A virtual example of better, but not good enough.

I know it really hasn’t been that long (a little over two months ago) since I wrote on here to trumpet the APRL proposal for a new ABA Model Rule 5.5. If you missed that, it would help a lot to go read that post first. Here’s a link. I’ll wait right here until you come back.

Hey regular readers! This could get awkward all of us just shoegazing waiting on those folks. Are you following cats being weird little guys on Twitter? If not, go look at a few of those photos to kill the time. Here’s a good starter: https://twitter.com/weirdlilguys/status/1537593869507956737/photo/1

Okay. Now that everyone is back. The strengths of the APRL proposal are again demonstrated by a different development coming out of Michigan that is up for consideration as an amendment to that state’s RPC 5.5.

About six weeks ago, the Michigan Supreme Court put out a proposal for adopting a new 5.5(e) that would provide for better protection for lawyers not licensed in Michigan but who are using computers and the internet to practice law to reside in Michigan. The proposal, which is open for public comment until September 1, 2022, would involve adopting the following language for 5.5(e) and a supporting new paragraph (presumably [22] in the accompanying Comment):

(e) A lawyer admitted in another jurisdiction of the United States and not disbarred or suspended may remotely practice the law of the jurisdiction(s) in which the lawyer is properly licensed while physically present in the State of Michigan, if the lawyer does not hold themselves out as being licensed to practice in the State of Michigan, does not advertise or otherwise hold out as having an office in the State of Michigan, and does not provide or offer to provide legal services in the State of Michigan.

[22?] Paragraph (e) is not meant to infringe upon any authorized practice in the federal courts. See, e.g., In re Desilets, 291 F.3d 925 (CA 6, 2002). In addition, paragraph (e) does not authorize lawyers who are admitted to practice in other jurisdictions to maintain local contact information (i.e., contact information within the State of Michigan) on websites, letterhead, business cards, advertising, or the like.

Now, would this kind of protection added to Michigan’s current Rule 5.5 be helpful for some lawyers? Of course, absolutely. If lawyers currently are at risk in Michigan that working out of a home office, for example, would subject them to a UPL charge for having a continuous and systematic presence in Michigan for the practice of law, then this is certainly an improvement.

But one of the many reasons that the time is right for the much more comprehensive proposal along the lines APRL is advocating is that something like this is nowhere near enough of an improvement.

The first, and most significant, problem with the proposal is that it limits what is okay to practicing “the law of the jurisdiction(s) in which the lawyer is properly licensed.” What exactly does that mean? Does that mean that if the lawyer is licensed in Minnesota, representing a Minnesota client, but the representation involves providing advice about a contract the Minnesota client has entered into with an Iowa manufacturing company will be okay? Or would it only be okay if the contract is governed by Minnesota law? Should anything really turn on that sort of question? Also, what if the contract had a choice of law provision that selected Michigan law? Would this now be entirely off limits?

While the “law of the jurisdiction” trope is the most severe problem, there is at least one other. When the proposed comment attempts to elaborate on the meaning of not being able to hold yourself out as being licensed to practice in Michigan or offering to provide legal services there, it indicates that you couldn’t even have local contact information on letterhead or a business card or a website. So, what if because you live in Michigan, you have a cell phone that has a Michigan area code? Should the answer really be that if a lawyer’s website otherwise clearly indicates they are only licensed to practice in Minnesota but provides a telephone number (a cell number) with a Michigan area code then their conduct is prohibited?

So, to sum up, if Michigan moves forward on this front, it will be an improvement on the status quo, but there are much better, bolder ways to address the overall issue.

RPC 8.4(g) update – “blue” states keep pushing forward.

Yesterday, June 20, 2022, was the inaugural federal Juneteenth holiday here in the United States. Far too few lawyers and law firms acknowledged it like we do other federal holidays by … you know, closing and not requiring people to work that day. Admittedly, some federal holidays are not fully observed but given the rampant diversity issues in our profession and the rhetoric law firms espouse about diversity and inclusion efforts, the disconnect in taking this opportunity to put tangible action behind the rhetoric is striking.

