Disclosing client information on Facebook has gotten yet another lawyer in trouble.  A Massachusetts attorney was publicly reprimanded earlier this month for posting details of a guardianship case on the social media site, in violation of the Bay State’s version of Model Rule 1.6 (“Confidentiality of Information”).  The Board imposed a public reprimand, rejecting an argument that the only people who would have recognized the case from the information posted were the parties themselves.  The case highlights the risk of posting even information you have tried to anonymize.

“Back in the Boston office …”

After representing his client at a hearing in juvenile court, the lawyer (a member of the bar since 1977) posted on his personal Facebook page, which was public and had no privacy setting:

I am back in the Boston office after appearing in Berkshire Juvenile Court in Pittsfield on behalf of a grandmother who was seeking guardianship of her six year old grandson and was opposed by DCF [i.e., Department of Children and Families] yesterday.  Next date — 10/23.

Two people responded to the post.  A Massachusetts lawyer who was a FB friend asked, “What were the grounds for opposing?”  The lawyer answered, “GM [i.e. grandmother] will  not be able to control her daughter, the biological mother, and DCF has concerns.”  The friend responded (sarcastically), “DCF does have a sterling record of controlling children and questionable mothers, after all.”  The lawyer replied, “Indeed.”

A second FB friend, this one a non-lawyer, also responded:  “So what’s the preference … Foster care?  What am I missing here?”  The lawyer answered:

The grandson is in his fourth placement in foster care since his removal from GM’s residence in late July. I will discover what DCF is doing or not doing as to why DCF opposes the GM as guardian.  More to come.

Within a couple months, the lawyer’s client learned from her daughter about the lawyer’s FB post.  She later  complained to him and eventually to disciplinary authorities.

Connecting the dots?

The lower hearing committee recommended dismissing the disciplinary case, concluding that the FB post couldn’t reasonably be linked to the client, and therefore there was no confidentiality violation under Rule 1.6.  But the Board rejected that conclusion, because the post disclosed sufficient information to make it clear to the client’s daughter that the post referred to her mother. That belied the notion that no one could identify the case and learn confidential information from the post.

“Even if there were no evidence that a third party actually recognized the client in the post,” said the Board, “we would still conclude that the respondent had violated Rule 1.6(a).  There is no requirement that a third party actually connect the dots.”  Rather, the Board ruled, it was enough if it were “reasonably likely that a third party could do so.”

This was no mere hypothetical, or “shop talk” among lawyers the Board said.  The lawyer’s FB post did not seek advice from other lawyers, in the Board’s view, or have “any other purpose that would have served his fiduciary duty to his client.”  Rather, he violated the duty to “jealously guard … client secrets.”

The lawyer in this case had apparently practiced for 42 years without any other disciplinary history.  The Board brushed off his lack of previous discipline and said it was entitled to no mitigating weight.  Instead, the Board regarded the lawyer’s long experience as an aggravating factor, since “he should understand the importance of protecting client confidences.”

Be careful out there

Do we need to say it again?  Don’t even get close to talking about the specifics of your clients’ matters on social media.  Even if you try to disguise identities and details, that might not be enough to keep you out of trouble.

After hard-fought proceedings, you’ve finally settled a contentious case on behalf of your client.  The plaintiff’s lawyer has brought suit against your client before, and likely will again:  the lawyer advertises and uses social media aggressively to locate claimants who have the same kind of issue with your client.

Your client asks, “Can’t we include terms in the settlement agreement that would rein in this lawyer?  Maybe raise the settlement amount enough to get her to agree to stop taking these cases?  Or at least, get some language that would stop the blog posts and the TV ads fishing for clients to sue us?”

The answers:  “No — and no.”  A new ethics opinion from Ohio’s Board of Professional Conduct underscores the point.

Restrictions on right to practice

Model Rule 5.6(b), adopted with only minor variations in almost every jurisdiction,* bars you from “participating in making or offering” a settlement agreement that includes a restriction on a lawyer’s right to practice.  The new Ohio ethics opinion expressly extends that prohibition to settlement agreements conditioned on restricting a lawyer’s communication of information “contained in a court record.”

