MyShingle : Solo and Small Law Firm Management and Marketing

Imagine having your bar licenses suspended for two years over a measly $175.  Sadly, that's what happened to this unfortunate Ohio attorney (Respondent) who accepted referrals from United Financial Systems Corporation (UFS), a national wealth management company.  As described in this grievance decision by the Supreme Court of Ohio, UFS representatives used non-lawyers to meet with prospective estate planning clients.  The non-lawyers would obtain personal and financial information, which they would transmit along with the the $2495 payment to UFS.  At that point, UFS would assign client files to attorneys to prepare the estate documents. 

In this case, the Respondent, who was barred in Ohio, handled matters for UFS clients who lived in Ohio and continued to do so after she relocated to Michigan in April 2005.   She received $175 for preparing estate planning documents.  In March 2006, she ended her affiliation with UFS in March 2006, after realizing that her conduct violated disciplinary rules, such as the prohibition on fee-splitting with non-lawyers, failing to safeguard confidential information and aiding in unauthorized practice of law by non-lawyers.

Still, the Respondent's resignation did little to quell the vengeance of the Ohio Bar Association who filed a complaint against her in August 2007, more than a year after she ceased taking UFS clients.  And even though the Respondent had no prior disciplinary record or dishonest or selfish motive and cooperated during the disciplinary proceedings, she was suspended from practice for two years!

Though I fault the bar entirely for the suspension, there's much that the Respondent could have done, and which other lawyers can do, to avoid this fate.   First,  even though legal ethics are complex, you can't check your common sense at the door.  This kind of arrangement - where a lawyer gets a $175 piece of a $2495 fee - should have raised a red flag.  Likewise, delegating collection of personal and financial information to a UFS representative rather than having the task done by the lawyer or one of her employees should have triggered questions about confidentiality.
When it comes to arrangements with non-lawyers, if you can't definitively confirm that the arrangement passes ethical muster, then walk - no run - away.  Losing $175 is a trivial price to pay to keep your license and preserve your career.

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I posted on this video here. In my view and for the reasons I described in that post, it's hands down the best and most effective lawyer ad that I've seen this year, rivalling my favorite ad of 2006, by criminal defense attorney Allison Margolin, that I wrote about here.

Lights, camera, action - are you video-ready for 2008?

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With billing fraud rampant at major law firms, guess who the Illinois disciplinary committee decided to prosecute? Was it the the partners at a
Chicago office of a national firm, whose own colleague shined a light on overbilling? Nah - that's too large a target. Why not go after the smallest possible potato instead - like a $35 an hour contract attorney who allegedly overbilled by $2913.75 for work performed on a month long document review gig for Mayer Brown (a firm whose own rap sheet includes firing 45 equity partners to preserve the firm's $1 million profits-per-partner ratio and a partner just indicted on charges of criminal fraud).

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Over at Legal Blog Watch, I've posted my view on the $42 million fee collected by a law firm in a multi-million dollar estate matter. Basically, the lawyers originally had a fee agreement with the client; when she found her legal fees mounting (to the tune of $1 million per quarter), she asked her lawyers what they could do. The proposal? The client would pay an additional $1.2 million after which the lawyers would take 40 percent of the total proceeds recovered in the matter. At the time the fee agreement was renegotiated, the lawyers had already collected $18 million (not clear how much related to this precise matter) and there was a $60 million offer on the table. Five months later, the lawyers settled the case for $100 million and with their 40 percent, the client took...$60 million, the same amount she'd been offered earlier.

There are more details in my other post, particularly about some of the facts that make this case particularly egregious. The court didn't approve the fee, just said it wasn't inherently unconscionable and set the case for trial. And if you're wondering what I'd consider fair in this case, let's just say that had the lawyers' renegotiated fee agreement allowed them 40 percent of the difference between $60 million and the amount eventually recovered, I'd not be writing this post.

There's one more important issue here. Some believe that when lawyers negotiate a fee agreement with a potential client, they have not ethical or fiduciary duty to ensure that the agreement is fair, beyond the bare minimum that ethics rules require. Fair enough. But that argument doesn't apply here. When theses lawyers renegotiated the fee, they already represented the client; and they had a duty to look out for her best interest and ensure that the new fee agreement was fair. These lawyers certainly looked out for someone; let's just say that it wasn't their client.

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Thank goodness for lawyers who are willing to risk a disciplinary sanction to retain $2500 of money that any objective observer would recognize as unearned and undeserved. After all, if we didn't have lawyers like this, we wouldn't have the benefit of this well written and researched decision by the Michigan Attorney Grievance Board that describes the difference between an ordinary retainer fee (which represents advance payment for services to be rendered) and a non-refundable retainer fee (which is typically allowed only where a fee agreement states specifically that the retainer is intended to compensate the attorney for availability, not for service to be rendered) (hat tip to Legal Profession Blog for the link.

