Ohio Ethics Opinion Allows Advertising by Text Message

When lawyers try to utilize technology in novel ways to either practice law or advertise services, the unfortunate first response is often to want to create new rules to define (or limit) it. But the simplest approach is usually just to look at the rules as written to see if they apply. For the most part, the application of the rules to technology will be a matter of old wine in new bottles.

The Ohio Board of Commissioners on Grievances and Discipline recently confronted this when issuing an ethics opinion discussing whether Ohio lawyers may use text messages to solicit professional employment from prospective clients. In allowing the text messaging, the Board noticed:

Bravo. Ohio Ethics Op 2013-2, issued April 5, 2013, concludes that text message advertising:

• Is generally permissible under Ohio RPC 7.2(a)
• Cannot be false, misleading, or contain nonverifiable information under Ohio RPC 7.1
• Is not a “real-time” electronic contact under Ohio RPC 7.3(a)
• Is not conduct that involves coercion, duress or harassment under Ohio RPC 7.3(b) (that is, stop when asked to stop and don’t bombard with texts because they may cost the recipient money per text)
• Must notify the recipient of the means by which the lawyer learned of the potential need for legal services, and include “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” at both the beginning and ending of the message per Ohio RPC 7.3(c)
• Must verify that the recipient has been served with notice of the action before sending a text message solicitation per Ohio RPC 7.3(d) if the recipient is a defendant in a civil action
• Must include the required “Understanding Your Rights” disclosure if soliciting within 30 days of an accident or a disaster under RPC 7.3(e).  Lawyers may not just include a link to the rights on their website and may not just include a picture of the rights – the full language must be in the texts even if it causes multiple texts to be sent.

Oregon Issues Ethics Opinion on Accessing Information on Social Networking Website

Want to investigate an opposing party or witness online?

Want to ask to “friend” someone to access their non-public information on social networking websites like Facebook?

Want to use a computer username or other alias to hide your identity?

Oregon jumps into the discussion on whether and how lawyers may use information on social networking websites with a recently issued ethics opinion, OSB Formal Ethics Op No 2013-189. The opinion concludes:

1. A lawyer may access publicly available information on a social networking website.

2. A lawyer may request access to non-public information if the person is not represented by counsel in that matter (See RPC 4.2) and no actual representation of disinterest is made by the lawyer (See RPC 4.3).

3. A lawyer may not advise or supervise the use of deception in obtaining access to nonpublic information unless Oregon RPC 8.4(b) applies (our covert activity exception).

For more discussion, see the following ethics opinions: New York City Bar Formal Opinion 2010-2; New York State Bar Ethics Opinion 483; San Diego County Bar Association Ethics Opinion 2011-2; Philadelphia Bar Association Ethics Opinion 2009-02.

Update: North Carolina and Buying Another Lawyer’s Name

In my last post, I wrote:

Lately when I’ve been talking about lawyer advertising online, I have been using a hypothetical involving a lawyer who purchases another lawyer’s name for keyword searches on search engines like Google, Yahoo! and/or Bing (sometimes called AdWords). Up to now, there really hasn’t been much authority out there except for a proposed North Carolina opinion that says you can’t do it (that I can’t seem to find on its website).

My colleague (Calon Russell) has pointed out that the proposed North Carolina opinion is actually an adopted formal opinion. The opinion – 2010 Formal Ethics Opinion 14 (adopted on April 27, 2012) – indicates a lawyer cannot select another lawyer’s name as a keyword to use in a search engine’s advertising program (like AdWords). The Opinion concludes:

Yes. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.

I’ll keep an eye on this area but if anyone knows of other opinions, I would love to hear about them.

Want to Buy Another’s Name? Wisconsin Court of Appeals Addresses Keyword Search Terms

Lately when I’ve been talking about lawyer advertising online, I have been using a hypothetical involving a lawyer who purchases another lawyer’s name for keyword searches on search engines like Google, Yahoo! and/or Bing (sometimes called AdWords). Up to now, there really hasn’t been much authority out there except for a proposed North Carolina opinion that says you can’t do it (that I can’t seem to find on its website).

