The intersection of the First Amendment and the Ethics Rules

So, I don’t know if any of you have ever played HQ Trivia.  In any session, they have between 500,000 and almost 2 million players, so statistically speaking, I guess there is a chance you have.  While it has nothing to do with legal ethics, in order to understand the context of what follows, let me give you a quick primer.

It is something that would have been 5 years ago the stuff of science fiction or an even an episode of Black Mirror.  It is an app on your phone through which you can play trivia in real-time answering questions read by a human being host.  Each question is presented with three multiple-choice answers and you have 10 seconds from when the host starts reading the question to click your answer.  If you answer correctly, you get to move on to the next question.  If you don’t, you are eliminated.  In the standard format, the quiz consists of 12 questions and, if you answer all the questions correctly, you win or split the pot with any other players who have done so.  (When the largest pots are offered they increase the number of questions to 15 or, quite recently, they have experimented with as many questions as is necessary to narrow down to just winner in a winner-take-all format.)

The dollar amount of the prize varies.  It is typically $2,500 but, as it appears they are closer to whatever plan they have in place for monetizing the app approaches, they have recently offered a pot as large as $100,0o0.  Reportedly, tonight they will be offering a $250,000 pot.  I have won the game on one occasion and, of course, when I did there were so many other winners that my share came to just shy of $2.  (I also know there are other companies doing similar games and some of those are competing against HQ on the basis of how awful one particular financial backer of HQ reportedly is, so I’m not going to link or provide publicity to the game, but it is the one I play [for better or worse] so if you decide to sign up for it and put in my user name – bsfaughnan- as a referral code then I will get some extra lives.)

Now all that is background for today’s topic – which is the intersection and overlap of the ethics rules and what they prohibit members of our profession from doing and the First Amendment.  This topic is frequently one I spend time thinking about because for many years my practice has also involved representing clients on First Amendment issues and, in fact, though I continue to not be listed in Best Lawyerfor Legal Ethics and Professional Responsibility, in addition to being listed for Appellate Law, I am listed for Litigation-First Amendment.  It is also a topic that I have been thinkng about frequently because of various events that have worked their way into my line of sight either directly or indirectly.  Those three events are: (1) the outpouring of comments from particular portions of the bar in Tennessee arguing that the proposed RPC 8.4(g) in Tennessee is an assault on their First Amendment rights; (2) the latest post from Avvo’s GC criticizing ABA Formal Op. 480; and (3) the head of a prominent law firm speaking out publicly to indicate that a star lawyer of his firm turned down the opportunity to represent the current occupant of The White House.

So, here’s the HQ-style question and, remember, there is only one correct answer.  You won’t be limited to 10 seconds to answer from the time you start reading the question however:

Which of these presents the most compelling case for finding that discipline against a lawyer would violate the lawyer’s First Amendment rights?

  • A lawyer tweets – without client permission – about a jury verdict she obtained in order to advertise the successful outcome.
  • A lawyer, during a CLE or bar association social event, decides to lecture everyone in the room about why he considers marriage between two persons of the same gender to be an abomination.
  • A lawyer, consulted by a politician who she finds to be vile, or have views she finds to be vile, holds a press conference or tweets that she refused to represent that politician because she disagrees with everything he stands for.

 

 

Outside counsel guidelines and term limits

While I am on something of a short streak of writing about people much more famous and influential than I am, it seems as good a time as any to offer my thoughts about the article that two very fine lawyers with Hinshaw & Culbertson wrote for The Professional Lawyer in 2017 about even more aspects of the growing problems outside counsel guidelines are creating for lawyers in private practice.  (These same two authors did an earlier article that talked about the problems with indemnity provisions in such guidelines – you can go read that here if you’d like.)  The more recent article was titled The New Battle Over Conflicts of Interest: Should Professional Regulators–or Clients–Decide What is a Conflict?

If you don’t know the article of which I speak, or it has been a while since you read it, you can go read it (again) here.

It is difficult to contest the point being made by the authors in this article, and the earlier one, that increasingly frequent provisions in OCGs are creating real problems for lawyers in private practice.  Particularly so, those pieces of OCGs that feel like they are overreaching related to who must be treated as clients for purposes of determining conflicts.

