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.

Why blog posts aren’t, and shouldn’t try to be, solicitations of clients.

So this little blogpost from a Michigan bankruptcy attorney that went viral would be a perfect example to use to answer a question I get asked quite frequently:  When do I have to worry about something I post online being treated as a solicitation of a client under the ethics rules?  It would be a perfect example but for the fact that the Michigan lawyers post is really likely more satirical/didactic then truly solicitous.

Of course, it seems likely that if the business owner to whom the “open letter” was directed did end up hiring the Michigan attorney in a future bankruptcy matter that someone might claim it was because of that post – and it would be a hard thing to disprove.  So… for an intellectual exercise let’s treat it as less satire and more an example of “kidding on the square.”

If that post had been written by a Tennessee lawyer directed toward a Tennessee business, you’d think the safe course would be to treat the particular post as a solicitation of a potential client needing to comply with RPC 7.3(c).  Thus, it would need language at the beginning of the post and again at the end of the post saying “Advertising material.”   It would already comply with RPC 7.3(c)(6)(i) because it already tells the recipient how they obtained the information about the potential client being in need of bankruptcy services though.  To comply with RPC 7.3(c)(6)(iii), the very first sentence of the post though would be required to be “IF YOU HAVE ALREADY HIRED OR RETAINED A LAWYER IN THIS MATTER, PLEASE DISREGARD THIS MESSAGE.”

Yet, even if you did all of those things, you’d likely still have violated the rules because RPC 7.3(c)(6)(ii) mandates that the “subject matter of the proposed representation shall not be disclosed on the outside of the envelope (or self-mailing brochure) in which the communication is delivered.”  Presumably, this means that the “open letter” concept directed to a particular business is completely off the table should a Tennessee lawyer actually seek to try it.

Which, frankly, is the correct answer and also a nice way of getting to the point that blogging is not supposed to be about, nor is it conducive to, directly targeting a potential client.  And, also thankfully, as long as you avoid putting a “solicitation of employment” into your posts, RPC 7.3(d) in Tennessee provides that you do not have to spend any time trying to comply with RPC 7.3(d).

As for an analysis of the sort of antiquated nature of that language in RPC 7.3(c)(6)(ii) that contemplates that such things might be sent only by means involving envelopes or self-mailing brochures … let’s leave that for another time.

Social media and advertising issues

Another bar association has recently issued an ethics opinion  over whether/how lawyers can make use of particular types of social media, whether such use constitutes advertising, and related issues.  The particular ethics opinion in question was issued March 10, 2015 by the New York County Lawyers Association and deals with LinkedIn.

Many of the questions addressed in the opinion are not as relevant in Tennessee as they might be to lawyers in other jurisdictions.  This is because, thankfully, our state has a less burdensome regulatory regime when it comes to advertising overall (and one that gives a bit more respect to the intellect of consumers of legal services) than many other jurisdictions.  A key aspect of the NYCLA opinion focuses on what responsibility a lawyer may have for third-party endorsements on LinkedIn.  The opinion gives what I consider to be largely sound advice for Tennessee lawyers to try to follow on that question.  (This is not the first New York opinion focused on LinkedIn; a 2013 opinion of the New York State Bar Association that dealt with a heading no longer available on the platform – “Specialties” – actually likely had some impact on LinkedIn changing its nomenclature to avoid using the “specialty” buzzword.)

I get asked variations of this “skills/endorsements” question about LinkedIn profiles at an increasing number of seminars and have consistently tried to offer a response that focuses on application of RPC 7.1 – don’t say things about yourself or your services that are false or misleading.  RPC 7.1’s prohibition on “mak[ing] a false or misleading communication about the lawyer or the lawyer’s services” applies to all statements made by a lawyer about themselves or their services not just advertising.  It is also implicated by false billing to clients — saying you spent 2 hours doing something you only spent 1 hour doing is a false statement about your services.

Thus, as long as LinkedIn allows a lawyer to control the decision to accept particular endorsements of skills and have them added to a profile or to ignore them/reject them, I think the best way to draw the line is to decline endorsements of skills in areas of practice that you don’t really do or know a good bit about.

For example, if someone endorses me in the area of tax law, I don’t ratify their gesture by adding it to my profile.  I do not try to draw lines, however, in areas where I do practice by trying to second-guess people who I may not quite understand how they feel comfortable endorsing me in an area (as long as I do happen to think I know a thing or to about that area of practice).  The New York opinion, for the most part, echoes that type of guidance and does a good job of making clear that lawyers should have a reasonable time to deal with a third-party attribution that shows up on their profile and remedy it – recognizing that it would be unreasonable to expect lawyers to scrub their profiles on say a daily basis.

By the way, if you haven’t done so within your LinkedIn profile, it helps to go see how your profile looks to your connections versus just members of the public versus how it appears just to you.  As to the public at large, for example, skills endorsements you accept will likely lead your profile to simply list the collection of skills without any indication that those were suggested by other folks.  The second sentence of RPC 7.1 explains that “[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.”  So, if I accepted an endorsement from someone for a skill I don’t really have, then my public profile looks like I’m saying I’m  skilled in tax law, not that I’m saying “according to John Doe who is pictured in this little thumbnail to the right, I’m skilled in tax law.”  This could present a RPC 7.1 problem.

The rest of the NYCLA opinion – its concerns with whether a LinkedIn profile is “attorney advertising” or not —  is not nearly as pertinent for Tennessee lawyers because our rules no longer require lawyers to file advertisements with the BPR (as was the case until 2011) and, instead, RPC 7.2 only imposes a retention requirement on lawyers.  Likewise, since people have to go seek out your profile information – or agree at least to “connect” with you on the platform – there is limited risk that your LinkedIn profile information would be treated as a targeted solicitation of a potential client requiring compliance with RPC 7.3.

Two ethics rule revisions on the way … one good, one not-so-much

After putting proposals out for public comment in 2014, the Tennessee Supreme Court in the span of a week in February 2015 ordered changes to Tennessee’s lawyer ethics rules that will each take effect on May 1, 2015.  For those lawyers who favor a robust view of lawyer speech rights, the two orders present a mixed bag.

First, on February 12, 2015, the Court adopted a revision to RPC 7.3(b)(3) that will extend the 30-day prohibition on targeted written solicitations that currently seek to protect victims of disasters and certain types of personal injury cases to apply in divorce and legal separation cases.  The Court adopted this amendment in the face of strong opposition from the Tennessee Bar Association.  The TBA filed a comment that articulated the serious First Amendment concerns but also pointed out that the existing 30-day prohibition seeks to protect the recipients of written solicitation letters whereas this change is not at all concerned with protection of the individual who would receive the solicitation letter.  Whether a family law practitioner will challenge this rule on First Amendment grounds remains to be seen.  You can find a copy of the Court’s order here.

Second, on February 19, 2015, the Court has clarified, via a revision to RPC 3.5(c), cmt. [4], that Tennessee lawyers remain permitted generally to ask questions of jurors after they have rendered their verdict and been discharged from service.  This clarification became necessary because revisions to our ethics rules in 2011 — designed to track the language of the ABA Model Rules on this point, created questions over whether trial courts could now routinely put post-verdict questioning of jurors off-limits through local rules or standing orders.  Recognizing, among other things, that post-discharge questioning of jurors can be the only viable way for lawyers to unearth juror misconduct, the Court added new language in Comment [4] reiterating that treatment of this issue should remain consistent with the approach articulated by a 1991 decision of the Tennessee Supreme Court.  A copy of this order can be found here.