Was That Wrong? A new column

In the famous “Red Dot” episode of Seinfeld, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ingnorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frouned upon, you know, cause I’ve worked in a lot of offices and I tell you peope do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Among some of my closer friends, “was that wrong?” is often the response one of us gives when another asks “did you seriously __________?”  the blank filled in by something idiotic.

Costanza’s response serves as my inspiration for a new column on Ethical Grounds:  Was That Wrong?  The column will feature stories of the absurd & outrageous from the world of legal ethics and attorney discipline, highlighting misconduct that I hope you’ll instinctively avoid without needing a CLE that urges you to do so.

Today’s initial “Was That Wrong” involves a case in which the Florida Supreme Court stated:

  • “The misconduct giving rise to the disciplinary actions against these three attorneys is among the most shocking, unethical, and unprofessional as has ever been brought before this Court.”

Folks, that’s saying something.

I’ll let you read the decision. For the purposes of this column, I’ll leave you with this:

Florida Supreme Court:  “We’ll get right to the point.  It has come to our attention that in the midst of a contentious trial, you, your law partners, your paralegal, and local law enforcement schemed to set up opposing counsel for a DUI?”

Respondent Attorney:  “Was that wrong?”

Florida Supreme Court:  “You’re permanently disbarred.”

Respondent Attorney:  “Well you didn’t have to say it like that.”

The full opinion is HERE.

The Night Of …. Who gets disbarred first?

For those of you who haven’t seen HBO’s The Night Of  STOP READING NOW!  This post contains spoilers. Not just any ol’ spoilers – but the biggest spoiler of all: what happens in the finale.

To give you time to stop reading if you don’t want to know what happened in last night’s finale, I’ll digress for a moment: the show cemented Michael K. Williams as my favorite actor.  My favorite of his roles remains his turn as Omar Little in The Wire and he was fantastic as Chalky White in Boardwalk Empire.  He submitted another super performance here.  Quite the resume.

Ok. Time to get to the point.

Which lawyer in The Night Of would get the most serious sanction imposed against his or her law license?

Around the interwebs, the betting public’s money seems to be on Chandra.  I agree that things don’t look good for Attorney Kapoor.

  • In real life, The New York Times stated that her passionate kiss with her client – during his murder trial, in the holding cell at the court, after which she convinces him to take the stand to testify – “undermines her as a professional.”  Yes, it does.  It’s also professional misconduct.
  • In the show, her kiss with Naz (her client) leads co-counsel John Stone to move for a mistrial.  Motion denied, but not before the judge asked her what other careers she considered as an undergrad before deciding on law school.
  • Chandra’s boss, Alison Crowe, wasn’t sympathetic.  She told Chandra she was going to report to the ethics committee.  Then she fired her.

So, yes, to say the least, Chandra’s future is uncertain. Not to mention that nobody (in the show anyway) seems to know that she also smuggled drugs to Naz in jail.

But, seriously interwebs, where’s the outrage about the prosecutor’s clear Brady violation and flat-out lie to the jury?

Let’s set the stage:

Naz is charged with murdering Andrea Cornish.  Lead Detective Dennis Box pulls camera footage of Andrea getting into Naz’s parked cab.  When prosecutor Helen Weiss views the footage, she says something to the effect of “he waited for her.  that’s pre-meditation.” And she presents her case as such.

As the trial proceeds, Detective Box continues to work the case, seemingly questioning whether he got the right guy.  He reviews the footage of Andrea walking to Naz’s cab and notices that she turns to look back, as if scared of someone behind her.  Pulling additional footage (thank you Big Brother?), Detective Box traces Andrea’s walk to Naz’s cab back to its beginning: an argument with a man outside a restaurant, a man who followed her towards the cab.

Box identifies the man: Ray Halle.  Box discovers that not only did Ray get into an argument with Andrea on the night she died, and not only did he follow her to the cab …. he dated her and his semen was found her bed.

That’s not all that Box learned.

Turns out, Ray was Andrea’s financial advisor.  Shortly before she died, Andrea found out that $300,000 was missing from her account.  Ray controlled the account and, of course, Ray is a problem gambler.

