Social Media and Internet

Last week the media was abuzz with the allegations made against the National Enquirer by Jeff Bezos, the founder of Amazon and the owner of The Washington Post. The details in Bezos’ blog post about his ongoing dispute with the Enquirer and its publisher David Pecker are sensationalistic to say the least: the world’s richest man being allegedly blackmailed by people working for Pecker (a long-time friend and supporter of President Trump), with threats to publish “compromising” photos of Bezos unless he backed off his investigation of the tabloid. Here is some reporting on the story.

Part of the interest arises because Bezos alleges that the threat was delivered, in part, by an attorney working for the Enquirer. A Law360 article on the situation says “Bezos’ published account of how a general counsel and others at the American Media Inc.-owned paper allegedly tried to blackmail him does appear to describe a violation of state and federal statutes, ethics and white collar specialists said.”

While there may be a debate as to whether these were just hard negotiations or discussions that crossed the line into blackmail, it at least appears that the lawyers involved might have allowed themselves to get close to the line, even if not over it.

Zeal … or trouble

When zealously representing your clients, it can be easy to forget that zeal cannot be the basis for doing things that break the law or undermine the legal system. For example:

  • In some states, threatening to file criminal charges against a potential defendant in order to obtain a civil settlement is treated as extortion, including when the threat is made by counsel attempting to recoup stolen assets. An ABA Litigation article on the general subject is here.
  • As the New York statute does, many states make it a crime to compel a person “by means of instilling in him or her a fear” that if a demand is not met the threatener will “expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule.”
  • Obstruction of justice in the course of representing a client was the undoing of some of the lawyers involved in Watergate.  (See here for a take on Watergate’s legal ethics legacy by John Dean and our partner Jim Robenalt.)
  • Lawyers have faced ethics charges for going too far in public statements about their clients’ cases, in violation of the many different state versions of Model Rule 3.6 (“Trial Publicity”).
  • It can be an ethical violation under Model Rule 3.3(a)(2) if you fail to make a court aware of binding precedent that is directly adverse to your client’s position.

Knowing where zeal ends and unlawful or unethical conduct begins is the best way to keep yourself (and your client) out of trouble. And don’t let an echo-chamber do you in. Getting a reality check from someone not involved in the situation can sometimes help avoid problems. Remember, under Model Rule 1.6(b)(4), you are permitted to reveal information relating to the client’s representation to the extent you reasonably believe necessary to secure advice about your compliance with the Rules of Professional Conduct, opening the way for getting good ethics advice.

Do we need another reminder about the perils of posting internet comments on cases and matters we are connected with?  Apparently we do, and here’s a strong one.  Earlier this month, an assistant U.S. attorney for the Eastern District of Louisiana was disbarred based on hundreds of comments he posted pseudonymously on the website of the New Orleans Times-Picayune.  The posts included many related to high-profile cases he or his colleagues in the U.S. Attorney’s office were prosecuting, including government bribery scandals and the killing of two unarmed residents by the police following Hurricane Katrina.

In its opinion, the Louisiana Supreme Court wrote that the lawyer’s “extrajudicial comments about pending cases” struck at “the foundation of our system.”  The court felt compelled to “send a strong message … that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the internet.”

The hearing panel had recommended a two-year suspension, with one year deferred. The court, however, adopted the disciplinary board’s disbarment recommendation, which in the Bayou State entitles a lawyer to petition for reinstatement after five years.

“GUILTY as charged!”

The lawyer was a prolific poster on the newspaper’s internet site, using a number of pseudonyms to comment about pending cases he or his office was involved in.  For instance, during a bribery trial he prosecuted, the lawyer posted that the defendant’s lawyer “has screwed his client!!!!,” continuing that “You’re just as arrogant as [the allegedly bribed official] … and the jury knows it.”

During the federal trial of six police officers for the shooting of unarmed residents on the Danziger Bridge, and the ensuing cover-up, the lawyer posted, “Perhaps we would be safer if the NOPD would leave next hurricane and let the National Guard assume all law enforcement duties.  GUILTY AS CHARGED.”

The lawyer’s posts connected to the Danziger Bridge trial came to light after the six officers were found guilty and received lengthy sentences.  Following an investigation, the lawyer’s conduct was cited as one aspect of a pattern of prosecutorial misconduct that prompted the grant of the officers’ motion for new trial and eventually a plea bargain for much lighter sentences.