The authors summarize the nature of these issues quite well as involving clients using OCGs to “expand[] the definition of who is the client (far beyond the bounds of prevailing case law);” “limit[] the universe of other clients from whom lawyers and their firms may accept work;” and to “expand[] the definition of ‘interest’ and ‘positional’ conflicts in order to prevent lawyers and firms from undertaking or continuing to work for other clients that may take public positions on issues that the client unilaterally—and often ex post facto—deems adverse to its own interests.”

What I do disagree with, however, is the authors’ proposal for how to fix this problem.  The authors propose that states amend their versions of Model Rule 5.6 to make it unethical for lawyers to propose or agree to restrictions on their right to practice in connection with being hired by a client, just as is now the case for employment agreements or as terms for resolving a client’s matter.

Under the proposed revision, Rule 5.6 would read as follows (the bold and italicized piece being the new stuff):

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement
concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the terms of engagement of a lawyer by a client or of the settlement of a client controversy.

My immediate reaction to reading that proposal was to think of the problems I have whenever people argue for imposing term limits on their elected representatives.  You get the opportunity to vote people out every time they come up for re-election.  You shouldn’t need a law that limits the number of terms they can serve because you can always simply just vote them out of office in the regular course of things.

The solution to overreaching in outside counsel guidelines is equally simple: lawyers and firms should reject OCGs that go too far and refuse to agree to terms that unreasonably define who must be treated as the client or that become tantamount to restrictions on the right to practice.

The counterargument for that position is about the same as the counter-argument when the discussion involves term limits — the deck is typically too stacked in favor of incumbents so that the balance of power is truly off and that simply saying “you can vote them out” is naive.

The nature of present day demands on lawyers and law firms means that most firms and lawyers won’t be willing enough to turn work away to push back on outside counsel guidelines that are unreasonable and amount to overreaching.  Any firm that really wants to take a stand will have too much economic pressure on it to do so.  I hear the point, but, while that might be a pretty bad basis for enacting term limits and preventing some truly effective politicians from serving for as long as their constituents might like, it’s an extraordinarily bad basis for revising an ethics rule.

In particular, it is a bad basis for revising an ethics rule when there are already one or more ethics rules that lawyers can point to as being breached by aspects of the very OCGs being complained about.  For example, the authors point out that OCGs, in order to enforce their expansive requirements about what is a conflict, also impose obligations on the lawyer to tell the client about matters they are contemplating undertaking.  In so doing, these OCGs are demanding that lawyers agree to disclose information that they are obligated to treat as confidential under RPC 1.18 (assuming they have that provision in their state).

A lawyer who wants to refuse to agree to outside counsel guidelines of that type would have a strong, persuasive argument to offer not only about that violation but the potential risk that an in-house lawyer would have – if insisting that it remain in the agreement – of being considered to have violated their state’s version of Model Rule 8.4(a) which, in most places, makes it a disciplinary violation for a lawyer to “knowingly … induce” another lawyer to violate the ethics rules.

It also seems to me be a bridge too far for lawyers and firm to be able to demand that clients be permitted to agree to advance conflict waivers and similar contractual provisions which would serve to narrow the scope of conflicts but also demand that clients should not be able to propose that the lawyer agree to treat requirements of conflicts even more broadly.

The authors also offer an alternative to their own proposed revised language – perhaps to avoid issues associated with when a restriction would be made a term of engagement or not, by suggesting that Rule 5.6 could otherwise be revised simply in (b) to prohibit “an agreement containing a restriction on the lawyer’s right to practice.”  There would be significant problems — perhaps in the nature of unintended consequences – that would come from that alternate revised Rule 5.6 proposal.

If someone is being hired as an in-house lawyer, their corporate employer should be permitted to require that they restrict their practice to only representing the corporate employer and not represent any other clients while employed in-house.  Technically speaking, the second version of the revised Rule 5.6 wouldn’t permit that.  And, even if you are a private practice lawyer and one client wants to provide you with enough work that they also want to have you agree that you won’t work on any other matters for any other clients, why shouldn’t that be okay?

There are examples out there of such lawyers other than just Tom Hagen, the lawyer in The Godfather.

And, coincidentally, Hagen’s also a pretty good example of a lawyer who should have simply turned down a proposed client engagement rather than allowing economic benefits to sway his decision.

 

Idaho why I insist on punny titles.