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Back in February 2003, when MyShingle was still in its infancy, I wrote this blockbuster post, entitled The Bar's Dirty Little Not So Secret Secret, which offers some powerful evidence to demonstrate that solo and small firm lawyers are the targets of disciplinary actions far more than our large firm counterparts. Apparently, the disparity between large and small firm treatment remains an issue four years later; it was the topic of a bar panel discussion at last week's ABA conference, with some great follow up commentary here at Susan Cartier Liebel'sHow to Build A Solo Practice blog.

Take a look at my earlier post which summarizes my own reaction to the panel discussion better than I'm able to do at the moment.

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Imagine a lawyer rating system that assigns lawyers different categories of grading and purports to provide an objective way to assess a lawyer and through "third party validation of ethics and legal ability provides that extra level of confidence that the right lawyer or firm has been selected." A ratings system that takes years of experience into account in issuing ratings and removes positive ratings where a lawyer has a negative disciplinary record. A ratings system that even generates enough profit to fund a fellowship. And a ratings system that includes some errors and omissions.

If you thought that the lawyer rating system that I just described would be the subject of class action lawsuits, you'd be wrong. But that rating system sure sounds like this one, which is the subject of a class action lawsuits. And indeed, many of the claims alleged in the class suit (which you can access here) would seem to apply to both ratings systems: such as complaints of arbitrariness of ratings or that the rating service makes deceptive and false representations that clients can rely on the ratings in choosing a lawyer.

So, one of these ratings systems is sued, while the other is not. And if you're wondering about the reasons for the differential treatment, I can think of at least one: consider the ratings of the class action's lead plaintiff by this ratings service and this one.

Note: for the record, I have criticized both ratings services for various reasons here and here and here. In my view, ratings systems aren't worth much because choosing a lawyer isn't like picking a restaurant or buying a house. So if we lawyers allow ratings system, we should explain that they're one of many, many factors in picking a lawyer. But more importantly, if we allow ratings systems, we must tolerate all systems; we shouldn't be able to pick and choose by filing class actions between those ratings systems that we want (because they grade us better) and those we don't.

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Ever since I've started my site, I've blogged about situations where, in my view,
judges have gone way over the line in sanctioning attorneys for conduct, such as sending a lawyer to jail for refusing to apologize or showing up late for a hearing. But typically, these sanctions have issued against solo and small firm attorneys.

But outrageous judicial conduct isn't any less outrageous when it's directed against our biglaw colleagues. And that's why the scenario described in this,
Lawyer's 'Super-Size' Gaffe Costs Him Client and Possibly Right to Practice Before Fla. Court (law.com 5/31/07) really ticked me off. According to the article, William Smith, a partner at large, Chicago based law firm of McDermott, Will & Emery commented to Judge Laurel Myerson Isicoff during a hearing Bankruptcy Court for the Southern District of Florida that "with all due respect, you're a few french fries short of a Happy Meal." The relevant portions of the transcript, available here at David Lat's Above the Law show that the judge didn't say anything other than "proceed counsel" at the hearing. But subsequently, issued a Show Cause order asking Smith to demonstrate why his pro hac vice status shouldn't be revoked in light of his remarks. The judge also denied Smith's motion, and Smith's client has since replaced him with a local firm.

The judge's decision is wrong on so many levels that I can't even begin. First, if she was offended by the comment at the hearing, she should have said so right away and given the attorney a chance to apologize. To me, this smacks of a set up. Second, quite frankly, this is overkill. Requiring a lawyer to respond to a show cause order and convening a hearing uses time and resources. Why couldn't the judge simply have slapped the lawyer with a monetary sanction right on the spot? At least, it would have ended the matter. Third, did the judge really need to copy every other judge on the bench with the show cause order? To me, that's simply vindictive. After all, many judges may have taken the remark in stride or come back with a snappy quip from the bench in response.

I also question the judge's motives. I wonder whether she'd have reacted the same way had a local attorney rather than one from an out of state, biglaw firm made the same remark. And as a result of her action, the client did channel its case to a local firm. As a solo, that should give me pleasure (since I often serve as local counsel), but it doesn't. If I get business, I want to win it fair and square - not because local judges are mistreating out of state counsel.

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One aspect of solo practice that's commonly overlooked is the impact that a suspension can have on a solo's career. Over at Legal Profession Blog, Mike Frisch notes that even a bar suspension of a short duration can kill a solo's practice because he or she may not have colleagues who can assume control of the case. By contrast, lawyers employed at a firm can turn matters over to their partners while they serve their time.

Many probably assume that a lawyer who's done something bad enough to get suspended doesn't deserve a second chance to practice anyway. I disagree. In fact, the suspensions that are actually harshest are those of short duration, where the conduct was not terribly bad, but the lawyer must shutter his practice during the suspension, and then try to ramp it up again. And, sometimes bars suspend lawyers where they may have made a simple mistake.

UPDATE A reader sends this link to the sad story of Ed Slavitt who received a 6 month suspension for writing a bar reference that didn't tell all about the applicant. Is that worth losing your legal career? You tell me....

