Category Archives: Bar Discipline

Email Awkwardness

If you’ve been practicing law for more than 20 years, you will recall the hand-wringing over the advent of email. Too informal, too insecure, couldn’t be trusted with client information, etc. But the voices of lawyerly caution never had much of a chance; email was simply too effective, too widely adopted. People and businesses far and wide plowed ahead with using it, and the concerns of the lawyers were shunted to the wayside.

Since that time, the vast majority of lawyers have become adept at using email. Sure, there are still too many disclaimers, and many lawyers have retained the practice of attaching letters to an email when the email itself would do just fine. But still – as a profession, we’re good with email as a tool.

But sometimes we still can’t figure out how to use it.

Case in point – the fawning email sent by Randall Rader – the Chief Judge of the Federal Circuit Court of Appeals – to Edward Reines, a patent lawyer at Weil Gotshal & Manges who often appeared before the court.
Rader Email to ReinesThe email, as you can see, lauds Reines’ abilities, and invites him to share the judge’s praise with others. Had Reines done the usual thing – smiled, sent the judge back a personal thank you, and filed away or deleted the email – there would be nothing to see here. Instead – because even white shoe Biglaw partners have to hustle for a buck – Reines forwarded the email to dozens of clients and potential clients, using it as a platform for selling his services.

As one might expect, this didn’t go well. When news of the email surfaced back in May, Rader quickly stepped down from his role as Chief Judge.  His message came at a particularly bad time for the Federal Circuit, which has been facing increasing criticism (not to mention Supreme Court reversals) for being far too cozy with the patent bar.

And now Reines has been reprimanded by the Federal Circuit, for violating Model Rule of Professional Conduct 8.4(e), which prohibits stating or implying the ability to influence a government official.

I think, as Reines unsuccessfully argued, that this is going too far. The email reveals that at least one Federal District court judge (and several others by implication) is very impressed with the quality of Reines’ work.  And as I have written about before, praise from judges is valuable as a marketing tool precisely because of its scarcity value.  Indeed, Rader’s encouraging Reines to broadcast the email acknowledges the rarity of this kind of praise.

The court, in applying the discipline, focused on Rader’s references to his friendship with Reines, and the fact that other parts of Reines’ marketing communications referred to his stature in the court and knowledge of the judges.  The court seized on these factors as somehow being distinct from advocacy skills (because being an effective advocate is completely separate from having credibility and knowing the judges well enough to know which sorts of arguments resonate with them?), and also somehow being indicative of a nefarious intent to unduly influence the judges.

Had he to do it over, I’m sure Reines would have chosen a different approach.  But there shouldn’t be a professional discipline penalty for crowing that the head judge of the court where you do most of your work thinks you’re the cat’s pajamas.  Reines should have a first amendment right to let people – including potential clients – know how well-regarded he is by the court.  Those potential clients can then choose for themselves whether it feels like too much of “look how special I am!”

Um, yeah . . . that’s not how you do it

So let’s say you’re a legal blogger. One day, when writing about developments at your local court, you get a little carried away. You suggest that the judges might be venal, corrupt, unscrupulous. You don’t mince words.

So the Bar comes calling. Because while attorneys can certainly exercise their first amendment rights in criticizing judges, there are limits (limits roughly congruent with the counters of public figure defamation) to so doing.

Faced with disciplinary proceedings in such circumstances, you would have choices. You could choose to be remorseful, and plead a temporary overload of emotion. You could choose to stand on your rights, and argue that your statements are protected by the first amendment and that the judges should grow a thicker skin.

Or, you could choose to sue the disciplinary authorities for copyright infringement for including portions of your blog in the disciplinary filings.

If you wonder how door #3 would work out, well, it’s about what you would expect.

Attorney Licensing and Restraint of Trade

Tomorrow, the Supreme Court hears oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission.  It’s a case of not-inconsiderable interest to state attorney regulators, as the central issue is the extent to which state licensing boards can clear the field of non-licensed competition.

