Ghost Posts. Or are yours real?

To borrow a phrase from Larry David and Teri Hatcher, my blog posts are real and they’re spectacular!  Apparently not all law blogs can truthfully say the former.

Last month, the ABA Journal posted Ghostwriting for law blogs? Ethics are murkyIt’s a topic that’s new to me, one not raised in any of the ethics inquiries or formal disciplinary complaints that I’ve responded to and reviewed over the years.  The ABA Journal post includes insight from some of the more well-known voices on both professional responsibility and tech ethics.

But let’s back up for a moment.  You might be asking your self: “self, what is Mike even talking about?”  Good question.

The ABA’s post references this article that Kailee Goold posted to Ohio + Legal Ethics in June 2014. In it, Attorney Goold wrote:

  • “What are We Talking About?

    The ghost-blogging I’m talking about is when an attorney pays someone else (a non-attorney) to write articles published under the attorney’s name on the attorney or law firm’s website. As a result, the world thinks the attorney wrote it when the attorney had little to no part in its creation.”

Again, not an issue I’ve encountered.  But, an issue that raises ethics concerns.

Many law blogs are part of a lawyer’s website.  Websites communicate information about the services that the lawyer provides. Per V.R.Pr.C. 7.1,

  • “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not materially misleading.”

The final sentence of Comment [1] is “whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

Also, V.R.Pr.C. 8.4(c) prohibits a lawyer from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation.”

So, let’s say that a firm focuses on Practice Area.  And let’s say that the firm’s website includes a blog dedicated to Practice Area.  Does the firm violate the rules by paying a content developer to ghostwrite the posts and then posting them under the “byline” of one of the firm’s lawyers?

My gut reaction was “is it really THAT misleading?” But then I paused.  Because whenever we start asking whether something “is really THAT misleading,” we’ve established that it is, in fact, misleading.

In that it never arises, I don’t want to belabor the issue.  Suffice to say, if your website or blog includes posts that you paid someone else to ghostwrite, check out the articles referenced above.

Finally, I proof read by reading aloud.  Reading this blog about law blogs aloud reminded me of two things.

First, it reminded me of Elizabeth Kruska & Wesley Lawrence, perennial members of the #fiveforfriday Honor Roll in Legal Ethics.

Why them?

Because, like me, I know they’re fans of the second thing that reading today’s post aloud reminded me of: the world’s greatest law blog – The Bob Loblaw Law Blog.

See the source image

 

Tips for Online Reputation Management

Online Reputation Management is a thing.  An important thing.  But not so important that the Rules of Professional Conduct go out the window when a lawyer manages her online reputation.

Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client.  The rule is much broader than the attorney-client privilege and applies to all information relating to the representation no matter the source.

There are exceptions to the rule.  They are:

  • the client’s gives informed consent to the disclosure;
  • disclosure is impliedly necessary to carry out the representation;
  • disclosure is mandated by Rule 1.6(b);
  • disclosure is permitted by Rule 1.6(c).

Rule 1.6(c)(3) permits a lawyer to disclose information related to the representation of client:

  • to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; or,
  • to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

As I’ve previously blogged, a negative online review is not a “controversy between the lawyer and the client” that triggers the exception.  Neither is a negative online review a “proceeding” in which allegations have been made against the lawyer. My blog posts, which includes advisory opinions & disciplinary decisions, are here:

As the headlines suggest, the posts focus on what not to do.  For instance, don’t reveal client confidences in response to an online review.  Don’t post fake positive reviews.  Don’t create a fictitious lawsuit in order to get a court to order a website provider to take down a negative review.

Today’s ABA Journal has some great tips related to online clients reviews.  They appear in Kelly Newcomb’s post How lawyers can make positive – and negative – online reviews work for them.  

Whether on AirBnB, Yelp, Amazon, or myriad other sites, I suspect many lawyers have read through the reviews before making a purchase or reservation.  Odds are, potential clients are doing the same before hiring you.  Today’s post in the ABA Journal helps to frame not only a lawyer’s professional obligations when dealing with online reviews, but the marketing benefits that come with knowing how best to manage an online reputation.

See the source image    Image result for images of yelp     Image result for images of amazon

Monday Morning Answers: #108

Good morning.  Friday’s questions are here.  The answers follow today’s honor roll.

As usual, I greatly appreciate the thoughts & stories that readers shared in response to the Friday intro.  Remember: people care, help is available.  If you (or someone you know) needs help, you can make a confidential inquiry of me, or, you can call the Vermont Lawyers Assistance Program.

Also, please remember this:  when it comes to helping someone else, don’t think of it as whether you have a professional obligation to make a report.  Think of it as helping another human being.  As I blogged last March

  • “In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel.  Some lawyers wonder whether there is a duty to report substance abuse and mental health issues.  Maybe.  Rule 8.3, the reporting rule, is HERE.But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

    Yes, I get it, we are reluctant to get involved.  Some of these might sound familiar:

    • It’s not my business.
    • I don’t know for sure, could’ve been she was having a bad day.
    • It helps my client that he isn’t doing his job.
    • The firm doesn’t need the bad publicity.”

When we’re dealing with a number like 108, those reasons for reluctance don’t cut it.

Honor Roll

Answers

Question 1

Which is different from the others?

  • A.  A contingent fee agreement
  • B.  An hourly fee agreement.   The rules do not require an hourly fee agreement to be in writing.  However, I’d encourage you to reduce it to a writing.
  • C.  A former client’s consent to a conflict
  • D.  Concurrent clients’ consent to a conflict

Question 2

There phrase “persons of limited means” appears four times in a single rule.

What’s the topic of the rule?