A settlement agreement can certainly bar both sides from disclosing non-public information (such as settlement terms, conditions and amount), and those are common clauses.  But preventing counsel from making a public announcement, or communicating to the media, or advertising about the case using information contained in case documents, violates Rule 5.6, said the Ohio Board.

The Board reasoned that an agreement prohibiting a lawyer from using public information interferes with the ability to market legal services in a way otherwise consistent with the Rules of Professional Conduct.  It also interferes with “the public’s unfettered ability to choose lawyers who have the requisite background and experience to assist in pursuing their claims.”  Rule 5.6(b) “prevents settlement agreements from being used to ‘buy off’ plaintiff’s counsel … in exchange for the lawyer foregoing future litigation against the same defendant.”  The Board also mentioned the conflict that such agreements create “between the interests of current clients and those of potential future clients.”

Expansive readings

The ABA Ethics Committee, as well as ethics committees in New York and the District of Columbia, have reached similar expansive conclusions about the reach of Rule 5.6(b).  The ABA Committee particularly disapproved in 2000 of settlement agreements conditioned on not “using” information in later representations against the same opposing party or related parties.  And the D.C. ethics opinion notes that the fact of settlement is usually reflected in public documents, thus making it a rule violation to condition the agreement on non-disclosure of that fact.

Underlying these opinions, as the D.C. ethics committee said, “is the intent to preserve the public’s access to  lawyers who, because of their background and experience, might be the best available talent to represent future litigants in similar cases, perhaps against the same opponent.”

Not a limit on duty of confidentiality

The Ohio opinion, and others, should not be read to alter your duty of confidentiality to your client.  Under Rule 1.6, absent client consent and other narrow exceptions, you already have a duty to keep confidential all information relating to the representation — and that would include otherwise public information, as we’ve noted before.  In contrast, the opinions centering on Rule 5.6(b) are about your ability to offer or accept settlement agreements restricting the right to practice.

Further, as Hofstra Professor Emeritus Roy Simon explains in his treatise on New York ethics law, you can get into ethics trouble even if a court might otherwise enforce the settlement agreement:  “A lawyer who makes or agrees to [a settlement in which a lawyer promises not to represent a client in later disputes with your client] risks professional discipline even if a court later holds that the agreement is enforceable.”

Client ABC’s — and the nuclear option

The restriction against participating in a settlement agreement aimed at reining in opposing counsel is a part of the ethical landscape that clients may not understand — especially when you need to turn down a request to pursue something that would be to the client’s advantage.

This is an issue that certainly merits explanation under Rule 1.4 in order to “permit the client to make informed decisions regarding the representation.”  And you also must “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

The new Ohio opinion cautions that if worst comes to worst, and the client insists that you participate in accepting or offering settlement agreement with an impermissible condition, Rule 1.16(a)(1) requires you to withdraw from representation, in order to avoid violating Rule 5.6.  Hopefully you won’t need to exercise that nuclear option.

* An exception to the nearly-nationwide approach is Virginia’s Rule 5.6(b), which carves out settlement agreement restrictions on a lawyer’s right to practice that are approved by “a tribunal (in such situations as the settlement of mass tort cases) or a governmental entity.”

We’ve written before about the breadth of the duty of confidentiality we owe to our clients, and how it even extends to matters that you think are safe to discuss because they are of “public record.”   (See here and here.)  Now comes the ABA’s latest on the subject of lawyer “public commentary” — Formal Opinion 480 (Mar. 6, 2018).  And it prompts us to be wary of a couple pitfalls when it comes to what we say about clients in online articles, on twitter, at webinars, in podcasts and through traditional print publications — all of which the opinion refers to as “public commentary.”

Duty “extends generally”

All such public commentary, the ABA reminds us, whether on-line or not, must comply with the relevant jurisdiction’s version of Model Rule 1.6.  The rule requires us to maintain the confidentiality of all information relating to the representation of a client, unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by a specific exception in Rule 1.6(b).