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It's something that all of us practicing lawyers dread: we file a case, and it's lost or somehow misplaced at the court, resulting in a missed statute of limitations. So if you find yourself in this situation, do you (a) try to appeal the dismissal of the case, arguing that the clerk erred; (b) 'fess up to the client and offer to make her whole; (c) seek advice from a trusted colleague on what to do or (d) conceal the mistake and present a "settlement" to the client, purportedly from the defendant.

The lawyer who was the subject of the disciplinary action described by Mike Frisch in this post at the Legal Profession Blog , chose "c" and "d," and received a 2 year suspension. As I'll discuss, I think that's too harsh (and for that reason, I'm not using the lawyers' name in this post, to avoid caching this event in the search engines). At the same time, the decision teaches some great lessons for solos, which I'll summarize at the end of this post.

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Ah, I suppose it was just a matter of time before the Florida Bar went after divorce lawyer Steven Miller, who ran these provocative ads that insult overpriced downtown lawyers and promise to help clients "rid themselves of that vermin [they] call a spouse." According to this story (3/27/07), when Miller submitted his ad for review by the Florida Bar, found that the ad is a "verbal depiction" whose language promises a particular result, which is prohibited under Florida law.

When I posted about Miller's ad several months ago, I applauded him for targeting that underserved part of the population that can't always afford high priced legal counsel. At the same time, I explained that I wasn't a fan of his confrontational style, not because I found it offensive or unprofessional or deceptive but rather, because I feared that it would attract the types of uncompromising, litigious clients who eventually devolve into "clients from hell."

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File this under the category of "gross misunderstanding of blogs and technology:" - a malpractice insurer's recent decision to deny coverage to a law firm because of its weblogs. Apparently, the insurer believed that the blogs could potentially expose the firm to liability, either through an implication that the blog offered legal advice or somehow gave rise to an attorney-client relationship.

Frankly, this is just crazy. No one ever suggested that law review articles or newspaper advice columns constitute advice. No one ever required lawyers to paper their written work with disclaimers. So why are blogs are any different?

Yes, a disclaimer will shield a blog from liability, but to my mind, that's not an adequate solution. Disclaimers detract from the quality of advice provided. When lawyers need to post disclaimers like "this is advertising" or "do not rely on this advice" on their blogs, it conveys the impression of second class status, as if the blog were some kind of informercial instead of a valuable and reliable source of information. Plus, just the suggestion that blogs may expose lawyers to liability invites the bar to step up regulation of blogs, which is a dangerous development.

Perhaps the day will come when readers start suing bloggers for advice provided. If and when that happens, insurers might be justified in examining the malpractice consequences of blogs. But right now, it's premature, and if anything, plants the seed that these kinds of liability might actually be viable.

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Over at my beat at Legal Blogwatch, I posted a link to a free online handbook created by Chubb Insurance on the Risks of e-Lawyering.  The handbook, available here offers lots of tips to avoid running afoul of ethics rules in the age of technology, such as how to guard against inadvertently creating an attorney-client relationship or how to preserve electronic documents for discovery.  Plus, if you advise other businesses or corporations, Chubb has a number of other publications on a range of topics like avoiding slip and falls, preventing workplace fraud and IP checklists that might be a useful resource to pass on to clients.

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My blogging buddy, Chuck Newton recently posted on the latest  brawl between Greatest American Lawyer and his former firm.  Seems that GAL's firm is suing him a second time, this time for rights to GAL's blogs, which the firm claims it would have developed itself. Newton doesn't think the firm's suit against GAL will fly, in large part because GAL has been blogging anonymously and that his blog was essentially personal.  But as Newton points out, and I agree, the case raises the significant question, that GAL analyzes about who owns the rights to your blog.  And if today's trends of law firm to blogging to solo practice or law firm to blogging to book or online magazine deal continue, the issue of blog ownership matters more than ever.

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Both Eric Turkewitz of New York Personal Injury Law Blog and Nicole Black of Sui Generis have posted here and here on a number of large New York law firms that failed to comply with New York's new advertising ethics rules by labeling their websites as "attorney advertising." 

In this situation, I can't say that I disagree with the law firms, or with any other firm that hasn't posted a Scarlet A (as in advertising).  (For the record, I'm a member in good standing of the New York bar and my website, Law Offices of Carolyn Elefant or my firm's blog, Renewables Offshore, and I haven't posted these labels on my sites).  Quite frankly, I do not regard websites or blogs as advertising under the New York rules, which define advertisement as:

(A)any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.

Now, one purpose of my website and blog is to retain clients.  But they serve a host of other non-advertising purposes as well - they are a public resource to educate others on legal issues, a way to communicate with and allow existing clients and other lawyers to learn more about me and a way to establish my credibility before the courts and federal agencies where I practice.  Large firms use their websites for multiple purposes too; just yesterday, at Legal Blogwatch, I posted about how law firms are posting videos on their websites for recruitment.  A newspaper advertisement that says "Hire me to represent you" is one dimensional, its primary purpose (indeed its only purpose) is to attract prospective clients.  Websites and blogs, just like personal appearances, handing out business cards, writing scholarly articles or appearing on Court TV, serve many functions.