Last month, the Wisconsin Court of Appeals addressed the practice in Habush v. Cannon, 2013 WL 627251 (Wis. Ct. App. Feb. 21, 2013). The case wasn’t a disciplinary case and doesn’t address the RPCs so some may argue it has only minimal effect on any the issue.  Instead, the case addresses the plaintiff’s assertion of a right of privacy under Wisconsin law. The Court sets out the opinion as follows:

Here, the law firm Cannon & Dunphy bid on the search terms “Habush” and “Rottier” through Google, Yahoo!, and Bing search engines. Cannon & Dunphy, by successfully bidding on the names Habush and Rottier, assured that, when a person entered either name as a search term into one of these search engines, a link to Cannon & Dunphy’s website would appear as a “sponsored link” above the “organic” link to the law firm of Habush Habush & Rottier. Attorneys Robert Habush and Daniel Rottier contend that, by successfully bidding on their names, Cannon & Dunphy violated § 995.50(2)(b) by using their names for advertising or trade purposes. We conclude that Cannon & Dunphy’s “use” of the names Habush and Rottier is not “use” within the meaning of § 995.50(2)(b). We therefore affirm the circuit court’s decision granting summary judgment in favor of Cannon & Dunphy.

Professionalism: Appreciating the Practice of Law

This Spring, I have the pleasure of teaching an ethics class at Lewis and Clark Law School with my partner and friend Allison Rhodes. We are both really enjoy the teaching aspects of what we do and are both very much looking forward to dropping ethical quandaries on our students on a regular basis.

Class starts next week – and in preparing the class syllabus, I was researching materials on professionalism. I came across a blog post by Brian Tannebaum, called “The Cause Of The Defenseless Or Oppressed — 15 years later” that I wanted to make sure everyone saw. If you don’t know Brian, you should read his posts on marketing and advertising – he has strong opinions with which some agree and some disagree. But either way, I enjoy reading the dialogue. (FYI – Brian is also a panelist on a panel I’m moderating at the LMRM conference this Spring.)

I plan to tell our students to read the post, which he has told me, started out as a reflection on his first 15 years of practice, and morphed into a list of 60 lessons learned over the years. Like Brian, I also started out at the public defenders many, many years ago — not only do I look back fondly at those years but it taught me the greatest respect for those who defend and prosecute crimes – very difficult (sometimes slept-preventing, sweat-inducing, stomach-aching) work.  Some of my favs from the list:

[5] No case or client is worth your reputation. 

[19] Your obligation is to the Bar rules first, and your client second. If you reverse that, you won’t need to worry about it.

[21] The best case, is the one you don’t take.

[30] Never bad mouth the competition, even if they deserve it.

[41] There are cases you are not right for, admit it.

[53] Whenever you argue with a non-lawyer, they will tell you to “stop cross-examining” them, and that they are “not on trial.”

[60] Regardless of what others think of what you do, remember, there are three branches of government, you’re an officer of one of them. Pretty cool. 

There are too many good ones to list them all.  But they are woth keeping in mind.

Washington Adopts Case Limits For Indigent Defense

The Washington Supreme Court recently adopted new Standards for Indigent Defense Services, which includes new caseload limits. Although the Standards become effective September 1, 2012, the new Standard regulating caseload limits will not take effect for another year, September 1, 2013.

The press release can be found here.  A copy of the Supreme Court’s Order can be found here.

The new Standards are designed to ensure competent, non-neglectful representation of indigent clients. As stated in Standard 3.2:

Standard 3.2.  The caseload of public defense attorneys shall allow each lawyer to give each client the time and effort necessary to ensure effective representation.  Neither defender organizations, county offices, contract attorneys, nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation.  As used in this Standard, “quality representation” is intended to describe the minimum level of attention, care, and skill that Washington citizens would expect of their state’s criminal justice system.

The Standards set caseload limits for felonies, misdemeanors, juvenile offender and dependency cases, civil commitments, appellate cases and active death penalty matters. See Standard 3.4, which provides that the caseload of “a full-time public defense attorney” should not exceed:

• 150 Felonies per attorney per year; or
• 300 -400 Misdemeanor cases per attorney per year depending on whether the jurisdiction has adopted a numerical case weighting system as described in the Standards; or
• 250 Juvenile Offender cases per attorney per year; or
• 80 open Juvenile Dependency cases per attorney; or
• 250 Civil Commitment cases per attorney per year; or
• 1 Active Death Penalty trial court case at a time plus a limited number of non death penalty cases; or
• 36 Appeals to an appellate court hearing a case on the record and briefs per attorney per year.