So, those familiar with this space may remember I have written a bit from time-to-time about Tennessee’s proposed rule revision to adopt a modified version of ABA Model Rule 8.4(g).  The future of the proposal is still up in the air and the public comment period continues to run until March 21, 2018.  If you want to, you can go read those comments that have been submitted so far at this link.  The Court regularly updates the contents of the PDF at that link as new comments are submitted.  (Spoiler alert:  quite a few lawyers are pointing to their religious beliefs as being under attack if an ethics rule is adopted that would prohibit them from harassing or discriminating against people and, in the process in my opinion, overlooking the vast chasm that exists between proclaiming one’s personal beliefs but still treating all people with respect and conduct that involves harassing or discriminating against someone.)

The purpose of this post is not exactly to provide an update on Tennessee’s proposal.  Instead, the reason for writing is to share another approach to the topic that I learned of recently when I was getting fully up-to-speed on Idaho’s rules.

Although it was only tangentially relevant to my presentation to the Idaho Prosecuting Attorneys Association, I learned that not only does Idaho have the same RPC 8.4(d) and Comment [3] approach as Tennessee [both patterned after the older ABA Model Rule approach] but, in addition to that, Idaho has additional language targeting lawyer conduct motivated by discrimination in its RPC 4.4.

In Tennessee, for example, RPC 4.4(a)(1) prohibits the following sort of conduct:

(a)       In representing a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person….

Idaho’s version of this rule, however, adds something extra by way of an example of what is included:

(a) In representing a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person, including conduct intended to appeal to or engender bias against a person on account of that person’s
gender, race, religion, national origin, or sexual preference, whether that bias is directed to other counsel, court personnel, witnesses, parties, jurors, judges, judicial officers, or any other participants….

It is an interesting approach because I have found myself, in some discussions at seminars in Tennessee where I’ve discussed my support for the proposed rule responding to examples of things lawyers say could become fodder for a bar complaint if the rule were revised, pointing to the fact that the conduct being described could very well be pursued as a violation of RPC 4.4(a).  I think that’s likely true in a number of litigation-related examples of sexual harassment or usage of racial and other kinds of epithets directed at others involved in the process, but would only cover issues related to when a lawyer is representing a client.  I happen to think that’s likely true in any jurisdiction that has language like Tennessee’s RPC 4.4(a) even without going to the trouble of elaborating on the point as Idaho has in its rule.

But, Idaho’s approach is certainly an interesting one as something of a belt-and-suspenders approach to trying to stop such conduct by lawyers, but only when they are representing clients.

Friday follow up. Good news and bad news.

I seem to be trending toward this model of one new/fresh substantive post early in the week and one of these “FFU” posts at the end of the week, but I’m not sure if this is a rut or my script going forward.  A very intelligent and thoughtful lawyer asked me while I was in Vancouver what my publishing schedule was, and I had to embarrassingly admit that a fixed schedule was not something I had.  I told him what I’d tell you – if you asked — I try my best to at least post twice a week, but the days varies and some weeks I am better at this than I am other weeks.  Not the kind of consistent excellence that builds a readership, I readily admit.

So, oh year.  The follow ups.  Good news and bad news.

First, the good news.  The Oregon Supreme Court has approved the revision to RPC 7.3 in that state that I wrote a bit about recently.  You can read the Oregon court’s order . . . eventually (I can’t find it yet online) [updated 2/10/18 – Thanks to Amber Hollister, you can now see the order hereAmended SCO 18-005 Amending RPC 7-3 and 8-3 signed 2-7-18], but you can get your confirmation that I’m not lying to you here.

Second (also last), the bad news.  D.C. has now officially issued a 60-day suspension (with potential for it to be much longer) for the former G.E. in-house counsel that I wrote some about quite a few moons ago.  One of the panel presentations I had the chance to sit through in Vancouver touched on issues of lawyer whistleblowers.  You can reach your own conclusions about whether we currently live in a world in which lawyers should be encouraged to be whistleblowers (particularly, for example, in-house lawyers in Washington, D.C. these days), but the only conclusion that can be drawn from this D.C. outcome is that anyone who learns about the punishment that was sanctioned will be a whole lot less willing to do so than they would otherwise be.

I remain particularly skeptical of the treatment afforded Ms. Koeck by the D.C. bar given the fact – as discussed way back when (which was itself a FFU almost a year ago so…) – that they also decided to punish the lawyers who gave Ms. Koeck advice and guidance along the way.  Which is, as far as these things go, even a more chilling wrinkle.  You can read a National Law Journal piece on the news out of D.C. here.

If racism is disqualifying for a juror, why not for an aspiring lawyer?

