Beach Office 1Practicing law out of a “virtual law office” (“VLO”), without being tied to the overhead expense of a brick-and-mortar facility, is increasingly attractive to lawyers in many stages of their careers:  junior lawyers hanging out their shingles in a tough market; senior lawyers who want to keep practicing, but in a flexible format; and mid-career lawyers who are attracted to the increased options for leveraging their practices by using cutting-edge technology.

Ohio’s Board of Professional Conduct is the latest to issue an ethics opinion on the subject.  But by not discussing an inherent issue — multi-jurisdictional practice and possible unauthorized practice — the Ohio opinion leaves some gaps.

VLO:  OK in OH

The Ohio Board’s opinion lays out the basic concepts of a VLO:  it typically involves communicating with clients “almost exclusively” in a non-face-to-face way, using various forms of technology, including secure internet portals, and without “a physical office where the lawyer works, meets with clients, and stores client files.”  Following the lead of several earlier ethics opinions, including from Florida, Pennsylvania, North Carolina and Washington, the Ohio Board in general greenlights VLO’s for lawyers in the Buckeye State.

The Board pointed to several ethics duties inherent in operating a VLO:

  • maintaining the technological competence needed to operate the VLO;
  • using reasonable efforts to prevent inadvertently disclosing client information;
  • discussing at the outset of the representation the office technology the lawyer uses;
  • keeping up adequate communication with the client, “regardless of the type of technology used;” and
  • making reasonable efforts to ensure that technology vendors are providing their services “in a manner compatible with the lawyer’s professional obligations,” as required by Ohio’s version of Model Rule 5.3(a).

“Office address” requirement

Some jurisdictions — but not Ohio — have bar rules or court rules requiring a lawyer to have a “bona fide office,” interpreted as traditional office space.  Such rules clearly limit the ability to operate through a VLO.  But even without a bona fide office requirement, a corollary issue lurks:  most state versions of Model Rule 7.2(c) require legal marketing materials to include the “office address of … [a] lawyer … responsible” for the advertising.

The Oho Board resolved that issue, saying that the language does not require a physical address, and can also include the lawyer’s home address, the address of shared office space or even a registered post office box.  In order to avoid being misleading, lawyers who have untethered themselves from physical offices must state in their advertising that they are able to meet in person with clients “by appointment only.”

VLO’s and UPL/MJP

The Ohio Board’s opinion doesn’t discuss multi-jurisdiction practice, or when an Ohio lawyer’s operation of a VLO might risk crossing the line into the unauthorized practice of law (“UPL’) in another state.  That’s somewhat puzzling — first, because Model Rule 5.5(a) (as adopted in Ohio and elsewhere), bars lawyers from practicing in a jurisdiction in violation of regulations in that jurisdiction; and second, because the Board previously dealt with the flip side of the VLO/UPL issue.  In 2011, the Board opined that out-of-state lawyers who represented Ohio residents through a VLO had impermissibly established a “systematic presence” in Ohio for the practice of law, in violation of Ohio’s version of Model Rule 5.5(b).  The Board said that “‘systematic and continuous presence’ includes both physical and virtual presence in Ohio.”

Most jurisdictions have adopted some version of the rule prohibiting out-of-state lawyers from establishing a systematic presence in that jurisdiction.  Therefore, if another state were to adopt Ohio’s stance that “systematic presence” includes virtual presence, Ohio lawyers could risk a UPL finding if they provide services to clients in that state through an Ohio-based VLO.  That’s a risk that the Ohio Board could have cautioned about.

Ethics opinions from California and Illinois (citing the 2011 Ohio opinion) have discussed the UPL issues with VLO’s.

The ABA’s Task force on E-Lawyering has advised in its Suggested Minimum Standards for Delivering Legal Services On-Line that lawyers operating VLO’s should avoid UPL by serving “only clients who are residents of the state where the firm is authorized to practice, or clients who have a matter within the state where the law firm is authorized to practice.”

That seems like a good way to stay out of border-crossing trouble, and to minimize UPL risks while using technology to engage in virtual practice, with its potential benefits.