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Let me make two things clear at the outset of this post.  First, Greg Siskind, who pioneered use of the internet for lawyer advertising and public education through his website, Visa Law is one of my heroes.  I remember visiting his website back in 1994 in the nascent days of the Internet and recognizing right away that he was on to something. Second, given Siskind's overwhelming Internet presence and longevity, I don't believe for a minute that a lawyer who practices immigration and sets up a copy cat site like this one can truthfully claim that it's pure coincidence, and that he never saw Siskind's site.

But....while Siskind arguably may have copyright or trademark claims that he can, and should, raise in court, I disagree with is decision to contact the Florida Bar about Disney, Thompson, the law firm that stole his content and design, as reported in this article,
Seeing Double, ABA e-report (1/5/07).  Siskind filed a complaint with the Florida bar, arguing that the Florida firm had copied his site and presumably, in so doing, engaged in unethical conduct.  Indeed, the article notes that lawyers have been grieved for plagiarism in briefs, though Siskind was first to raise the issue about plagiarism in websites.  The firm lawyer denied ever seeing Siskind's site, which as I said earlier is not plausible.  I think that a better (or more truthful) defense would have been that given that he practices in Florida and Siskind's firm does not, that the attorney did not see a likelihood of confusion, nor was he attempting to steal the firm's potential clients.  In any event, the Florida bar dismissed the complaint, saying that it could not find that the firm's lawyers engaged in intentional misconduct.

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This week's ABA e-report (12/8/06) includes this article Bright Line Blunder, about a Virginia Court of Appeals decision to dismiss a litigant's notice of appeal filed by her attorney during a period of time when his license was suspended and he didn't even know about it. 

From the article, these are the relevant facts, which arose out of a contested divorce proceeding:

On June 7, 2005, the trial court held a hearing, and on July 11, 2005, it entered a final decree [against the wife]. The wife's trial lawyer was granted leave to withdraw on July 1, 2005, and her new lawyer filed a notice of appeal on Aug. 9, 2005. The husband then moved to dismiss the appeal as improperly perfected. (Neither of Patricia Jones' lawyers is named in the appellate ruling.)

At the time he filed a notice of appeal, the second attorney's license had been suspended by the Virginia State Bar Disciplinary Board. The suspension was in response to an order entered by the District of Columbia Court of Appeals that had suspended the lawyer's license for failing to cooperate with the District of Columbia Office of Bar Counsel. Ultimately, the Virginia State Bar suspended the lawyer's license for 30 days, beginning July 26, 2005, and ending Aug. 25, 2005.

The court dismissed the notice of appeal, finding that it was a nullity since it was filed by an attorney without authority to practice in Virginia.  The court cited precedent that an appeal filed by a foreign attorney who'd not been admitted to practice in Virginia was a nullity and that the case of a suspended attorney was not different.  Because it applied a bright line rule, the court found it irrelevant that the attorney was unaware of the suspension.

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Leave it to the bar associations to put the kibbosh on creativity.  Take the case of Morris Gould, an enterprising lawyer who came up with a niche practice of offering New York counsel to Florida residents with New York legal matters, as described in this article, Federal Court Grounds Snowbird Law Practice (ABA e-report, 9/1/06).  Problem is, Gould, who resides in Florida and is barred in New York, is not a member of the Florida bar.  Thus, the bar prohibited him from advertising his New York services as unauthorized practice of law.  The bar also claimed that the ads were deceptive because they gave the impression that Gould was licensed in Florida which he is not.

In this day and age, where people are transient and we can email documents to destinations 500 miles away more easily than we can carry them across the street, isn't it time for the bars to reexamine the archaic rules on multi-jurisdictional practice?  Why must a person be a member of the bar in the state where he or she lives?

The bar's rules on multi jurisdictional practice cause far more harm than good.  In Gould's situation, he would have served clients physically located in Florida who had legal problems in New York.  The only alternative to Gould's service would be for these clients to (a) find a lawyer licensed in Florida and NY or (b) hire an attorney in New York and either travel 1000 miles for face to face meetings or deal with them by phone.  Gould's proposed niche makes sense and would have made life easier for this group of clients.
Too bad the bar didn't see it the same way.

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Many lawyers (with this notable exception) believe that the 1/3 contingency fee is reasonable and that any fee agreed to between a willing client and an attorney is also reasonable.  But in this recent story, Attorney's 9/11 Fee Called "Shocking, Unconscionable" (law.com 8/28/06), lawyer Tom Troiano had a valid retainer agreement that provided for 1/3 contingency fee for settlement of his client's 9-11 claim.  Yet many lawyers, including Ken Feinberg, Master of the 9/11 fund, have vocally criticized Troiano's fee as unreasonable.

Here are the details behind the story.   When Laura Balemian's husband was killed in the World Trade Center attack, she called Tom Troiano, a lawyer and trusted family friend for assistance.  Troiano claims he took charge of the family's numerous legal affairs, without seeking compensation.  But he did have Balemian sign a retainer agreement on Oct. 15, 2001 with respect to representation of her claims in the 9-11 fund.  Eventually, Troiano recovered over $6 million for Balemian, double the $3 million cap.  And in February 2004, per the terms of the retainer, he collected his 1/3 share of the amount recovered.

