Articles Posted in Legal Ethics

Published on:

ABA_CLE.pngAmerican Bar Association members receive free continuing legal education credits through the monthly CLE Premier Speaker Series. Sponsored by the ABA and the Center for Professional Development, thousands of attorneys participate in each month’s complimentary webinar program.

It is a tremendous honor to have my program, Lawyer Rankings and Ratings: The Impact on Ethics and the Profession, selected for inclusion, on Monday, October 21, 2013 from 1-2:30 pm Eastern Time. If you are an ABA member, be sure to take advantage of attending this timely and topical CLE.

There may not be a bigger “industry” in law firm marketing and business development circles than the continued growth and proliferation of rankings and ratings. The Rules of Professional Conduct and ethics opinions have tried in vain to develop workable ethics barriers and parameters, however, the impact on the profession is significant–from the time and money spent to the permissible uses for promotion. Learn about ratings and their methodologies, and the ethical considerations voiced by various state and national bar associations. From long-time services by Martindale, American Lawyer Media, Best Lawyers and Super Lawyers; to relative newcomers such as Chambers USA and Avvo; and the thousands of other companies that have recognized there is a lot of money to be made in the business of lawyer rankings. Are they helping buyers of legal services make more informed decisions or hindering the profession as a whole?

Published on:

specialties.jpgIf you’ve attended any of my Internet marketing ethics CLEs since I started teaching them in the late 90s, you know I said this was coming. Remember when my prime example of social media was a MySpace profile? Yeah, things have changed a bit. But concern about the content in unforeseen online content has always been something I examine in writing and reviewing law firm marketing efforts.

On June 26, 2013, the New York State Bar Association Committee on Professional Ethics issued Opinion 972, which in a nutshell says that “a Law firm may not list its services under heading of “Specialties” on a social media site, and lawyer may not do so unless certified as a specialist by an appropriate organization or governmental authority.” The opinion cites adherence to RPC rule 7.4.

In most cases and most states, I’ve discouraged attorneys from utilizing the “specialties” category for some time. In some cases, I suggest doing so with an added disclaimer pointing to the RPC. However, this is the first ethics opinion I’m aware of that really addresses the particular issue head on.

Published on:

aba_yld_logo.jpgIf you are attending the upcoming ABA Annual Meeting in San Francisco, California, you are welcome to attend this complimentary continuing legal education program being put on by the ABA Young Lawyers Division, at the Palace Hotel (Presidio, Second Floor) on Friday, August 9, 2013 from 11 am-noon PT. For more information, click here, or contact me directly for more information.

Moderated by Amy Drushal, a partner at Trenam Kemker in Tampa, Florida, I will offer tips and strategies alongside panelist Walter Karnstein, in-house counsel at Hewlett-Packard, who will provide the all-important corporate counsel perspective.

ETHICS CLE PROGRAM: Building a Book of Business: Ethical Boundaries and Sound Approaches to Business Development & Marketing

Published on:

hunter_lipton_image.jpgIt seems like I’ve been writing and speaking on Hunter v. Virginia State Bar for years! And that is because I have. But, alas, now it has come to a close with the United States Supreme Court once again deciding not to hear a case regarding attorney advertising regulation. One of these days, though!

With “cert. denied” just last month, I thought it was a good time to review the case in my monthly Web Marketing Today piece. I found the case fascinating on a number of fronts. There were components in which I found myself agreeing in part with both sides. While I did not always agree with Horace Hunter, I found his no-holds-barred desire to stand on principle–despite enormous time and cost–valiant. He believed that he had a right to free speech, and he also felt that the Bar was picking on the little guy. As I note in the piece, most attorneys and law firms would have simply capitulated to the original correspondence from the state bar. Not here. Hunter never backed down and openly spoke about the matter through years of litigation. You can argue that both sides won something.

On the flip side, I did agree with the Virginia Bar in viewing the blog through the lens of advertising regulations, simply because I did not think this particular state’s rules really hampered Hunter’s blog and content. In some states, I might not feel as strongly toward that point of view. But the reality is that state bars are simply not equipped to start parsing the gray areas that exist in today’s world of Internet communication–changing rapidly. Way too rapidly for the Rules of Professional Conduct to keep pace with the nuances.

Published on:

red_flag.jpgRecently, a California State Bar committee discussed a controversial proposal that would put a red warning label on attorney profiles for those facing disciplinary charges. This would take the concept of a website disclaimer to new heights. Only in California. Actually, I’d say only in Florida. But, indeed, this comes out of the left coast.

The proposal came from State Bar prosecutor Jayne Kim. It prompted an outcry from defense attorneys that felt accusations that had not been fully litigated and proven in court would lead to a serious hit on a law firms’ business.

The state delayed voting on the proposal until after a 60-day public comment period. Kim had argued that it was unnecessary, claiming it was simply an extension of a 2011 policy that required consumer alerts on profiles of attorneys formally charged with misappropriation of client funds or improper loan modification activities.