For more reactions to the caseload limits, see here (for a positive reaction) and here (for a negative reaction).

Attorney Fees Denied Due To Attorney Conflicts of Interest

We all know that lawyers who practice with conflicts of interest may be subject to bar discipline (and may have unhappy clients). But the 9th Circuit Court of Appeals recently sent a reminder that conflicts may have another consequence: denial of a potential attorney fee award.

In Rodriguez, et al. v. Disner, et al., the 9th Circuit addressed nine separate appeals, which challenged the district court’s order to deny attorneys’ fees to class counsel due to a conflict of interest. Some of you may have been following this class action case, which was brought against BAR/BRI and Kaplan for their activity in the market for bar preparation courses.

The case has a long history and primarily deals with what the court calls “incentive agreements” entered into between the named plaintiffs and counsel, which would have allowed the lawyer to seek individual compensation for each named plaintiff based on the value of the settlement or recovery. In a prior appeal, the court had noted that the “incentive agreements created an appearance of impropriety, violated the ethics rule against fee-sharing with non-lawyers, and created conflicts of interest between the class representatives and unnamed class members.” The court had not, however, expressed an opinion on how these principles applied to an award of fees.

On appeal in this matter, the 9th Circuit reviewed the interplay between violations of the ethics rules and fee awards and stated:

In sum, under long-standing equitable principles, a district court has broad discretion to deny fees to an attorney who commits an ethical violation. In making such a ruling, the district court may consider the extent of the misconduct, including its gravity, timing, willfulness, and effect on the various services performed by the lawyer, and other threatened or actual harm to the client. * * *  The representation of clients with conflicting interests and without informed consent is a particularly egregious ethical violation that may be a proper basis for complete denial of fees. * * * A district court has a special obligation to consider these equitable principles at the fee-setting stage in common fund class action cases, given the district court’s fiduciary role to protect absent class members.

[Internal citations removed] The 9th Circuit then affirmed the conflict of interest and the forfeiture of fees. This case serves as a reminder that conflicts of interest may impact lawyers in more arenas than just discipline.

Non-Lawyer Limited License Technicians Allowed in Washington

I’m a little late to the party on this but earlier this summer, the Washington Supreme Court adopted a new rule allowing non-lawyers greater ability to provide technical assistance on simple legal matters. The new rule, Admission to Practice Rule (“APR”) 28, titled “Limited Practice Rule for Limited License Technicians”,  will become effective Septeember 1, 2012.

A press release for can be located here. The Court’s order (with analysis why the rule was adopted) can be located here.

The rule was recommended by the Washington Practice of Law Board and is designed to allow non-lawyers to improve access to law-related services. According to the release, noon-lawyer legal technicians will be able to provide services that include, but are not limited to the following:

• Selecting and completing court forms
• Informing clients of applicable procedures and timelines
• Reviewing and explaining pleadings, and
• Identifying additional documents that may be needed in a court proceeding.

Practically speaking, this rule change should allow greater access to those who are unable (for whatever reason)  to hire a lawyer.  

Inside and Outside General Counsel Privilege When a Client May Sue: the Illinois Experience in Garvy v. Seyfarth

EQ contributor Katie Lachter recently “penned” a piece for Hinshaw’s Lawyers Lawyer Newsletter that is worth a repost here. If you are not on the Lawyers Lawyer mailing list, which provides regular updates on matters of risk management, professional responsibility, and legal malpractice for lawyers and law firms, let us know and we will add you to the list!

Garvy v. Seyfarth Shaw LLP, —N.E.2d—, 2012 Ill. App. (1st) 110,115

Risk Management Issue: Are a law firm’s communications with in-house general counsel and outside counsel privileged when a current client sues the firm for malpractice?

The Case: Plaintiff client sued defendant law firm for legal malpractice, fraud, and breach of fiduciary duty. In 2001, the client retained the law firm to provide corporate advice related to the management of a family-owned close corporation. Several of the client’s family members filed suit against him in 2004 in the Circuit Court of Cook County, based in part on actions the client had taken pursuant to advice from defendant law firm. The client asked defendant to represent him in the litigation. At the direction of its in-house counsel, defendant law firm sent the client a detailed letter regarding the potential conflicts of interest in its representation of him in the litigation due to the prior advice the firm had given him. The letter strongly encouraged the client to seek independent counsel regarding his consent to waive conflicts.