The primary point is based in antitrust law, and whether the “state action doctrine” (which immunizes state agencies from most antitrust law) applies to entities – like licensing boards – which have been granted regulatory authority by the state, but which are made up largely of market participants rather than neutral regulators.

You can see why this would be a problem.  Grant competitors the right to regulate the field, provide minimal-to-no objective oversight, and you’ve set the stage for all manner of anti-competitive behavior.

In North Carolina, this predictably enough resulted in the Board of Dental Examiners (an entity largely composed of practicing dentists) ordering non-dentists to stop providing teeth whitening services.

The parallels to law aren’t hard to see.  Most states have very loosey-goosey definitions of “the practice of law,” which are often used to exclude non-attorney businesses that do something that remotely smells of “legal.”  Real estate brokers, document preparers, accountants, etc. – all have at one point or another been the legal industry equivalent of mall kiosk teeth whiteners.

While not every state is regulated in this way, many have boards and commissions that carry out regulatory functions with little to no state oversight.  Advertising review commissions come immediately to mind.  Attorneys practicing in less benighted jurisdictions may not be aware that in places like Florida, most advertising must pass a gauntlet of review by a board of one’s competitors.  And, to add insult to injury, attorneys have to pay for this little exercise.  It’s a practice rife with problems and obvious antitrust concerns.

It certainly wouldn’t be a bad thing if state licensing boards had their wings clipped. There’s little to recommend the granting of state monopoly power to a group of market participants and then letting them exclude competition with impunity.  The practice is bad for consumers, protects entrenched interests, and acts as a drag on innovation. Pulling the state action doctrine back wouldn’t prevent the Bars from regulating, but it would be a step toward them – and all licensing boards – doing so in a more measured and appropriate way.

An Insult to Glaciers

I’ve been speaking and writing about the intersection of social media and the attorney advertising rules for over seven years now.  I often speak in California, and years ago I seized upon something happening in California to illustrate one of my themes. It goes something like this:

I tell attorneys that they need to understand the constitutional limits of the RPCs when it comes to attorney speech regulation, because they can’t very well look to the RPCs for specific guidance .  Communications media are just evolving far too quickly.  I would then point to an effort ongoing in California to align that state’s RPCs more closely to the ABA Model Rules, and note that the process had started a decade earlier, before anyone had even thought of Facebook, Twitter, etc.  You can’t possibly expect the output of such a deliberative process to speak specifically to any particular communication platform, I would say. 1

It then became a 11-year process.  Then 12 years.  Then 13, and finally 14 years.

And now it’s over, with nothing to show for the effort but an order of the California Supreme Court kicking the whole thing back for a re-do.  As in “back to square one.”

One the one hand, I like that this keeps my rhetorical method alive.  If anything, the state’s indecisiveness just reinforces the fact that attorneys can’t possibly hope for the RPCs, which change at a glacial pace, to speak specifically to new forms of communication.

But on the other hand, I feel bad for all of the leaders in the California ethics bar who worked so hard over the years on these changes.  Sheesh.  At this rate their grandkids are going to be leading the charge to get the California rules squared away. 2

Notes:

  1. Ironically, however, California HAS issued the most useful – and specifically detailed – ethics opinion relating to when attorney use of Facebook and Twitter crosses the line into regulated attorney advertising.
  2. And while I can’t speak for the substance of most of the proposed rule changes, I would love to see California get rid of the plainly-unconstitutional communications “standards” found in RPC 1-400.

Naughty Words Attorneys Can’t Use

Attorney ethics rules offer some great examples of the problems inherent in the mechanistic application of the law.  Sometimes, it’s a matter of a well-founded rules being applied to circumstances where technology has gutted the purpose of the rule . 1  But other times, it’s a case of the expansive regulator: the deacons at the bar stretching the breadth of the rule far beyond its logical (or constitutional) limits.