Not the way to relieve stress

The lawyer stipulated that his conduct violated Louisiana’s versions of Model Rules 3.6 (trial publicity); 3.8(f) (prosecutors’ extra-judicial comments); 8.4(a) (violating rules of professional conduct) and 8.4(d) (conduct prejudicial to the administration of justice).

But at the disciplinary hearing, although acknowledging his misconduct, the lawyer testified that he thought his posts would help him deal with the stress of his work.  His treating psychologist opined that the lawyer suffered from post-traumatic stress disorder resulting from his past work as a police officer and FBI agent, during which he had witnessed gruesome scenes and personally had come under gunfire.

In imposing a sanction, the court rejected PTSD as a mitigating factor.  Although the psychologist testified that the online posts were the result of the lawyer’s PTSD, the court found no clear and convincing support for the conclusion that there was a causal link between the posts and the lawyer’s mental condition.

Key to that determination, said the court, was the lawyer’s own admission that he knew he should not be posting his comments online, and that it was his anger over public corruption that led him to vent his pseudonymous criticism.

Think before you click submit

We all feel the stress of our chosen profession.  But is the relief valve of venting it in public (even anonymously) worth the risk of professional discipline?  Keeping a private journal (locked in your drawer) may not be as satisfying as seeing your words up in pixels, but it’s surely safer from a licensing standpoint.

Making big news this summer was the shut-down of Avvo Legal Services just a few months after it was acquired by Internet Brands.  (A couple of the many reports are here and here.)  Some speculated that the new corporate owner had no stomach to continue to fight for that portion of Avvo’s business model in the face of numerous state ethics opinions that found a wide variety of ethics problems with it.

The flat-fee service that Avvo offered through a network of lawyers required the lawyer to rebate a “marketing” fee to Avvo out of the fee that the lawyer received.  As we’ve pointed out, that raised issues of fee-splitting with non-lawyers; but other aspects of the model also troubled ethics boards.

Does “processing fee” = fee-splitting?

On another front now drawing notice, another on-line legal services provider is contesting charges in California district court that its own business plan violates false advertising and unfair competition statutes, including recently-filed allegations that it supports its business with spurious attorney ratings.

The suit is significant for highlighting that despite the demise of Avvo Legal Services, the ethics issues remain in light of the other players that continue to occupy the same space in the marketplace, and that litigation, not just regulatory action, sometimes results.

The plaintiff in the California federal case is LegalForce RAPC Worldwide, an IP firm.  In an amended complaint filed earlier this month, LegalForce alleges that it competes with defendant UpCounsel Inc. to “provide individuals and small businesses with affordable access to attorneys,” by using technology to match clients with lawyers specialized in corporate, patent and trademark law.

The allegations, which withstood an earlier motion to dismiss, include that UpCounsel’s model features a “processing fee” markup that constitutes impermissible fee-sharing with non-lawyers.

The amended complaint says that UpCounsel tries to attract consumers by promising to provide lawyers in the “Top 5%” of specialized IP and corporate practice niches in cities across the U.S, and that the representation constitutes false advertising, as there is no ranking system that could provide a basis for the claim.

“Reviews” outnumber lawyers, says complaint

In addition, according to the allegations of the amended complaint, UpCounsel falsely advertised superior consumer ratings for the lawyers in its network.  As an example, the plaintiff pointed to the rating given to IP lawyers in Cotati, California:

“Cotati Intellectual Property Lawyers, 5.0 ***** Based on 5450 reviews.”  “It is impossible for Cotati Intellectual Property Lawyers to have 5,450 reviews on UpCounsel,” says the amended complaint, because “Cotati is a small town … with a population of 7,455. There are only 21 attorneys in the city of Cotati licensed to practice law in California, and none of these 21 attorneys are listed on UpCounsel.”

LegalForce alleges that this same pattern of “perfect or near-perfect review scores” based on thousands of purported reviews is duplicated as to lawyers advertised by UpCounsel in other cities, such as Tallahassee and Savannah.

More to come…

The ethics issues regarding on-line legal service providers have not gone away just because Avvo has withdrawn from that market.  As Prof. Alberto Bernabe, a legal ethics professor at John Marshall Law School in Chicago, has pointed out, “Where Avvo left off, someone else will pick up…,” including, most recently, “Text a Lawyer,” an on-line platform where prospective clients can ask lawyers questions via text.