Businessman stopping traffic at roadblockI love LinkedIn, but here’s a potential hazard — what you say there can and will be used against you if you’re engaged in the unauthorized practice of law.

A Colorado lawyer found that out the hard way:  he was suspended in Pennsylvania for a year, and got the same discipline in Colorado, where he was licensed.  (Actually, the suspensions were for a year-and-a-day, a punishment term that is loosely associated with ancient English common-law.  Now you know.)

LinkedIn holding-out

The only place the lawyer was licensed was Colorado.  Nonetheless, according to the Pennsylvania disciplinary board’s report and recommendation, he maintained an office in the Keystone State, and registered that address with the Colorado Supreme Court.

He also held himself out to the public as being admitted to practice in Pennsylvania — namely in his LinkedIn profile, which mentioned his “Pennsylvania law firm,” and the Pennsylvania client entities he claimed to have represented.  The profile also falsely stated that the lawyer had been licensed since 2006 to practice in Pennsylvania and also California.

That was a serious problem — in Pennsylvania, as in most states, holding yourself out as authorized to practice when you are not is an independent instance of misconduct (see Model Rule 5.5(b)(2)).  It can even be a violation of state statute, like it is in my home state of Ohio.

The lawyer claimed that the false information on his profile resulted from not being “careful in writing” it, and that he had mistakenly cut and pasted information “from his resume” into the profile.  The disciplinary board found those claims “not credible.”

Hearing hassle

The LinkedIn problem might have been enough to get the lawyer tagged for the unauthorized practice of law, in violation of Pennsylvania’s version of Model Rule 5.5, and for making “overt misrepresentations” in violation of Rule 8.4(c).  But that wasn’t all he did, according to the disciplinary board findings.

In 2014, the lawyer appeared as counsel on behalf of a parent and her minor child at an expulsion hearing held at a Pennsylvania high school.  The child happened to be the lawyer’s step-son, but the lawyer never disclosed that.  He introduced himself at the hearing as counsel, and when asked for his attorney ID number the lawyer gave his Colorado bar number, but never disclosed before, during or after the hearing that he had never been admitted to practice in Pennsylvania.

The lawyer continued his representation in the high school expulsion matter for the next year, until the term of the child’s school discipline was complete.  He then wrote to the superintendent that his “representation of [Child] is hereafter terminated.”

Don’t let his happen to you…

The lawyer in this disciplinary case brought a heap of trouble down on himself.  But even if you would never practice where you are not authorized to do so, and would never hold yourself out as being admitted where you are not, this disciplinary case has a few takeaways.

  • First, police your social media statements, and make sure they are accurate — because they can be a basis for disciplinary trouble.  Here’s an article by my LinkedIn buddy, Missouri lawyer Michael Downey, on LinkedIn ethics issues — it’s from 2013, but still well worth reading.
  • Second, if you get an inquiry from bar disciplinary counsel respond to it, even if it’s just to ask for more time or get clarification.  The lawyer here failed to respond for many months, leading to an additional charge of failure to cooperate, which is another independent basis for discipline under Pennsylvania bar rules (as it is in other states, too).
  • Third, be aware that ethical misconduct can be prosecuted in the state where it occurs as well as in your home jurisdiction, where you are licensed — and as here, your state of licensure will impose “reciprocal discipline” based on a finding of misconduct elsewhere.

International communication conceptAs we’ve predicted before, the increasing globalization of high-level legal practice continues to create questions about forms of legal practice – in particular, vereins, a structure aimed at letting firms based in different countries operate under a unified brand.  Mega-firms Fulbright & Jaworski  (subs. req.) and Dentons have faced motions to disqualify centered on such structural issues, and now a Texas ethics opinion issued last month questions whether lawyers in the Lone Star state can use a verein name on pleadings.  (Hat tip to Dan Bressler and the Law Firm Risk Management blog for alerting us to the opinion.)

Five AmLaw 100 firms affected

In Opinion 663, the Texas Professional Ethics Committee concluded that under the state’s Disciplinary Rules of Professional Conduct, Texas lawyers in an organization such as a verein “may not use the name of the organization as their law firm’s name on pleadings or other public communications” unless all the names are those of current or former lawyers in the Texas firm or a predecessor firm.