Back in 1990, the Supreme Court held, in Peel v. ARDC, that a bar can’t prohibit an attorney from truthfully advertising that they had been certified as a specialist by a bona fide organization.  The Court also expressed skepticism about the state’s position that the word “specialist” has a unique, narrow meaning apart from its generally understood meaning of “a person who has special knowledge and skill relating to a particular job.” 2  Nonetheless, many states (including Florida and New York) continue to prohibit attorneys from using terms like “specialist,” “specialize,” “expert,” and “expertise” except in conjunction with a bona fide certification.

What these states are missing is that it’s the certification that’s doing the work.  It’s false and misleading if attorneys hold themselves out as being “certified” specialists or experts when no legitimate certifying agency has conferred the honor. But the use of general terms like “specialist” or “expertise” on a standalone basis, with no claim of third party certification?  There is virtually no question that prohibiting such use is unconstitutional.

The wonderfully-named New Orleans attorney Kearney Soniat du Fossat Loughlin thought so too.  He had been disciplined by the Louisiana disciplinary board for stating on his website: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.”  Loughlin wasn’t content to take this slap on the wrist, so he appealed the discipline to the Louisiana Supreme Court, challenging the constitutionality of Louisiana’s prohibition on the use of the word “specializing.”

Loughlin won.  Unfortunately, he won because the court found that a) he hadn’t intended to break the rule and 2) the public wasn’t harmed.  It didn’t address his constitutional argument.

It’s great the Loughlin was willing to take on the bar.  I wish more attorneys would do so in cases like this.  There are real problems with false advertising that the bars can go after, but policing the use of  harmless, ordinary words isn’t one of them.

Notes:

  1. For example, prohibitions on fee-splitting being applied to purchases via Groupon, where there is no danger whatsoever of the fee split interfering with the lawyer’s independent professional judgment.
  2. Thanks, Mirriam-Webster!

Attorneys: It’s Not Always OK to Lie

SangaryLook, it’s OK to lie.  Or, at least, outside of some fairly specific circumstances, the government can’t punish you for lying.  Go check out U.S. v. Alvarez – and the now-unconstitutional “Stolen Valor Act” to see what I mean.

That doesn’t mean it’s not despicable to pass oneself off as a Medal of Honor winner, and the same First Amendment that protects our lies 1 also allows us to call out those practicing such behavior as the pathetic lowlifes that they are.

Which bring us to the tale of Los Angelese attorney Svitlana Sangary, who festooned her law firm website with numerous photos of Ms. Sangary hanging with celebrities.  Problem was, it was all phony – Sangary had photoshopped herself into all of the pictures.  She now finds herself facing the likely suspension of her law license.

Now, it’s important to note that the potential suspension recommended by the California State Bar Court wasn’t only because Sangary put some phony photos on her website.  It’s also because she utterly failed to cooperate, behaved in a manner that’s textbook “How Not to Handle a Bar Complaint,” and generally acted as a poster child for the proposition that admission to the Bar is no guarantee of fitness to practice law.

But I want to focus on the photos.   Sangary would have a good First Amendment defense if the bar had come after her for having the photos at issue here on a personal blog, facebook profile, or the walls of her office.  Just like everyone else, attorneys have the right to lie.  They might do so for any number of reasons: lack of self-esteem issues, to piss people off, or abject failure to understand social norms.

And again, remember: this isn’t to say that it’s not shameless and pathetic for a lawyer (or anyone, really) to behave in this way.  It is.  It’s just that there  can’t be any state-sanctioned penalties for so doing.

However, one reason for lying that isn’t protected by the First Amendment is commercial speech.  Not only is commercial speech in general subject to less protection than “core” speech (intermediate vs. strict scrutiny), false commercial speech is entitled to NO First Amendment protection.

So, Sangary’s photos.  There’s no question her website is a form of advertising, nor that the page with the doctored photos was designed to fulfill a particular marketing task: instilling Sangary’s potential clients with a feeling of trust, cachet, and exclusivity.   Thus the photos are a form of false advertising, and easily form the basis for Sangary to be disciplined.

