My Shingle

Ethics Rules May Be Stupid, But Rules Are Rules

by Carolyn Elefant on August 13, 2011 · 41 comments

in Ethics & Malpractice Issues, Ethics Issues, MyShingle Solo

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Update (8/13/2011, 10 am –  Please read through the comments and my responses in the Comment Section. I plan to update this post but for now, I will respond in the comment section.  For convenience, I have uploaded the NY Rules of Professional Conduct here – NYRulesofProfessionalConduct4109-6 which I will reference in my comments]

Also, since I know that I have now opened my own record to scrutiny, for the record, I am a member of the bars of Maryland, Washington D.C. and New York.  New York does not have “inactive status,” and since I want to retain my membership, I continue to pay my dues (though I see that I am a month overdue in that regard which I’ll fix this weekend).   However, because I do not actively market to or solicit New York clients or practice in New York courts, I am permitted to comply with the rules of my principal jurisdiction for CLE, IOLTA or residency requirements  and I must follow the rules of those jurisdictions where I target clients.  Because of my present status, while I list my New York bar membership on my website, I do not have a New York office, nor does my law firm website, carolynelefant strictly comply with New York advertising rules.]

In full disclosure, I’ve been a longtime fan of Gen Y lawyer Rachel Rodgers . I enjoy her writing and and am inspired by her drive. I admired, even envied her meteoric rise to national stardom as a solo lawyer.

Moreover, I give Rachel enormous credit for having the guts to fling herself into a lion’s den with this provocative post, Ethics Shouldn’t Be Used As A Weapon Against Young Lawyers. Rachel must have known that her post would put her on a kamikaze-like trajectory. Yet she  probably didn’t calculate that the minions who RT her every word on Twitter would abandon her in the blogosphere – leaving Rachel alone without a single post to counter-balance criticism from Scott Greenfield , Brian Tannebaum, Pinstripe and Tempe criminal defense lawyer Matt Brown who concluded that Rachel’s operation of a law practice out of an Arizona office when she’s only licensed in New York and New Jersey violates Arizona’s ethics rules on unauthorized practice of law.  Very sad indeed.   (Ever Irreverent Lawyer Mo Hernandez takes a mid-way view weights in, suggesting that new lawyers may need more ethics training in law school before they’re ready for prime time)

Now, however, Rachel’s silent, fair-weather friends may be emboldened to speak.  As it turns out, Rachel’s operation of a law office with an Arizona address where she serves only New York and New Jersey clients passes muster (and presumably Rachel’s original post will be updated to disclose that she was the subject of a bar complaint about potential UPL in Arizona that was dismissed).   Truly, I am glad for Rachel.  But unfortunately, Rachel’s follow up post misses the mark on several points.

For starters, Rachel characterizes the lawyer who reported her to the Arizona bar as a “fellow critic.”  Maybe so, but I doubt that he reported Rachel out of malice.  Instead, like all lawyers, he had an ethical obligation to report what he viewed as unethical conduct.  And while I don’t know who the lawyer was, it’s not as if he or anyone else had to dig up the information either.  Rachel openly disclosed in her MSNBC interview that she worked from a home office in Arizona even as her website bio shows that she is licensed only in New Jersey and New York (something that frankly made me cringe at the time).  Given that Arizona has ethics rules and opinions like these on UPL, the lawyer who reported her surely had an obligation to do so.

In addition, many of those who criticized Rachel, both in their blog posts and comments to her column did so not because they don’t like virtual law practice, but because rules are rules are rules are rules.   Though experienced lawyers like Scott Greenfield and Brian Tannebaum blogged about Rachel, much of the criticism in the comment section to Rachel’s original post came from younger lawyers.  That’s not surprising either.  Most obviously, young lawyers who don’t take ethics seriously make other young lawyers look bad so it’s only natural that an ambitious newbie would be upset at a peer who disrespects the rules.  But even more directly, when a lawyer like Rachel cuts ethical corners (which Rachel appears to have done in New York when she didn’t have an address or disclaimer on her website as required by NY Ethics Rules), she disadvantages her ethically-compliant peers far more so than the older lawyers whom Rachel accuses of doing the same.