The client retained independent counsel, who asserted legal malpractice claims against defendant law firm on the client’s behalf and entered into pre-complaint settlement discussions with defendant. The independent counsel sent defendant law firm a letter regarding the settlement negotiations, adding that the client wanted defendant to continue representing him in the litigation. The independent counsel requested that defendant law firm enter into a tolling agreement regarding the client’s claims against defendant, which they did, and settlement discussions continued on the malpractice claims. Defendant law firm retained a third law firm to represent it with respect to the client’s malpractice claims. When defendant law firm raised with the client the issue of withdrawing from representing him, the client objected, arguing that withdrawal could sabotage settlement prospects. After settlement discussions in the litigation terminated unsuccessfully, on the third law firm’s advice, defendant law firm withdrew as the client’s counsel.

Several days later, the client filed a complaint against the law firm. During the discovery process, the client sought the production of the law firm’s internal and external communications related to its representation of the client, including all information related to the client’s legal malpractice claims. The law firm objected to the client’s requests to produce communications between the law firm’s attorneys and both in-house and outside counsel related to the client’s claims against the law firm, contending that the communications were protected by attorney-client privilege or the work-product doctrine. The circuit court ruled against the law firm, which refused to comply with the resulting order that followed, resulting in a civil contempt and $100 fi ne entered against it.

Defendant law firm then appealed. Both the Illinois State Bar Association and the Chicago Bar Association filed amici curiae briefs in support of defendant. The appellate court reversed, holding that the circuit court erred in ordering defendant law firm to produce documents and communications with in-house and outside counsel related to the client’s legal malpractice claims. It also vacated the contempt order. First, the appellate court found that the “fiduciary-duty exception” to the attorney-client privilege did not apply. That exception holds that a firm owes
a fiduciary duty to its client during the time period when the documents are generated, and therefore that documents created during that time cannot be withheld from the client on grounds of privilege. The appellate court observed that Illinois has not adopted the fiduciary-duty exception, but that even if the state had adopted it, the exception would not apply to this case. Because adversarial proceedings were pending, defendant law firm had sought legal advice in connection with the client’s legal malpractice claims against it, not in its fiduciary capacity as the client’s counsel in the litigation. Second, the appellate court took issue with the lower court’s conclusion that defendant law firm had not fully
disclosed the conflicts and that the court could not determine whether the client’s consent to defendant’s continued representation was informed. The appellate court found that it was clear from the record that the confl icts were disclosed, that the client sought independent legal advice, and that his consent to defendant law firm’s continued representation in the litigation was fully informed. In addition, the appellate court noted that the client had entered into a tolling agreement with defendant law frm in order to preserve his malpractice claims.

The appellate court expressed disapproval of the client’s attempt to “have it both ways,” stating, “he cannot insist that [defendant law firm] continue to represent him in the litigation while he has malpractice claims pending against [defendant], but then use that continued representation to insist that [defendant law firm] produce all documents related to legal advice sought in relation to the malpractice claims generated during that time.” Finally, the appellate court rejected the client’s argument that defendant law firm could have no expectation that its communications with counsel would be confidential because of the disclosure requirements imposed by Rules 1.4 and 1.7 of the Illinois Rules of Professional Conduct. To the contrary, as noted by amici, the very rules that the client relies on for that proposition recognize that a lawyer’s confidentiality obligations do not preclude him from seeking confidential legal advice about his own ethical obligations, and that lawyers are permitted to make
confidential reports of ethical issues to designated firm counsel (Ill. R. Prof’l Conduct 1.6(b)(4) cmt. 9 and 5.1 cmt. 3). With respect to the client’s work-product claims, the appellate court found that work-product of in-house and outside counsel was not discoverable because the client had not shown that it was impossible for him to obtain information related to his malpractice claims from similar sources.