That, plus the crazy way she handled it.  Seriously, the details in the judge’s order are a stark example of why consumers need to do more than be starstruck by a few celebrity photos when it comes time to choose a lawyer.

Notes:

  1. Or, more aptly, protects us from the chilling effect of laws allowing the government to determine what is true and what is false.

NC Attorney Goes 0-4 on Ad Claims

In a classic example of Eric Turkewitz’ famous aphorism, “outsource your marketing, outsource your ethics,” a North Carolina attorney has just been disciplined for a number of sloppily-worded claims on her website.   The Grievance Committee of the North Carolina bar did not take kindly to attorney Stephanie Villaver’s “dog ate my homework” defense blaming her website designer.  The fact that she may have tried to cover up her own inattention to the matter surely didn’t help things, either.

However, my interest is in the advertising claims that formed the basis of her discipline.  On her website, Villaver stated that:

  1. She is “Jacksonville’s best car accident claim attorney.”
  2. She is the “Jacksonville, North Carolina’s personal injury specialist.”
  3. Her team “specializes in traffic ticket matters.”
  4. She can get a person “the settlement you deserve.”

The grievance committee found that each of these statements violated the Rules of Professional Conduct, to wit and in order:

  1. A claim that cannot be factually substantiated.
  2. Implication that an attorney is a certified specialist.
  3. Ditto.
  4. Guaranteeing results.

Again, it’s likely the case that the attorney’s evasive and non-responsive handling of this matter was the primary reason the Bar lowered the boom on her.  Had she immediately corrected the website, there’s almost no chance she would have been disciplined.

But the phrases in question – should they really form the basis of discipline?  The first and the fourth are not “claims that can be factually substantiated” or “promises of results;” they are nothing more than the same vacuous puffery that every business that has given up employing any creativity in marketing uses in a half-hearted attempt to reach new customers.  These are anything but effective advertising messages.  But that’s also why they shouldn’t be regulated by the bar: they aren’t going to cause any consumer confusion.  Every consumer knows how empty of meaning these terms are.

As for the use of the dread “specialist” term, North Carolina has fallen for the trap of expanding its regulatory reach beyond its constitutional limitations.  For although NC’s rule in this area (7.4) prohibits attorneys from indicating they have been certified as specialists in a given area unless they have such certification (a restriction the Supreme Court found lawful in the Peel case), the comments to the rules expand it to make ALL uses of the term “specialize” verboten – even when there is no implication that a third party has certified the attorney in that area. 1

I don’t feel that badly for an attorney who didn’t pay attention to her marketing and then failed to quickly address the problem.  But I do wish the states would devote their enforcement resources to those engaging in real, consumer impacting abuses – and not those who simply resort to hackneyed marketing cliches.

Notes:

  1. Yes, the comment to the rule states that “the use of the word “specialize” in any of its variant forms connotes to the public a particular expertise often subject to recognition by the state;” that, I daresay, is larding far too much significance onto a term synonymous only with focus and concentration in a particular subject.

Critiquing New York’s Social Media Ethics Guidelines

Last week, the New York State Bar Association came out with a comprehensive set of “social media ethics guidelines.”   The creators take pains to point out that what they’ve created is more like the Pirate’s Code than something having the force of law.

 

Which is fair, considering the NYSBA isn’t a mandatory bar association and it has no licensing or disciplinary power over attorneys.

Nonetheless, given the prominence of the organization and the depth into which social media has been delved, these Guidelines are sure to get much attention, and even deference.  So let’s look at how good a job the NYSBA did on the portions of the Guidelines relating to social media and the advertising rules.

 Guideline No. 1.A Applicability of Advertising Rules

The NYSBA says that for social media profiles used for “hybrid” purposes – both personal and business – it would be “prudent” to assume the attorney advertising rules apply.   That’s fair, if a bit conservative.  Social media profiles that have a mixed purpose (as properly used ones would) aren’t commercial speech; there wouldn’t be a need to put an advertising disclaimer on a twitter bio, for instance.  The question would really turn – as the California Bar noted – on the substance of individual social media updates.