Fast forward to 2006, in the probate proceeding over Balemian's husband's estate.  A guardian appointed by the court challenged Troiano's fee as excessive and not in the best interests of Ms. Balemian's four children.   In response, Troiano brought an action for declaratory judgment approving his fees.

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It's one thing to write about the  ethics rules relating to leaving a law firm, as I did at this post.  But the way that a law firm should treat a departing attorney and shared clients in theory and the way that things actually work in practice are often entirely different realities, as this post by Greatest American Lawyer demonstrates.  GAL's post reports that he's been sued by his former firm over fees associated with a matter that GAL handled at his former firm.  The firm initially tried to steal the case when GAL left the firm by inaccurately advising the client that she had no option but to use a new lawyer from the firm.  The ethics rules require that firms and departing lawyers advise clients of their right to select which attorney to use.

For more details on the status of the claim and on GAL's view on how it should be resolved, take a look at the post.  GAL, we're rooting for you!   

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I have to confess that when I initially heard about New York's proposed gag rule on attorney advertising, I suspected that it was just another way to perpetuate the biglaw/smallfirm double standard by targeting forms of advertising like websites and weblogs that have proven especially beneficial for small law firms.  And indeed, Dennis Kennedy fears that one consequence of the rules, which are draconian with respect to Internet marketing, will be to protect established practices from competition, as does Peter Boyd who dissects the problems with the rule, section by section.   Kevin O'Keefe fears that the rule will lead to micromanaging, which is also a problem for solos.

But now, having reviewed the rules and some of the websites and online ads of biglaw firms, Arent Fox (whose partner served on the rulemaking committee) and Paul Weiss, whose partner heads the NY State Bar, it appears that even these firms may run afoul of the new regulations.  For example, consider this photo at Arent Fox's website.  Doesn't this constitute a prohibited "reenactment of any events or scenes...that are not actual or authentic?" How about this page  of the website, which shows photos and lists the names of the five Arent Fox founders, even though they're not listed as attorneys with the firm.  Does this run afoul of the prohibition that an ad cannot otherwise imply that lawyers are associated in a firm? And what about this picture - doesn't it erroenously convey the impression that Arent lawyers are stunt pilots?

As for Paul Weiss, it recently issued a press release proclaiming that it is one of the top twenty best corporate law firms, based on a survey of corporate directors and general counsel.  Were some of those directors or counsel former clients?  And how is a rating from a magazine all that different from a prohibited client testimonial (except that a large firm is more likely to have the former rather than the latter).

I guess I shouldn't fool myself.  The proposed rules as drafted are bad enough.  But let's not kid ourselves as to who's going to be the subject of enforcement:  it's not going to be Arent, Fox or Paul Weiss.  But readers, it certainly could be you, if you solicit business in New York - and as a card carrying member of the New York Bar, it could be me (because there's no way that I'll put a disclaimer on my website). 

Unfortunately, most of my solo colleagues are far more risk averse (not to mention far less foolish) than I am.  (Of course, running a popular weblog tends to insulate you  from many stupid bar tricks).  Many of my solo colleagues may be deterred from running a weblog that provides substantive information on law or describing their practices in full detail for fear that they may run afoul of the bar restrictions.  And that's a huge loss, in part for these lawyers, but more so for the public that benefits tremendously from the wealth of information on legal matters that's offered by weblogs.

Update: For an excellent criticism of the "30 day rule" (which prohibits plaintiffs attorneys from contacting victims for 30 days after the incident, see these comments by Monroe Freedman at the Legal Ethics Forum.

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As more lawyers depart large firms to strike out on their own, the ethical issues relating to departing attorneys gains more attention.  Here's another article on the topic, Practicing Ethics:  Switching Jobs, NY Lawyer (5/26/06).   The article focuses on the following three issues:

* When and what can be told to clients? Most lawyers have a long-standing, close professional relationships with their clients. An attorney and his prospective new firm hope these ties translate into decisions to follow the lawyer. What are the lawyer's duties to the client in this situation, and when can she inform the client she is leaving?

* What can be told to partners and employees, and when can they be told?

* What files are available to clients and what files can be taken to the new firm?

If you're currently at a firm, thinking of leaving, you ought to find the answers to these questions (many of which are jurisdiction specific) before you hit the road.  It's hard enough starting a law practice; don't make it tougher by inviting disciplinary complaints against you by your former employer through actions you take when you leave.

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According to this article, the South Carolina Bar moved to electronically post disciplines of lawyers on its webstie for 75 years (of course, who knows if the web in its present form will be around by then).  Some lawyers oppose this decision, arguing that it "creates a Scarlet Letter" for anyone who makes a mistake.   But another lawyer argued that technical violations would not show because they don't "go all the way."

