A very good start.

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

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

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

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

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

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

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

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

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

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

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

Frustrations with Formal Ethics Opinion 2017-F-164

Recently (and one of the frustrations I have with this opinion I am now writing about is, that “recently” is about as specific as I can pin things down in terms of the date of issuance), the Board of Professional Responsibility in Tennessee issued a Formal Ethics Opinion giving some guidance on the ability of a Tennessee lawyer to be a part of a multi-state law firm using a trade name.

It is, on the whole, an adequate ethics opinion in that it essentially gets the answers to the questions it raises correct, but it is more frustrating than it is adequate given how it addresses the issues and, as hinted at above, how it was surfaced by the Board as having even been issued.

First, here are my frustrations with the substance.  Here are the questions FEO 2017-F-164 tackles:

I. Do the Tennessee Rules of Professional Conduct allow a partnership between a Tennessee Professional Services Corporation and a Florida Professional Services Corporation?

II. Can the partnership ethically use a trade name?

III. Can the Florida office of the partnership ethically lease space from SETCO Services, a title company?

Admittedly, the Board gets the answers to each of these questions correct.  Those answers are, of course, “yes,” “yes,” and “yes.”  But the opinion does not do the best job of showing its work as to some of the answers, completely ignores the fact that the questions being answered also can’t be addressed without taking a look at Florida’s analogous ethics rules, and, as to the third question, misrepresents to an extent how RPC 5.7 actually works in Tennessee, appears to assume more facts beyond the facts indicated in the opinion.

As further background to understand my griping, here is the entirety of the facts provided by the Board about the request that has been directed to them:

The requesting lawyer proposes a 50%-50% partnership between a Tennessee Professional Services Corporation (PA) and a Florida Professional Services Corporation (PA) that will operate under a trade name, SETCO Law. The Florida PA will lease space from SETCO Services, a title company, for which the requesting lawyer is in-house counsel, in Destin, Florida. The Tennessee PA will lease space from another law firm, Brannon Law, located in Memphis, TN.

The proposed Firm will have a separate computer system, including secure email system, apart from SETCO Services and can only be accessed by employees of the Firm. The Firm will have its own logo which will be conspicuous within the building. All clients, before engagement with the Firm, will be provided with a written engagement letter that provides in detail that SETCO Law is an entity separate and apart from SETCO Services and Brannon Law and that engagement with the Firm is in no way tied to any affiliation with SETCO services or any services provided therefrom.

The first two questions are readily capable of dispatch under Tennessee’s rules given that we are very reasonable on questions of trade names and, of course, do not present any unreasonable barriers to lawyers being part of a multi-state law firm.  However, it is exceedingly unhelpful for this opinion to be issued and make no reference to the fact that a lawyer seeking guidance about the second question needs to take a look at Florida’s ethics rules as well and that makes no reference at all to the fact the lawyer ought to also be educated about RPC 8.5 and how that rule provides for choice of law determinations when more than one jurisdiction’s ethics rules may be applicable to the conduct of a lawyer.

The method of addressing the third question though presents the most frustrating piece from a substantive standpoint.  This is because the third question only asks whether or not the law firm’s Florida office can lease space from a title company.  The answer to that question is: of course they can.  The first paragraph of that part of the opinion gets the answer exactly right:

No ethical rules restrict the location of the office of a lawyer. Nothing prevents a lawyer from entering into a landlord-tenant relationship and having an office in the same building as a land title company.

Unfortunately, it doesn’t stop with those two sentences but instead offers further advice and guidance about RPC 5.7 with respect to law related services.  That advice and guidance is fine – in a vacuum but this opinion isn’t in a vacuum – but the opinion reads as certain things being mandatory in order to be able to lease the space, rather than being explained as being important in evaluating whether or not acts undertaken by a lawyer affiliated with the title company can be treated as providing services that are separately distinct from the delivery of legal services so that only some, but not all, of the Tennessee ethics rules apply to that conduct.  Nothing about RPC 5.7 requires a lawyer to do any of those things simply to be able to lease office space from someone.

And that would be bad enough but, again, the opinion completely overlooks or ignores that the office space lease question involves the office in Florida and so there is no compelling analysis given why it would be Tennessee’s RPC 5.7 that would govern at all, rather than Florida’s version of any such rule.

Having now unburdened myself on the substantive flaws, I’d like to offer a quick word about the frustrating problem with the process.  For whatever reason, the Board of Professional Responsibility did not publicize the issuance of this opinion until they happened to insert it in a regular quarterly publication that is a much larger document.  And even then what has been published is an unsigned, undated version of the opinion.  Seems very difficult to understand why that approach was undertaken.

Should you want to go read for yourself the undated, unsigned Formal Ethics Opinion 2017-f-164, you can do so at that link.

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.

“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 www.superlawyers.com/about/selection_process_detail.html.  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.