Regulators and litigation parties will surely continue to confront the ethical issues inherent in these platforms, although the ABA’s recently-passed revamp of some of the legal marketing rules in the Model Rules of Professional Conduct fails to address on-line referral providers.

Four quick takes on social media pratfalls by judges, lawyers and others — just from the last few weeks.  Don’t let these happen to you!

  • A Kentucky state court judge posted a comment on a pending murder case on her “official” Facebook page:  “This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.”  The judge agreed to a public reprimand, for violating judicial ethics rules, including refraining from public comments that could affect the outcome of pending cases.
  • Another judge was sued last month in federal district court because he allegedly scrutinized his secretary’s Facebook posts, called her into his office to express his disapproval of her politics-related posts, and eventually fired her two weeks after she posted criticism of President Trump’s immigration policies, and those of some Texas politicians.  The secretary had worked for the court for 14 years.
  • You’ve undoubtedly seen the rant of a New York City lawyer against Spanish-speaking staff in a restaurant.  His profanity-laced tirade was captured on a cell-phone (of course), and went viral.  His apology on Twitter was called “too little, too late” by a United States congress member, who filed a formal complaint with the attorney discipline system, as reported by the ABA Journal.  According to CNN, he was kicked out of his office space, too.
  • Last, a grand juror is awaiting sentencing after pleading guilty to sending a Facebook message disclosing a Florida federal grand jury indictment to the girlfriend of the man charged.  Grand jury proceedings are secret; the grand juror warned the girlfriend that the man had been set up by a snitch, and later sent her photos of the indictment.

Facebook and LinkedIn and Twitter (oh my)

Social media is great — we are bombarded with messages about the benefits for us as lawyers in credentialing and marketing ourselves (love to blog!) and educating the public on legal issues.  And lots of lawyers and judges use it successfully.  The downside, of course, is that it’s so easy to use these tools, that we can get careless and make missteps.  And when we do, social media is also there to show our gaffe to (potentially) millions.

Interestingly, there are lots of stories about Facebook follies — but anecdotally, it would seem that fewer lawyers use it for professional purposes than LinkedIn, for instance.  A recent ABA Journal “question of the week” asked if lawyers planned to de-activate their Facebook accounts in light of the flap over FB’s disclosure of information to Cambridge Analytica, a data-mining company.  While not a scientific poll, the responses seemed to show that respondents weren’t very much into using FB professionally anyway.

The ABA’s 2017 Legal Technology Report suggests a similar conclusion.  Less than 40% of firms (of all sizes) reported having Facebook accounts.  (In contrast, 75% of respondents said they had an individual LinkedIn profile.)

Of course, the watchword here is to be sensible and cautious.  Speed kills:  slow down, and think before you click.  Don’t do anything on social media you wouldn’t want millions to see — because they might.  And of course, check your local rules and ethics opinions.  By now, there is lots of such guidance about friending judges, social media as advertising, pretexting to gather data on opposing parties, not disclosing client information and other issues.

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.

The ABA is proposing changes to the Model Rules on lawyer advertising, modestly streamlining them and trying to re-establish their relevance to the way lawyers and clients interact in the digital age.  The proposed amendments and their supporting memo fail to make any express adjustment for the elephant in the room — on-line referral services like Avvo, and especially whether engaging with them involves lawyers in paying impermissible referral fees, as some recent state ethics opinions have found.

Rundown on proposed rule changes

First, an overview.  The ABA’s effort is in response to a three-year study and package of recommendations from the Association of Professional Responsibility Lawyers (which we’ve previously mentioned here).  The ABA adopted many of APRL’s recommendations.

The ABA’s memo supporting the rule changes acknowledges that “the patchwork of inconsistent state attorney advertising rules is a prime example of a system that ‘fails to make sense’ in the current climate of social media, technology, and global lawyering.”  In other words, as APRL urged, the current Model Rules are at risk of becoming irrelevant.  The ABA noted that the people who complain about lawyer advertising are predominantly other lawyers, not consumers; and few states actively monitor lawyer advertising.