The confidentiality rule, as is frequently said, is much broader than the attorney-client privilege, and includes all information relating to the representation, whatever its source.  Even the identity of the client is usually deemed to be confidential information, the ABA ethics committee notes in this newest, foot-note-heavy opinion.  And, adds the committee, it’s highly unlikely that a disclosure exception (except for consent) would apply when a lawyer engages in this sort of public commentary.

Don’t hype the hypo

That brings us to “hypotheticals.”  We all use them — from law profs in class, to lawyers seeking informal practical advice from colleagues at other firms, to gurus of various stripes who use real-life examples at legal CLE seminars.  But, says the ABA committee, beware:  “A violation of Rule 1.6(a) is not avoided by describing public commentary as a ‘hypothetical,’ if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts.”

For example, in a widely-reported case mentioned in the ABA opinion, an Illinois lawyer got a 60-day suspension in her home jurisdiction for violating  Rule 1.6, when she blogged about her criminal defense clients using either their first names, a derivation of their first names, or their jail ID number.  Reciprocal discipline was imposed in Wisconsin.

In light of the ABA opinion, you’re going to want to make sure that any real-life client situations you describe in  public commentary is so thoroughly disguised that no one can tell that it’s real.  If you’re using social media to educate and engage, there’s arguable benefit in discussing actual situations in a hypothetical way, while being sure to scrub the real facts out.  But as we’ve said before, if you’re just making cocktail party chit-chat, why even go there?  It’s not worth the risk of divulging confidential client information.

Trial publicity statements

The ABA opinion also briefly notes the constraints that Model Rule 3.5 puts on using public commentary to influence the court of public opinion.  The rule prohibits a lawyer from seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law, and cites the case of a Louisiana lawyer disbarred for, among other things, using an internet petition campaign to contest the rulings of a judge presiding over a custody dispute involving her client.  That kind of conduct can also obviously lead to trouble.

All in all, the new opinion is a straightforward application of Rule 1.6 to this age of public commentary; but it is a good wake-up call for those who need one.

Folder searchIn late December, a divided California Supreme Court ruled that legal-fee bills in closed cases aren’t necessarily covered by attorney-client privilege.  Although the case involved a discovery demand  sent to a government entity under the state’s  public records act, some lawyers have questioned (sub. req.) how far the privilege limitations might go.

No “categorical” protection

The case arose out of a public-records request from the ACLU of Southern California to the Los Angeles County Board of Supervisors, seeking legal fee invoices that would reveal law firm billings to the county regarding nine lawsuits, each of which alleged the use of excessive force against inmates in the L.A. County jail system.  The ACLU alleged that the county and its outside lawyers were pursuing “scorched earth” tactics in refusing to settle excessive-force cases, and were using taxpayer dollars to do so.

Three of the cases were closed; the county agreed to produce copies of those legal bills.  But as to the six still-pending suits, the county said that they were exempt from the reach of the public records law under the attorney-client privilege exception, because “the detailed description, timing, and amount of attorney work performed … communicates to the client and discloses attorney strategy, tactics and thought process and analysis.”

On dueling writs of mandate, the intermediate state court of appeals found that the invoices were privileged and exempt from disclosure under the public record act.   In a 4-3 vote, the state supreme court reversed.

The high court rejected “categorical protection” for billing records.  Acknowledging that attorney-client privilege “no doubt holds a special place in the law of our state,” the majority wrote that it still only protects communications “made for the purpose of seeking or delivering the attorney’s legal advice or representations.”

Agreeing with the ACLU, the majority opinion said that “while invoices may convey some very general information about the process through which a client obtains legal advice, their purpose is to ensure proper payment for services rendered, not to seek or deliver that attorney’s legal advice or representation.”  Fee bills, the court said, evoke “an arm’s -length transaction between the parties in the market for professional services” more than they do the “discreet conveyance of facts and advice.”

Information in the “heartland”?

