You Can’t Disclaim Being A Lawyer, So Why Bother?
I’ve always laughed at those lawyerswho draft these types of overblown disclaimers, primarily because lawyers should know better. For that reason, you’ll find no disclaimers at MyShingle because they don’t do any good. You can say that you’re not creating an attorney-client relationship ten different ways, but the bottom line is that if it looks like an attorney-client relationship and smells like one, chances are the courts will deem it one.
And that’s precisely the result described in this article Caveat Doesn’t Negate Privilege, Ninth Circuit Rules, David Hudson, ABA e-report (7/1/05) which reports on a recent Ninth Circuit decision that found that potential plaintiffs’ responses to law firm questionaires seeking information on class action claims are covered by attorney client privilege and hence, not discoverable in litigation. The court arrived at this conclusion despite a box for respondents to check, indicating an understanding that filling out the questionaire did not create an attorney-client privilege.
The court reasoned:
Prospective clients’ communications with a view to
obtaining legal services are plainly covered by the attorney-client
privilege under California law, regardless of whether they have
retained the lawyer, and regardless of whether they ever retain the
lawyer,” Judge Andrew J. Kleinfeld wrote.
Kleinfeld wrote that the privilege must apply to such
initial consultations and queries because “without it, people could not
safely bring their problems to lawyers unless the lawyers had already
been retained.”
So rather than disclaim what you say online, why not think hard about
what you do sayto begin with – and then stand by it. Because in the end, even the
most thorough disclaimer won’t insulate attorneys from accountability
where it’s deserved.
Sean Sirrine : Disclaimers Don’t Remove Attorney-Client Relationship
This is for all of you out there that are already lawyers and have long intricate disclaimers on your blawgs. (There is some effect on law students also, so keep on reading.)
Carolyn Elefant over at My Shingle has a post entitled, “You Can’t Disclai…
Sean Sirrine : Disclaimers Don’t Remove Attorney-Client Relationship
This is for all of you out there that are already lawyers and have long intricate disclaimers on your blawgs. (There is some effect on law students also, so keep on reading.)
Carolyn Elefant over at My Shingle has a post entitled, “You Can’t Disclai…
All this hooplah about attorney advertising changes and no real response from the “powers that be.” Why is this?
After the article I wrote (link pasted below) as a defense of attorney advertising printed in September 2005 and a counter-article (which was really a letter written and sent months before my article appeared from a private attorney to Chief Judge Kaye) regarding an opinioned reason for increased regulations was published the local Bar Association (Erie County) hosted a “Town Meeting” on attorney advertising. That meeting amounted to a point-counter point between the individual who wrote the letter in favor of increased regulations and myself. Following that meeting, I responded to then Chief Counsel for the Attorney Grievance Committee’s solicitation for opinions on the attorney advertising issue. At the time this was written, I was a second-year law student (I am now in my third year) and the owner of JENSAN. I am now the President of The Stergion Report, Inc. (www.thestergionreport.com) The following is my letter to him:
Dear Mr. Edmunds:
It was a pleasure meeting you last Thursday in the elevator on our way to the Attorney Advertising Town Meeting, and I am sorry time ran out too quickly for us to have a conversation regarding the material at hand. During the course of the Town Meeting and my discussions immediately thereafter I continued to consider the arguments and sources of issues for the attorneys on both sides of the advertising equation among other, more pressing, ethical issues that are not generally brought to light. As this letter most clearly outlines my position on certain ethics problems in the Bar, I may eventually share some or all of the contents with others in the future.
Before I begin my discussions below, I think it is prudent that I reveal that I am a professor of ethics at Trocaire College, the Owner of JENSAN Legal, Professional, and Organizational Education, and a second-year law student at UB Law. Additionally, I serve as a consultant to an organization in Cyprus in drafting their sexual offender laws. My work in the area of law and ethics has been presented, either by myself or another, in the United States, Austria, Greece, and Brazil. Prior to investing the time and monetary commitment that law school requires I worked in various capacities in five law firms in the City of Buffalo. I have also served as a consultant to Buffalo and Southern Tier law firms in the areas of mental health and crime, marketing, and ethics.
