Two updates and a (hidden) microphone.

A few items for your consideration over this coming long, Labor Day weekend.

The first is an update on a proposed ethics opinion made the subject of an earlier post.  The Florida Bar’s Board of Governors has now ultimately decided to reject the approach that had been recommended by its advertising subcommittee, which proposed that would have treated text message communications to prospective clients as being the same as in-person, real time communications and, instead, will treat them similar to email and other written communications.  You can read the ABA Journal’s story on the ultimate outcome here.  As I wrote back at the time, while I disagreed with the interpretation of the particular rule they seemed to be trying use to ban text message solicitations, I actually would tend to conclude that these days text messages are the kind of real-time communication that makes sense to regulate the same way as telephone calls.  That being said, I really don’t have a problem with where Florida finally shook out on this issue.  And, frankly, if you go read the Florida rule that folks trying to send text message solicitations are going to have to comply with … it is hard to figure out an efficient way to do so where the substance of your message is not going to be drowned out by all of the required prophylactic language for written solicitations in Florida.  I mean, just focusing on two of the requirements, means that any such text message would have to start something like this … “Advertisement:  If you have already retained a lawyer for this matter, please disregard …. ”  I mean good luck getting anybody to actually open up and read that text.

The second is a further update on my 2015 Ethics Roadshow, the registration links for Nashville, Chattanooga, and Knoxville are now all up and available as well.  Like with the Memphis link, these links also tell you about my The Hitchhiker’s Guide to the Galaxy inspired theme for this year and give you the options for how you can submit topics or questions you’d like to see covered at the seminar.

If you are a lawyer in Tennessee, then one question you might have is what in the world to do if you begin to suspect that a conversation that you had with a client that you thought was private actually may have been recorded by a hidden microphone set up outside of the courthouse.  While that sounds like a fun, somewhat outlandish, hypothetical, my third item for your consideration is the news that this was reality in Knoxville, Tennessee for about two weeks.  The good news is that it is a question that, for now, would only be germane for that two week period and it sounds like (no pun intended) the equipment wasn’t really all that good and so not much was actually picked up in a fashion that could be comprehended.  You can read the story here.

There are real repercussions to the fact that there seems to be no place where one can venture outside your house or office and not be picked up on camera.  Some of those repercussions are good ones, some bad.  For lawyers, while I agree completely with the sentiment expressed in one of the first stories that broke the news of this situation that it would be reasonable for lawyers to expect there would be some significant advance warning and publicity efforts to alert the bar to the fact that this kind of audio surveillance equipment had been put into place, I also think that we have no choice but to assume that any conversation with our clients, about their cases, in public settings is risky.  That being said, we can’t guard against everything.  All we can do is think through whether, in any particular setting, we and our client can demonstrate that our expectation that we were having a communications that was private was reasonable.

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