According to an article in Texas Lawyer, five firms on the AmLaw 100, which lists the highest-grossing U.S. law firms, are Swiss vereins that include Texas lawyers, including DLA Piper, Baker & McKenzie, Hogan Lovells, Norton Rose Fulbright and Squire Patton Boggs.

The Committee based its opinion, which is advisory, on Texas’s Rule 7.01(a), which unlike the analogous Model Rule on firm names, expressly bars lawyers from practicing under a “a firm name containing names other than those of one or more of the lawyers in the firm,” (except for deceased/retired lawyers’ names or names of predecessor firms).

The Committee’s analysis used a hypothetical Texas firm formerly named “Smith Johnson,” that has joined an “international verein” and become known as “Brown Jones Smith.”  The Texas lawyers in the verein would be violating Rule 7.01(a), said the  Committee, because “there has never been a lawyer in the Texas law firm or any predecessor firm named Brown or Jones.”

In addition, like the analogous Model Rule, Texas Rule 7.02 prohibits “misleading” firm names, and the Texas Committee concluded that the use of the “Brown Jones Smith” name would also be misleading, by creating “the appearance that all lawyers in all the law firms that are in the verein are members of a single law firm when in fact they are not.”  The firm’s statements about its composition in advertising disclaimers don’t diminish the misleading nature of the communication, the Committee said.

Be careful what you ask for?

According to Texas Lawyer, the Texas Committee issued Opinion 663 in response to an inquiry from Robert Newman, who is of counsel with Norton Rose Fulbright (a verein with Texas lawyers), and a former chair of the Committee.  Asking for an advisory ethics opinion, and then getting an adverse one, is always a possibility, although even an adverse opinion at least tells you where you stand, ethically speaking.  But the reactions of the current Committee chair and the mega-firms contacted by Texas Lawyer are interesting, and indicate that it will basically be business as usual for the firms, notwithstanding the (advisory) opinion.  The Committee chair said that “Literally nothing is going to happen” unless someone files a grievance against a lawyer for using a verein name, which he said would be a “rare” occurrence.

For their part, two firms contacted by Texas Lawyer — Norton Rose Fulbright and Baker & McKenzie — said they do not plan to make any changes as a result of the ethics opinion.  The magazine quotes the managing partner of Baker’s Dallas office, who said “We’ve been practicing in Texas as Baker & McKenzie since 1986 and plan to continue to do so.”

Whether this ethics opinion will resonate with bar regulators in other jurisdictions, and whether it will generate some disciplinary cases remains to be seen.  Also interesting is the Texas committee’s view that the law firms in the verein are not members of the “same firm,” which might have a potential impact on analyzing future conflict of interest issues, among other things.  Stay tuned for further developments.

Officer custom control signHas your mother-in-law ever asked you for legal help?  Giving legal advice to family members can be challenging for lots of reasons — but it often comes with the territory when you have a law license.  A Colorado lawyer, however, recently got into disciplinary trouble for helping his Minnesota in-laws in a small collection matter.  In a badly flawed decision, a divided Minnesota Supreme Court decided that he had engaged in the unauthorized practice of law, and that no “safe harbor” applied to permit his activities — which consisted of sending e-mails from Colorado into Minnesota in order to negotiate the judgment.

Coming 14 years after the ABA adopted Model Rule 5.5(b)-(d), this opinion spotlights how turf protection by state regulators has thwarted hopes for a multi-jurisdictional outlook that would be more in line with the realities of modern-day legal practice.

Admonished — astonished

The Colorado lawyer received the lowest level of discipline available in Minnesota — a private admonition — and therefore is not named in the court’s opinion.

His road to trouble in the North Star State began when his in-laws, residents of Minnesota, contacted him for help on a $2,300 judgment against them in a dispute with their condo association.  From his law office in Colorado, where he has been practicing for 30 years, the lawyer exchanged about two dozen e-mails with the condo association’s Minnesota attorney over a four-month span, culminating in a settlement offer by the lawyer.  Part of the lawyer’s litigation practice includes debt collection.

The state supreme court, agreeing with the hearing panel, held that “engaging in e-mail communications with people in Minnesota may constitute the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), even if the lawyer is not physically present in Minnesota.”