A recurrent complaint regarding attorney advertising is that it results in a perceived denigration of the reputation of the profession. As Mr. Cosgrove aptly pointed out with a quote from John Quincy Adams, the legal profession since this nation’s inception has been seen as a somewhat unscrupulous line of work. I believe it can be safely asserted that advertising as exists today was not available then-only one’s reputation, public statements, and word-of-mouth referrals. I think this illustrates that a return to the “glory days” of practice-where your reputation was your advertisement-would not necessarily alter societal impressions of the practicing lawyer. Without completely rehashing my statements made during the meeting, I do not feel that advertising per se diminishes the profession, rather the retaliatory and downright insulting comments made in advertising, as well as in public and semi-public settings, not only gives the public perception that lawyers are a group of back-biting children, but also does nothing to enhance the camaraderie among the professionals in the field-it only leads to polarization and discord.
It has also been said that advertising makes the general public loathe the attorney. While I have yet to hear of a single substantiated instance, I can understand where the advertising saturation can be annoying to the public consumer, and perhaps frustrating to the under funded solo practitioner. However, to say that attorney advertising denigrates the profession in one breath and then to argue that advertising is the cause of clients jumping from one non-advertising ship to another that advertises in the next breath is a bit ridiculous-either the population at large hates advertising (and would, arguably, punish the advertising lawyers and firms by not seeking their counsel) or they like it. In any event, the client is getting what she or he wants, and it is ultimately up to that client to determine what those wants entail.
It appears that the issues surrounding advertising stem from this notion of “client stealing” and inflation of expectations by potential clients. I would submit that both are part and parcel of a free market and capitalist society that values individual freedom and choice. “You get what you pay for” is a common catch phrase among men and women. Sometimes that payment comes not the in form of monetary consideration. Regarding the “theft” of clients, respectfully, a lawyer who cannot keep his or her clients may not deserve those clients. Taken another way, the non-advertising attorney may not want the “difficult client” who is so easily swayed by a thirty-second commercial.
What does concern me is the advertising of local attorneys for local cases that will only be farmed out to other local lawyers. There should be some sort of bold statement in print and television media that states that the attorney is offering a referral service to attorneys with whom there is some sort of fee-sharing agreement. It should be made plain that these attorneys do not intend and will not pursue the claim his or her self. To me, that is the only instance of deceptive or misleading advertising that I have heard of.
I am in concurrence with a fellow UB Law student, who voiced his concerns about the ethics training in the law school. To underscore his point, it was mentioned during the Town Meeting that the increase of ethics and professionalism courses is unnecessary and a mark of a diminishment of the profession. I beg to differ. To have more courses in ethics and professionalism institutionalizes ethics in the Bar and tells its members and the public at large that this is an important part of fulfilling your commitments as defenders of law and justice. The ethics program at the law school is thought of as a joke among students as well as a complete waste of time. Not once is the Lawyers Code of Professional Responsibility distributed in its entirety. The main focus of the course is conflict-of-interest issues. Throughout the remainder of one’s law school career the student is either told how to circumvent the spirit of the Code, if ethics and the Code are mentioned at all. This needs to stop. Of course, not all (not even most) professors are guilty of this, however, it exists and must be addressed. If the educational institutions and subsequent indoctrination into the practice of law breeds an environment unfriendly or filled with condescension toward one’s ethical obligations, there cannot be a reasonable expectation of ethical lawyers. It is disturbing to see the very lawyers who espouse the virtues of ethics the loudest through finger pointing and tirades seem to be the ones who are least likely to maintain some semblance of ethics and decorum themselves.
Currently, our Code speaks nothing of the way lawyers treat other lawyers. It covers the attorney-client relationship. There are other states that address, specifically, the manner in which attorneys refer to one another in their advertising. For example, there are certain Virginia Ethics Opinions issued between 1993 and 2000 that address this point. Of note, Rule 7.1(a)(7) of the Rules of the Supreme Court of Virginia advises it is unethical for an attorney or law firm to advertise in a manner that “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated”. The State of Mississippi rendered a decision in 2003 (In Re: Mississippi Rules of Professional Conduct No. 89-R-99018SCT & In Re: Rules of Discipline for the Mississippi Bar No. 89-R-99010-SCT) under its Rule 7.1 (d) that follows the Virginia Rule verbatim: that advertising that “Compares the lawyer’s services with other lawyers’ services unless the comparison can be factually substantiated” is prohibited.