Consider this.  While Rachel enjoyed the lower costs of an Arizona-based office and the savings from not maintaining a New York virtual office, she gained a cost advantage over newbie solos who live in a more expensive location like Connecticut or New Jersey, and who may have to defer development of an attractive website like Rachel’s or the cost of a research service because they’re spending $200 a month for a virtual office to comply with New York ethics rules.  While Rachel casually omitted a New York address (or indeed, any physical address) from the front page of her website, she was able to convey the impression that she serves Gen Y entrepreneurs across the country, thus enabling her to attract high profile media attention unavailable to her ethics-abiding colleagues who dutifully list their address on their website and in doing so, relegate themselves to regional or local news status.  Leaving aside the issue of whether this conduct is deceptive (which I know that others will address), it’s downright unfair to lawyers who follow the rules!

Look — I have nothing against virtual offices or home offices or any other methods of practice that will allow us to keep talent in the legal profession.  I worked part-time from home when my daughters were small, and though it wasn’t a picnic, I did good work for my clients.  For those lawyers who choose the same path, I support them.

But at the same time, I can’t escape the reality that I am a lawyer and rules are rules are rules are rules.  If I don’t like the rules, I don’t get to flout them  (and our clients don’t either).  Instead, we either must find a way to live with the rules, and if we can’t – well then, we fight them.  Ironically, the same New York law — Judiciary Law 470 — that Rachel ignored is the subject of a constitutional challenge by New Jersey-based, New York-barred solo Ekaterina Schoenefeld who filed a Section 1983 lawsuit in federal court to overturn the law on constitutional grounds.  Ekaterina was so committed to compliance that rather than break the law and then challenge the constitutionality (a perfectly permissible approach), she challenged it before committing a violation – which required her to overcome the procedural hurdle of ripeness before she could advance her substantive arguments.  If Ekaterina prevails, her substantial efforts will do far more to help new lawyers pursue alternative practices than Rachel’s empty protestations.

And there are other opportunities for new lawyers to effect change as well.  The ABA Ethics 2020 Commission is revisiting a variety of ethics rules  on lawyer confidentiality, advertising and multi-jurisdictional practice in light of the technological advancements of the 21st century.  Though I don’t particularly stand to benefit, I’ve filed extensive comments on many of these initiatives.  Yet with the exception of Stephanie Kimbro, I haven’t seen comments from the younger solo crowd.  I suppose that it’s easier to rage against the machine than it is to engage in the heavy lifting necessary to fix it.

At the end of the day, I think that many new lawyers like Rachel are barking up the wrong tree, lashing out at experienced lawyers who are actually helping young lawyers, while ignoring the harm caused by professed supporters.  What most (to use Rachel’s phrase) toasted my muffins about this entire debacle is that the dozens of lawyers and gurus and marketers who praise Rachel’s vision abandoned her (as of this evening, I still can’t find a single blog post in her support) when the attacks grew too heated.  Since Wednesday, when Rachel’s post first appeared, not a single blogger willing to take the time to develop the ethics analysis that Rachel has now laid out.  And even worse, not a single blogger was willing to write a blog post to express support for Rachel, presumably because it would only stir further controversy and harm their online image.  So instead, they sat back and let a young lawyer take the heat because speaking up in her defense wasn’t good for business.

Rachel takes her critics to task for using ethics as a weapon against young lawyers.  To the extent that experienced lawyers’ fear mongering keeps new solos out of trouble, then I’m all for it.   In my view, what harms new lawyers far more are those who use young lawyers when it suits their purpose and dump them like hot potatoes when it doesn’t.

  • http://twitter.com/kirk_garner Kirk Garner

    Let me get this straight:  this lawyer is licensed in NY and NJ.  She serves only clients in NY and NJ.  She advises them about the law in NY and NJ.  She works out of an office in Arizona.  And this is a violation of the rules of ethics?  Did I miss something here?

    And does this mean that lawyers from other states who vacation in Arizona (or who fly over in an airplane) and take calls from clients or review documents while they are in Arizona are all guilty of unauthorized practice of law?  Have we lost all common sense?  This is insane.  People need to get off her back.