Risk Management Solution: This case represents a welcome rejection of the case law that has developed holding that, at least as to communications with law firm’s in-house general counsel, there is no attorney-client privilege if the communications relate to a continuing client of the law firm. Those cases hold that the firm’s fi fiduciary duties to the client “trump” the privilege. Notably, a similar rejection of that reasoning
may be found in another recent case, Tattletale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP, et al., 2011 WL 382627 (S.D. Ohio 2011), which contains a thorough analysis of the competing legal principles. Central to the Illinois Appellate Court’s determination was the fact that the client had been fully informed as to the potential conflicts of interest arising from the law firm’s continued representation of him. This case underscored the need for thorough conflict waivers documenting that consent was informed. In the absence of such documentation, the decision could have come out quite differently. Although this case upheld the law firm’s right to assert its privilege, firms would be in a stronger position if they did not concurrently represent clients suing them for malpractice. Once claims are asserted against a firm, that firm should, as soon as reasonably possible, cease representing the affected client, at a minimum with respect to the matter that is the subject of the claim.

Is “Rebooting” Legal Education An Ethical Necessity In the New Legal Landscape?

The past decade has seen a profound change in the practice of law. From changes engendered by the impact of modern technology in both shrinking the communicative world while at the same time accelerating the pace of it, to variances forced by the Great Recession, the modern practice of the law is fundamentally different than it was just a decade ago.  Technological advances, increased competition, and client needs and demands for efficiency and economy have resulted in a marketplace for legal services that is spread out amongst fewer lawyers, nonlegal personnel and vendors.  Analyzing the ethical implications of this “new world order” was the goal of the 16th Annual Ethics Symposium, “Evolution of Ethics in an Electronic Age,” presented by The State Bar of California’s Standing Committee on Professional Responsibility and Conduct (COPRAC), which took place on May 19, 2012 at the University of California Hastings College of the Law, in San Francisco, California.

Delivering the keynote address at the symposium, UC Hastings Chancellor and Dean Frank H. Wu took the issue further.  Chancellor Wu has, in the past, called these changes in the legal community a “profound economic structural change” that is “likely… permanent.”   Marrying that position with the theme of the Symposium, and in a world of decreasing law school applications, staggering law firm implosions, and an uncomfortably high rate of unemployment for lawyers, in his Keynote, Chancellor Wu emphatically argued that the profession has an ethical duty to adjust to this brave new world from the very beginning of the lawyer’s journey and “reboot” the legal education system itself.  Chancellor Wu stated that the profession must reform the system of legal education to one that not only trains the budding lawyer in the practical skills needed for effective lawyering, but also to adjust it in a way so that those who attend law school have a reasonable basis in fact for believing that once they are accepted and assuming they put in their full effort, they will graduate, that they will pass the bar, that they will find gainful employment at a rate that will justify their investment, and that they will ultimately succeed in the profession.  For the Chancellor, this means at its core a reduction in the number of students admitted to law school in the first instance, which Hastings has done, reducing its incoming class size by 20% for the upcoming school year. Chancellor Wu stated “We have an ethical obligation to address the crisis in legal education. It is irresponsible to continue to enroll so many law students. The right course of action for society, as well as the students themselves, is to enroll fewer law students.”  Recognizing that a potential impact of reducing enrollment class size is potentially decreasing access to the legal profession, even after adjustment for declining applications, Chancellor Wu added “But we also want to provide access to higher education and the justice system, so even as we have fewer students we must continue to have a diverse mix of students.”

The question that comes to mind – is this an ethical issue?

The preamble to the ABA Model Rules states among its Lawyer’s Responsibilities:

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

….

[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of services rendered by the legal profession.  As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education…. Therefore, all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice of all those who because of economic or social barriers cannot afford or secure adequate legal counsel.  A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

[7] Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law.  However, a lawyer is also guided by personal conscience and the approbation of professional peers.  A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the  legal profession’s ideals of public service.

….”

As an officer of the legal system with a responsibility for the quality of justice, and if we believe in the aspirational goals of the Model Rules’ Preamble that professional responsibility goes beyond the Rules themselves into the arena of the health and integrity of the profession itself, then it appears there is something to Chancellor Wu’s position.  What do you think?

 (**The author is a member of COPRAC, the Los Angeles County Bar Associatin’s Professional Responsibility and Ethics Committee (PREC), and the Loyola Law School Alumni Board of Governors.  The views expressed herein are personal to the author, and do not reflect in any way any view of COPRAC, the State Bar of California, PREC, LACBA, Loyola Law School, or its Alumni Board of Governors.)