While I do believe that the bars often unfairly target solos, on balance, I support the online disclosure system.  I do believe, however, that if the disciplinary action is posted that it should be accompanied by all of the attorney's filings in his or her defense so that clients and other lawyers can arrive at their own judgment of whether the sanction was warranted.  I've heard too many stories from colleagues who've referred cases to other lawyers only to discover that those lawyers had been suspended or disbarred.  Making this information available can also spare lawyers from making negligent referrals.

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I always thought that at one of the top priorities of a bar association is to help the public find access to competent representation.  Well, access to law is a goal of the New Jersey Bar, but one that's secondary to other matters like generating revenues or preserving the local bars' turf.  At least, that's the impression that I came away with after reading this law.com article, NJ Bars Wary As State Bar Advances Online Lawyer Listings (5/10/06).

According to the article, the New Jersey Bar Association has proposed to set up a website that would list attorneys by name and phone number and for $100 extra, include a link to the attorney's firm website.  You'd think that lawyers would welcome this type of visibility, but apparently, the county bars fear that the plan will detract from the referral services that they run.  Specifically, county bar representatives are concerned that consumers seeking attorneys will simply go to the New Jersey website and click to find a lawyer on their own (oh, the horror of autonomy!) instead of calling the county bar and paying a referral fee to set up a meeting.

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New Jersey law blog has this  post about a New Jersey ethics decision on "lawyer shopping."   As the post describes, lawyer shopping is a practice whereby a client (most frequently, a divorce client) will visit and interview several prospective attorneys for the exclusive purpose of potentially conflicting them from representing the spouse in litigation.  The New Jersey Advisory Committee on Professional Ethics recently ruled that an attorney who advises his/her client to contact other lawyers for the purpose of denying their spouse from obtaining representation by counsel of his or her choice constitutes conduct prejudicial to the administration of justice.

When I first read about this decision, I wondered whether an advisory decision was really necessary?  After all, to my mind, it seems inherently unethical for a lawyer to counsel a client to go out and interview other attorneys given that the client already had representation.  In essence, this kind of directive would require the client to lie - and that kind of advice couldn't possibly be ethical. 

I still feel that way, but there must be another side to the story - or why would you need an ethics decision?  So readers, I ask - have you ever advised a client to visit other attorneys to conflict them from representing the opposition?  And what's your take - is this ethical?

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Evan Schaeffer has these comments on the Florida Bar's Ethics Committee proposed advisory opinion on metadata.  The opinion instructs attorneys to safeguard metadata in documents, but at the same time, directs lawyers who receive documents not to view metadata if not intended for them.  Evan wonders why Florida doesn't put the onus on the transmitting lawyers to protect their documents and instead, imposes a burden on the recipient not to read that information.   

By taking the burden off transmitting lawyers to protect documents, the Florida bar ultimately sets their clients up for greater problems.  What happens, for example ,when a Florida attorney transmits a document out of state?  Surely, the Florida bar can't sanction a New York attorney for reading the Florida attorney's metadata.  If Florida attorneys aren't encouraged to secure their documents, their clients will suffer in the long run in cases where the Florida Bar has no control over the lawyer who receives the document at the other end.

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According to this article, the Arizona State Bar now includes records of formal disciplinary action against lawyers at its website to help consumers "weed out lawyers with spotty records while searching for representation."  You might think that someone like me, who constantly complains that bars unfairly target solo and small firm lawyers (as I did here) would oppose Arizona's new development, but in fact, I don't.  Consumers should be able to learn whether an attorney has been formally disciplined.  Doesn't mean that the consumer should not hire the lawyer, but at a minimum, the consumer is entitled to an explanation about the charge and can then make a decision about whether to give the lawyer a second chance. 

More importantly, public information about formal discipline helps lawyer too.  For example, I've heard of several instances where my colleagues have referred cases to lawyers whom they believed to be reputable only to discover that they'd been disbarred.  Making information publicly available helps avoid this kind of situation and allows us to make better referrals.  Second, when litigating a case, it always helps to know your opponent - and learning that opposing counsel has a long record of disciplinary charges can potentially inform your strategy in the case.

I realize that there's always the possibility that the bar may wrongfully discipline an attorney and forced disclosure of the sanction can harm the attorney's business.  But on balance, I think the benefits of access to disciplinary records far outweigh the possible harms. 

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In response to posts criticizing the Nevada Bar's heavy handed approach to an attorney who advertises himself as "The Heavy Hitter," (see here, here and here), Jon Stein of The Practice blog endorses increased regulation.  Jon, who is a personal injury attorney himself believes that undignified advertising gives the professsion a black eye and hurts all attorneys in the long run.  He also believes that there are other, more dignified ways to advertise, citing Ben Glass or Bob Kraft. 

I don't practice personal injury law, so I'm immune to any direct, adverse impacts that undignified advertising has on other attorneys.  Still, I have to believe that to the extent that undignified advertising has negative consequences, then lawyers like the Heavy Hitter would stop doing it.  Obviously, ads like Heavy Hitter hit home with clients - and if that's the case, lawyers who dislike those ads should find a more effective approach, or try to inform prospective clients that they shouldn't necessarily pick a lawyer because he or she has the flashiest TV ad.