Detective Box put it all together.  And, on the eve of closing arguments, he told prosecutor everything he’d learned about Halle.

Her response?  “We’ve got more on the kid.”

The next day, during her closing argument, Weiss states to the jury that the only semen found in Andrea’s bed belonged to Naz.  Further, there’s no suggestion that she ever disclosed to the defense the fact that Box had located a suspect who:

  • was dating the deceased,
  • argued with her on the night she died,
  • had a gambling problem
  • had access to the deceased’s account
  • an account from which the deceased had recently learned that $300,000 was missing.

Sure, after the jury comes back 6-6, prosecutor Weiss informs the court that her office declines to re-try Naz.  And, later, she asks Box to come out of retirement to help her chase down Ray Halle.  All’s well that end’s well, right?

Wrong.

You know what I say?  Save it for the disciplinary hearing.  At best, Weiss’s belated interest in snaring Halle is evidence that might mitigate her ethical lapses during the trial.  The fact remains that Weiss (1) didn’t disclose anything about Halle to the defense; and (2) told the jury that only Naz’s semen was found in Andrea’s bed.

So, yes, Chandra’s career isn’t off to the best start (and Stone and Crowe weren’t exactly paradigms of ethics throughout the show) but my money would be on prosecutor Weiss losing her ticket for violating Rule 3.8(d) (failing to disclose information that she knows about & that tends to negate Naz’s guilt) and the rules requiring candor & honesty (Rules 3.3, 4.1, and 8.4(c)).

 

 

 

 

Monday Morning Answers #37

Friday’s questions are HERE.  Thank you to all who entered.

Honor Roll (* = perfect score)

Answers

Question 1

With respect to your duty to maintain confidentiality, it’s critical to remember that the Vermont Rules of Professional Conduct specifically prohibit you from disclosing ________.  (I’m looking for the exact phrase used in the rule).

  • A.  “information covered by the attorney-client privilege.”
  • B.  “client confidences”
  • C.   “client confidences and secrets”
  • D.   “information relating to the representation.” See, Rule 1.6, and this post

Question 2

Under the Vermont Rules of Professional Conduct, which type of conflict of interest differs from the others in a critically important way?

  • A.  A “concurrent” conflict of interest, as defined by Rule 1.7
  • B.  A “former client” conflict of interest, as defined by Rule 1.9
  • C.  A conflict of interest based on a “personal interest” of the lawyer; per Rule 1.10, personal conflicts are not automatically imputed to others in the firm.  Conflicts based on rules 1.7 & 1.9 are.
  • D.  A conflict of interest that is created when a lawyer withdraws from representing one of multiple clients in the same matter.

Question 3

With respect to the Vermont Rules of Professional Conduct, the term “compliance review” applies to disciplinary counsel’s review of a lawyer or law firm’s:

  • A.  advertisements
  • B.  financial & trust account records; Rule 1.15A(b)
  • C.  client intake procedures/system to check for conflicts of interest
  • D.  security protocols when storing & transmitting client data electronically

Question 4

Lawyer called me with an inquiry.  I listened, then said:

  • “the comments to the rule say that your first step is to remonstrate with the client. It’s the only rule that includes the word ‘remonstrate‘.  In fact, talking about situations like this is the only time in my life that I’ve used or heard the word ‘remonstrate.’ “

What type of dilemma did Lawyer call to discuss?

The lawyer came to know that a client had lied or offered false evidence.  See, Rule 3.3.

Question 5

Steven Donzinger is a lawyer.  In 2011, he received an $8.6 billion judgment on behalf of a plaintiff-class.  The case was tried in Ecuador.

Earlier this month, the Second Circuit Court of Appeals affirmed a 2014 ruling that barred any & all attempts to enforce the judgment.  The lower court had concluded that Donzinger and the legal team that he headed procured the judgment through racketeering, bribery, coercion, and corruption. In affirming, the Second Circuit wrote that “even innocent clients may not benefit from the fraud of their attorney.”

The underlying case involved pollution.  Who was the defendant?

The defendant was Chevron.  The ABA Journal posted on the 2nd Circuit Decision HERE. Here’s what some others are saying.