There is no such Rule in New York State. The section of the New York Rules that deals with advertising (DR 2-101 [1200.6] Publicity and Advertising) is more concerned with advertising fees, protecting client identities, and eliminating puffery. It appears comparative statements are not prohibited expressly. EC 2-10 states in part:
A lawyer should strive to communicate such information without undue emphasis upon style and advertising stratagems that serve to hinder rather than to facilitate intelligent selection of counsel. Although communications involving puffery and claims that cannot be measured or verified are not specifically referred to in DR 2-101, such communications would be prohibited to the extent that they are false, deceptive or misleading. (Emphasis added)
Given the direction courts from other states are willing to go, and the parameters EC 2-10 offers, there could be a valid grievance and/or civil action for retaliatory, predatory, and/or wholly inappropriate advertising.
DR 8-102 [1200.43] applies to judges and adjudicatory parties only: Criticisms motivated by reasons other than a desire to improve the legal system are not justified. (Emphasis added). There is nothing in the Rules that indicates the above can be used in situations involving attorneys, nor is there anything in the Rules that suggests attorneys can face Disciplinary charges making false statements about other attorneys. This leaves the Bar as an organ free to rage against its members in public, semi-public, and print forums without negative repercussions.
My concerns are primarily that uproar over advertising has been created without regard to fact or what the Rules actually state and have been construed to mean. If we are going to bother to have Town Meetings and Task Forces, they should have teeth and a justification for existence. Simply attacking other firms is a truly tasteless waste of time. In terms of the community involvement of various lawyers and firms, it has been suggested that the motivation for such has been less than altruistic. I submit that such charges are not only baseless but also wholly irrelevant. If such good deeds enhance the face of the legal profession in the eyes of the public, then such good deeds are in and of themselves worthwhile, regardless of what the underlying motivations may be.
Further, nothing of weight discusses the conflict-of-interest or appearances of impropriety that appear in the selection and discussion of committees and committee members. It is disturbing, disheartening, and breeds cynicism when one learns of the previous relationships, duties, and clients certain members of Bench and Bar have with one another when charged with the duty to make sweeping decisions that implement new Rules and policies. Special interests are playing too powerful a role in the creation of new policy directives. Bias and pre-conceived notions of fair play give the appearance that the correct people are not being chosen to represent and accurately portray the opinions of those they represent. Appointment and cronyism fly in the face of a democratic system of laws that attorneys are sworn to uphold and protect. That being said, disclosures as to the existence and nature of these relationships may improve the internal appearance of the way things “really work”. It would be nice if we could improve not just the appearance, but the reality as well. We cannot speak of ethics and integrity if we only adhere to that which is dictated in written form and adopt other principles of ethics and integrity that are convenient.
This notion of lawyers looking out for one another speaks of “covering” for one another. There is a difference between mentoring new lawyers and sweeping issues under the rug. If there is a real issue with the decisions and actions of attorneys, those issues need to be addressed by the appropriate authority-namely, people like you on the Grievance Committee. There is a great deal of arbitrary and retaliatory “conflict” raising in different areas of law practice, increasing the billable hours for clients and harming the reputations of honest lawyers who change jobs. The current climate in a region that values networking and “respect” for veteran attorneys makes it all the more difficult for these issues to come to light.
I appreciate the great weight you must feel being charged with the duty of investigating allegations of misdeeds by your colleagues and friends. There are many blatant violations of the Rules and other principles of law and equity reported by clerks and staff members of various firms that occur everyday in the form of false notarizations, forged or “fudged” monetary instruments, “punting” a near-expired statute of limitations issue to another firm, double and inflated billing, bill padding, and other such unethical and/or criminal activities that go unnoticed, unreported, and undealt. There is no significant or meaningful “hotline” of sorts that allow for whistle blowing in a firm. There is no meaningful attempt to educate and inform consumers about reporting grievances against attorneys. To my knowledge, attorney arrests and malpractice suits are not automatic triggers for immediate grievance investigations. I suggest, respectfully, that the time and energy of the State Bar would be better spent policing itself in the areas that directly effect the consumer rather than pursuing the complaints of a few attorneys chasing the same thing the advertising attorney does: the lucrative case.