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A Nevada attorney, Glen Lerner, is challenging an ethics decision that prohibits him from calling himself "The Heavy Hitter," according to this article, Lawyer to Sue Over Heavy Hitter Name. What's even sillier than the title "Heavy Hitter" is the bar's reason for banning it:  the bar believes that Lerner's use of the term is misleading because it gives the public the impression that he is the only Heavy Hitter.   The article reports that reviously, Lerner had a run in with the bar over a television ad where a giant phone falls on a victim - and the bar believed that the ad could generate undue anxiety.

I don't know whether Lerner's the only heavy hitting lawyer in town.  But one things for sure.  With this kind of reasoning, the Nevada Bar shows that it's a lightweight.

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Did this lawyer really need to accuse a judge of extortion?  Did this young lawyer really need to express sarcasm and disrespect in an email turning down a job offer?   And did this hiring attorney need to respond by forwarding her email (apparently without redacting her name) to third parties?  Why don't lawyers realize that sometimes they need to be the ones to say stop?

Is having the last word really so important that you're willing to risk sanction by the bar or ruining your reputation?  Some battles are worth engagement, but most, especially those where you're personally involved, aren't.  That's a lesson that I was fortunate enough to have learned long ago in law school, at a time when it didn't matter (maybe some day I'll post the details); I'm always surprised to see that so many of my colleagues haven't.

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This article, New York State Bar Urges Attorney Ad Guidelines (John Caher, NYLJ, 2/2/06) reports on the New York State Bar Association's House of Delegates' report calling on the Administrative Board of the Courts to create statewide, uniform screening protocols for advertising.  Curiously, the campaign to re-visit regulation of attorney ads is lead by biglaw attorneys, Bernice Leber of Arent, Fox who chaired the NYSBA task force on advertising and State Bar President A. Vincent Buzard, a partner at Harris Beach.  Why are attorneys who don't place ads or represent clients who come to them through ads leading the charge to revise rules on advertising? 

It would be nice if everyone in this country could find law firms the way that biglaw clients do - either by conducting their own RFP or getting references from others.  But the fact remains that many litigants still hire attorneys after seeing television ads, radio ads - and more recently, websites and weblogs.  When we curtail advertising or require attorneys to jump through more hoops before they can advertise, we limit the public's ability to find and hire a lawyer - and in so doing, we limit access to law. 

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Jim Calloway has a terrific round up post on the ethics of lawyers accessing meta data.  Jim starts by explaining what meta data is (it's basically data about data, embedded in your documents) and how to access it.  He then cites the various views on meta data, on the one hand, the Florida Bar's initial opinion that mining meta is unethical and comments from the blogosphere that take an opposing view (in fact, apparently Jim's home state isn't adverse to using meta data, Jim point out that "[mining meta data] is unethical in Florida and we're teaching it in Oklahoma [at a course on e-discovery].

From what I can tell, lawyers, at least in my neck of the woods, have caught on to this problem.  I do check meta data in documents (I can admit that since I don't practice in Florida) - and I've noticed that documents that I've received in the past few months have been cleansed.   Based on this, it seems that Jim's sensible approach of "focus[ing] on not sending out metadata rather than enacting new ethical rules"  is already working.

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Adding to this earlier compilation of resources on leaving a firm is this recent article, Practicing Ethics: Soliciting Clients, David Keyko, New York Lawyer (1/27/06).  The
article summarizes various New York professional code provisions governing client solicitation, including when lawyers depart a firm. 

In researching this issue lately, I consulted fellow blogger Dennis Kennedy's excellent chapter in Flying Solo  entitled "Leaving a Firm:  Guidelines for A Smoother Transition."  Dennis writes:

You might think the applicable rules and procedures of [leaving a firm] would be (1) easy to find and (2) quite clear and well settled.  If that is what you think, you will be surprised.  The guidance on this matter varies widely from state to state, and applying rules in any given situation can be a difficult exercise.

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Via this post from Allison Shields as LegalEase is a link to this ABA e-report article (1/20/06) on the Ohio Bar's disiplinary board's recent ruling that ocupons for free or discounted legal services violate the Ohio Code.   The board found that coupons characterize a lawyer's legal services as "discount" and thus, run afoul of commentary to the Ohio rules that provides:
"Characterization of rates or fees chargeable by the lawyer or law firm such as 'cut-rate,' 'lowest,' 'giveaway,' 'below cost,' 'discount,' or 'special' is misleading."

As with all bar regulation, the rules sound benign enough in practice - protecting consumers from deceptive practices and preventing lawyers from acting like undignified hucksters.  Here's the reality, though.  Services like We the People aren't subject to bar rules - and thus, they're able to proclaim, as a tag line, that they offer "Low cost accurate document preparation."  Can an Ohio lawyer do the same?  As I read the commentary, I'd argue yes, but it's a close call since both "low cost" and "accurate" are charaterizations of service.  And for that reason, the Ohio Bar's rules have a chilling effect on lawyers who want to advertise their service in a way that allows them to compete with We the People.