 

Five for Friday: Week 37

Welcome to Week 37 of Five for Friday!

(last night’s late post on Avvo & Fixed Fee Legal Services is HERE)

I’m dedicating this week’s edition to all my friends in No Shoes Nation. Thanks to a fantastic Christmas gift from my brother, he and I & some friends of ours will be joining about 80,000 of you tomorrow at Gillette for Kenny’s show with Miranda.  Here’s to pirate flags and blenders that are willing & able.

If you haven’t played before, old quizzes are here.  Rules?  None. With the exception of question 5, the quizzes are open search engine, phone-any-friend you want.  You may join with others and enter as a team.  I don’t share your answers with anyone, and as I’ve blogged, I don’t care if you go 0-5 32 consecutive weeks. So, give it a shot!  (and please consider forwarding to others)

Email answers to michael.kennedy@vermont.gov  I’ll post the correct answers & the honor roll on Monday morning.

Question 1

With respect to your duty to maintain confidentiality, it’s critical to remember that the Vermont Rules of Professional Conduct specifically prohibit you from disclosing ________.  (I’m looking for the exact phrase used in the rule).

  • A.  “information covered by the attorney-client privilege.”
  • B.  “client confidences”
  • C.   “client confidences and secrets”
  • D.   “information relating to the representation.”

Question 2

Under the Vermont Rules of Professional Conduct, which type of conflict of interest differs from the others in a critically important way?

  • A.  A “concurrent” conflict of interest, as defined by Rule 1.7
  • B.  A “former client” conflict of interest, as defined by Rule 1.9
  • C.  A conflict of interest based on a “personal interest” of the lawyer
  • D.  A conflict of interest that is created when a lawyer withdraws from representing one of multiple clients in the same matter.

Question 3

With respect to the Vermont Rules of Professional Conduct, the term “compliance review” applies to disciplinary counsel’s review of a lawyer or law firm’s:

  • A.  advertisements
  • B.  financial & trust account records
  • C.  client intake procedures/system to check for conflicts of interest
  • D.  security protocols when storing & transmitting client data electronically

Question 4

Lawyer called me with an inquiry.  I listened, then said:

  • “the comments to the rule say that your first step is to remonstrate with the client. It’s the only rule that includes the word ‘remonstrate‘.  In fact, talking about situations like this is the only time in my life that I’ve used or heard the word ‘remonstrate.’ “

What type of dilemma did Lawyer call to discuss?

Question 5

Steven Donzinger is a lawyer.  In 2011, he received an $8.6 billion judgment on behalf of a plaintiff-class.  The case was tried in Ecuador.

Earlier this month, the Second Circuit Court of Appeals affirmed a 2014 ruling that barred any & all attempts to enforce the judgment.  The lower court had concluded that Donzinger and the legal team that he headed procured the judgment through racketeering, bribery, coercion, and corruption. In affirming, the Second Circuit wrote that “even innocent clients may not benefit from the fraud of their attorney.”

The underlying case involved pollution.  Who was the defendant?

 

 

 

Fixed Fee Legal Services: a Conversation Starter

This post is about referral fees, fee-sharing, and Avvo.  Before you read it, you should review my primer on referral fees.  (Don’t be shocked when you learn that straight referral fees are not allowed in Vermont.)

No time to read the primer? A few quick reminders before we proceed:

  • V.R.Pr.C. 7.2(b) prohibits lawyers from giving “anything of value to a person for recommending the lawyer’s services.”
  • V.R.Pr.C. 5.4 imposes a general prohibition on sharing fees with non-lawyers.

The website for Avvo Legal Services is here.  Avvo provides fixed-fee legal services. For example, as you can see here,

  • $39 gets a consumer a 15 minute phone call for questions and advice from a local, experienced lawyer about estate planning needs;
  • $149 gets a consumer a 30 minute phone call with a local, experienced lawyer plus review of a last will and testament; and,
  • $249 gets a consumer a 30 minute phone call plus start-to-finish help for a last will and testament drafted by a local, experienced attorney.