  • Carolyn Elefant

    I agree that these rules are foolish and arcane.  But this type of rule – commonly referred to as a UPL rule – is present in a number of jurisdictions.  There is a concern that when a lawyer has a physical presence in a state – either a physical office or an address – that the public may be confused and believe that the lawyer practices in the state when s/he is not licensed to do so.  Moreover, if the lawyer is not licensed in a state, but advertises services in another jurisdiction, he might still attract in-state clients which he might then refer in order to collect a referral fee.
    With so many people relocating these days, and able to operate virtually, I don’t think these rules are needed any longer.  But they are on the books, and so long as that is the case, lawyers have to follow them until they are repealed.

  • TamarCerafici

    This is one of the most exciting things about practicing law at this spot on the space-time continuum, but the issue Rachel faces isn’t a new one. I’ve played this game since I hitched my wagon to a nuclear nomad ten years ago, and even played it before that. Web-based applications just make it easier to be lazy.

    UPL will be with us as long as state-based bar commissions worry about the public’s “perception” about lawyers. It will be with us as long as bars derive their funding from the attorneys who live and practice in that state. Ergo, it’s with us for the foreseeable future.

    I’m sure the New York Bar is delighted to have Rachel’s dues, but I’m willing to bet AZ wouldn’t mind having a slice of that pie, too.

  • http://mylawlicense.blogspot.com Brian Tannebaum

    Carolyn, the letter closing the bar complaint against Rachel mentioned nothing about her admission to the NJ Bar.  Their understanding was that she is a NY lawyer. That’s, as we say in the Bar discipline world “accurate but not candid.” I’m wondering if she corrected that misapprehension

  • http://mylawlicense.blogspot.com Brian Tannebaum

    Carolyn, the letter closing the bar complaint against Rachel mentioned nothing about her admission to the NJ Bar.  Their understanding was that she is a NY lawyer. That’s, as we say in the Bar discipline world “accurate but not candid.” I’m wondering if she corrected that misapprehension

  • http://legalresearchandwritingpro.com/ Lisa Solomon

    “While Rachel casually omitted a New York address (or indeed, any physical address) from the front page of her website, she was able to convey the impression that she serves Gen Y entrepreneurs across the country, thus enabling her to attract high profile media attention unavailable to her ethics-abiding colleagues who dutifully list their address on their website and in doing so, relegate themselves to regional or local news status.  Leaving aside the issue of whether this conduct is deceptive (which I know that others will address), it’s downright unfair to lawyers who follow the rules!”

    I disagree with this analysis. To the best of my knowledge, New York does not require that a physical address be listed on the front page of a lawyer’s website; I assume that neither Arizona nor New Jersey do, either. Rachel’s address can be found where any website visitor would look for it: on the contact page. Her bar admissions can be found where any website visitor would look for them: on the attorney bio page. How this translates into “convey[ing] the impression that she serves Gen Y entrepreneurs across the country, thus enabling her to attract high profile media attention unavailable to her **ethics-abiding** colleagues who dutifully list their address on their website” escapes me. Are you suggesting that journalists aren’t as smart as an average member of the public?

    Furthermore, to the extent that Rachel has avoided the expense of maintaining a virtual office for the past few months, adding her family member’s New York address (which, as explained on her website, satisfies the requirements for a New York office) to her website, as she plans to do, does not change that. So how is this “unfair competition” in any way?

    Finally, with respect to your “unfair competition” argument, I agree with the recent Solosez poster (Michael Blake) who argued that “Ethic ruled are to protect the public from unscrupulous and/or bad lawyers lawyers.  If fairness to other lawyers is the reason behind the rules, then ethics has very little to do with the rules, and its just about limiting competition to lawyers…a bad thing indeed.”

  • http://legalresearchandwritingpro.com/ Lisa Solomon

    I reply to Brian Tannebaum’s comment below, how is Rachel’s New Jersey admission relevant to the charge that she is practicing Arizona law without a license? The important fact, for Arizona authorities, is that she is not licensed in Arizona. That she’s licensed in more than one other jurisdiction is irrelevant.

  • http://mylawlicense.blogspot.com Brian Tannebaum

    Lisa, you are doing such a wonderful job attempting to defend Rachel all over the internet. I just wonder to what address you will send your bill? As to your determination of what is relevant in the world of ethics, I can’t compete with your thought process.