Many bars have tried going after companies like We the People but the problem remains, that it's a service that fills a void for consumers who don't want to handle a case pro se and need affordable service.  Given that a need for affordable, basic service remains unmet, don't we want to do all we can to ensure that this service is provided by attorneys?  Overbearing and restrictive regulations like those of the Ohio Bar sure don't make that easy.

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This article, Attorneys' education is an ongoing process (Business Journal of Phoenix, 1/23/06) reports on Continuing Legal Education (CLE) in Arizona, which has been a required since 1989.  The article talks about the importance of CLE and the bar's flexibility in allowing the requirements satisfied through a variety of differently priced options.  But I'd have liked to see statistics, such as whether lawsuits or grievances based on attorney incompetence have declined or whether public perception of attorneys has improved, during the 16 years that the requirement has been in place. 

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Jon Stein posts a link to an article concerning the ethics of trolling for clients in online chat rooms under California law.  As you might expect, there are no clear cut answers; basically, you ability to ethically solicit clients in a chatroom depends upon the type of chatroom involved and whether participants have an expectation of being solicited by an attorney.

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This article, Did Barnes Firm Lawyer Tell the Whole Truth?, Michael Beebe, 1/22/06 reports on somewhat deceptive advertising by Thomas Goldstein, a lawyer with Cellino and Barnes, who advertised that he was uniquely qualified to handle Vioxx cases in light of his status as a former physician.  Trouble was, the ads didn't explain why Goldstein no longer practices medicine:  seems his license was revoked for providing misleading information about his medical training. 

Goldstein's points out that his license wasn't revoked for incompetence, but for a technicality.  If that's the case, Goldstein should have simply disclosed in his ads that his license was revoked for administrative reasons.  By hiding this information, he's only made his situation worse now.  Of course, considering the ethics history of the firm where he works, Goldstein doesn't really have much in the way of role models.
(see also this earlier post).

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With so many lawyers turning solo, it's surprising how little has been written about the issues that departing attorneys face, such as when you can solicit clients or sharing fees.  But this article, Associate Says Ex-Firm Misused His Name on His Web Site, The Connecticut Law Tribune (January 11, 2006) reports on another issue:  keeping a departing lawyer's name up on the website long after he leaves.  According to the article, Robert Murphy is suing his former law firm for allegedly continuing to list his name, biographical information and e-mail address on its Web site long after his termination.  Murphy claims that the firm's continued use of his name at its site confused potential clients and directed business from his new solo practice to his former employers.

Just another issue to keep in mind when you leave your firm.

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This article from AP,  Lawyers Can Be Sued for False Advertising (1/11/06)
reports on a recent ruling by the Colorado Supreme Court, holding that the state's consumer protection act applies to lawyers.  Thus, plaintiffs can bring civil actions against attorneys for false or deceptive advertising. 

Frankly, I don't have a problem with this ruling.  In some respects, letting the court system rather than the bar make decisions about what constitutes a deceptive practice may be preferable. (as you might recall, here's what the Florida Bar considers deceptive)  I realize that lawyers aren't likely to fare well in front of juries, but I'm guessing that many of these deceptive advertising cases won't survive summary judgment and that they'll be costly to bring because they'll require expert testimony.  In short, I don't see the Colorado decision as open season on lawyers, but rather, an opportunity to develop a potentially more credible test of what's deceptive than what the bars currently provide.

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I've posted quite a bit on the importance of retainer letters, here and here, but not as much on a declination letter which informs prospective clients that you've declined to take their case.  This post from Day on Torts discusses the perils of misinforming clients about the applicable statute of limitations in a declination letter.  Jon Stein picks up the conversation at this post, explaining why you shouldn't pin yourself down to specifics when giving statute of limitation information.

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This article, Tiffed by Staff, John Gibeaut (ABA e-Report 12/16/05) shows the benefits of coming clean when you've committed an ethical infraction - or even think that you might have committed one.  The article describes the case of a Delaware solo real estate lawyer who recently received a public reprimand for mishandling client funds.  The lawyer  himself hadn't taken the money, rather, he learned in November 2001 that his paralegal had stolen $94,000 from the escrow account.  Eventually, the lawyer took out a second mortgage on his  home to replace the stolen money.  Yet he still couldn't avoid a reprimand because he'd waited three years before replacing the money or contacting the authorities.

So the next time you think that you may have done something wrong, make amends as soon as you can and turn yourself in.  It may not be pleasant in the short run, but you'll avoid unnecessary disciplinary action in the long run.

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Let me proclaim here and now, for the record, that I'm the founding partner in a law firm, The Law Offices of Carolyn Elefant.  Yes, it's a law firm of one and I'm the only partner, but my firm is just as legitimate and real as any of these.  So why is it then, that the DC Bar feels it necessary to issue a special opinion (Opinion 332 - November 2005) warning me and every other solo that while it's alright for us to refer to our law practice as a firm without violating the Rules of Professional Conduct, at the same time, "[we] must exercise caution to insure that the manner in which [we] conduct [our] practices does not mislead clients or potential clients."  (for a summary, see this