What remains privileged in a fee bill, however, said the court, is information that “lies in the heartland of the attorney-client privilege” — namely everything in an invoice on an active and pending legal matter — even when the information is  conveyed in a document, i.e. the  bill,  that is not “categorically privileged.”

The dissenters said that the majority’s ruling undermines a “pillar of our jurisprudence” by adding a “heretofore hidden meaning” to the state privilege statute, by shielding only communications that relate to the provision of legal consultation, even if they were otherwise transmitted confidentially between lawyer and client.

Following the majority’s rule, the dissenters wrote, means that lawyers must explain to their clients that confidential communications that were previously privileged “may be forced into the open by interested parties once the subject litigation has concluded.  If a limiting principle applies to this new rule,” the dissent warned, “it is not perceptible…”

Privilege takeaways

The contents of fee bills have long been subject to attorney-client privilege when they reveal information about strategy, research topics and the like.  As even the majority in this case notes, things like research topics or an uptick in the hours charged can be useful information to litigation opponents.  But as California commentators point out, the case will likely be read as a narrowing of the privilege, and by introducing subjectivity into the test, will possibly encourage discovery forays against the fee bills of opposing counsel.

California lawyer Ellen A. Pansky, quoted in the ABA/BNA Lawyers’ Manual on Professional Conduct, noted that “the case leaves an interesting, unanswered question: What mechanism will courts use to resolve a privilege claim when a party asserts attorney-client privilege to only portions of invoices previously transmitted in a completed prior matter?”  This might be an acute question, because California law seems to be that a court may not compel disclosure of attorney-client communications, even in camera, to rule upon a claim of privilege.

Particularly if you have cases in which California privilege law applies, stay tuned.

StorageYou’re chatting with your pals at the bar association cocktail hour, and talk turns to the indictment just handed down against a former city official.  Someone says, “Hey, didn’t your firm used to represent her?”  “Yes,” you reply, “and a couple years ago, I had a really interesting case involving her.  Maybe I shouldn’t discuss it — but I guess it’s of public record, so….”  And with that, you’re off to the races, discussing your former client’s old case.  Have you done anything wrong, since it’s all “of public record”?

“Publicly available” vs. “generally known”

Model Rule 1.9(c)  says that when you have formerly represented a client in a matter, you shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Comment [8] notes that formerly representing a client “does not preclude the lawyer from using generally known information about that client when later representing another client.”

But significantly, just because information might be a matter of “public record,” or “publicly available” in a court filing, does not necessarily mean that it is “generally known” within the meaning of the ethics rules.  That’s the holding of a case decided last month by the Pennsylvania Superior Court, Dougherty v. Pepper Hamilton LLP, et al.

Disloyal use?

The ruling in Dougherty revives a union official’s suit against the Pepper Hamilton firm for breach of fiduciary duty.  The firm had formerly represented the official when he was subpoenaed by a grand jury as part of a federal bribery investigation.  An FBI affidavit was part of that investigation; it was later mistakenly filed on the federal court’s electronic PACER system.  Subsequently, the firm represented the Philadelphia Inquirer in defending a defamation suit by the same official against the newspaper.  In representing the newspaper, Pepper Hamilton used the FBI affidavit.

The official alleged that the firm breached its duty to him by using information from the former representation, including the FBI affidavit.  Pepper Hamilton countered that since the information was “publicly available,” it could not form the basis of a disloyalty claim.

The state court of appeals agreed with the official, reversing the lower court’s grant of summary judgment in favor of the law firm.

Duty of confidentiality not “nullified” by public record

Whether information is “generally known” for purposes of Rule 1.9, said the court, depends on the circumstances.  The court said that publicly-accessible electronic data could be “generally known” if it is easily accessible, such as through public indexes.  But information is not generally known if it would be difficult or expensive to obtain or would require special knowledge.

Quoting opinions from Ohio and West Virginia, the Dougherty court noted that “an attorney is not free to disclose embarrassing or harmful features of client’s life just because they are documented in public records or the attorney learned of them in some other way,” and that “the ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.”