  • Carolyn Elefant

    Tamar,
    I am sure that Arizona would love to get a piece of bar dues, and that is partly what motivates its UPL requirement. I am a little more optimistic however; I do think that it will be possible to change bar rules to facilitate virtual law practices while at the same time ensuring that consumers are not harmed.

  • Carolyn Elefant

    Brian,
    Your point is noted, but given that I am not an ethics expert (but simply read the rules like many of my colleagues), I feel more comfortable letting Rachel’s letter speak for itself.
    Carolyn

  • Carolyn Elefant

    Lisa,
    I’ve attached the New York professional rules in the post.  Rule 7.1(h) says that: All advertisements shall include the name, principal
    law office address and telephone number of the
    lawyer or law firm whose services are being offered. (an earlier rule includes websites in the definition of advertisements).  Right after, Rule 7.1(i) says that: any information or statements required by this rule must appear prominently or in the case of a website, on the home page.  My interpretation of this (and I will concede that it is not clear), along with what I learned through participating in an NY CLE on starting a practice lead me to conclude that address information should be on the first page.  However – and this is where I was wrong – the address need NOT be a NY address, but rather, the address of the lawyer’s principal office. In Rachel’s situation, given that she is located in Arizona, it is far less deceptive to put the AZ address on the front page than the NY address (though this too might place her at a competitive disadvantage to lawyers with physical NY addresses).

    You are right that Rachel does have all of this information on her site.  But there is a difference between putting it up front and on a sub-page.  I read Rachel’s blogs, have been to her website and have seen her posts about NY corporate formation and assumed that she was a New York lawyer living in NY or NJ.  When the MSNBC article came out, I was surprised to see that she was in AZ – and in fact, it did take me a bit of time to find her address on her site.  Given that I believed that she was in NY, it would be easy for potential clients to think that as well.  Now, I am quite certain that Rachel is completely up front with people about where she practices and what she does.  Most of her clients probably don’t care that she is in AZ (in fact, for tech clients they might like that she’s closer to West Coast tech industry)  Unfortunately, physical location does matter for some clients – and other lawyers may not be forthcoming as Rachel – and might hold themselves out as NY lawyers, while concealing in fine print that they’re actually located in Alaska – or even overseas.  If the lawyer failed to deliver, how would the client remedy the situation?  At least if the client knows up front where the lawyer’s principal office is, he knows what he is getting into. That is the point of the prominent address rule.

    Finally, regarding the unfair competition arguments, you and Michael are correct. Bar rules are supposed to protect consumers, not lawyers. In fact, I realize that the biggest gripe about bar rules is that they are used (as Rachel says) as “weapons” to maintain the status quo and keep new lawyers out.  I chafe at this as much as anyone. 

    But – if rules are unfair, the solution is to change them.  As you might guess, I speak with many solos.  There are many who go to great cost and inconvenience to comply with existing rules.  There’s one solo in my area who commutes close to an hour each day to an office in state A (most affordable space she could find) because she’s not licensed in state B, and state B will not allow her to set up shop and work on state A matters only.  When I left my DC office when my second daughter was born and was working PT in Maryland but not licensed there (we have a similar rule as AZ), I spent close to $2000 to take the practitioners’ exam (bar review, test and background check and 2 months study time) to come into compliance.  Has the added bar membership helped me?  Yes – eventually, now that my daughters are older and I’ve been able to market it. But back then it was an added expense that I couldn’t afford.

    And that’s really what gets my goat the most – by flouting the rules, many young solos are acting selfishly (and for the record, I don’t include Rachel in this category either) by cannibalizing their peers who are “stodgy” enough to comply with the rules.  As you know, I do think most of these rules are stupid – they artificially inflate the cost of legal services, they disproportionately impact women lawyers (who are more likely to work PT from home) and in many (but not all) cases don’t particularly help consumers (actually even hurt consumers, such as bars that ban testimonials which offer valuable information about legal service) If that is true, then change the rules!  Moreover, if new solos believe that the rules are so unjust and so contrary to the interest of justice, I would go so far as to argue that they have an ethical obligation to work to change them to improve the profession.  
     

  • Christopher Miller

    I am a South Carolina attorney also admitted to the state of New York. I had the idea that it might be good to try to obtain some estate cases in New York, as these can be quite lucrative and make the occasional travel to NY worth it, one or two decent cases per year could make a big difference to my bottom line, particularly when living in a low cost of living state like SC.

