Ethics of law firm names? The story of the Legal Genius.

Today’s question: is it possible to prove that a  self-proclaimed “legal genius” is not?

Before, I explain why I’m asking, I’ll share some background — if only to lend a modicum of educational value to a story surely bound to appear in a Was That Wrong? post.

It’s rare that I receive an inquiry or disciplinary complaint about the name of a law firm.  More broadly, I don’t recall the last of either that involved an attorney advertisement.  As such, I don’t often blog about the advertising rules.

I’m not a huge fan of the advertising rules.  I’ll never forget a CLE that I presented at a VBA meeting that took place at one of the state’s ski areas.  It was 2005 or 2006.  A few miles from the resort I passed a restaurant. Here’s what its sign said:

“World’s Best Breakfast!”

I’ll get back to the restuarant in a moment.

Anyhow, whether I’m fan is irrelevant.  Vermont’s lawyer advertising rules exist.  Here’s what we know:

A lawyer runs afoul of V.R.Pr.C. 7.5(a) by using firm name that violates V.R.Pr.C. 7.1.  In turn, V.R.Pr.C. 7.1 prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.”  The comments to Rule 7.1 include examples of statements that are inherently misleading, as well as of the types of omissions that make otherwise truthful statements misleading.

As applied, it’s unethical for a lawyer or law firm to use advertisements that (a) include unsubstantiated comparisons to the quality of legal services provided by others; or (b) create unjustified expectations as to the results the lawyer can achieve.  Thus, lawyers have been sanctioned for advertising as “the experts in” specified types of law, as well as for referring to themselves as a county’s “premier” firm in a particular practice area.

I’m left to wonder whether the restaurant on the mountain, in fact, serves the world’s best breakfast and whether anyone who has ever eaten there  left feeling otherwise.

Which brings me back to the question posed at the beginning.

LegalGenius is a law firm in Michigan. I don’t know what Michigan’s advertising rules are, nor do I know whether the lawyer who owns the firm is a legal genius.  Frankly, that seems to be the least of the lawyer’s concerns these days.

Last week, the lawyer who owns Legal Genius pled guilty to conspiring to defraud the IRS and to steal.  The DOJ announced the plea in this press release.  Outlets reporting the story include the ABA Journal, Forbes, and WXYZ Detroit.  The lawyer and co-conspirators were alleged to have stolen non-public traffic accident reports and to have used them to solicit clients.  The lawyer was also alleged to have moved firm income to his personal bank account as part of attempt to “obstruct and impede” and IRS investigation.

I’m always looking for ways to make my CLE presentations more interesting. I suspect we could have a robust moot court as to whether the lawyer’s issues with the criminal law support an allegation that the firm name – Legal Genius – is false or misleading.

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.

 

Monday Morning Answers: Week 26

As I mentioned Friday, week 26 coincided with the Vermont City Marathon.  Tough conditions, but it was great to see so many judges/lawyers/paralegals participating.

I’m sure to miss many, but here’s a list of law-types I either spoke to or saw during the race:  Gavin Boyles,  Judge Devine, Peter Dysart, Judge Harris, Andy Homan, Judge Kalfus, Matt Little, Sarah London, Rob McDougall, Heather Moreau, and Tom Nuovo.

Of course “tough conditions” is poor phrase to use today. It was a running race. It wasn’t a war.  Today, take a moment to pause to consider those who made the ultimate sacrifice for this country.

This week’s answers follow the honor roll.

HONOR ROLL

• Bob Grundstein
• Keith Kasper
• Matthew Little
• Hal Miller (Perfect Score)
• Kane Smart
• Ian Sullivan

Question 1

An advisory ethics opinion issued in New Jersey raised eyebrows this week.  The opinion noted that lawyers may make mention of X only if the basis for X “can be verified” and “adequate inquiry into the fitness of the individual lawyer” was made.

Generally, X falls under which topic in legal ethics?

• A.   Bar Admissions
• B.   Referrals/Fee Sharing
• C.   Advertising – New Jersey’s Supreme Court has a Committee on Lawyer Advertising.  Last week, the Committee issued this reminder on accolade advertising.
• D.   Sanctions in a disciplinary case

Question 2

What do the rules require lawyers to keep for 6 years following the termination of a representation?

• A.  Trust account records; Rule 1.15(a)(1)
• B.  A copy of the representation agreement
• C.  A copy of the representation agreement, but only in contingent fee cases
• D.  The file

Question 3

What is the phrase used to describe a business organization that offers clients a range of professional services?  For instance a business that offers its clients both accounting services & legal services, or both family counseling services & legal services.

The exact phrase I was looking for was “Multidisciplinary Practice” (“MDP”).  I gave credit for a variety of answers.  Hal Miller was the only entrant to answer “MDP.”  For the pros & cons of MDP, check out this piece from the Virginia State Bar.

Question 4

Lawyer call me with an inquiry. We talked about an arbitration scheduled to take place in Burlington in early June.  I said “the underlying case…is it reasonably related to, or does it arise out of, Massachusetts?”

What general concern did Lawyer call to discuss?

Unauthorized Practice of Law. The scenario here was that the VT caller was concerned that a MA lawyer participating in the arbitration was not licensed in VT.  I alleviated the concern by directing the caller to the safe harbors in Rule 5.5(c)(3) and (4).

Question 5

Two different lawyers who served as Vice-President of the United States have been disbarred. One served as the other’s Vice-President.

For one point each, who are they?

Richard Nixon & Spiro Agnew.

Nixon served as vice-president to Eisenhower.  Nixon relinquished his California & US Supreme Court law licenses after resigning the presidency. He tried to resign his New York law license as well, but the NY State Bar would not let him do so absent an admission that he he could not successfully defend against charges of obstruction of justice.  Nixon refused, and NY went ahead with the disbarment.

Agnew, Nixon’s vice-president, was disbarred by the State of Maryland after he pled no contest to tax evasion.  The criminal case related to bribes Agnew took while governor of Maryland.

 

Monday Morning Answers – Update

Answers rolled in today….great participation!  I had to update the Honor Roll to reflect some late submissions.

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.

PERFECT SCORES

• 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

HIGH HONORS

• Deborah Kirchwey, Kirchwey Law Office
• Cristina Mansfield, Mansfield Law
• Ian Sullivan, Office of the Rutland County State’s Attorney
• Ben Traverse, Downs Rachlin & Martin

ANSWERS

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.

• Intro
• What is ABS?
• What are the arguments in favor of ABS?

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.