Astonishingly, the court majority rejected the argument that the lawyer’s efforts on behalf of his in-laws “arose out of or were reasonably related to his practice in Colorado,” even though his practice there partly involves debt collection.  Minnesota’s Rule 5.5(c)(4), like its Model Rule counterpart, creates a safe harbor for temporary practice in a state where the lawyer is not licensed, if the lawyer’s activities grow out of practice in the lawyer’s home state.  Not here, said the four-justice majority.  In a stunning bit of reality-denial, the court held that “simply because his in-laws contacted him in Colorado or appellant has done collections work in Colorado,” that was not enough to make the lawyer’s representation of his in-laws arise out of or reasonably relate to his practice in Colorado.

Dissent:  This is a “step backwards”

The three dissenting justices wrote that the e-mails and “assistance with a small judgment-collection negotiation for his parents-in-law” were reasonably related to the lawyer’s Colorado practice, and thus within the safe harbor of Rule 5.5(c)(4).  They properly saw the majority’s holding as “troubling and counterproductive,” in light of Model Rule 5.5’s policy:  to be a “bold step towards new latitude in multijurisdictional practice of law, which accommodates the increasingly mobile and electronic nature of modern, national legal practice.”  The majority’s decision, the dissenters wrote, “represents a step backwards.”

Contrary to the principles and policy goals intended by Rule 5.5, the majority’s holding, said the dissenting justices, means that “when family members or friends — an abundant source of clients — email or call a practitioner admitted in another state, seeking assistance in areas in which the practitioner is experienced and competent, relying on a relationship of trust and confidence, they must be turned away.”

The majority opinion relies on the parochial view that the Colorado lawyer’s knowledge and experience in negotiating resolutions of collection matters stopped at the state line, and that his e-mails sent into the ether across that state line constituted unauthorized practice that the citizens of Minnesota (i.e. his in-laws) needed protection from.  It’s sad that we haven’t come farther than this since 2002 and the safe-harbor provisions of Model Rule 5.5.

Sleeping in classAs we learned in the Watergate era, “It’s not the crime — it’s the cover-up,” and that truism has an analog in the world of lawyer ethics, as a recent disciplinary case out of the District of Columbia illustrates.

Tale of the snoring lawyer

Like many who practice in the D.C. area, the lawyer was licensed in both the District and Virginia.  In 2014, the lawyer went to a CLE seminar in Virginia.  As described in the disciplinary opinion, “during the morning session, [the lawyer] fell asleep and began snoring, causing the seminar’s coordinator to intervene and wake [him].”

Things went from bad to worse in the afternoon session, when the lawyer “began talking loudly at a video presentation and continued to do so after the seminar coordinator asked him to stop.  In response to [the lawyer’s] continued outbursts, another attendee led [him] from the room.  That attendee smelled alcohol on [the lawyer’s] person. … [He] admitted to one attendee that he had been drinking.”

In the Virginia State Bar inquiry, the lawyer at first denied everything — being intoxicated, falling asleep and snoring.  That denial started the snowball rolling, because later, the lawyer had to admit “that those representations were not accurate,” and further, “that he did not take the steps necessary to correct his misrepresentations.”

The lawyer and the Virginia State Bar Disciplinary Board stipulated that he had violated the Virginia Rules of Professional Conduct, which, like their Model Rule 8.1(b) counterpart, makes it misconduct to “fail to disclose a fact necessary to correct a misapprehension known by a lawyer to have arisen” in connection with a bar discipline matter.

The penalty in Virginia:  a six-month suspension.  But that didn’t end the matter.

Reciprocal discipline woes

Many lawyers don’t realize that multiple licensure carries with it multiple exposure to disciplinary sanctions; all jurisdictions have rules mandating consideration of reciprocal discipline in their jurisdiction when a lawyer with a license there is disciplined in another jurisdiction.

That’s what happened to the lawyer here — the D.C. bar rules “presumptively impos[e] identical reciprocal discipline, unless the attorney demonstrates by clear and convincing evidence” some exception.

