Let’s play a blogpost game we haven’t played in a long time. (Yeah, I know, you’re saying to yourself … well that could be anything since you took all of March 2024 off buddy. A month or so seems long, but it’s actually been almost 7 years since I whipped out the “bad or worst” framing.) Let’s talk about a very recent ethics opinion that really has its problems.
Thanks to it being disseminated earlier this week on the APRL listserv, I’ve learned about the issuance of Massachusetts Bar Association Ethics Opinion 2024-2. You can read the whole thing here:
For those who don’t want to read it, the gist is whether or not a Massachusetts lawyer can advertise on its website citations to published cases where they were counsel without their client’s consent. Now, this opinion presents a very interesting flavor of a bad ethics opinion because it provides a technically correct answer under Massachusetts’ rules. The summary at the outset provides that “technically correct” answer:
A published judicial opinion can nevertheless contain confidential information protected by Rule 1.6…. Accordingly, before including a citation to such an opinion on a firm website, a lawyer must inquire whether the information is “generally known” within the meaning of Rule 1.6(a). If not, and if the information is embarrassing or detrimental to the client, the lawyer must obtain the client’s informed consent before including a citation.
So, because of how broadly rules patterned after ABA Model Rule 1.6 cast the net of confidentiality, what is being said is not wrong. In fact, if you just rewrite the summary a bit more positively, it doesn’t really even provoke any kind of controversial reaction: “As long as the information in the opinion being cited isn’t embarrassing or detrimental to the lawyer’s client, then the lawyer can freely advertise the case.” Without scouring my own blog to confirm it, I’m comfortable that I’ve previously made the point multiple times that 1.6 confidentiality applies to matters of public record and things that happen even in open court for example.
Yet even the reworded guidance would raise questions for lawyers in certain practice areas that other lawyers wouldn’t have to struggle with. For example, would you ever have a published court decision in a divorce case that wouldn’t contain embarrassing information for the client?
In the end, it’s bad because it doesn’t do the helpful and practical thing and reference the concept embedded in the Scope section of the rules that our rules are rules of reason and ought to be construed as such. When you think about the fact that posting a case citation — Johnson v. Gibson, 875 S.W. 5th 5036 (Mass. 2057) — doesn’t really tell anyone anything unless they go to the trouble of going and finding and reading the matter at the citation, then there is no reasonable reason to prohibit a lawyer from using that case citation in a list of published cases to advertise that they are experienced in litigation.
But, if that were the only problem with the opinion, then I probably couldn’t have managed to awake from my stubborn slumber and post, but the opinion ends with a statement that makes it a truly bad opinion worthy of scorn. The opinion ends with an out-of-the-blue final paragraph stating:
In addition, if a firm website regularly features citations to cases in which firm lawyers were involved, the Committee recommends including a disclaimer so as not to mislead other clients that the same results could be obtained for them. Mass. R. Prof. C. 7.1, Comment 3.
This is the level of nonsense that far too often pervades into ethics opinions that try to address advertising issues and results in silly expansions of restrictions on speech that go far beyond what the First Amendment permits — the prohibition of communications that are actually false or misleading.
In a way, it’s almost funnier than it is horrid. Because, when you think about it, any consumer of legal services that is going to go to the trouble of going and finding the cited cases and reading those opinions is pretty much by definition going to be someone who would never somehow think that the same results can be obtained for them purely because they were obtained for someone else.