    So Iike any attorney I looked at New York law and ethics rules to determine the propriety of doing such a thing. And I read Judiciary Law 470. It says the following:

    A person, regularly admitted  to  practice  as  an  attorney  and counsellor,  in the courts of record of this state, whose office for the transaction of law business is within the state, may  practice  as  such attorney or counsellor, although he resides in an adjoining state. 

    There was a nagging problem here. I could set up a virtual office arrangement where I would be able to meet with clients in a physical office and possibly meet the physical office requirement.

    But what about this “adjoining” state requirement? As far as I know South Carolina is not adjoining with New York. Nor is Arizona. From reading some case law it appeared to me that the issue of requiring out of state attorneys to be in an adjoining state in order to practice in NY has not been challenged. I do not think that Ms. Schoenefeld’s case addresses that issue because she is not challenging that part of the law, she is challenging the physical office requirement.  Has Rachel somehow managed to sidestep this issue with the State of New York?  I am not an ethics expert but I interpreted 470 to mean that if you are not residing in an adjoining state to NY you cannot represent NY clients. 

    If you gain an unfair competitive advantage against NY attorneys who have enormous office and staff expense IMHO you are no better than employers who hire illegal workers so they can pay them peanuts and circumvent the tax laws, and thus gain an illegal advantage against employers who follow the law. Rachel should be careful here, she may be dealing with the New York bar authorities soon.    

  • Carolyn Elefant

    Rachel has addressed the ethics issues of the adjoining state requirement here – http://genyjd.com/2011/08/12/in-regard-to-ethics-as-it-pertains-to-virtual-law-practice-an-open-letter-to-my-critics/  According to her analysis, courts have found the adjoining state requirement unconstitutional because it irrationally treats out-of-state lawyers differently based on geographic location (which presumably violates the Commerce Clause).  (Though one would think after all this time that the legislature would amend the statute – those cases are two decades old).  I guess that you would still need to have the virtual office (it does meet NY requirements, and in fact, the NYBSA from time to time offers discounts at one of the compliant virtual office spaces)

    Even though I try to cover ethics issues at MyShingle, there is really no substitute for taking a solid, state-based program on starting a law firm and reading the ethics rules. These programs will cover all of these issues and lawyers can avoid non-compliance. Of course even that is no excuse for not reading the rules yourself, but at least, the programs will highlight the ethics “red flags” to watch out for.

  • Christopher Miller

    How very interesting. I will admit that I was scared off by that adjoining state requirement (even though it was ludicrous) and didnt decide to research the constitutionality of it. Who wants to be a test case?  My other problem was whether the virtual office arrangement would meet the requirements. This is an interesting development for me. Thanks for the info Carolyn. 

  • Carolyn Elefant

    With regard to the question of the “adjoining state requirement” in Judiciary 470, here is the most recent case I could locate, Matter of Garrasi, 29 Misc 3d 822 (2010), online (google scholar), http://tinyurl.com/4yf4w2j

    In Garrasi, an NY licensed attorney moved to Michigan midway through the case and failed to maintain an NY office.  The client moved to disallow parts of the attorney’s fee, arguing in part that the lawyer’s non-compliance with Judiciary Code 470 justified forfeiture of the fee.  The court concluded that the residency requirements in Judiciary Code 470 were constitutional, insofar as the lawyer was required to keep his New York office even though he had a New York office when the client retained him.  The court said that compliance must be continuous, and that when the lawyer moved and did not maintain a New York presence, he fell out of strict compliance with Judiciary Code 470.  The court, however, did not say that it was impossible for the litigant to meet the requirements (which would have been the case if a lawyer could practice in NY only if he resided in or was a member of a bar of an adjoining state). Thus, as pointed out in Rachel’s analysis, the adjoining states requirement is no longer relevant; any out of state lawyer barred in NY can handle cases in NY SO LONG AS THEY MEET THE PHYSICAL OFFICE REQUIREMENT which in turn, may be met by a virtual office.

