Specializing in Anonymity

Our nation’s long national nightmare is over: I’ve returned from my blogging hiatus.

Welcome to Monday!  I hope your summer is going well.  And, for those of you who followed the World Cup, let’s not forget that Scott Mapes predicted 3 of the final four.  Now that’s competence!

Today I’m going to discuss an oft misunderstood rule: Rule 7.4.

By way of background, last week, someone sent me copies of several pages from the “Lawyers” section of the Yellow Pages.  I’m not going to tell you the geographic area.  The sender chose to remain anonymous: no return address, no cover letter, no sticky note with a name.  The sender used a highlighter to call my attention to a few ads that indicate that various lawyer “specialize in” certain areas of law.

I assume the sender thinks the highlighted ads violate the rules.  Absent a cover letter, I don’t know.

I’m not a fan of anonymous complaints.  If you think another lawyer’s ad violates the rules, make a complaint or an inquiry and we’ll let you know.

Back to Rule 7.4.  The rule does not ban any & all use of “specializes” or its variants.  Here’s what the relevant sub-part says:

  • “(d) a lawyer shall not state of imply that a lawyer is certified as a specialist in a particular field of law, unless:
    • (1) the lawyer has been certified as a specialist by a named organization, provided that the communication clearly states that there is no procedure in Vermont for approving certifying organizations, unless the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law; and
    • (2) the name of the certifying organization is clearly identified in the communication.”

Comment [1] is instructive.  Per the Comment,

  • “[a] lawyer is generally permitted to state that the lawyer is a ‘specialist,’ practices a ‘speciality,’ or ‘specializes in’ particular fields of law, but such communications are subject to the ‘false and misleading’ standard applied in Rule 7.1 to communications concerning a lawyer’s services.”

In other words, if it’s true, Vermont’s rule appears to allow a lawyer to advertise that the lawyer specializes in a particular area of law.

Image result for saul goodman advertisement


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.


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.


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.

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 25’s questions are HERE.

The HONOR ROLL spans the gamut.  

Large firms, solos, government lawyers, and my brother – the systems engineer.

Family law, elder law, title insurance, insurance litigation, labor law, telecommunications law, criminal law, transactional work, trial work.

Bennington County, Chittenden County, Rutland County, Washington County, and Windham County.  Orange County too, but not the one where my grandparents lived for over 50 years. Nope, the one they make television shows about.


  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Glenn Jarrett, Jarrett Law Office
  • David Kennedy, JD, GAL Programs Administrator, Office of the Court Administrator
  • Patrick Kennedy, Principal, Systems Engineer, Dealer.Com
  • Brian Martin, Green Mountain Care Board
  • Hal Miller, First American
  • Team Silver & Andrews, Barr Sternberg
  • Kane Smart, Downs Rachlin & Martin



Question 1

In 1977, the United States Supreme Court opined that it is permissible as long as it is not  false, deceptive, or misleading.  In the context of this blog, what is “it”?

“It” is lawyer advertising.  Bates v. State Bar of Arizona, 433 US 350 (1977).  The Court held that lawyer advertising is commercial speech entitled to First Amendment protection.  The upshot is HERE.

Question 2

Lately, I seem most interested in the rule that relates to:

  • A.  Conflicts of Interest – why shouldn’t firms with offices in multiple jurisdictions be allowed to represent clients who are adverse to each other as long as Office A does not share information with Office B?
  • B.  Disclosure of Client Confidences – why shouldn’t information relating to the representation of a former client, and that is in the public record, be fair game?
  • C.  Unauthorized Practice of Law – should paralegals be allowed to represent clients  without being supervised by attorneys?
  • D.  Nonlawyer Ownership – should nonlawyers be allowed to have ownership interests in law firms?

I’m doing a series on Alternative Business Structures. So far, I’m 3 posts in.

Question 3

Lawyer called me with an inquiry. I listened. I replied “you should write to your clients, tell them what’s happening, and give them the option of you, your firm, or someone else. Unless you hear back that it’s you, it’s the firm.”

Based on my statement, what is Lawyer most likely about to do?

Lawyer is most likely about to leave her firm for another (or to go out on her own).

Question 4

Which response best fills in the blank?

Attorney called me with an inquiry. I listened. Then I said “okay, the matters aren’t the same or substantially related.  So you’re okay on section (a) of the rule.  But, don’t forgot about section (c).  Be wary of _____________ :”

  • A.   charging an unreasonable fee.
  • B.   cross-examining or deposing a former client
  • C.  removing funds from trust before you’ve earned them
  • D.  communicating with a represented party

Rule 1.9(a) prohibits an attorney from representing a client in a matter in which the client’s interests are materially adverse to the interests of a former client whom the attorney represented in the same or a substantially related matter.

If the two matters aren’t the same or substantially related (or if the current client’s interests aren’t materially adverse to the former client’s), then Rule 1.9(a) does not apply. Still, Rule 1.9(c) might apply.  Section c requires lawyers to protect information related to the representation of former clients.  So, while a conflict might not exist under section (a), the duties imposed by section (c) should give a lawyer pause if in a position to cross-examine or depose a former client.  The duty to protect that client’s information might create a concurrent conflict under Rule 1.7.  

For more, check out this oldie, but goodie, from the Massachusetts Board of Bar Overseers on “Conflicts in Cross-Examination.”

Question 5

This 2002 movie is based on a real-life story and is not about lawyers or practicing law.  It featured two megastars. One played Carl, the other Frank.

Frank spent much of the movie trying to avoid Carl.  However, by the end of the movie, Frank was working for Carl.  A scene in their office included this conversation:

  • Carl:   “How’d you do it Frank? How did you cheat on the bar exam in                                               Louisiana?”
  • Frank: “I didn’t cheat. I studied for two weeks and I passed.”

Name the movie.

Catch Me If You Can, starring Tom Hanks as Carl Hanratty and Leonardo DiCaprio as Frank Abagnale.

catch me if you can