The lawyer argued that his Virginia suspension was based on “sleeping and snoring in a [CLE] class,” and that he was disciplined in Virginia for conduct that “does not constitute misconduct in the District of Columbia.”

Not so, said the D.C. Court of Appeals.

The lawyer’s Virginia discipline did not stem from the conduct at the CLE, according to the court; rather, it was based on the lies to the Virginia State Bar during the proceedings there, and his failure to correct his misrepresentations, until it was too late.  Those are ethical violations under the D.C. Rules of Professional Conduct, too, said the court.

Luckily for the lawyer, the Virginia suspension had already expired, and the D.C. Court of Appeals agreed that whether calculated from the beginning date of the Virginia suspension, or the date on which the lawyer reported his Virginia discipline to the D.C. bar, the suspension period had already run.

Therefore, although the lawyer was disciplined with the same six-month suspension in D.C., he effectively served no additional time.

“I cannot tell a lie”

Strict truth-telling in disciplinary matters must be your watchword, whether you snore or not.  It’s not the crime, it’s the cover-up, and when you’re dealing with reciprocal discipline you can get a double whammy.

Florida barIn a somewhat puzzling ruling handed down on May 25, a Florida district court judge held that the court lacked jurisdiction to address whether a Massachusetts lawyer who appeared on behalf of his defendant client at a Florida mediation was engaging in the unauthorized practice of law.

As reported by Law360 (subs. req.), the plaintiff, which runs an adult subscription service, is suing defendant Sun Social and others for allegedly hosting pirated content on their internet porn sites.

No jurisdiction, no sanctions

At the mediation, Sun Social appeared through its Massachusetts counsel, who had not yet sought pro hac vice admission.  Only after the parties reached an impasse did the plaintiff object to the Massachusetts lawyer’s participation.  The plaintiff charged the lawyer with unauthorized practice and sought sanctions, including disqualification.

The district court held that it could not address whether the lawyer’s conduct was UPL, because the Florida Constitution vests the state supreme court “with exclusive jurisdiction over … the prohibition of practice by persons not members of the Florida Bar,” and case law interpreting the provision delegates the determination of UPL solely “to the Florida Bar.”

The federal court judge denied the sanctions motion, ruling that “only the Florida Supreme Court has jurisdiction to determine whether the alleged acts constitute the unauthorized practice of law,” and noting that the lawyer had since sought and obtained pro hac vice admission.

Really without teeth?

The court seems to have reached the right outcome here, but for the wrong reason — and in holding that it was required to be agnostic on the issue of UPL, the court took a too-narrow view of its power to remedy future conduct that it might be presented with.

First, Rule 4-5.5 of the Florida Rules of Professional Conduct, like its Model Rule analog, creates some limited circumstances permitting lawyers admitted elsewhere to practice temporarily in Florida — including in “pending or potential” ADR proceedings like mediations (if the services arise out of or are reasonably related to the lawyer’s practice in his or her home jurisdiction).  And second, the Southern District of Florida’s own Local Rule 11.1 incorporates the Rules of Professional Conduct as standards and provides that for violating those rules, “attorneys may be subject to appropriate disciplinary action,” including under the court’s own Rules Governing Attorney Discipline.

If the district court lacks authority to sanction lawyers who sail outside the limited safe harbor of Rule 5.5’s temporary-practice provision, that limitation does not appear in the court’s local rules.  Indeed, it would appear to run counter to the court’s power to manage the proceedings before it.

“Immature and unprofessional mudslinging”

It is possible that the court was reflecting its impatience with the parties, which, the judge wrote, had engaged in “immature and unprofessional mudslinging.”  And after all, the Massachusetts lawyer had (after “blatantly drag[ging] his feet”) finally obtained the court’s permission to appear.  But in any event, the implication that the district court would be hamstrung in dealing with ethical misconduct constituting the unauthorized practice of law is unfortunate.

Untitled-1The client of a Colorado lawyer who filed an administrative appeal in North Dakota without being admitted there got a harsh result — the North Dakota Supreme Court ruled in Blume Construction v. State that the lawyer’s action was the unauthorized practice of law, and therefore that the client’s appeal was void.