Nothing like the day after a holiday weekend to pose a difficult, potentially controversial, question, right?  But when the holiday weekend in question is one to celebrate the life and legacy of Dr. Martin Luther King, Jr., this particular question is certainly topical.

This is a post I have had rattling around inside of my head since this I read this weighty article from The Huffington Post.  Now, I know, for many, HP is not thought of as a place for weighty articles, but this one really fits the bill.

The article’s title is “Should White Supremacists Be Allowed to Practice Law?”  The article delves into the nature of the question and elaborates a bit on the underlying concept that people who wish to be admitted to the bar in any given state not only have to demonstrate competence in the law but also must satisfy “character and fitness” requirements to be issued a law license at all.

The HP article does an effective job of examining the thorny, and obviously problematic, nature of the problem with staking out a position that someone’s ideas or thoughts alone should prohibit them from being permitted to pursue a chosen profession – a profession for which they have otherwise demonstrated qualifications by passing the required tests and satisfying the objective criteria.  But — given that fundamental principles of white supremacy (for example) can be shown to go beyond mere beliefs and into promised actions and conduct that are at least inherently discriminatory and taken to the logical conclusion of the movement are even genocidal — the slope being argued over does not sound all that slippery in such a context.

Further, the slope our profession has to wrestle with on such a question is inherently slippery because of how subjective the admission standards are as to character and fitness as a concept — the idea that existing lawyers will evaluate the candidacy of applicants for admission to see if they have the requisite “character” and “fitness” to be a member of the profession.  Moreover, as someone who has represented quite a few folks in bar admission proceedings, I can tell you that the admissions process often creates seemingly ridiculous barriers to entry labelled as character and fitness matters.  Traffic offenses and underage drinking as just a few common examples where law school graduates frequently find themselves having to respond to orders to show cause why they shouldn’t be denied admission.

The notion that an avowed white supremacist would be deemed to be an acceptable candidate to practice law from a character standpoint when a person who struggled with a “lead foot” throughout college gets extra scrutiny seems laughable.

For a little more context, here are the admission standards in Tennessee from which character and fitness questions spring:

Tenn. Sup. Ct. R. 7 requires the Board of Law Examiners to decide that an applicant

has demonstrated the reputation and character that in the opinion of the Board indicates no reasonable basis for substantial doubts that the applicant will adhere to the standards of conduct  required of attorneys in this State.  (Section 1.03(d))

The same rule elaborates in more detail what this means:

(a) An applicant shall not be admitted if in the judgment of the Board there is reasonable doubt as to that applicant’s honesty, respect for the rights of others, and adherence to and obedience to the Constitution and laws of Tennessee and the United States as to justify the conclusion that such applicant is not likely to adhere to the duties and standards of conduct imposed on attorneys in this State. Any conduct which would constitute grounds for discipline if engaged in by an attorney in this State shall be considered by the Board in making its evaluation of the character of an applicant.  (Section 6.01)

If espousing an inherent belief that one race is inherently superior to other races and that certain races are so inferior that the world would be better off if they were eliminated from society is not something that would “justify a conclusion that such applicant is not likely to adhere to the duties and standards of conduct imposed on attorneys,” then what exactly is the point of referencing “respect for the rights of others” in such a standard?

And, if even you are inclined to agree that would move the needle in the direction of being unfit, then you probably still might have more difficulty agreeing with the idea that racism is not inherently as bad as white supremacy and is more just an idea or state of mind that should not be regulated and, thus, there can be no cogent argument made that just being a racist should prevent someone from being issued a law license.  After all, as noted above, in Tennessee, the standard requires the Board of Law Examiners to only look to conduct of an applicant which – if undertaken by someone who is already a lawyer could trigger discipline.  You would be hard pressed to find many instances of lawyer discipline imposed against a lawyer merely for holding dear to a belief system, no matter how ignorant or odious.

And, yet, quite recently, the United States Supreme Court issued its decision in Tharpe v. Sellers that reversed and remanded a case over a certificate of appealability in a death penalty case that turns on whether racist statements made by one of the jurors who voted for death could justify the reopening of habeas corpus proceedings premised upon arguments that improper racial animus infected the jury deliberations.

Although the analogy is admittedly not a perfect one, it seems very difficult to feel very comfortable with the idea that racism on the part of a member of the jury is unacceptable but that letting someone with the same views become a lawyer and, thus, be in the position of getting to routinely strike citizens from being selected to be on juries because of the color of their skin is just part of the system.