In February, the ABA Journal reported on the launch of Avvo Legal Services, describing the service as follows:

  • “Avvo sets the menu of services and fees. Clients choose a service and an attorney and make full payment up front through Avvo’s website. Avvo notifies the attorney, who then contacts the client directly and completes the service.”Once a month, Avvo deposits earned fees into the attorney’s operating account. As a separate transaction, it withdraws from the account a per-service marketing fee. The fee varies in amount according to the service provided.”

In its report, the ABA Journal quoted Gregory W. Coleman.

  • “Gregory W. Coleman, who as 2014-15 president of the Florida Bar closely studied alternative legal providers, agrees that the program fills a consumer need.’They are reaching a market that we as a profession have been unable to serve, which is not just the indigent but the working middle class,’ says Coleman, a partner in the West Palm Beach firm of Critton, Luttier & Coleman. “They can’t afford a $250-an-hour lawyer, but they can afford a flat fee for a task they need accomplished.””But he and other lawyers are concerned that the program’s fee structure could violate ethical prohibitions against fee sharing and put lawyers who participate in the program at risk.”

Then, the ABA Journal summarized the arguments for and against Avvo Legal Services:

  • “Coleman believes that because the marketing fee is tied to the amount of the legal fee, it violates Florida’s prohibition against fee sharing. For it to be acceptable, it would have to be a flat fee across all matters, he says.”New York City ethics lawyer Nicole Hyland takes a similar view, calling the arrangement ‘very, very close to the line.’

    “’Most of the ethics opinions I’m aware of say that, if the lawyer is paying a fee to be included in a directory service, that fee should not be tied to the number of clients obtained or the amount of the legal fee earned,’ Hyland says. ‘Here, Avvo’s ‘marketing fee’ appears to be tied to both.’

    But that does not mean that the service is inherently unethical or harmful to clients, she adds. ‘This is an area where I would like to see reform in the ethics rules—to give lawyers more options for marketing their services and finding new clients.’

    “Northford, Connecticut, lawyer Susan Cartier Liebel, founder and CEO of Solo Practice University, raises a different concern. The unearned fees held by Avvo each month should instead be held in the attorneys’ IOLTA accounts, she believes. By retaining this money in its own accounts, Avvo is diverting interest that would otherwise go to fund legal aid.

    “Avvo chief legal officer Josh King defends the fee arrangement as consistent with ethics rules. The critical question, he says, is whether the arrangement harms the client. ‘You can’t apply the ethics rules unless there’s consumer harm,’ he says. ‘We’ve been careful to make this product good for compliance-minded lawyers and especially good for consumers and clients.’

Last month, the South Carolina Bar issued Ethics Advisory Opinion 16-06.  The opinion does not mention Avvo by name, but opens by stating that “[a]n attorney directory website released a new fixed-fee legal referral service.”  The opinion goes on to describe a fixed-fee legal service that mirrors Avvo’s.

Here’s the summary:

  • “The arrangement described herein violates the prohibition of sharing fees with a non- lawyer as described in Rule 5.4(a). In the alternative, assuming, for the purposes of this question only, that the arrangement does not violate Rule 5.4(a), the arrangement would violate the Rule 7.2(c) prohibition of paying for a referral and is not saved by the exceptions found in Rule 7.2(c)(1), (2), or (3).”

South Carolina’s rules are virtually identical to Vermont’s.

The ABA Journal called the SC Opinion “bad news for Avvo Legal Services.”  FindLaw’s Casey Sullivan noted that the SC Opinion should make lawyers “think twice about fixed fee legal services.”

Avvo’s response to the South Carolina opinion is HERE.

This is an issue we have to address. Earlier this spring, I posted a series of blogs asking whether Rule 5.4 should be amended to drop the ban on sharing fees with non-lawyers. Links to each post in the series can be found HERE.  Nobody seemed terribly interested.

I wonder, though, should we really be thinking twice about offering fixed fee legal services? Or, should we be thinking twice about what our ethics rules should & should not prohibit? To the point: assuming that services like Avvo associate with licensed & competent local counsel, what is the harm?