Published on:

Florida.jpgAfter more than five years of deliberation and challenges such as Harrell v. Florida Bar, the Supreme Court of Florida’s new advertising rules take effect today, May 1, 2013. While Florida remains a “sticky state” when it comes to advertising ethics rules, the state does a great job of providing guidance for compliance on the state bar website.

Among the interesting areas to note is the loosening of restrictions as it relates to television, print and billboards, while there are stricter standards for websites and online marketing. The growth of directories, referrals services, social media and use of video (often through online use) over the last few years necessitated a tweaking and revisiting of some ethical obligations.

Why do I care so much about Florida when it comes to examining the RPC and ethics opinions for lawyers in that state? First, many other states follow Florida’s lead, not only in regard to guidelines and rules, but in terms of compliance and proactive examination. Second, many of my large law firm clients (especially in the northeastern United States) have a Florida office location–meaning the rules significantly impact marketing efforts. Finally, many law firms find that retiring attorneys, retiring clients and matters (sometimes tied to retiring too) find their way south to the warmer weather–the impact of Florida is felt by many law firms, thus the need to comply and be aware of the issues is necessary.

Published on:

texting.jpgEarlier this month, the Ohio Supreme Court’s ethics board ruled on the issue of lawyers soliciting clients by text message. Before you get all excited about sending out that next text to a prospective client, you’d better familiarize with the part of the opinion that mentions…so long as the advertising rules of the state are followed.

I’ve long discussed the ethics issues involved in a lawyer using text messaging as a communications tool with clients and prospective clients. There are plenty of lawyer ads and billboards that invite you to text. The area I had never put a lot of thought into was the proactive text–from the lawyer to the potential client offering up legal services. Even someone like me that is engaged in developing marketing strategies for law firms every day had not really embraced the initial touch of a text as a method of advertising communication.

Just as lawyers cull various public records to send direct mail to prospective clients–for criminal defense, tax issues, bankruptcy, personal injury–many are now taking a no-mail-barred approach and going right to the cellphone. It is quicker and cheaper, and likely as effective as the “cold call” letter. In many marketing efforts, we are quickly finding out that the mobile device is the most effective means of communication–through mobile sites, apps, tablets, etc. Why wait for snail mail when you can reach a person right now, wherever they may be? The cell phone is often available right on those accident reports and other potential sources of new business.

Published on:

For more than a decade, I’ve provided the Pennsylvania Bar Institute with an annual ethics program on a law marketing or advertising topic. Over the years I’ve focused on a different theme each year–starting with Internet marketing ethics in the late 90s to years where I’ve focused on Supreme Court cases, social media, rankings & ratings–whatever was new and “hot.” This year, I simply pick 13 current areas that have recently been addressed or still come into play.

This year’s program will likely change from the first presentation (April) to the second and third compliance period presentations in August and December. However, there are plenty areas of interest to go around. Included in this year’s program is discussion of trade names, websites, blogs, social media, Groupons, specialization, ratings & rankings, direct mail, mobile marketing, video and whatever new ethics opinion comes across my desk this week.

In April, I will present live for PBI in Pittsburgh on April 24 and home in Philadelphia on April 26. Check the PBI website for video replays and additional live dates later in the year.

Published on:

blog_icon1.jpgOn February 28th, the Virginia Supreme Court held that a disclaimer was required under the state’s advertising rules when posting results on a website. This is the latest outcome in the seemingly never-ending battle between Horace Hunter and the Virginia State Bar. This has been a widely watched case among ethics attorneys like myself that follow the bouncing ball of state bar advertising restrictions and first amendment scholars looking at the “free speech” argument. Is the next stop the U.S. Supreme Court?

Last April (2012), I was part of an ABA CLE panel that discussed “Is Your Legal Blog Compliant? Ethical considerations in the wake of Hunter v. Virginia State Bar.” The panel included Mr. Hunter, myself, employment law blogger Molly DiBianca and noted Virginia ethics attorney Tom Spahn. We discussed and debated the many issues in the case. It is effectively a case of first impression in the law blogosphere. That was prior to the case heading up the ladder to the state supreme court. Read more about the program in Your ABA’s e-news–Blogs can be legal minefields.

Blogs have been around since the late 1990s, yet this cyberspace battle in Virginia is the first real challenge by a state bar to the often cloudy areas of interpretation. Is a blog advertising, marketing, editorial, personal, or business? Where does the First Amendment end and the Model Rules of Professional Conduct begin? Should a state bar look at a blog as marketing or something else?

Published on:

newyorktimes.jpgRecent rulings and advisories by the National Labor Relations Board regarding social media policies in the workplace impact law firms in a variety of ways. Today’s New York Times article by Steven Greenhouse reviews how the NLRB is basically telling employers to scale back limitations as it relates to many social media policies that might be seen as illegal blanket restrictions.

Can you really stop Facebook and Twitter from happening in today’s workplace? Nope.

The NLRB says workers have a right to discuss work conditions freely and without fear of retribution, whether you are in the employee cafeteria or on Facebook. Although Facebook might have better food options (I said that. It is not in the article).