Admission ticket required

Blume Construction had been assigned a penalty tax rate on its unemployment insurance, and hired a Colorado lawyer to appeal the determination.  Two days before the appeal deadline, the lawyer signed and submitted an electronic appeal request on behalf of Blume, giving the basis for the appeal, summarizing several statutory provisions and requesting relief.  Local practice rules required the lawyer to move for pro hac vice admission within 45 days of filing the appeal request; the lawyer did not do so.

In fact, at least 30 days before the scheduled administrative hearing on the appeal, the lawyer notified the referee that he could not secure a sponsoring attorney licensed in North Dakota, as required for pro hac vice admission, and Blume, the client, told the referee that a North Dakota lawyer would represent Blume instead.

On the morning of the administrative hearing on the appeal, the referee became aware that the notice of appeal had been filed by the Colorado lawyer.

The hearing was cancelled, and the referee ruled that filing an administrative appeal required North Dakota admission, and that Blume’s appeal request was void because it was filed by a nonresident lawyer not admitted to practice in the state; therefore, Blume was stuck with its penalty tax rate.  The intermediate court of appeals affirmed the referee’s decision.

No safe harbor

North Dakota’s version of Model Rule 5.5 provides safe harbor for some forms of temporary practice by out-of-state lawyers, including (1) “preparatory” efforts made by lawyers who intend to seek pro hac vice admission for the particular matter; and (2) services that the out-of-state lawyer carries out, but that could also be performed by non-lawyers.

Blume argued that filing the appeal request was merely preparatory, that its lawyer reasonably expected to be granted pro hac vice admission and, therefore, that the lawyer was within the safe harbor.  But the state supreme court disagreed, based on a 2009 case in which it had held that filing a request for reconsideration and being designated as counsel were not merely “preparatory.”

Blume also argued that a non-lawyer could have filed its administrative appeal, and therefore, that the Colorado lawyer did not need to be admitted in North Dakota.  Not so, said the court.  As a corporation, Blume couldn’t act through a non-attorney agent in a legal proceeding.  And the Colorado lawyer’s work in filing the appeal was more than clerical or just filling out a form; rather the lawyer applied legal skill and knowledge to the facts of the case.

Harsh result

With its harsh result — dismissal of Blume’s appeal — this case illustrates the risks to the client of unauthorized practice.  And, of course, lawyers who engage in unauthorized practice also put their licenses at risk.

Taking any action on behalf of a client before a tribunal in a jurisdiction where you are not admitted — or not yet admitted — requires close attention to several sources of authority in the jurisdiction you are headed for.  (Some lawyers make the mistake of looking to their home jurisdiction’s rules.)  You need to consider that jurisdiction’s ethics rules, its pro hac vice rules, its statutes, any applicable rules of court and its case law.  You may be under time pressure — as the Colorado lawyer was, with the client’s appeal deadline looming — but there is no substitute for knowing whether you have a safe harbor or a sinking boat.

Color speech bubbles with censored swearing wordsBe aware of your jurisdiction’s limits on what a “retired” lawyer can and cannot do, and obey them — or risk being tagged for the unauthorized practice of law.   And, oh yeah — communicate politely.  That’s a  dual lesson a lawyer in Illinois may be about to learn, according to a disciplinary complaint filed in December.

Retired status

The lawyer was admitted to practice in 1965.  In January 2013, he registered as “inactive,” which allowed him to pay a reduced yearly registration fee, but made him ineligible to practice.  A few months later he reactivated his license.  Then, in December 2014, the lawyer registered as “retired,” which again made him ineligible to practice.

Nonetheless, in January 2015, the lawyer agreed to represent a client on a post-dissolution child-visitation petition, pro bono.  He told opposing counsel he represented the client, and engaged in negotiations over a period of about three months.  Two days before the initial court date, the lawyer revealed to opposing counsel that he was retired, and therefore no longer appeared in court, “but hoped that the parties would be able to settle matters out of court.”  Opposing counsel then told the lawyer that if he was on retired status, “he was not authorized to practice and she could no longer speak to him regarding the matter.”

“Good … Luck, Sweetie.”