Last year, first-year study committees of the Vermont Joint Commission on the Future of Legal Services issued reports & recommendations.  The Commission was formed in response to Chief Justice Reiber’s call for stakeholders to “come  together to study the question of how to ensure that Vermonters can obtain quality, affordable legal representation and efficient dispute resolution . . . [and] to consider that question  in light of the stark financial realities faced by the public, new lawyers, and the courts.”

Almost as if anticipating Avvo Legal Services, the Legal Technology Committee wrote:

  • “Practices concentrating in the areas of criminal defense, residential real estate, moderately complex civil litigation, and retail services will remain services that cannot easily be provided by someone other than an attorney. Many other services such as business entity formation, basic contract drafting, and simple dispute resolution will likely pass from the smaller firms to larger firms or virtual practices. Due the hourly fee falling into disrepute in much of the country, some firms may also learn the benefits of non-traditional methods of setting fees to better serve the needs of specific clients. For the largest percentage of firms providing retail services to clients other than the most economically challenged, practitioners will have to determine how to provide services at a cost that the average consumer can pay.

“The question is not whether disruptors that have touched other industries and the                 practice of law in other states will impact the practice of law in Vermont, but how                   quickly the disruption will occur and how significant the impact of the disruption                   will be when it does arrive.”

I don’t know whether Avvo plans to operate in Vermont.  But LegalZoom is here.  So are other disruptors.  The disruption has arrived.

What will disciplinary counsel’s response be if & when a complaint is filed against a Vermont attorney who participates in a fixed-fee legal service, provides otherwise competent & conflict-free representation at an affordable fee, but renders a cut unto the service? Should we take it out of disciplinary counsel’s hands by changing our rules?

I wonder, are we serving our younger attorneys, many of them burdened by overwhelming debt, by enforcing rules that may prohibit participation in services similar to Avvo?  Are we serving consumers by making it unethical for lawyers to participate in such services? How is banning Avvo consistent with our oft-stated goal — and urgent need — to increase access to justice and access to legal services?

On the other hand, why should we imply that 30-minutes of legal advice, which might be over the phone, on a matter important as estate planning is sufficient?

I don’t know the answers.  But we need to raise the questions.

Consider them raised.

 

 

Monday Morning Answers: Week 36

Only two Mondays left before Labor Day.  Where’d the time go? Make the most of these next two weeks folks!

Friday’s questions are HERE. The answers follow this week’s honor roll.

HONOR ROLL

Several entrants came within a whisker of a perfect score, with many of you getting 4.5 as a result of knowing the show but not the client.  Only Elizabeth Kruska, my fellow VBA Board member, went 5 for 5.

ANSWERS

Question 1

Last month, the State Bar of Texas issued an advisory ethics opinion that was heavy on terms like “SEO” and “competitive keywords.”  What legal ethics topic did the opinion address?

  • A.  Internet advertising & marketing.  Good thing most of you got this one right on Friday, seeing as I’d blogged about it on Thursday.
  • B.  Online legal research
  • C.  Diligence/Competence in Patent & Trademark Law
  • D.  Self Employed Operators of title companies

Question 2

In July, the South Carolina Bar issued an advisory ethics opinion that has stirred national debate (and controversy).  The debate includes attorney regulators, bar associations, and companies like Avvo. It might soon include a federal court or the Federal Trade Commission. The debate centers on:

  • A.  Advising Clients on Marijuana-Related Issues
  • B.  Attorney Advertising & Sharing Fees with Non-Lawyers.  I’m going to blog on this issue later this week.  For now, check out this post from the ABA Joural.
  • C.  Banking Regulations & Trust Accounting Standards
  • D.  Multi-Jurisdictional Practice of Law

Question 3

Lawyer called me with an inquiry. I listened, then responded: “A lot of lawyers do the same thing. It’s not quite that simple. I’ll tell you what I tell everyone: if down the road you decide to withdraw, don’t forget that you’ll have a former client on your hands, which will raise issues you’ll have to consider.”

What general ethics topic did Lawyer call to discuss?

Conflicts.  Specifically, representing multiple clients with a plan to withdraw from representing one if a conflict arises.  Not always the best plan.  The reason is that Rule 1.9 prohibits an attorney from representing a person in a matter when the person’s interests are materially adverse to those of a former client.  Committing to multiple representations, then withdrawing when interests become adverse, often leaves a lawyer with a former client whose interests are adverse to the client with whom the lawyer stayed.