There were genuine issues of fact, the court said, about whether the FBI affidavit was actually “generally known,” and these questions were enough to keep the case against the law firm alive.

Your lips are sealed

In all, the safest thing to do at a cocktail party is to keep quiet about information you know as a result of formerly representing a client, even if you think that it is of “public record.”  That’s the best way to steer far clear of any chance of misconduct.  And when it comes to “using” information of a former client on behalf of another client, careful analysis is required before you conclude that the “generally known” exception applies.

Gift giving can be complicated, but especially so for lawyers if they are the intended recipient. A ruling handed down by the Vermont Supreme Court last month increased a lawyer’s suspension from three months to five months because the legal documents he drafted conveyed his client’s real and personal property to himself. While the lawyer did not view the transaction as a gift, the Court refused to deviate from the plain language of the rule.

A bit of an “unusual” arrangement  

The client’s deteriorating health and desire remain in her home prompted the lawyer to recommend an “enhanced life estate.” An ELE deed would allow the client to convey real estate to a third-party while reserving a life estate. Further, the lawyer advised his client that she could bequeath her real and personal property via a trust agreement. This arrangement was alleged to have contemplated the client conveying her real property through an ELE deed to an individual serving as a trustee of the trust, and upon the client’s death, the trustee would sell the property and distribute the proceeds to the beneficiaries. A new will was also to be prepared which would name the trustee as the sole beneficiary and executor of the client’s estate—with the intention that any funds from the probated property would go to the trust beneficiaries.

The lawyer here knew his client for several years—living in the same community, attending the same church. He even considered his client to be a family friend. The lawyer asserted that when the client requested the lawyer fill these contemplated roles, he drafted the documents accordingly. The lawyer acknowledged that the arrangement was “a little unusual,” but he thought it was lawful and proper. The Court disagreed.

No gifts allowed

The Court found the lawyer violated Rule 1.8(c) by “prepar[ing] on behalf of a client an instrument giving the lawyer . . . any substantial gift”. The lawyer’s argument that he was acting as a trustee with intent to distribute the property was swiftly rejected by the Court as not excusing the violation of the ‘plain prohibition’ contained in the rule. The Court found that the lawyer prepared a document that gave his client’s property to himself without restriction and that the lawyer is still responsible even if he did not think the documents constituted a gift. The Court found that these types of transactions undermine public confidence in the legal profession.

Concurrent conflict

The Court further found that by drafting and presenting legal documents that gave him interests in his client’s property and estate, the lawyer violated Rule 1.7, which provides that a “lawyer shall not represent a client if the representation involves a concurrent conflict of interest unless, among other things, “each affected client gives informed consent.” The lawyer claimed to have advised his client that someone else should be used as the trustee and grantee and that the client should consult with another lawyer, but the client refused. No waiver detailing the conflict or inherent risks involved was ever signed. The Court rejected the argument that such violation is acceptable because of the client’s insistence.

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Lesson for the day

Not every gift is one worth receiving. Many jurisdictions allow for an exception Rule 1.8(c) if the client and lawyer are related—see examples in Ohio and  DC. But this case serves as important reminder to check your home state’s view on the matter. While you may not view yourself as reviewing a gift, think about how the court would view it.

Maybe you were lucky and opposing counsel was able to delete the inadvertent email you sent her before she read what would have inevitably blown your whole case. But what about for those lawyers who were not so fortunate? Did you commit malpractice? Do you anticipate hearing from disciplinary counsel? Certain mistakes can be damaging to your career. Others just serve as a warning to be more careful. How you react to your mistake can prevent the bad from becoming worse. What not to do…

Hold your breath and hope the mistake goes away

It won’t, and you need to examine if the mistake is simple and can be fixed or has jumped over the line into legal malpractice territory.  That’s going to be done on a case-by-case basis but ignoring the situation will only make matters worse.  It could even appear that you are trying to conceal the mistake.