The ABA’s approach, emphasizing consolidation and re-arrangement, differs from APRL’s, which had recommended slimming down the ad rules to just two, effectively excising three others.  As we’ve reported, Virginia’s revamped rules, effective this past July, take that approach.  The ABA’s proposal, in contrast, eliminates only current Rule 7.5 on firm names and letterhead (now there’s an anachronism); and it simply redistributes most of that rule’s content to the comments of other rules.

While there’s no radical surgery, the ABA proposal has some potentially helpful changes and clarifications.  Highlights:

  • “Solicitation” would be defined in a new subsection of Rule 1.0, “Terminology,” and would mean offering to provide legal services to a specific person in a particular matter.  Soliciting by “live person-to-person contact” (Skype and Facetime are specifically mentioned) would be generally prohibited — but exceptions would include if the lawyer knows the person is “an experienced user of the type of legal services involved for business matters.”  That’s potentially a big deal for business lawyers, whose potential clients would often meet that definition.  And texts, e-mail and “other written communications that recipients may easily disregard” are also excluded from the definition of live solicitation.
  • Putting a “Lawyer Advertising” disclaimer on targeted solicitations would be a thing of the past, causing gladness at firm marketing departments.  The ABA concluded “after much discussion” that such a disclaimer is no longer necessary because consumers have become used to receiving advertising material (!) and most “will not feel any compulsion to view the materials solely because they were sent by a lawyer of law firm.”
  • A new provision would permit nominal client gifts (at holidays, for instance), and clarifies that they are not barred as things of value in exchange for recommending the lawyer’s services to others.
  • It would no longer be necessary to include an “office address” on marketing communications, but only “contact information” of a responsible firm or lawyer.  The proposed change resolves an ambiguity that has created confusion, and is in line with modern day legal practice (including virtual offices), and the way that real-life ads now look.
  • The ability to claim to be a “specialist” in a practice area would be eased.  Implying that you are certified as a specialist in a particular area continues to be restricted to those certified by approved organizations.  But saying that you “specialize in” a particular field would be permitted “based on the lawyer’s experience, specialized training or education,” as long as the statement were not false or misleading.

Small change to referral fee comment

Now back to that elephant.  Recent ethics opinions — for instance, from New York and New Jersey — have specified that Avvo’s business model (and similar ones) violate state versions of Model Rule 7.2(b), which prohibits giving anything of value to a person for recommending the lawyer’s services (except for paying charges of non-profit and bar-association-approved agencies).

Under that provision, operations that are similar to Avvo Advisor and Avvo Legal Services have been found particularly problematic by state ethics boards.  As described in a recent Indiana Lawyer article, Avvo Advisor connects online consumers with a lawyer for a 15-minute consultation for $39.  Avvo forwards the fee to the lawyer and then collects a $10 marketing fee from the lawyer.  Avvo Legal Services provides fixed-fee document review, and services such as business formation or family law matters.  Avvo bills $149 to $595 for services, which is paid to the lawyer doing the work, and collects a marketing fee from the lawyer ranging from $40-$150.

The ABA proposal does not include any change to Rule 7.2(b).  It does add a section to the relevant comment, saying that “directory listings and advertisements that list lawyers by practice area, without more, do not constitute impermissible ‘recommendations.'”  That may be a small nod to Avvo, which in the past has suggested that at least in part, it merely functions as an on-line lawyer directory.

But the ABA’s small proposed change to the comment would not appear to touch on Avvo’s business of charging lawyers for obtaining referrals from Avvo, or similar business models.

Of course, the referral-fee issue is not the only ethics rule that state ethics opinions have cited when it comes to Avvo and similar on-line organizations.  As we’ve previously noted, in addition to the advertising rule on referral fees, other rules flagged include state versions of Model Rules 5.4 (independent judgment, fee-splitting); 5.5 (unauthorized practice of law); 1.15 (comingling lawyer and client funds); 1.16 (duty to refund unearned fees at end of representation); 1.5 (contingent fees); and 1.6 (confidentiality).

What comes next?

The ABA will host a public forum on the proposed amendments at its mid-year meeting in Vancouver on February 2.  Written comments on the proposed amendments are invited; the submission deadline is March 1.  The ABA Ethics Committee aims to submit a resolution and report on amending the advertising rules at the association’s August 2018 meeting.

Stay tuned for further developments.