Question 4

Attorney called me with an inquiry. I listened, then responded: “The Comment says that former employees are fair game.”

What general ethics topic did Attorney call to discuss?

Communicating with the former employees of a represented organization on the subject matter of the representation.  See, Rule 4.2, Comment 7.

Question 5

Leonard Kachinsky is a real-life attorney in Wisconsin.  Earlier this year, he gained national attention after binge watchers everywhere learned that he had engaged in some, umm, questionable conduct while he represented a client in a criminal case.  This week, he was back in the news: a federal judge overturned the conviction of Kachinsky’s client.

The judge cited coercive interrogation techniques as the basis for overturning the conviction.  However, he also noted that Kachinsky’s representation of his (then) teen-aged client had been “inexcusable, both tactically and ethically.”

Name Kachinsky’s client.

Brandon Dassey, who first came to our attention in Making a Murderer.

Five for Friday #36: Get on The Bus!

Allison Wannop, this one’s for you.

Welcome to Week 36 of Five for Friday. This week honors Jerome Bettis.  Right about this time 11 years ago, Steeler fans were about to hop on The Bus for a season in which he helped lead us to One For The Thumb and one step closer to the top of the Stairway to Seven.

To the questions we go!  Remember:

  • No rules.   You may use whatever resource(s) you’d like.
  • Except for #5. For that one, you’re limited to your brain.
  • You may enter with others as a team.
  • Please forward the quiz to colleagues, friends, and foes.
  • Email answers to michael.kennedy@vermont.gov
  • Answers will be posted in Monday morning.

Question 1

Last month, the State Bar of Texas issued an advisory ethics opinion that was heavy on terms like “SEO” and “competitive keywords.”  What legal ethics topic did the opinion address?

  • A.  Internet advertising & marketing
  • B.  Online legal research
  • C.  Diligence/Competence in Patent & Trademark Law
  • D.  Self Employed Operators of title companies

Question 2

In July, the South Carolina Bar issued an advisory ethics opinion that has stirred national debate (and controversy).  The debate includes attorney regulators, bar associations, and companies like Avvo. It might soon include a federal court or the Federal Trade Commission. The debate centers on:

  • A.  Advising Clients on Marijuana-Related Issues
  • B.  Attorney Advertising & Sharing Fees with Non-Lawyers
  • C.  Banking Regulations & Trust Accounting Standards
  • D.  Multi-Jurisdictional Practice of Law

Question 3

Lawyer called me with an inquiry. I listened, then responded: “A lot of lawyers do the same thing. It’s not quite that simple. I’ll tell you what I tell everyone: if down the road you decide to withdraw, don’t forget that you’ll have a former client on your hands, which will raise issues you’ll have to consider.”

What general ethics topic did Lawyer call to discuss?

Question 4

Attorney called me with an inquiry. I listened, then responded: “The Comment says that former employees are fair game.”

What general ethics topic did Attorney call to discuss?

Question 5

Leonard Kachinsky is a real-life attorney in Wisconsin.  Earlier this year, he gained national attention after binge watchers everywhere learned that he had engaged in some, umm, questionable conduct while he represented a client in a criminal case.  This week, he was back in the news: a federal judge overturned the conviction of Kachinsky’s client.

The judge cited coercive interrogation techniques as the basis for overturning the conviction.  However, he also noted that Kachinsky’s representation of his (then) teen-aged client had been “inexcusable, both tactically and ethically.”

Name Kachinsky’s client.

(come on! did you think the question was going to be the simple & obvious one??)

Image result for jerome bettis

 

SEO, Keywords, & Honesty

I’m not sure what to make of this one.

Last month, the Professional Ethics Committee for the State Bar of Texas issued Opinion 661.

The Committee concluded that

  • “A lawyer does not violate the Texas Disciplinary Rules of Professional Conduct by simply using the name of a competing lawyer or law firm as a keyword in the implementation of an advertising service offered by a major search-engine company.”

What’s that mean?

  • I interrupt this  blog to remind you that I first posted on tech competence HERE . Now, back to your regularly scheduled programming.