Talk to your supervisor, a trusted colleague, or if your firm has an Office of General Counsel, talk to one of its members. Talking the situation through can help you determine if you need to disclose the mistake to the client, if you are able to still represent the client,  and whether you may need to get separate counsel. If something more serious does come of the mistake, doing nothing will reflect poorly upon you should disciplinary counsel launch an investigation or file a complaint—especially if you fail to respond.

Shift the blame

Blaming your clients or colleagues for your mistakes will not alleviate the concern and may cause you more issues down the line.  Perhaps your assistant truly was the one who failed to timely make the filing or put the hearing date in your calendar, but blaming that assistant is not going to be a satisfactory explanation to your client and could even make you look dishonest or careless. You are allowed to delegate tasks to nonlawyers, but ultimately you are still responsible for the error.

Procrastinate

Maybe you lost your cool with opposing counsel and are putting off your apology. Maybe you just completely forgot about a hearing, and you are dreading calling the court to explain. Waiting to right your wrong can make you appear less than sincere and may even serve to dissuade opposing counsel or the judge from excusing your misstep and allowing you to get that continuance that you so desperately need.

On a final note, make sure you’re covered if the mistake is serious in nature. Generally, you must notify your liability insurance carrier once a claim has been asserted against you. But it may be wise to notify your malpractice carrier if circumstances arise that lead you to believe a claim will be made. You don’t want to wait so long that you jeopardize your coverage.

Word to the wise  

You didn’t spend this much time to get where you are in your legal career just to sit on the sidelines, so focus on preventing future mistakes.

  • Don’t dabble in areas of law that you are not familiar with—competence is key.
  • Communicate with your clients. Emotions are often involved and you don’t want to be on the receiving end of a grievance, because your client is left in the dark about the status of their case.
  • Pay attention to the recipient list before you hit send. Pay attention to where you are and who is listening when you are talking about your client’s case. Watch what you say on social media. Confidentiality is crucial to your representation.
  • Do your homework before agreeing to take on the representation. Before you start on anything, check for conflicts.
  • Act with diligence. If it can be done today, don’t wait until tomorrow.
  • Extend professional courtesy to your colleagues and opposing counsel when they make mistakes. You may need them in the future.

The “no contact rule” set out in Model Rule 4.2 can be a source of confusion for many lawyers.  The rule prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of the other lawyer. We have discussed the rule before in the  corporate context, but what about in the government context? Ohio Advisory Opinion 2022-03  provides precise guidance on the issue.

The “no-contact group”

Opinion 2022-03 provides that per Ohio Rule 4.2, a lawyer is prohibited “from directly communicating with employees and public officials who supervise direct, or regularly communicate with the government’s lawyer concerning a matter, or who have the authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization”. These individuals are said to be included in the “no-contact group”; hence direct contact is generally impermissible. (The flipside is that direct contact with a person who does not fall into the “no-contact group” is generally permissible.)

Limitations on Rule 4.2 based the Constitutional right to petition government for redress of grievances

What about when the represented party is a government official, or employee deemed to be in the no contact group?  May the Rules prohibit contact that infringes on their client’s “constitutional right to petition the government for the redress of grievances”? After looking to other jurisdictions for guidance, see Virginia’s Legal Ethics Opinion 1891,  the Ohio opinion finds that lawyers may have contact with represented governmental clients.  That exception is not unlimited however.  It does not permit discussions of claims, for example.  Contact is only permissible upon three conditions being met:  (1) the communication must be based solely on a policy issue—not a claim; (2) the official or employee must possess the authority to take or recommend action concerning the policy matter; and (3) the lawyer is required to put the government counsel on notice of the intent to directly contact the government official. If all conditions are fulfilled, there is no requirement to obtain consent from government counsel.

Public Meetings

The opinion concludes that lawyers are permitted to directly communicate with government officials or employees on behalf of a client during formal public meetings—though the topic must be on policy issues concerning the client. Consent is not required, and government counsel need not be present. Lawyers are nevertheless advised to identify themselves as representing their client, if possible, in advance of the meeting to allow for adequate time for the official or employee to consult with or ask counsel to attend.