It appears likely that this will be a continuing problem for certain in the South. Which likely should come as no surprise given that the South was the problem necessitating the existence of Juneteenth in the first place. Not just because of the issue of slavery itself, but because of the unwillingness in the South to spread the information that the Emancipation Proclamation had been made back on September 22, 1862 decreeing freedom for all slaves as of January 1, 1863. Thus, we now have a federal holiday to commemorate the event, on June 19, 1865, when word finally reached Texas that the Emancipation Proclamation had been issued as it was read aloud in Galveston by a general of the Union.

The legal profession, not just in the South, also has a continuing problem regarding racial demographics. In a concrete and clear piece of information demonstrating this, earlier this month the ABA released data from its survey reflecting that over the last decade, the population of lawyers has increased by more than 6.5% but the number of black lawyers was unchanged. Now there are limits to the data, as thirteen different states (including my own) did not participate in providing data to the ABA in 2022 so the ABA had to use the best/most recent data available for those jurisdictions.

The issues that collectively bring about such disparities are obviously multi-faceted, but the sheer difficulty the legal profession has had in acknowledging the need for an ethical prohibition on discrimination and harassment by lawyers is most assuredly in the mix.

Thus, let’s pivot toward some more positive and hopeful news. The list of states that have taken action to adopt a rule targeting harassment and discrimination patterned after ABA Model Rule 8.4(g) has grown by two in the last few weeks as both Illinois and New York have either enacted new rules or appear to be on the precipice of doing so.

The Illinois State Bar Assembly has now approved a version to be sent to the Illinois Supreme Court for (hopefully) adoption that hews closely to the ABA Model Rule in a number of ways. This action by the ISBA is a reversal of their prior decision in 2017 to reject the rule. The proposed Illinois RPC 8.4(j) would, like the ABA version, apply to all contexts “in the practice of law,” including things such as bar activities and social events. The Illinois proposal would also highlight through language in comments the notion that this rule, like all other ethics rules, is still a rule of reason requiring a reasonable construction. The Illinois proposal says out loud what is just implicit as to the ABA Model: “The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

New York has officially adopted, effective on June 10, 2022, a variation on the ABA Model Rule version that shuns comments and puts all the moving parts into the rule itself. The New York version varies from the ABA Model Rule in four substantive respects:

  • Defines “harassment” to require that the conduct be “directed at an individual or specific individuals”
  • Also clarifies that any conduct “that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment” under the Rule
  • Extends to more conduct than just representing clients but does not extend as far as the ABA rule would in that it does not explicitly reach, for example, conduct during bar events or other socializing arising from being a lawyer
  • Specifically carves out “express[ing] views on matters of public concern in the context of teaching, public speeches, [and] continuing legal education programs”

You can read the full text of the rule at the link below:

What will be very interesting to watch is whether, despite the variations made from the ABA Model version, the New York rule is subjected to litigation and attacks of the variety that have been the playbook in other states where adopted, such as Pennsylvania. Given that this is also exactly what has happened recently in Connecticut despite the efforts there to try to water down the rule, I remain skeptical that anyone anywhere can pass any version of RPC 8.4(g) that will not be attacked by the same interest groups, or people egged on by those interest groups, that decry the ABA version as violating First Amendment rights.

500: A Multimedia Extravaganza.

So, in my most recent post, I ended by acknowledging that there was a milestone upcoming and that it seems like a circumstances creating odd pressure.

I have now managed to do this for more than seven years and by my best guess there is roughly 500,000 words of content on legal ethics now available on this site.

So, what could one hope for to accomplish with a 500th post to feel like it is a successful one? Something engaging? Something discussing important information? Something perhaps involving shameless self-promotion of sorts? Something touting a great organization I am lucky to lead at the moment? Something that involves a subject matter that might change the profession?

Sometimes life steps up and provides an opportunity to do all of those things at once.

Robert Ambrogi, a much more famous blogger than me and who also is the host of a well-known podcast, was kind enough to extend an invitation to me to appear on his LawNext podcast and discuss the origins, motivations, and other issues addressed in APRL’s recent proposal to overhaul and replace ABA Model Rule 5.5.