In an oversimplified nutshell, it means this.

Let’s say I have a family law practice in South Burlington.  Let’s also say that the most well-known and sought after family law attorney in Chittenden County is Rochester Flyte.  How do I drive traffic to my website? I know: competitive keyword advertising. Using search engine optimization, I’ll buy keywords from Big Search Engine.  I buy the keywords you’d expect:

  • “divorce”
  • “attorney”
  • “lawyer”
  • “family law”
  • “Burlington”
  • “Chittenden County”
  • “Vermont”
  • and all combinations of the above

Then, I buy one more phrase: “Rochester Flyte.”

So, when someone uses Big Search Engine to search “Rochester Flyte divorce attorney Burlington,” my website appears very high on the list of results, if not first.

Per the Texas opinion, I did nothing wrong.  Eric Goldman is a Professor of Law at Santa Clara University Law School.  He agrees.

The Texas Committee stated that in its opinion:

  • “the use of a competitor’s name as a keyword in the factual circumstances here considered would not in normal circumstances violate [the rules]. The advertisement that results from the use of [Rochester Flyte’s] name does not state that [Mike Kennedy & Rochester Flyte] are partners, shareholders, or associates of each other. Moreover, since a person familiar enough with the internet to use a search engine to seek a lawyer should be aware that there are advertisements presented on web pages showing search results, it appears highly unlikely that a reasonable person using an internet search engine would be misled into thinking that every search result indicates that a lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search.” Opinion 661, pp. 2-3.

In concluding that such conduct isn’t dishonest, deceptive, deceitful or fraudulent, the Texas Committee appears to have been swayed by the theory that “every other business allows it, so we should too,” noting that:

  • “[i]n the opinion of the Committee, given the general use by all sorts of businesses of names of competing businesses as keywords in search-engine advertising, such use by Texas lawyers in their advertising is neither dishonest nor fraudulent nor deceitful and does not involve misrepresentation.” Opinion 661, p. 3.

Texas reached the opposite conclusion as North Carolina.

  • Another interruption.  Many of you know I like basketball. Well, I’m no fan of Carolina basketball.  So any blog that compares opinions of the Texas and North Carolina state bars will include a reminder that Texas, led by one of my favorite coaches, Shaka Smart, took down UNC last December – the buzzer-beater portending another in Carolina’s future.

In 2010, the North Carolina State Bar issued Formal Ethics Opinion 14.   In the Tar Heel state, where my father lives and to which I’m more and more attracted each day, it would be unethical for me purchase the “Rochester Flyte” keywords.  Why?  Well, as the NC State Bar concluded:

  • “[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.”

So, there you have it.  I’m not sure what makes me hesitant about allowing Lawyer A to buy Lawyer B’s name as a keywords in an SEO marketing campaign.  Indeed, people like Professor Goldman are far smarter & more informed than I on this issue (and probably many others).

Still, it just doesn’t feel right.  The Texas opinion stresses that it’s okay as long as my website isn’t misleading or otherwise dishonest once visited by the person who searched “Rochester Flyte divorce burlington.”.  But I tricked him into getting there….or did I?

Taking the interet out of it, imagine that I rented an office around the corner from Rochester Flyte’s.  And that I put up a sign in front of his that said “law office around the corner.”  Imagine that people searching for Flyte’s office followed the sign and ended up at my office.  Would that be okay merely because I truthfully & honestly identified myself once they arrived?

Maybe.  Maybe not. Or maybe it’s a terrible analogy. I don’t know.

Which is where I am on this issue: I just don’t know. To be clear, I haven’t exactly informed myself.  Besides the Texas and North Carolina opinions, the only thing I’ve read on point is one entry Professor Goldman’s blog. I suppose that, in the end, Professor Goldman will sway me.  After all, as a former point guard, I’m susceptible to being swayed by anyone associated with the school Steve Nash attended.  But, for now, I don’t know what to think.

Which is what many of you have been saying for years.

Monday Morning Answers – Week 35

Wow.