The lawyer persisted in trying to settle the matter; opposing counsel again refused to participate.  That apparently touched a nerve.  The lawyer e-mailed opposing counsel, including the following:

“Done! You persuaded me. I am fucking done communicating with youse …lawyer babe. … GOOD FUCKING LUCK, SWEETIE!!!—stanley.”

Based on this conduct, the state Attorney Registration and Disciplinary Commission charged the lawyer with unauthorized practice of law (Rule 5.5); dishonesty, fraud, deceit and misrepresentation, for failing to disclose his registration status (Rule 8.4(c)); and using means of representing the client that had no substantial purpose other than to embarrass and harass, for sending his “Good Luck” e-mail (Rule 4.4(a)).

There is other misconduct charged in the complaint as well, involving representing various family members while on inactive status.

Lessons learned

There are a couple take-aways from this still-pending disciplinary case.  First, forming an attorney-client relationship doesn’t depend on payment.  Under Illinois rules, it doesn’t matter whether you accept payment for your legal services; to provide those services, you must be authorized to practice.

Second, each state has authority to regulate lawyers practicing within its borders; this has resulted in disparate practice rules relating to “retired” lawyers, “inactive lawyers,” and similar kinds of bar registration status.

In my home state of Ohio, for instance, our Rules for the Government of the Bar make registration as “retired” irrevocable, and strip a “retired” lawyer of the ability to practice.  With that registration status, you can’t be listed as “of counsel,” or otherwise held out as being able to practice in Ohio, and violations constitute unauthorized practice.

In New York, in contrast, lawyers registered as “retired” are permitted to practice by statute, but they can’t accept compensation, as explained in Formal Opinion 2005-06 of the Association for the Bar of the City of New York Committee on Professional and Judicial Ethics.

Last, knowing the ins and outs of your registration status and its implications isn’t enough.  You should also talk nicely to opposing counsel, clients, judges, and everyone you come in contact with.

The license you save may be your own.

 

2016 Start, Two Thousand Sixteen.What was the most important development in the legal ethics arena over the past five years?  I was honored to be asked by LexBlog, the folks who provide our blog platform, to share my views on this topic on the LXBN network, which has 8,000+ blog authors.  But of course, the invitation also made me think about what’s ahead for 2016 in “Ethics World.” Here are five predictions.

Continued disruptive force from all things digital

The digital age in all its manifestations will continue to exercise its disruptive, game-changing force in 2016.  It will touch everything from the duty of competence in selecting cloud vendors and guarding against data breaches to knowing about the Internet of Things and how it potentially affects your clients.  The ways that social media affect legal ethics will only proliferate as more authorities weigh in on discovery and litigation duties when dealing with social media as evidence.  And, if the past is prologue, lawyers will inevitably continue to get into trouble on social media in many ways – some of them license-killing.

Globalization will create challenges related to firm structure

High-level legal practice will increasingly be globalized, and 2016 is sure to bring more issues and questions about forms of legal practice – vereins, in particular, a structure aimed at allowing firms based in different countries to operate under a unified branding and marketing strategy.  How conflict-of-interest rules and unauthorized-practice rules will apply to these entities has been a hot issue and will continue to be in 2016.  Mega-firms Fulbright & Jaworski  (subs. req.) and Dentons have already faced motions to disqualify centered on structural issues, and developments are certain to be ongoing.

More decisions to come on role of in-house firm counsel and privilege issues

Should the attorney-client privilege apply when firm lawyers talk to a firm’s ethics guru about a possible mistake in handling a client’s matter?  The trending answer is yes.  A much-anticipated opinion from New York’s First Appellate Department will likely be issued in 2016 that will give more clarity to that jurisdiction’s lawyers, and is likely to exert influence one way or the other.

Lawyer mobility will spotlight rules on client files and property

The break-up of big firms like Dewey, Heller Ehrmann and Thelen may not be in the spotlight this coming year as they have been, but lawyer churn will persist as a fact of legal life, making it crucial to know the rules on negotiating for employment,  notifying clients, transferring client files (including digital files) and duties owed to the lawyer’s soon-to-be-former firm.