You can give that episode a listen at the link below:

LawNext: Ep 162: Is the End in Site for State Limits on Law Practice? (libsyn.com)

(Or, and it is always fun to hear me say this in my head when I hear it said on so many things I listen to, you can get it wherever you get your podcasts.)

Requiring lawyers only to disclose whether they have malpractice insurance can do more harm than good.

So, this is an issue that states continue to “struggle” with from time to time, and the latest I am aware of is Vermont. Michael Kennedy has alerted the public to a pending proposal in Vermont that is now out for public comment that would require Vermont lawyers to disclose on their annual registration statements whether they have or do not have malpractice insurance.

The problems I have with all of these kinds of proposals, including ones that go further and require lawyers to actually have malpractice insurance, are the focus of today’s post.

But, first, just to be clear, I obviously recognize that ideally all lawyers everywhere would recognize that having malpractice insurance is better than not having malpractice insurance and that there are likely far too many lawyers practicing who do not have any malpractice insurance. Also, I want to admit that — while almost all of the information is anecdotal – I have no doubt that most consumers of legal services just blithely assume that the lawyers that they retain actually have some form of insurance coverage.

While all of that is true, I have a strong opinions that trying to regulate and require it in the ways that states have tended to do is not a helpful approach to the issue and, particularly when all that is sought to be required is disclosure of coverage vel non, can actually end up hurting rather than helping consumers.

Here’s why I say that. Given that the predominant nature of lawyers’ professional liability insurance is that it is issued on a “claims made and reported” basis, I don’t think that making available to a consumer information about whether, during a discrete window in time, a lawyer has an available insurance policy actually provides useful information. The notion that a lawyer may have had coverage at a particular date in the past does not give any clear reason to believe that the lawyer has a policy in place for a time frame that is relevant to when an act or omission might have occurred nor whether it covers any particular conduct nor any information about whether the attorney has provided timely notice to make sure not to lose coverage for the particular set of circumstances. And, if we assume the consumers will make decisions about whether to hire a lawyer based on whether or not they might have insurance that could help pay for any mistakes, the disclosure could well be unhelpfully misleading.

Here is the moment where I admit that I am now hopelessly old, forgetful, and sadly self-referential. I just spent some time trying to find someone that had eloquently made the point more clearly about how this kind of requirement could be counterproductive and even misleading. In so doing, I found … I’ve already done this and forgot. Sigh. So, here’s a link to that post from what is now almost 7 years ago.

Admittedly, actually requiring lawyers to obtain and have in place malpractice insurance is not a failsafe solution either, but if the concerns expressed by the jurisdictions that require notice of status are really to be addressed, it is a remedy that comes significantly closer to addressing the concern than does merely requiring notice of status at a given snapshot moment in time.

APRL is leading the way toward modernizing the practice of law.

Yesterday was potentially a very big day in the world of lawyers and clients. I am very pleased to report that yesterday the Association of Professional Responsibility Lawyers released a proposed overhaul of Model Rule 5.5., called on the ABA to take action to adopt it, and disseminated a very thorough and detailed Report explaining why the kind of reform called for by the rule proposal is both entirely justified and long overdue.

I have spent some time over the last 24 hours talking with a few reporters about this development, and I intend to update this post with links to stories as they come out. But talking the situation through with reporters has also, I think, helped me distill down a bit how best to describe the potential significance of this proposal and how strikingly different it is from the sort of “stop gap” measures that exist today with respect to various ethics opinions that have been put out by states during the course of the pandemic.

First, because readers of the blog know that I seem to always manage to quote myself when I can, here is an excerpt from my letter to the current President of the ABA that describes what APRL is proposing:

Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time. At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.