Greetings 2018!  Time for some ethics trend predictions to kick off the Year of the Dog (according to the Chinese zodiac).  Let it be a year in which you doggedly pursue ethical practice (ouch).  No more bad puns — here’s what’s hot as we begin the year:

Law firm cyber-security

No surprise here that the top trend is data security.  It’s one of the “chief concerns” of GC’s, and for good reason:  It’s not if, but when, a firm is going to experience a cyber-attack.  The latest ABA report says that 22 percent of law firms of all sizes were hit with a data breach in 2017, up from 14 percent in 2016; several of the biggest firms experienced attacks and various kinds of disruption in the past couple years.  But small and medium-size firms are just as vulnerable, say the data.  Of course, lawyers have an ethical duty under Model Rule 1.6(c) to take reasonable steps to safeguard the confidentiality of client data.  Ethics rules also require lawyers to have the technological competence to recognize and address the problem.  (See comment [8] to Rule 1.1.)  Trending:  More clients are insisting that firms establish data security policies and procedures.

The “Uber” effect – on-line service providers and other tech disruptors

Just as Uber disrupted an entire market segment with its ride-hailing model, on-line businesses like Avvo and LegalZoom have taken aim at legal services and how they are marketed.  But these on-line types of business raise legal ethics issues, including fee-splitting, handling client funds and professional independence.  (Excellent summary is here.)  Some innovative models, like the traffic-ticket-fighting site TIKD, are under fire for potential antitrust violations and the unauthorized practice of law.  And will consumers soon be taking their legal problems to chatbots?  Will legal teams soon be using artificial intelligence to analyze complaints and generate document drafts?  Trending:  State ethics regulators have come down against Avvo-like platforms, but they are still thriving.  How will the legal industry adapt?  (Hint:  Watch the progress of the ABA’s consideration of a revamp of the Model Rules on lawyer marketing and advertising, aimed at “bringing them into the 21st century” and reported here, in the Professional Responsibility Blog.)

Gender bias and sexual harassment in the profession

The ABA adopted Model Rule 8.4(g) in 2016, barring lawyers from engaging in harassing or discriminatory conduct; states are now considering whether to adopt the rule into their own lawyer conduct codes.  (Box score as of 8/1/17:  1 aye, 1 nay, many studying; and some commentators raise First Amendment concerns.)  But 40 percent of women in the profession report that they have been subjected to harassment and discrimination; and there have been several high-profile discrimination and pay-equity claims against prominent national firms and individuals.  The judiciary has been hit as well, with a prominent federal judge apologizing and retiring abruptly after sexual harassment allegations; and 695 law professors and former clerks are now petitioning Chief Justice John Roberts, seeking revision of judicial employee guides and support for reporting misconduct.  Trending:  Women in the profession are adding their voices to #metoo.

Lawyer health and wellness — mental and physical

Finally, we’d be remiss, in our first post of 2018, if we didn’t mention the personal aspect of lawyering:  keeping yourself safe and sane.  As a profession, more of us fight alcoholism, substance abuse, depression and anxiety than the general population, and those trends start developing in law school.  The statistics are alarming.  Trending:  a hopeful resolve, via a new, comprehensive ABA report, to come to grips with these systemic issues.  If you made a New Year’s resolution to stop drinking or drugging, or to address mental health issues that are affecting your legal practice, every state has a lawyer assistance organization to help you.  We’ve linked to the ABA’s state-by-state listing before; but here it is again.  If it helps one person, there’s no such thing as posting it too often.

Happy New Year.

 

The Third District Florida court of appeals got some press this summer when it affirmed an order refusing to disqualify a judge who was Facebook friends with one of the lawyers in a case before her.  The court wrote that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word,” and therefore being “friends” was not disqualifying, “without more”  — namely a well-grounded fear of partiality.

Now, the law firm on the losing end of that case has asked the Florida Supreme Court to accept an appeal, citing a split on the issue among Florida state appellate courts.

Cases and ethics opinions — some not very friendly

Some of the cases and ethics opinions on Facebook friendships between judges and lawyers have been friendly to the concept, in a qualified way — that is, when there is no other factor that would suggest impropriety or possible lack of impartiality on the part of the judge.

For instance, the professional conduct board in my home state of Ohio advised in a 2010 opinion that nothing in the state’s judicial code bars a judge from being friends – online or offline – with lawyers, even those who appear before the judge.  However, the board said, a judge should disqualify himself or herself when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party.  New York has a similar judicial ethics opinion.