In any event, if such policing is to occur, I urge you to do so in the manner demanded by a free and democratic society-that the Rules are followed. Like the legislature, if we don’t like what is occurring in society we have the ability to make a new Rule. Let’s enforce our current Rules and make new Rules to apply before we attack those that are following the regulations that are already in place.
I know that your time is precious and I thank for your review and consideration of my concerns. I can make myself available for discussion at your leisure. I look forward to the opportunity to speak with you again sometime. With this I remain-
Very truly yours,
Jennifer P Stergion
http://www.eriebar.org/files/September%202005%20for%20pdf%5B1%5D.pdf#search=%22jennifer%20%20stergion%20attorney%20advertising%22
All this hooplah about attorney advertising changes and no real response from the “powers that be.” Why is this?
After the article I wrote (link pasted below) as a defense of attorney advertising printed in September 2005 and a counter-article (which was really a letter written and sent months before my article appeared from a private attorney to Chief Judge Kaye) regarding an opinioned reason for increased regulations was published the local Bar Association (Erie County) hosted a “Town Meeting” on attorney advertising. That meeting amounted to a point-counter point between the individual who wrote the letter in favor of increased regulations and myself. Following that meeting, I responded to then Chief Counsel for the Attorney Grievance Committee’s solicitation for opinions on the attorney advertising issue. At the time this was written, I was a second-year law student (I am now in my third year) and the owner of JENSAN. I am now the President of The Stergion Report, Inc. (www.thestergionreport.com) The following is my letter to him:
Dear Mr. Edmunds:
It was a pleasure meeting you last Thursday in the elevator on our way to the Attorney Advertising Town Meeting, and I am sorry time ran out too quickly for us to have a conversation regarding the material at hand. During the course of the Town Meeting and my discussions immediately thereafter I continued to consider the arguments and sources of issues for the attorneys on both sides of the advertising equation among other, more pressing, ethical issues that are not generally brought to light. As this letter most clearly outlines my position on certain ethics problems in the Bar, I may eventually share some or all of the contents with others in the future.
Before I begin my discussions below, I think it is prudent that I reveal that I am a professor of ethics at Trocaire College, the Owner of JENSAN Legal, Professional, and Organizational Education, and a second-year law student at UB Law. Additionally, I serve as a consultant to an organization in Cyprus in drafting their sexual offender laws. My work in the area of law and ethics has been presented, either by myself or another, in the United States, Austria, Greece, and Brazil. Prior to investing the time and monetary commitment that law school requires I worked in various capacities in five law firms in the City of Buffalo. I have also served as a consultant to Buffalo and Southern Tier law firms in the areas of mental health and crime, marketing, and ethics.
A recurrent complaint regarding attorney advertising is that it results in a perceived denigration of the reputation of the profession. As Mr. Cosgrove aptly pointed out with a quote from John Quincy Adams, the legal profession since this nation’s inception has been seen as a somewhat unscrupulous line of work. I believe it can be safely asserted that advertising as exists today was not available then-only one’s reputation, public statements, and word-of-mouth referrals. I think this illustrates that a return to the “glory days” of practice-where your reputation was your advertisement-would not necessarily alter societal impressions of the practicing lawyer. Without completely rehashing my statements made during the meeting, I do not feel that advertising per se diminishes the profession, rather the retaliatory and downright insulting comments made in advertising, as well as in public and semi-public settings, not only gives the public perception that lawyers are a group of back-biting children, but also does nothing to enhance the camaraderie among the professionals in the field-it only leads to polarization and discord.
It has also been said that advertising makes the general public loathe the attorney. While I have yet to hear of a single substantiated instance, I can understand where the advertising saturation can be annoying to the public consumer, and perhaps frustrating to the under funded solo practitioner. However, to say that attorney advertising denigrates the profession in one breath and then to argue that advertising is the cause of clients jumping from one non-advertising ship to another that advertises in the next breath is a bit ridiculous-either the population at large hates advertising (and would, arguably, punish the advertising lawyers and firms by not seeking their counsel) or they like it. In any event, the client is getting what she or he wants, and it is ultimately up to that client to determine what those wants entail.