Second, while I am only one of 10 co-authors of the Report itself, I want to highlight a very important portion of that report (obviously written by someone else with better writing skills) in terms of how a fallacy about how competence as a lawyer works under the current approach to lawyering and how that feeds into a disconnect that impacts problems with access to legal services:

A lawyer’s voluntary devotion to one area of practice, however, in no way restricts the scope of the lawyer’s license in their state. An attorney with 20 years of experience, but only involving family law, who learns of a neighbor’s, relative’s, or former client’s severe car accident may agree to represent that person. Similarly, a lawyer who, following admission to the bar, works in a non-legal setting for twenty years, faces no licensing restrictions in taking on that same personal injury case as long as they have an active law license. Moreover, a newly minted lawyer immediately after passing the bar could take on a family law case, a car-accident lawsuit, and a contract negotiation with a hospital for a physician. The lawyers in these scenarios might not be the best lawyers for the job, but the Rules of Professional Conduct assume that the lawyers can educate themselves about the subject matter and competently handle the case. See Rule 1.1, cmt. [2].


The “Competency Fallacy of Rule 5.5,” however, dictates that a lawyer licensed in “State A”, who has devoted their entire career to personal injury work for example, would not be competent to represent the car-accident victim described above (without the association of local counsel) because the lawyer is presumed to be incapable of knowing or coming to understand “the law of State B.” Instead, if that State A-licensed lawyer wanted to be able to regularly represent clients with personal injury cases in State B, the lawyer would have to obtain a second license to practice law, a license issued by State B. Those who accept the current systemic issues often rely upon arguments that lawyers who wish to be able to practice across state lines more freely can simply obtain such additional licenses through reciprocity. This option to pursue additional licenses through reciprocity is not an adequate solution, and for many jurisdictions, is simply not true.

APRL’s proposal is a long-time coming but also long overdue.

If you believe that our profession’s approach to the multi-jurisdictional practice of law needs to change, I would encourage you to support APRL’s efforts and speak out to help us effectuate change in your jurisdiction. The current ABA Model Rule, along with a variety of state ethics opinions issued during the pandemic, have given some solace to lawyers about what might be okay on a “temporary” basis.

APRL’s proposal, however, would lend permanence to the idea that as long as a lawyer is transparent with their client about where they are licensed, then they could live or have an office anywhere without fear that representing a client in some other state or assisting a client with navigating and interpreting the law of some other state would be unethical or illegal. Our proposal would also improve the lives of lawyers with traditional practices who go into the office of their firm every day and live and work in the same jurisdiction because they would not have to second-guess whether a client who wants to hire them can do so without also having to enlist the assistance of an additional lawyer simply because that other lawyer is “local.”

As an earlier portion of the APRL Report explains, APRL’s proposal:

acknowledges that clients must continue to be protected from the incompetent practice of law. However, the proposal also elevates the client’s right to choose counsel to a co-equal status in the context of the regulation of multijurisdictional practice and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries that prevent clients from choosing competent counsel of their choice even if the lawyer they choose is licensed elsewhere.

A copy of my letter to ABA President Turner, APRL’s proposed Rule 5.5, and the Report can be accessed at the link below.

To date, the only story I know that is up is this first, short one from Bob Ambrogi.

But stay tuned …

Edited to add additional articles:

Reuters.

ABA Journal Online

Bloomberg Law

Above The Law

2020 too?

This past year has certainly been … something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice versa, and being bolstered along the way by a surprisingly large number of attorneys willing to file politically-motivated lawsuits that in normal circumstances I’d like to think wouldn’t pass muster under Rule 11 or RPC 3.1.

These anti-democracy lawsuits continue relentlessly with a parade of lawyers who don’t seem at all deterred by sanctions imposed against other lawyers.

So what will 2022 bring? Other than hopefully the end of the pandemic. Surely we will get that. Surely.

Here is where I go out on a limb and make a prediction or too about the world of legal ethics over the next year.

First, given the focus of media attention on lawyers who continue to help high-profile clients pursue questionable legal objectives — not all of which involve subverting democracy of course — I think there will be significant attention and action taken on further defining prohibitions on lawyers assisting unworthy clients in illegal endeavors.

Along those lines, with a particular focus on combatting lawyer-involvement in money-laundering activities, the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Regulation circulated thoughts on potential ways to address that issue better in the ethics rules in a memo put out seeking public input on December 15, 2021. The memo previews a number of possible ways that the comments to the rules could be amended to better define obligations of lawyers in doing due diligence on clients and toward having lawyers have obligations to report suspicious activity.