And, no this is not intended to be an advocacy piece for the proposed rule revision in Tennesee that I’ve written about before, because these questions are extremely ripe ones in my jurisdiction and other jurisdictions under even existing ethics rules.  In Tennessee and elsewhere, the rules already prohibit lawyers, regardless whether they are representing clients or not at the time, from engaging in conduct that is prejudical to the administration of justice.  (RPC 8.4.)

So, I guess the true question to struggle with is this:  Does empowering a racist by conferring a license to practice law on them something that is inherently prejudicial to the administration of justice?

Change is hard. Even where it appears to be wanted.

I have been meaning to do this and am long overdue in getting to it, but you might recall back in the summer of 2017 when I wrote pretty extensively about the contents of the Oregon Futures Task Force Report, and its positive proposed changes to the ethics rules.  If you don’t, you can read those posts here and here.

In November 2017, the chair of the Legal Ethics Committee in Oregon who also was a member of the Futures Task Force was kind enough to drop me a line and update on how those proposed rules revisions were progressing.

Initially the Board of Governors of the Oregon State Bar approved the proposed revisions to RPC 5.4, 7.2, and 7.3 for discussion and voting by its House of Delegates.

After the process in the House of Delegates, in which there was quite a significant amount of debate and discussion as I am told, the proposed revisions to RPC 5.4 and 7.2 were referred back to the Board of Governors to a study committee, but the proposed revision to RPC 7.3 was passed and has been submitted to the Oregon Supreme Court so it can decide whether to adopt it or not.

While in my prior postings I discussed the RPC 5.4 proposed revision at some length, I did not provide any real detail of the RPC 7.3 change Oregon was considering beyond the fact that it would involve allowing in-person or real-time electronic solicitation, with limited exceptions.  For the record, this is what the Oregon Supreme Court now has in front of it for consideration:

RULE 7.3 SOLICITATION OF CLIENTS
A lawyer shall not solicit professional employment by any means if:

(a) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person who is the target of the solicitation is such that the person could not exercise reasonable judgment in employing a lawyer;
(b) the [person who is the] target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(c) the solicitation involves coercion, duress or harassment.

Now, you know what I know on this topic.

 

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.

Three-For-Tuesday.

Any old radio station in your town (most probably one playing “Classic Rock”) can provide you with a Two-For-Tuesday, but where else will you find a Three-For approach to this otherwise underrated day of the week?

First, I recently let you know that Tennessee was in play with a proposed version of RPC 8.4(g) to make harassing and discriminatory conduct related to the practice of law a violation of the ethics rules.  The Tennessee Supreme Court has put that joint petition out for public comment and has set a March 21, 2018 deadline for submissions.  So, by the time we know the outcome of the joint petition, you’ll have had the chance to go see two highly-anticipated film adaptations of very good books, A Wrinkle in Time, and Ready Player One.

Second, I’ve written recently about how rare lawsuits tend to be where a lawyer or law firm sues another lawyer or law firm over marketing activities.  There are lots of reasons that firms can tend to be reluctant to file such suits, but if you are looking for various objective indications of just how harshly competitive the marketplace for legal services is getting these days – and how much lawyers perceive their futures to be at risk – the fact that such suits seem to be happening with greater frequency is one such indicator.  Here is a link to the latest example where one advertising law firm has sued another over advertising firm over the design of billboards and whether those are serving to mislead consumers into confusion over which is which.

One of the billboards says “Injured?  Results You Deserve.”  The other says “Injured?  Don’t stand alone.”  Now, neither one of them are exactly fabulous exemplars of good marketing I guess.  I mean, you might see the first one and think, I’m kind of a shiftless person and I’m not sure the accident was anyone’s fault.  I’d rather not get the result I deserve.  And the other one might strike you as tone-deaf if you were so badly injured that you can’t stand at all.

Either way though, let me say this, there is a movie out in theaters now called Three Billboards, and I think a good third one to put out on this Massachusetts interstate would be one that reads:  “Injured?  Not by my billboard.”

Third, and speaking of advertising, based on this recent headline out of Ontario, it appears pretty clear that my words of wisdom and encouragement to a throng of Canadian lawyers suggesting they chill out about advertising issues was not a butterfly-flapping-its-wings-bringing-about-global-change kind of moment, but more akin to the impact that a butterfly makes on the windshield of a moving car.  In keeping with today’s theme, while it is incredibly untimely as far as movie recommendations go, it is still true to say that if someone is going to force you to watch an Ashton Kutcher film, The Butterfly Effect is your best option.