Settlement negotiations

On the opposite end of the spectrum, lawyers must obtain the consent of government counsel prior to any direct communication with government officers or employees regarding settlement negotiations. The recipient of any settlement offer is presumed to be in the “no-contact group.” Rather the lawyer is instructed to only propose the settlement (whether it be written or oral) to government counsel.

General Guidance

  • As we mentioned before, the “no-contact” rule extends only to the subject of the representation.
  • If the topic is off limits, don’t try to circumvent the rule by making the prohibited communication through the acts of another—a Rule 8.4(a)
  • Don’t assume consent is implied—always ask. Simply hitting “reply all” to an email could land you in hot water even if opposing counsel had cc’d their client on the email directed to you first—see South Carolina’s Ethics Advisory Opinion 18-04 which concludes implied consent cannot be found in such scenario.
  • Communication initiated by a represented party does not create an exception to the rule.
  • Be careful not to overstep when advising your client how to communicate with other unrepresented parties involved in the matter.

Marketing is an integral part of the private practice of law.  But where is the line between permissible advertising tactics and impermissible solicitation?  Often it is hard to find guidance to tell you on which side of that line your marketing strategies fall.  The recent ABA Opinion 501 may help. It sets forth several hypotheticals which give additional guidance if your state ethics rules don’t address strategies you are contemplating.  Opinion 501 also serves as an important reminder to lawyers that the limitations on solicitation apply not only to their own solicitation of clients, but also to nonlawyers they employ or supervise, including marketing firms hired by the lawyer.

Domino effect

As outlined in Opinion 501, ethics rules on solicitation generally prohibit live person-to-person contact when the substantial motive is for pecuniary gain for the lawyer or the lawyer’s firm. Model Rule of Professional Conduct 7.3 provides 3 main exceptions. But even then, there are exceptions to those exceptions. Additionally, some states (e.g., New York) have significant additions to their rules. Failure to pay attention to the intricacies of Rule 7.3 can set off a chain of ethical violations for other rules—like  5.3, and potentially 8.4(a), depending on whether the questionable conduct was done by a nonlawyer employee and whether the lawyer had knowledge of that conduct.

Out of sight, out of mind  

Lawyers with managerial or direct supervisory authority have the duty to make reasonable efforts to ensure the conduct of the nonlawyers they employ or retain is compatible with the lawyer’s obligations. Model Rule of Professional Conduct 5.3 extends the responsibility to the lawyer if the lawyer knew of, ratified or ordered the conduct—and for partners or lawyers with comparable managerial authority, if they know about the conduct but fail to stop or mitigate it when they have a chance.

It is all too easy to delegate certain marketing tasks to nonlawyer employees and not consider whether what they do might violate the ethical rules on soliciting clients.  As noted in Opinion 501, a lawyer with supervisory authority must discuss the ethics rules with nonlawyer employees to ensure they refrain from improper solicitation on behalf of the lawyer.   It is difficult for even the most attentive supervising attorney to monitor their nonlawyer employees 100% of the time, so these discussions are a must. Out of sight, out of mind doesn’t sell to many disciplinary counsel, so lawyers must draw clear boundaries of permissible conduct for their subordinates to follow. Keep in mind Model Rule 8.4(a) holds lawyers responsible for knowingly assisting or inducing another to violate the Rules of Professional Conduct.  Lawyers cannot avoid the limitation on solicitation restrictions by pointing the finger at nonlawyers and have subordinate nonlawyers do it for them.