Interestingly, the memo floats no proposed changes to any rules but only in the guidance offered in comments to rules. Thus, for example, there would be no effort under such a proposal to remove any ethical barriers that currently exist to forcing attorneys to support suspicious transactions beyond what already would be required by law. The potential revisions include:

  • Addition of a new Comment [11] to RPC 1.0 indicating that, as to a lawyer’s knowledge, that it “may be derived from the lawyer’s direct observation, credible information provided by others, reasonable factual inferences, or other circumstances.” And that a lawyer “who ignores or consciously avoids obvious relevant facts may be found to have knowledge of those facts.”
  • Adding several new sentences of guidance to Comment [5] to RPC 1.1 including: “In some circumstances, competent representation may require verifying, or inquiring into, facts provided by the client. Ignoring or consciously avoiding obvious relevant facts, or failure to inquire when warranted, may violate the duty of competence.”
  • Adding significant new language to the Comment to RPC 1.2 including: “To determine whether further inquiry is warranted regarding whether a client is seeking the lawyer’s assistance in criminal or fraudulent activity, including money-laundering or terrorist financing, relevant considerations include: (i) the identity of the client; (ii) the lawyer’s familiarity with the client; (iii) the nature of the requested legal services; and (iv) the relevant jurisdictions involved in the representation (when a jurisdiction is classified by credible sources as high risk for criminal or fraudulent activity).”

You can read the entire memo here and, if you happen to be planning to be in Seattle in February, you can plan to participate in a public roundtable discussion about the potential proposals.

Another area that I predict will be the subject of significant attention in 2022 is whether changes to RPC 5.5 are needed to better address modern legal practice. The restrictions imposed on the ability of a lawyer duly licensed in one state to represent clients in other states or to handle matters because they involve laws of a different state have been questioned, off-and-on, over the years, but the last almost two years of practice in a pandemic has helped push things to a potential boiling point. Perhaps never before has it been easier to make people see the relative-absurdity that RPC 5.5 can prohibit a lawyer with 20 years of business law experience licensed in South Dakota from representing a client in North Dakota who needs a contract drafted but would not prohibit a lawyer licensed in South Dakota who has never handled a tax matter in 20 years of litigation experience from representing a South Dakota client in a tax dispute. I anticipate that 2022 will bring efforts from a number of different groups to seek to modify RPC 5.5 to better offer “full faith and credit” to a lawyer’s law license.

In the meantime, thank you ever so much for your readership, stay safe, and I will see you again in January 2022.

This for Thursday.

Originally, I had plans to do another of those three-in-one posts for today, but we have some news from Tennessee, so we are pivoting to just focus on that development.

I’ve written previously about the Court’s proposal to improve upon the approach to intermediary organizations in Tennessee. Well, yesterday, the Court entered an order adopting those proposed rule revisions effective January 1, 2022.

This means that, starting next year, this better, but not perfect, approach to addressing entities that offer “matching” and similar services between lawyers and consumers of legal services will come into existence.

No longer will such entities have to register in any fashion with the Board of Professional Responsibility because Tenn. Sup. Ct. R. 44 is being deleted. As a result, it will no longer be inherently unethical for a lawyer to accept fees from a client who found their way to the lawyer through an unregistered service.

Instead, whether it is ethical for a lawyer to do business with such an entity will turn significantly more on how transparent the arrangements are and the lawyer will be charged with doing the due diligence about any such entity.

Now, I mention that the new rules approach isn’t perfect — because it is not — but also as a way of justifying highlighting what I anticipate will remain as the “thorniest” issues for lawyers who want to work with such entities.

First, what will we mean when we say, “such entities?” As revised, Tennessee’s RPC 7.6 will apply to lawyer-advertising cooperatives, lawyer referral services, lawyer matching services, online marketing platforms, prepaid legal insurance providers, and “other similar organization[s] that engage[] in referring consumers of legal services to lawyers or facilitating the creation of lawyer-client relationships between consumers of legal services and lawyers willing to provide assistance for which the organization does not bear ultimate responsibility.”