RPC 8.4(g) – Tennessee is in play

I’m pleased to report that, yesterday, a joint petition was filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility asking the Tennessee Supreme Court to adopt an RPC 8.4(g) patterned after the ABA Model Rule.

As I’ve written here in the past, I’ve long been hopeful (not necessarily optimistic but certainly hopeful) that states like mine would take action to enshrine a prohibition on harassment and discrimination into our ethics rules.

You can read the petition filed yesterday by clicking on this link: (filed_tsc_rule_8_rpc_8.4_g .)  As you’ll see, in my capacity as Chair of the TBA Standing Committee on Ethics and Professional Responsibility, I am one of the signatories on the petition.  I am certain that there will be some public comments filed in opposition to the petition, but I’d like to think that the fact that both the TBA and the BPR are behind this effort will make it more viable for the Court to grant the petition even in the face of some opposition.

More importantly, as a matter of principle, I think the petition is one that should be granted because the proposed rule is a good and necessary one.

We’ve made some very good additional revisions to the ABA Model Rule in our drafting process — additional revisions that even more clearly help delineate that the kind of conduct prohibited by this proposed rule is conduct that has no place in our profession but does not go so far as to infringe on important First Amendment rights of lawyers.

We made two prominent, and I think important, revisions in the new comment paragraphs that would elaborate on the new (g) provision.  Exhibit B to the petition offers a redline showing how what we have proposed differs from the language of the ABA Model Rule, but I will lay them out here because of the significance.

First, we have added the following final sentence to Comment [4]:

Legitimate advocacy protected by Section (g) includes advocacy in any conduct related to the practice of the law, including circumstances where a lawyer is not representing a client and outside traditional settings where a lawyer act as an advocate, such as litigation.

Second,  we have added a Comment [4a] not found in the Model Rule, that provides:

Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment.  Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section.

I anticipate that our Court will likely put this proposed rule change out for public comment before the end of the year.

Advocating for attorney advertising.

So, back in August, I mentioned that I was going to have the opportunity to debate issues of lawyer advertising before an audience of top-notch Canadian lawyers in November.  This post is something of a coda to that post as I want to, very briefly, say a word or two about that talk.

It was, as I anticipated, a highly rewarding experience and all of the attorneys affiliated with The Advocates’ Society with whom I had the opportunity to meet and speak were delightful.

During the presentation, my job was to be the one to give voice to things that those assembled might not want to hear.  So, to start things off, I broke the news to them all that we don’t pronounce Hermitage, as in The Hermitage Hotel, in the fancy manner they were wont to do.  After having dealt that disappointing blow, I gave my pitch about what regulation of lawyer advertising should be, and what it shouldn’t be.

I tried to do so with a focus on things beyond just the protections afforded under our First Amendment for commercial speech because they don’t have anything quite the same under their nation’s law.

Those points – which I will happily repeat as many times as anyone ever gives me the chance to do so — are:

  • Ethical restrictions on lawyer advertising ought to pretty much start and end with prohibiting statements that are false or actually misleading.
  • It is pretty much a universal truth that the only people who complain about lawyer advertisements are other lawyers.
  • Those tasked with regulating attorney conduct don’t particularly like spending time adjudicating squabbles between lawyers about ads.
  • Consumers don’t get worked up about lawyer advertising at least in part because they get it.  If you are paying to advertise something, you are going to emphasize its good points.
  • But consumers also don’t get worked up about it because they don’t view it the way lawyers do.  There are still people out there who simply did not know they could hire a lawyer without having to pay money or who don’t know their problem might be something a lawyer could even help them with at all.
  • Some times the way those people learn this information is because they see some kind of lawyer advertisement in one place or another and, when they do, they don’t particularly think about whether or not it is something that you would think is “dignified.”
  • If you are motivated to want to impose stricter regulations on lawyer advertisements because of a concern that there is not enough public respect for our profession and advertisements that you think should be “beneath” lawyers fosters such disrespect, then I have a suggestion of how you could better direct your energies.
  • Imagine how much more could be done to foster better respect for our profession and what we do if we all focused our energies on encouraging communication of what it is that lawyers do, the role we play in society, and what we bring to the table that can help people in times of need for legal services, including helping educate them that their problem is one that could be helped by the work of a lawyer?