As putting advertising messages in social media updates is spectacularly clumsy and ineffective, there’s a very simple way to avoid the question of the ethics rules entirely:

Don’t include advertising messages in your social media updates.

Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media

The NYSBA says that lawyers can’t include any information under a heading that reads “Specialist” (and, presumably, the derivative “specialties”).  Some social media platforms may have default headings like this, and the NYSBA view is consistent with New York’s advertising rules (and those of many other states) that prohibit the use of terms like “specialist,” “specialty,” “expert,” and “expertise.”

That doesn’t make it right.  None of these “forbidden words” regulations are likely to survive constitutional scrutiny.  The problem is statements that mislead consumers into thinking some legitimate organization has certified an attorney as a specialist.  Without reference to third-party certification, these statements simply indicate the attorney’s area of focus and attention.  And there’s no legitimate state interest in preventing an attorney from innocuously stating, for example, that they “specialize” in elder law, or have “expertise” in federal energy regulation.

Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content

This one starts out OK, noting that attorneys aren’t responsible for social media postings made by others – say, reviews on Avvo or comments on a lawyer’s blog.  It’s nice of the NYSBA to recognize this, since the law – 47 U.S.C. 230(c)(1), to be precise – explicitly states that people aren’t responsible for third-party postings.

But then the Guidelines get into more troubling territory.  First comes the assertion that attorneys are responsible for such comments when the attorney “prompts such person to
post the information or otherwise uses such person to circumvent the ethics rules concerning advertising.”

The latter part is fine; as New York attorney Eric Turkewitz famously noted, “outsourcing marketing = outsourcing ethics.”  There’s no question an attorney would be responsible for content created at the lawyer’s behest by a third party.

But “prompted?”  That’s far too overreaching.  Attorneys SHOULD be prompting their clients to leave online feedback for them.  And unless the attorneys are putting words in their client’s mouths, they are not responsible – under the attorney advertising rules or otherwise – for what those clients write. 1

Doubling down, the NYSBA then goes on to state that attorneys have an obligation to monitor third party information posted to their social media profiles, and take down anything that may run afoul of the advertising rules.  If the attorney can’t remove it, they’re supposed to ask the person who posted it to remove it.  And failing that, they should consider whether a “curative post” needs to be made.

While there’s no question that moderation is a good idea, there’s also no question that attorneys shouldn’t have the force of law hanging over the diligence of that moderation.   I’d rather see a state for once recognize that this regulatory interpretation is completely preempted by federal law rather than chilling attorney use of social media.

2. FURNISHING OF LEGAL ADVICE THROUGH SOCIAL MEDIA

Guideline No. 2.A: Provision of General Information

The Guidelines note that it’s OK to provide general information over social media, but not to provide specific legal advice, given concerns about creating an attorney-client relationship and disclosing privileged information.

That’s sound advice, for the most part.  However, it’s not a concern in places – like Avvo Answers or Quora – where the person asking the question is anonymous.  It’s also important to recognize that social media in many ways is simply facilitating the types of general legal discussions that attorneys have always had with friends, colleagues and acquaintance offline.  General information to orient the asker is given first, with more specifics – if necessary – provided in a more formal setting.  There’s nothing unique about social media in this respect.

Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications

I liked this part of the Guidelines, as it bolsters the idea that only “live” communications – whether in-person, telephonic, or electronic – are subject to limitation as solicitation. Soliciting business through social media may be ugly and counter-productive, but it shouldn’t lead to an ethics violation.

The remaining Guidelines relate to how to handle social media questions that come up while representing clients and in litigation.  They seem complete, thoughtful and well-balanced.  And while it’s beyond the scope of this post, I’ll make this observation: for lawyers who represent consumers – particularly in litigation – facility with social media is rapidly becoming a job requirement.

Notes:

  1. Again, thanks to 47 U.S.C. 230(c)(1).