Voluntary Pro Bono Services – Rule 6.1

Question 3

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent.  In 2016, a the Supreme Court adopted a Comment to the rule.  The Comment makes it clear that lawyers may:

  • A.   accept cash to represent people charged with financial crimes
  • B.   not accept cash to represent people charged with financial crimes
  • C.   not disclose a client’s immigration status absent the client’s informed consent
  • D.   advise & assist clients on matters related to Vermont’s marijuana laws & regulations.

Rule 1.2(d).  The order adopting the Comment is here.

Question 4

There’s a rule that prohibits a lawyer from doing something, unless it’s:

  • to another lawyer; or,
  • to someone with whom the lawyer has a family relationship, close personal relationship, or prior professional relationship.

What’s the “something?”

Solicit employment by in-person, live telephone, or real-time electronic contact.   Rule 7.3(a).

Question 5

Vincenzo Leoncavallo was an attorney and judge in Italy.  In 1865, he presided over a murder trial that involved a love triangle: the victim was stabbed to death by a romantic rival.  The victim was Judge Leoncavallo’s son’s babysitter.

Fast forward to 1910.  It was then, 108 years ago,  that the first public radio broadcast took place.  The broadcast was of 2 operas.

One of the operas had been composed by Judge Leoncavallo’s son.  It involved a love triangle in which Silvio was stabbed to death by Canio, a jealous romantic rival.

Name the opera.

Bonus: name the character for whom Silvio and Canio shared dueling affections.

The opera: Pagliacci

The character: Nedda.

Pagliacci

 

$1 Billion

Update: March 28 at 3:43 PM.  Avvo’s Josh King was nice enough to let me know that the $1 billion is only on tv ads.  Josh indicates that the amount spent on all attorney advertising is between $4 and $5 billion.

This year, it’s estimated that U.S. lawyers and law firms will spend over $1 billion on advertising.

$1 Billion.

You read that correctly.

The ABA Journal has the story here: Legal Advertising Blows Past $1 Billion And Goes Viral.

By comparison, in FY 2015, the Legal Services Corporation’s budget was $375 million.  (Editorializing? Maybe.  But, also, fact.)

Some of the lawyers/firms highlighted in the ABA Journal’s article:

  • an all-female firm that uses the catchphrase “Ever Argue with a Woman?
  • an attorney whose ads made him such a celebrity that a mother threw a birthday party for her 2-year-old in which the theme was…..the attorney.
  • a lawyer whose alter ego is the Texas Law Hawk.
  • the lawyer who originated the campaign “If you are injured in a car accident, call us immediately” and whose firm now spends between $30 and $40 million per year on advertising.

The article also includes an interesting recap of the history of lawyer advertising.  From the days when the ABA’s Canons of Professional Ethics banned nearly all advertising and, referring to lawyer advertising, included the ominous statement that “[t]he future of the republic, to a great extent, depends upon our maintenance of justice, pure and unsullied,” to the Supreme Court’s historic decision in Bates v. State Bar of Arizonato today’s landscape.

I’ve worked in the Professional Responsibility Program since 1999.  We’ve not received many advertising complaints. Maybe 5 or 6 in 18 years.

Vermont’s advertising rules are in Rules 7.1, 7.2, 7.3, 7.4, and 7.5.   It’s a violation to advertise a firm as being “injury experts” and “the experts” in particular areas of law.  It’s also impermissible to advertise as a “County’s Premier Criminal Defense Firm.”

I’ve never been a huge fan of the advertising rules.  I’m not against them, just not a fan.

The Association of Professional Responsibility Lawyers recommended that the ABA streamline its Model Rules on advertising.  The comment period closed on March 1.  I’m curious to see how the ABA responds.

$1 Billion.  On ads.

jimmy mcgill

 

 

Truth & Advertising?

From the ABA Journal, here’s an interesting story from Georgia.  At issue: television ads run by a plaintiffs firm.  The ads urge viewers to “spread the word” that in most “car crash cases, the person who caused the crash has insurance but the jury is never allowed to know.”

Per the story, the defense bar argues that the ads verge on jury tampering, improperly attempt to influence jurors, and constitute conduct intended to disrupt a tribunal. See, V.R.Pr.C. 3.5.  The plaintiffs firm responds that the ads are true and that any ban thereof would “violate our First Amendment right to free speech.”

Surely, a challenge to the ads would raise substantial questions for a court to consider.

Besides the issues mentioned in the article, Rule 3.5(a) states that “[a] lawyer shall not seek to influence a judge, juror, or prospective juror or other official by means prohibited by law.” (emphasis added).  I’d always assumed that a “prospective juror” was a person in the pool; that is, an individual summoned for duty, but not yet “picked” for a particular jury.  However, in a sense, we’re all “potential” jurors.  Could Rule 3.5(a) possibly extend that broadly?

And how might Rule 3.6(a) apply?  The rule prohibits a lawyer who is “participating or has participated in the investigation of a matter…..[from making] an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of  materially prejudicing an adjudicative proceeding in the matter.”   The answer, it seems, is that the rule doesn’t apply:  there’s no “matter.”  Rather, the ads provide general information on state law.

On that point, whether by television ad or at a public forum, is it impermissible for lawyers to inform the public what the law is?  I’m talking outside the context of a specific matter or case.  Would you look at this issue differently if, instead, it was a private criminal defense firm running ads “informing” the public about rape-shield statutes?

Food for thought. But, for now, please think about the issue (if at all) outside!  To paraphrase my man Kenny, the sun is too bright, the sky is too blue, and the foliage is too spectacular to be thinking about legal ethics.  Save ethics for a rainy day.