Now, this still has a “catch all” concept, but it might be “better” than the previous catch all in terms of likely to snag fewer companies in its net. Regardless though, it constitutes an improvement in terms of the perspective of both lawyers and consumers, as well as servicer providers, because even if swept into the net, these entities will not have to go through any registration process with the Board.

Second, what will be the easy issues for lawyers to navigate. I think that it will be pretty easy for a lawyer to know whether the organization is trying to direct or regulate the lawyer’s professional judgment, and whether the organization is owned or controlled by the lawyer or their law firm. It will also be easy, perhaps not as easy, but still easy for the lawyer to ensure that the function of the referral arrangement is fully disclosed to the client at the beginning of the interactions with the lawyer and whether the organization “makes the criteria for inclusion available to prospective clients” including payments and fees at the beginning of the client’s interactions with the organization.

Finally, the sticking points. What will be significantly more difficult for the lawyer to determine will be whether the organization, including its agents or employees, are doing anything that involves improper solicitation under RPC 7.3 in Tennessee and whether the organization is only requiring the lawyer to pay “a reasonable sum representing a proportional share of the organization’s administrative and advertising costs.”

And, candidly, this last piece is where the need for further reform exists — it shouldn’t matter what the organization and the lawyer agree is going to be paid in terms of compensation as long as that deal is made fully transparent to the client.

Until then, this rule also at least provides some further protection for lawyers if they end up struggling with being able to figure out these two tougher sticking points because if they discover a problem after they get involved, they don’t have to immediately stop participating. Instead, they can first seek to get the organization to correct the noncompliance. Only if they cannot convince the entity to correct things do they have to withdraw from participation. Importantly, withdrawal from participation in the arrangement is what is required and not withdrawal from representing any client that may have found their way to the lawyer through the program.

Florida again. Sigh.

It has only been a little over a month at this point since I wrote about how Florida was a hopeless place.

Well, here we are again. The Florida Bar Board of Governors has unanimously rejected a few proposals aimed toward progress in the re-regulation of the practice of law in the last week or so. Now, I want to be realistic in both my outrage and disappointment.

So, let’s talk first about the much less surprising piece of this development because it is just Florida rejecting something that, to date, most every state has rejected and only two states and the District of Columbia have been willing to consider or enact.

The Florida Bar Board of Governors rejected a proposal that had been submitted to it by a Special Committee to Improve the Delivery of Legal Services established by the Florida Supreme Court. That proposal would have involved amending Florida’s ethics rules to allow some nonlawyer ownership in law firms as long as the majority ownership interest was still in the hands of lawyers and to allow fee-sharing to occur between lawyers and nonlawyers. The proposal involved the notion of giving these kinds of items a try in a regulatory sandbox approach rather than simply throwing doors open wide.

Given that, to date, only Arizona and Utah have joined D.C. in allowing for people without law licenses to have an ownership interest in a law firm, the fact that the Florida Bar rejected this proposal is really not surprising. It is maybe a little bit surprising that the vote was 46-0 and 45-0, but ….

Now, the other aspect of the Special Committee’s suggestions that was rejected at the same time really is a cause for outrage and disappointment. These suggested revisions targeted Florida’s regime for regulating lawyer advertising.

Florida has long been an embarrassment to the profession when it comes to its approach to restricting advertising by lawyers. And while reasonable lawyers can disagree about whether revisions to ownership regimes and fee-sharing are an inherently good direction for the profession to pursue, the notion that Florida can continue to insist that it’s approach to lawyer advertising makes sense is beyond the pale at this point.

The Special Committee had suggested revisions to the Florida advertising rules that were intended to streamline the rules — in large part this was proposed to be done by moving some of the more detailed rules into comments — if this sounds familiar to readers of this blog that would be because it should be. This kind of revision was recently enacted in Tennessee, and the Tennessee endeavor was inspired by the same things that inspired the proposal of the Florida Special Committee, the work of APRL in encouraging these kinds of revisions and the adoption by the ABA of more streamline advertising rules. The Florida Special Committee also proposed ending Florida’s mandatory review process of lawyer advertisements that offer more than just basic information or are not law firm websites.