A few ABA hypotheticals to consider

  • Hypothetical 1: A lawyer supervising the firm’s marketing department hires a professional lead generator to obtain client leads, without explaining the limitations on how leads should be obtained to stay within the bounds of ethics rules. Unbeknownst to the lawyer, the lead generator’s employees go into online chat rooms designated for family and survivors of mass torts, calling those family members, and inquiring as to their desire for representation. The lead generator is very successful —telling the lawyer that they just call the people online discussing accidents. The lawyer does not inquire further and tells the lead generator to keep the leads coming.
    • The lawyer in this scenario violates 7.3(b) as the lead generator’s phone calls are deemed live person to person contact, 8.4(a) by accepting clients knowing they were obtained in violation of the rules, and 5.3(b) for failing to train the lead generator on the confines of solicitation rules.
  • Hypothetical 2: A lawyer ask his friend, who works at a bank, to provide the lawyer’s name and contact information to customers or employees that the banker thinks may want an estate plan.
    • The lawyer in this scenario does not violate 7.3(b), because these actions do not meet the definition of solicitation. The lawyer has no authority to control the banker’s conduct and this type of “word-of-mouth referral” is allowed under the model rules.

In sum

If you can’t do something, then neither can your nonlawyer employee. Don’t just assume that even the savviest employee knows all of the ethics rules—it is your responsibility to ensure that they know the ethical bounds of the actions they will employ in completing their assigned tasks.

What’s trending

The rapid evolution of technology over 2 years of COVID not only allows for a remote practice, but in many regards encourages it.  So much so that some firms are now hiring attorneys who will work primarily – if not exclusively – remotely.

The focus of regulators’ concerns is shifting less on where the lawyer is physically located when practicing, and more so on what they are doing once they get there. Some states are now articulating greater tolerance for lawyers licensed in other jurisdictions to work remotely within their borders.  Change can be a wonderful thing, but lawyers must still be cognizant of when and how authorized remote practice intersects with (or violates) rules against the unauthorized practice of law.  Lawyers must remember that, even if we are permitted to work in another state, we do not have free rein to operate however we would like within that remote location.  Generally, physical presence is permissible, but a legal presence is not.

Common ground

UPL rules were created to protect the public, and protection of clients in a state is still the issue with which new rules are concerned as demonstrated by the examples below.  Each example analyzes the permissibility of remote practice by how the lawyer is held out to the public.  When contemplating whether your conduct is crossing the line into UPL territory, this is a guiding principle to bear in mind.

As we pointed out before, a 2021 Florida advisory opinion gave the green light to lawyers who want to work there remotely.  And earlier this year the Florida Supreme Court amended the comment to its Rule 4-5.5, which now clarifies that an out-of-state lawyer may work remotely in Florida for an extended time, as long as he or she is only working on non-Florida matters and not holding herself out publicly as having a Florida presence.

The Buckeye State expanded the exceptions to its Rule to permit lawyers admitted and in good standing in another U.S. jurisdiction to have a systematic and continuous presence in Ohio, so long as the lawyer does not solicit or accept clients in Ohio, hold herself out as being an Ohio lawyer, or violate certain other rules.

New Jersey’s joint advisory opinion issued in 2021 drives home the distinction between holding yourself out to the public as being a lawyer versus mere presence as a private citizen. Citing ABA Formal Opinion 495 in support, the opinion clarified that lawyers are not holding themselves out to the public when they are invisible as a lawyer. The opinion provided helpful examples of conduct that would not be permitted, such as maintaining a New Jersey law office, advertising that the lawyer practices in New Jersey or is available to practice in New Jersey, or identifying a New Jersey address for mail.

Stay tuned  

While clarifying and expanding the permissibility of remote work is a trend to be celebrated, do not forget that each jurisdiction’s rules can vary, and sometimes in very material ways. Only time will help shape what conduct is deemed to have crossed the line into a lawyer holding herself out as being licensed in a jurisdiction where the lawyer is not. In the meantime, it is not enough to simply refrain from “hanging out a shingle.” Here are some pointers:

  • Consider how your presence might be perceived by the public in the remote state
  • Be careful not to suggest that you are licensed or can otherwise serve people in that state
  • Don’t focus solely on one state’s UPL laws – you must understand and consider the UPL laws in both your state of licensure and the remote state
  • Absent a specific statute or rule authorizing your practice, only handle matters for clients or before tribunals in states where you are licensed, no matter where you are located