Friday’s quiz generated a ton of basketball talk.  The Week 35 edition of Five for Friday honored Reggie Lewis, the Celtic great who wore #35.  With Reggie having played at UVM while at Northeastern, the quiz included a “warm-up” question: who is the best ever to play in Patrick Gymnasium?

Many of you responded.  Some of you only to that question!  In fact, I might have to post another blog, later today, on the hoops debate.  For now, the answers to the ethics quiz.

But first, the Honor Roll.

Perfect Score

  • Team Liberty  (ACLU of Connecticut)
  • Hal Miller, Esq., First American
  • Kane Smart, Esq., Downs Rachlin & Martin

High Honors

  • Matthew Anderson, Esq., Pratt, Vreeland, Kennelly, Martin & White
  • Patrick Camp, Pre-Con Products, Bar Counsel’s High School Basketball Teammate
  • Robert Grundstein, Esq.
  • Keith Kasper, Esq., McCormick, Fitzpatrick, Kasper & Burchard
  • Mark Kennedy, Bar Counsel’s Dad
  • Patrick Kennedy, Dealer.Com, First Brother
  • David Lapointe, Jr., Bar Counsel’s High School Basketball Teammate
  • Brian Martin, Esq., Associate General Counsel, Green Mountain Care Board
  • Ray Massucco, Esq., Massucco Law Office
  • Ilerdon Mayer, Esq., Mayer & Mayer
  • Tavian Mayer, Esq., Mayer & Mayer
  • Lon McLintock, Esq.
  • Joe McNeil, Esq., McNeil, Leddy, Sheahan
  •  Hal Miller, Esq., First American*
  • Brendan Scherer, Vermont Law School, Summer Law Clerk at Office of the Defender General
  • Emily Tredeau, Esq., Office of the Defender General
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Valente, Esq., Ryan Smith & Carbine
  • Matthew Valerio, Esq., Vermont Defender General
  • Allison Wannop, Esq.

ANSWERS

Warm-Up:  I call him “The Doctor.”  Julius Irving, also known as Dr. J.

Question 1

Vermont’s conflict rules do not prohibit common representation of multiple clients. However, a comment to the rules indicates that the risks posed by representation of multiple clients in a specific type of case is “so grave that ordinarily a lawyer should decline to represent” multiple clients.

What type of case?   CRIMINAL – Rule 1.7, Comment 23

Question 2

In 2008, you represented Client at trial.  The Court admitted evidence that clearly established that Client had used recreational drugs at her place of employment.  Client is a public figure.

Client died earlier this week.  Tomorrow, a reporter is going to call you.  The reporter is going to ask you to comment on Client’s recreational drug use.  Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.  You may comment because Client is deceased.
  • B.  You may comment because Client’s drug use is part of the public record of the 2008 trial.
  • C.  You may comment because the trial was more than 6 years ago.
  • D.  You may not comment because the information is related to the representation of Client.  Rules 1.6 and 1.9 apply after a client’s death, and the fact that information is public does not mean it’s general known.  See THIS POST

Question 3

Under the Vermont’s Rules of Professional Conduct, which does not belong grouped with the others?

  • A.  Contingent fee agreement.
  • B.  Hourly fee agreement.
  • C.  Client’s agreement that you can share her fee with another lawyer who does not work in the same firm as you.
  • D.  Former Client’s agreement to waive a conflict of interest

This question is what kept most everyone from achieving a perfect score.  Unlike the other choices, the rules do not require an hourly fee agreement to be confirmed in a writing that is signed by the client.

Question 4

Solo called me with an inquiry. I listened.  Then I said something like this:

  • “Believe it or not, we actually have a rule on that.  Be careful.  If you do what you described, the rule requires you to stop taking private clients in your geographic area.  You sure you’re ready to do that?  The comment suggests that the ‘geographic area’ is the entire state.”

What did Solo call to discuss?  Selling her law practice.  Rule 1.17(a).

Question 5

In honor of Cassandra LaRae-Perez entering last week’s quiz, as well as my focus (harping?) on client confidences……

….last month, a Minnesota court ordered a law firm to turn over Client’s divorce file to Client’s estate lawyers.  Client is a superstar musician who died earlier this year.

Client’s estate lawyers wanted the file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers.

Who is Client? PRINCE