badly wrong though is solid proof that, for some reason, smart lawyers’ brains turn to mush when they address questions of marketing.  It is also an indication of why alternative sources of legal assistance are making such a dent in the marketplace for legal services.

Luckily, even if I find myself speaking in Ohio (though I’m pretty sure no one from the Ohio Board will be inviting me any time soon), I won’t have to worry about compliance with the convoluted approach to their rules articulated in Opinion 2015-2, as even the Ohio Board acknowledges that none of these restrictions are necessary if the attendees of the seminar are also lawyers because solicitation of lawyers is not prohibited in the same way under Ohio RPC 7.3.

I give you sprinkles today in hopes you will help me make it rain tomorrow?

About three months ago, I wrote about a New York ethics opinion that blessed a marketing effort that I stressed would likely be unethical in Tennessee.  That situation involved a lawyer giving client’s a rebate if they agreed to post a review of the lawyer’s work at an online site.

In a fairly decent sign about how competitive the market for legal services continues to be these days (and how risk averse lawyers can be when it comes to pursuing marketing concepts that other businesses don’t think twice about), South Carolina has issued a more recent opinion weighing in on the appropriateness of another marketing gimmick.  Karen Rubin over at her law firm’s blog offers a good treatment of the South Carolina opinion blessing the proposed “Donut Fridays,” (which also included koozies, marketing materials, a fee rate sheet, and a $50 off coupon for consultations) an effort to curry favor with those in a position to refer work to the law firm, that you can go read here.  The right conclusion was reached both that this was not an improper, in-person solicitation in violation of RPC 7.3 and that, as long as the law firm gives the donuts without regard to their effectiveness in generating referrals (i.e. irrespective of whether this approach produces a good return on investment), then there is no violation of RPC 7.2.

In the end, I certainly don’t disagree with the conclusion reached by the South Carolina opinion and think, unlike the New York rebate-for-a-good-Avvo-review scheme, the same conclusion would be reached in Tennessee.  There would be no inherent violation of Tennessee’s RPC 7.2(c) for a similar “Donut Friday” or, for you fans of The Lego Movie, a “Taco Tuesday.”

I do want to say though that it is really pretty remarkable that any ink had to be spilled on an opinion to address this situation at all.  There is a lot of cognitive dissonance out there among lawyers when it comes to ethics and business development efforts.  For example, the same kinds of lawyers who might think “Donut Fridays” requires close scrutiny likely would not give a second thought to sending a bottle of wine or other thank you gift to another lawyer who referred them a revenue-generating case.  The thank you gift which, fairly obviously, only gets sent because of the prior referral is arguably much more difficult to justify in any jurisdiction with the kind of rule S.C. and Tennessee have.  (And, please understand, I am not saying those are unethical.  I’m just saying … it’s a lot harder to explain than Donut Fridays.)

Beyond that, the only other point I’d like to make — and would have like to see given further treatment in the S.C. opinion — is that the aspect of the arrangement can actually be thorny is the coupon.  With respect to the South Carolina law firm making the inquiry, the inclusion of a fee rate sheet in the box with the donuts and the coupon was very helpful because it provides something tangible that would show that the coupon is in no way deceptive or misleading in terms of being ephemeral in value.  In the absence of the rate sheet though, the issue can be much more complex as can be seen in the wave of ethics opinions that were issued examining whether lawyers could participate in “Deal of the Day” website-style promotional campaigns, including this one issued by the ABA back in 2013.

 

 

When is a phone not a phone?

In a world where people use their smart phones for seemingly everything, including actually talking to other people on the phone from time-to-time, an interesting ethics issue has been percolating in the world of attorney advertising.  Namely, for purposes of the ethics rules that exist to restrict how lawyers can go out about actively soliciting clients, are text messages supposed to be treated more like email or more like a telephone conversation?  Depending on the nature of your practice, it can be an important question because most lawyers are well aware that phone calls to solicit business from someone with whom you don’t have the kind of prior professional, or close personal, relationship to create an exception are a no-no.  But e-mailing someone to do the same thing tends to be generally understood to be more like a letter and, while not outright prohibited in most jurisdictions, just have to make sure to comply with whatever requirements a jurisdiction has for solicitation letters.

Unfortunately (or fortunately I guess depending on your point of view), it looks like it will be Florida that weighs in with the first ethics opinion addressing the question.  And I say “will be,” because weirdly though I am blogging about this on May 28, the news item put out by the Florida Bar on the website is dated 4 days from now on June 1.

Florida is notoriously restrictive when it comes to its approach to the regulation of lawyer advertising issues so, in a way, this is not a surprise even though an article from earlier in May made it appear that they were struggling a bit with what to decide.  It is interesting to hear that at least part of the rationale appears to be tied to an interpretation of Florida’s advertising Rule 4-7.18(a) as prohibiting the use of telephones to make direct solicitations rather than telephone “calls.”

I’m not sure I agree with that interpretation after a quick review of their language (which for goodness sakes also treats facsimiles and telegraphs as outright prohibited direct solicitation), and I also wonder whether that opens up the question of whether a Florida lawyer now would have to be worried about sending an email if they happen to believe it likely that the recipient will view the email on the telephone or, perhaps of more concern, whether they can use their own phone to send the email to the recipient.

I tend to think that the answer turns on the language of any particular rule being examined.  As an example, I think that the answer to the question in Tennessee has to be that a text message solicitation to someone you don’t know (i.e. doesn’t fall within the group of unprotected folks described in (a)(1)-(3)) is prohibited by RPC 7.3(a) because it is a “real-time electronic contact.”  Our RPC 7.3(a) reads:  “A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a potential client ….”

In that regard, the answer to the question in Tennessee shouldn’t turn on some strained interpretation of the words “live telephone” as meaning something broader than “calls.”  Thus, the point isn’t that the person is physically seeing the message on their phone (after all, as noted above, they likely would be viewing your email on their phone as well) or that the lawyer is using a phone to send the text.  Instead, it turns on the notion that texts, unlike emails, have become “real-time electronic contact.”  These days, if a question can wait then you can ask it by email but if you are looking for an immediate response, you need to send a text.

But, in a state like Tennessee that has the “real-time electronic contact” language, the underlying talking points relied upon by the Florida Bar would be highly relevant.  For most users, texts like phone calls, are set up to interrupt what you are doing with a noise or sound that prompts you in an almost-primal fashion to have to go read it.  Further, the most used text services also transmit real time information about whether the recipient has read the message and, with the dreaded ellipses, can even show you if they are in the middle of composing a response.

Now, whether that is good public policy or bad public policy… I’ll save that discussion for some other time.