Somewhat similarly, in Youkers v. Texas, the state criminal appeals court ruled in 2013 that a Facebook friendship between the victim’s father and the presiding trial judge was insufficient to show bias as a basis for recusal.

But ethics opinions in some other jurisdictions are more restrictive, and bar a judge from being Facebook friends with lawyers who are currently appearing before them (California) or even may appear before them (Massachusetts).

Florida split

In Florida, the lower courts of appeal have split.  The Third District court of appeals, located in Miami, issued the ruling that is the subject of the state supreme court petition.  In its opinion, it acknowledged that its ruling, declining to disqualify on the basis of a Facebook friendship between the judge and the lawyer for one of the parties, was at odds with a 2012 decision of the Fourth District.  The court there ruled that Facebook friendships between judges and lawyers violated the canons of judicial ethics and created the appearance of impropriety.

The Third District’s opinion agreed with a 2014 decision of the Fifth District, which noted (in dicta) that without more, being Facebook friends “does not necessarily signify the existence of a close relationship.”  (The Fifth District case involved a party, not a lawyer, and affirmed disqualification of the judge where he tried to initiate a FB friendship while the domestic relations case was ongoing).

 True friends

According to the Hebrew Bible, King Solomon said, “Love a friend at all times.” (Pr. 17:17.)   That may or may not be good advice when it comes to judges and their Facebook friends.  In any event, this is an area where continuing ethics developments bear watching, including in the Sunshine State.

Just last month, we wrote about a North Carolina draft proposal that would ease the way via its ethics rules for Avvo and other on-line legal services to operate there.  Now, after a joint opinion from three New Jersey Supreme Court committees, the Garden State has turned thumbs down on such law platforms, citing issues including improper fee-sharing and referral fees.

Nix on Avvo, LegalZoom, Rocket Lawyer

The joint opinion bans participation in Avvo’s programs because of the “marketing fees” it collect from lawyers in exchange for participating in two of its offerings:  “Avvo Advisor,” in which clients talk to lawyers for 15 minutes for $40, with Avvo keeping $10; and “Avvo Legal Services,” where clients pay a flat fee to Avvo for access to affiliated lawyers, and then Avvo pays the lawyer net of its own fee.

The committees found that this arrangement violates New Jersey’s version of Model Rule 5.4(a), barring fee-splitting with non-lawyers, and it mattered not that Avvo called its cut a “marketing fee”:  irrespective of its label, said the committees, “lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.”  In addition, said the committees, these payments signal a “lawyer referral service,” and payment of an “impermissible referral fee” under New Jersey’s Rules 7.2(c) and 7.3(d).

Icing the cake, the committees also raised a trust account issue, saying that Avvo’s practice of holding the lawyer’s fee until the conclusion of the matter violates the attorney’s duty to maintain a registered trust account and to hold client funds in it until the work is completed.

Avvo wasn’t the only on-line platform tagged — Rocket Lawyer and LegalZoom also were placed off-limits to New Jersey lawyers, but for a different reason.  While they do not require payment from lawyers to participate, and do not share the clients’ monthly subscription fees with lawyers, Rocket Lawyer and LegalZoom are “legal service plans” that have not been registered with or approved by the New Jersey Supreme Court, said the committees.  That places them outside the pale, even while not violating the fee-sharing prohibition.

A notice to the bar from the supreme court’s administrative office accompanied the joint opinion, listing the 46 state-approved legal service plans, including those offered through unions and government agencies.

What next?

As we’ve noted, the ABA’s Futures Commission sees the continuing onslaught of on-line platforms as something that is here to stay.  Nonetheless, this New Jersey ethics opinion joins other cautionary or negative ones issued by regulators in Ohio, Pennsylvania and South Carolina.  Against that backdrop, North Carolina’s recent consideration of rule changes may appear to be the outlier (although an Oregon state bar association task force also recently recommended ethics rule amendments that would be friendly to on-line service legal platforms).

Avvo responded to the New Jersey opinion, telling the New Jersey Law Journal that it is “attempting to address the pressing need for greater consumer access to justice, and we will continue to do so despite this advisory opinion.”

Will market pressure become a tsunami that will eventually sweep legal ethics considerations away?  It may take awhile to tell, but until then, look for more ethics opinions to come out with differing views, potentially creating a patchwork of inconsistent state approaches.  We’ll be watching with great interest.

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.