It appears that the issues surrounding advertising stem from this notion of “client stealing” and inflation of expectations by potential clients. I would submit that both are part and parcel of a free market and capitalist society that values individual freedom and choice. “You get what you pay for” is a common catch phrase among men and women. Sometimes that payment comes not the in form of monetary consideration. Regarding the “theft” of clients, respectfully, a lawyer who cannot keep his or her clients may not deserve those clients. Taken another way, the non-advertising attorney may not want the “difficult client” who is so easily swayed by a thirty-second commercial.
What does concern me is the advertising of local attorneys for local cases that will only be farmed out to other local lawyers. There should be some sort of bold statement in print and television media that states that the attorney is offering a referral service to attorneys with whom there is some sort of fee-sharing agreement. It should be made plain that these attorneys do not intend and will not pursue the claim his or her self. To me, that is the only instance of deceptive or misleading advertising that I have heard of.
I am in concurrence with a fellow UB Law student, who voiced his concerns about the ethics training in the law school. To underscore his point, it was mentioned during the Town Meeting that the increase of ethics and professionalism courses is unnecessary and a mark of a diminishment of the profession. I beg to differ. To have more courses in ethics and professionalism institutionalizes ethics in the Bar and tells its members and the public at large that this is an important part of fulfilling your commitments as defenders of law and justice. The ethics program at the law school is thought of as a joke among students as well as a complete waste of time. Not once is the Lawyers Code of Professional Responsibility distributed in its entirety. The main focus of the course is conflict-of-interest issues. Throughout the remainder of one’s law school career the student is either told how to circumvent the spirit of the Code, if ethics and the Code are mentioned at all. This needs to stop. Of course, not all (not even most) professors are guilty of this, however, it exists and must be addressed. If the educational institutions and subsequent indoctrination into the practice of law breeds an environment unfriendly or filled with condescension toward one’s ethical obligations, there cannot be a reasonable expectation of ethical lawyers. It is disturbing to see the very lawyers who espouse the virtues of ethics the loudest through finger pointing and tirades seem to be the ones who are least likely to maintain some semblance of ethics and decorum themselves.
Currently, our Code speaks nothing of the way lawyers treat other lawyers. It covers the attorney-client relationship. There are other states that address, specifically, the manner in which attorneys refer to one another in their advertising. For example, there are certain Virginia Ethics Opinions issued between 1993 and 2000 that address this point. Of note, Rule 7.1(a)(7) of the Rules of the Supreme Court of Virginia advises it is unethical for an attorney or law firm to advertise in a manner that “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated”. The State of Mississippi rendered a decision in 2003 (In Re: Mississippi Rules of Professional Conduct No. 89-R-99018SCT & In Re: Rules of Discipline for the Mississippi Bar No. 89-R-99010-SCT) under its Rule 7.1 (d) that follows the Virginia Rule verbatim: that advertising that “Compares the lawyer’s services with other lawyers’ services unless the comparison can be factually substantiated” is prohibited.
There is no such Rule in New York State. The section of the New York Rules that deals with advertising (DR 2-101 [1200.6] Publicity and Advertising) is more concerned with advertising fees, protecting client identities, and eliminating puffery. It appears comparative statements are not prohibited expressly. EC 2-10 states in part:
A lawyer should strive to communicate such information without undue emphasis upon style and advertising stratagems that serve to hinder rather than to facilitate intelligent selection of counsel. Although communications involving puffery and claims that cannot be measured or verified are not specifically referred to in DR 2-101, such communications would be prohibited to the extent that they are false, deceptive or misleading. (Emphasis added)
Given the direction courts from other states are willing to go, and the parameters EC 2-10 offers, there could be a valid grievance and/or civil action for retaliatory, predatory, and/or wholly inappropriate advertising.