The notion that a prominent member of the Florida Bar Board of Governors could explain opposition to such proposals by saying:

“While well intentioned, I think both of them are ahead of their time,” Sellers said.

That is the stuff of farce if not outright gaslighting. Ahead of their time? I guess if Florida wants to insist that it is the 1990s down there in terms of the refusal to streamline, and I guess the 1970s down there in refusing to stop imposing a prior restraint on constitutional speech, then, sure.

The notion that the vote on that was also unanimous (43-0) is extremely unsettling.

To be clear about what we are talking about when we talk about Florida’s advertising rules, these are rules that still, in 2021, have an entire separate rule prohibiting certain forms of advertisements as being somehow “unduly manipulative” because they contain the image or a voice of a celebrity. This is a state that has rule that also makes it improper to advertise using “an image, sound, video or dramatization in a manner that is designed to solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client.” This is a state that still has an entire separate rule that purports to tell lawyers what content for their advertisement will be “presumptively valid content.”

All of that is bad enough, but the notion that Florida still imposes a pre-publication review requirement for commercial speech — a concept that is anathema to any reasonable understanding of the First Amendment — and that its governing body of lawyers just reaffirmed unanimously that this should continue is just … sad.

Following up despite it not being Friday – Tennessee advertising changes

So, sort of as promised, or at least in substantial compliance with a prior promise, I wanted to elaborate a bit more on the news out of Tennessee that we have adopted revisions to our lawyer advertising rules and talk a bit about what is now a new, pending proposal put out directly by the Tennessee Supreme Court.

As to the changes that were adopted, I scooped my own blog by articulating most of those more detailed thoughts in this piece for Bloomberg Law put together by Melissa Heelan.

The one topic I didn’t really mention in that interaction was the fact that the revisions also create a new exception to allow in-person solicitation directed at “a person who routinely uses for business purposes the type of legal services offered by the lawyer.” This is a category slightly different than what the TBA had proposed to the Court but still an improvement on the existing rule.

As to the Court’s new, separate proposal for how to revise Tennessee’s treatment of “intermediary organizations,” the TBA had proposed a “surgical” revision that simply would have removed a “catch all” category from how the concept of an “intermediary organization” is defined. The TBA did not seek to propose any changes to any other aspect of the regulatory structure that requires such organizations to register with the Court.

The Court now has. It has proposed for public comment a revision that would delete Tenn. Sup. Ct. R. 44 in its entirety and that would make some significant revisions to RPC 7.6 itself but that would still leave something of a “catch all” in the definition, though not as broad as the current rule and a few other revisions to the ethics rule portions. Importantly, because the proposal removes the requirements of registration and some other obstacles, what it leaves is a rule that largely places the burden on individual lawyers to make certain they are only doing business with entities that conduct themselves in a fashion that is consistent with the lawyer’s own ethical obligations. The proposed revised rule also requires transparency from the intermediary organization in terms of the furnishing of information to those who might use its services to find a lawyer. Speaking of transparency, the proposal is transparently inspired by a similar proposal recently adopted in North Carolina. You can read the full court proposal at the link below.

Given the removal of the more onerous requirements of Rule 44, this proposal seems worthy of public support as it would seem to make it much more likely that entities that can offer “matching” services that Tennessee lawyers and consumers of legal services alike are interested in using will do so in an open, above-board fashion.

In sum, the proposed revised version of RPC 7.6, paired with the deletion of Rule 44, would appear to be a rule more likely to be complied with rather than ignored.

If you are interested in submitting any public comment to the Court, you have until November 30, 2021 to do so.

TN Adopts Revisions to Lawyer Advertising Rules

This site has not historically been a “breaking” news sort of site. Today will be an exception with very pithy editorial content.

I am very happy to report that the Tennessee Supreme Court today adopted proposed revisions to the lawyer advertising rules which I have written about in the past. You can download today’s order at the link below.

The Court did not adopt the proposal that had been made for revising our rule on lawyer intermediary services but did put out a separate order proposing different revisions. I will write more about that, and discuss these changes a bit more, later this week.