The graying of the profession puts succession planning on the agenda

I’m a proud baby boomer, so I listen when scholarly commentators point to the impact of the coming “senior lawyer tsunami,” as the 77 million of us boomers age (purchase req.).  The profession will continue to gray this year, resulting from a confluence of factors.  Fewer lawyers will enter, as evidenced by the precipitous drop in law school entry and class sizes over the past few years, while the baby boomers, blessed with health care improvements that will extend their professional lives, will keep working – many from economic necessity.  About 11 percent of U.S. lawyers in general are 65 or older, and a recent survey found that partners age 60 or older control 30 percent of revenue in U.S. law firms with 50 or more partners.  Succession planning will continue to be a key issue this year as large firms grapple with the governance aspects of client transition, and small firms and solos look at rules on selling a practice.  But issues of cognitive decline and how to protect clients from lawyers who should not be practicing will also be at the fore.

Stay tuned

Stay tuned – legal practitioners at all levels and in all settings should be closely following the developments in “Ethics World” — – both expected and unexpected — and how they affect  our ability to navigate in 2016.

Tensed Businesswoman Using Computer At DeskWith the goal of positioning his on-line legal forms company as a solution to America’s access-to-justice problem, Chas Rampenthal, General Counsel of LegalZoom, zoomed through my home state last week, with two speaking engagements.  I caught his speech at a breakfast meeting at my home-town bar association, the Cleveland Metropolitan Bar Association (@clemetrobar).

A panacea for the under-served?

Despite the early hour, Rampenthal was a high-energy presence as he described the “Number One problem facing the legal profession” as “under-consumption of our services.”  As he sees it, “Access to justice is a fundamental right,” but the “legal system is designed” to shut out massive numbers of consumers who need basic legal services at a reasonable cost. There must be a continuum of legal care, Rampenthal urged, just as there is in the medical profession.

He described his visit to an urgent care center, where he was seen by numerous support personnel, whose work was rolled up into the doctor’s final opinion on the X-ray of his broken bone.  “The business of law and the practice of law doesn’t all have to be provided by lawyers,” he said.  A “pure professionalism model,” Rampenthal asserted– one based on lawyer regulations aimed at protecting the public — can’t address the “massive underrepresentation” of those needing legal services.

Unauthorized practice still an issue

Of course, the issue raised by LegalZoom (and by other players in the same field, which Consumer Reports Magazine has called “legal DIY websites“) is whether the model constitutes the unauthorized practice of law (UPL) — which is proscribed by every jurisdiction under Rule 5.5 and/or other regulations — and whether it can harm consumers.  LegalZoom has been subject to lawsuits and bar resistance in several jurisdictions.  We previously wrote about that here.  In June, LegalZoom sued the North Carolina Bar for antitrust violations, the culmination of a decade of investigations and cease-and-desist efforts.  The bar has moved to dismiss.

Rampenthal acknowledged that consumers can be confused by what LegalZoom offers — he said that “Everyone thinks LegalZoom is a law firm,” despite disclaimers, and that when asked to name any law firm that came to mind, survey respondents often named LegalZoom.  LegalZoom’s advertising says that it is not a law firm, as does its website.

And Rampenthal got some sharp questions from the Cleveland Metropolitan Bar Association audience.  One lawyer said that clients had asked him to review documents that didn’t actually fit the clients’ needs, but which they had generated using LegalZoom’s self-help software.

Problems abound

Rampenthal closed with a rallying cry, urging lawyers and bar regulators to be more open to the LegalZoom business model, as part of increasing access to justice for legal consumers.

But many are far from being sold on the notion.  Frank DeSantis, a co-editor of this blog, for instance, is the former chair of the Ohio Supreme Court Board of Commissioners on the Unauthorized Practice of Law.  He noted that “UPL regulations exist to protect the public, not lawyers.  LegalZoom is very dangerous because it gives its users the false impression that they have received sound legal advice,” when actually they have just selected from some drop-down menus.  Legal consumers are often not in a position to know what they need to protect their interests.  That’s where legal advice comes in.  Creating and using the wrong document from a website can be more harmful than not having a document.

Reflecting on Rampenthal’s described visit to the emergency room, DeSantis commented, “Legal self-help is as pernicious as medical self-help.”