DR 8-102 [1200.43] applies to judges and adjudicatory parties only: Criticisms motivated by reasons other than a desire to improve the legal system are not justified. (Emphasis added). There is nothing in the Rules that indicates the above can be used in situations involving attorneys, nor is there anything in the Rules that suggests attorneys can face Disciplinary charges making false statements about other attorneys. This leaves the Bar as an organ free to rage against its members in public, semi-public, and print forums without negative repercussions.
My concerns are primarily that uproar over advertising has been created without regard to fact or what the Rules actually state and have been construed to mean. If we are going to bother to have Town Meetings and Task Forces, they should have teeth and a justification for existence. Simply attacking other firms is a truly tasteless waste of time. In terms of the community involvement of various lawyers and firms, it has been suggested that the motivation for such has been less than altruistic. I submit that such charges are not only baseless but also wholly irrelevant. If such good deeds enhance the face of the legal profession in the eyes of the public, then such good deeds are in and of themselves worthwhile, regardless of what the underlying motivations may be.
Further, nothing of weight discusses the conflict-of-interest or appearances of impropriety that appear in the selection and discussion of committees and committee members. It is disturbing, disheartening, and breeds cynicism when one learns of the previous relationships, duties, and clients certain members of Bench and Bar have with one another when charged with the duty to make sweeping decisions that implement new Rules and policies. Special interests are playing too powerful a role in the creation of new policy directives. Bias and pre-conceived notions of fair play give the appearance that the correct people are not being chosen to represent and accurately portray the opinions of those they represent. Appointment and cronyism fly in the face of a democratic system of laws that attorneys are sworn to uphold and protect. That being said, disclosures as to the existence and nature of these relationships may improve the internal appearance of the way things “really work”. It would be nice if we could improve not just the appearance, but the reality as well. We cannot speak of ethics and integrity if we only adhere to that which is dictated in written form and adopt other principles of ethics and integrity that are convenient.
This notion of lawyers looking out for one another speaks of “covering” for one another. There is a difference between mentoring new lawyers and sweeping issues under the rug. If there is a real issue with the decisions and actions of attorneys, those issues need to be addressed by the appropriate authority-namely, people like you on the Grievance Committee. There is a great deal of arbitrary and retaliatory “conflict” raising in different areas of law practice, increasing the billable hours for clients and harming the reputations of honest lawyers who change jobs. The current climate in a region that values networking and “respect” for veteran attorneys makes it all the more difficult for these issues to come to light.
I appreciate the great weight you must feel being charged with the duty of investigating allegations of misdeeds by your colleagues and friends. There are many blatant violations of the Rules and other principles of law and equity reported by clerks and staff members of various firms that occur everyday in the form of false notarizations, forged or “fudged” monetary instruments, “punting” a near-expired statute of limitations issue to another firm, double and inflated billing, bill padding, and other such unethical and/or criminal activities that go unnoticed, unreported, and undealt. There is no significant or meaningful “hotline” of sorts that allow for whistle blowing in a firm. There is no meaningful attempt to educate and inform consumers about reporting grievances against attorneys. To my knowledge, attorney arrests and malpractice suits are not automatic triggers for immediate grievance investigations. I suggest, respectfully, that the time and energy of the State Bar would be better spent policing itself in the areas that directly effect the consumer rather than pursuing the complaints of a few attorneys chasing the same thing the advertising attorney does: the lucrative case.
In any event, if such policing is to occur, I urge you to do so in the manner demanded by a free and democratic society-that the Rules are followed. Like the legislature, if we don’t like what is occurring in society we have the ability to make a new Rule. Let’s enforce our current Rules and make new Rules to apply before we attack those that are following the regulations that are already in place.
I know that your time is precious and I thank for your review and consideration of my concerns. I can make myself available for discussion at your leisure. I look forward to the opportunity to speak with you again sometime. With this I remain-
Very truly yours,
Jennifer P Stergion
http://www.eriebar.org/files/September%202005%20for%20pdf%5B1%5D.pdf#search=%22jennifer%20%20stergion%20attorney%20advertising%22
Ummmmm…I found one, though! On the bottom of the page, right next to “Privacy Policy,” where it says (drum roll) “DISCLAIMER.”
Ummmmm…I found one, though! On the bottom of the page, right next to “Privacy Policy,” where it says (drum roll) “DISCLAIMER.”