  • Will Hornsby

    Carolyn, while I agree with your premise that the rules are the rules and need to be followed unless and until they are changed (and we need to pro-actively work to change them), I think you overstate the duty of the lawyer who reported Rachel. We do not have a duty to report any and every violation we become aware of. Think of what our disciplinary system (and bar dues) would be like if we did. The duty to report another lawyer’s violation of the rules is governed by the state’s versions of ABA Model Rule 8.3, which requires a lawyer to report another lawyer when the violation raises “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Did the lawyer who reported Rachel really come to the conclusion that her office setting raised a substantial question about her honesty or fitness? I’ve seen too many instances where lawyers report their colleagues to disciplinary authorities as a weapon, when I think we would all be better off if lawyers who disagree with the practice management of their colleagues would have a conversation with them directly instead of hiding behind their “duty to report.” 

  • Carolyn Elefant

    Also – forgot to mention – in Matter of Garrasi, 29 Misc 3d 822 (2010), online (google scholar), http://tinyurl.com/4yf4w2j
    the attorney was able to keep his fee- the court found that Judiciary Code 470 did not require fee forfeiture as a penalty for violation.  Even so – that is another reason to adhere to the letter of ethics requirements: you may put your legal fees at risk if you don’t.  True it didn’t happen here, but why even raise the question to begin with.

  • Brian Tannebaum

    Will,

    The issue of reporting another lawyer is subjective. The individual lawyer makes the determination whether the violation raises a substantial question about honesty or fitness. Lawyers have been disciplined for not reporting violations of the rules , so when there’a a judgement call to be made, I can understand why the lawyer would decide in favor of reporting.

    You may not believe what Rachel did or does requires reporting, but that is not the determinative issue. What I see in the scenario you describe is lawyers reporting other lawyers for advertising violations. Ad rule violations are often due to negligence or ad companies making mistakes, not because the lawyer was trying to skirt the ethical rules (although I’ve seen that as well.).

    If I thought a lawyer was participating in the unauthorized practice of law, I would certainly have no problem with the notion that this “raises a substantial question about honesty or fitness.”

     

  • Carolyn Elefant

    Will,

    The point that I had wanted to make is that the lawyer who reported Rachel did not do so out of malice or spite, which is what she suggested (in her post, she referred to him as a “fellow critic.” Nor was it a frivolous complaint: based on the Arizona ethics rules and opinions governing UPL, it seems that her conduct was inconsistent with the rules in place at the time.  I am glad that the Arizona bar gave her a pass, but that does not detract from the fact that her conduct was not compliant.

    Look – I like Rachel and I believe that she has strong character.  Still, I have to confess that after reading the article about her in MSNBC, I was very confused to learn that she was working out of an Arizona office given that many of her blog posts focused on New York law, and her Twitter handle has her located in New York.  As I said, “knowing” Rachel, at least through the Web gives me confidence in her character and I’m fairly certain that she is up front with clients who ask her directly about her physical location.  Trouble is, the lawyer who reported Rachel doesn’t know any of that – all he had to go by was an article saying she works from Arizona and other online materials saying that she’s in New York.  Understandably, this likely concerned him enough to file a report.

  • Will Hornsby

    Brian, if you think you have an ethical obligation to report a violation, do you have a moral obligation to get the lawyer’s point of view first?

  • Brian Tannebaum

    As a practitioner in this area, that’s an interesting question for me. Giving a cookie cutter “yes” or “no,” doesn’t work. I can tell you that I’ll get a call from a lawyer about another lawyer (usually in the heat of civil litigation) possibly violating the rules. I’ll engage the lawyer asking in a line of discussion about “what do you want to happen here?” (usually I’m trying to determine the lawyer’s motivation).

    I think lawyers filing grievances against lawyers should only be done with extreme thought and care, especially if it’s a young lawyer, or lawyer who is rumored to have some other problem unrelated to the practice of law.

    In my experience, I can tell you that I’ve used ethics violations as “teaching moments,” where I’ve pulled the lawyer aside and said “hey, you may want to think about what you just did.” I’ve encouraged lawyers to do the same.

    Some violations are so clear and so egregious that there is no other option, but I think the debate over whether this anonymous lawyer should have filed a grievance against Mrs Rodgers is much like an argument where someone is making a good point and the other person is saying “don’t talk to me that way.”.

  • http://twitter.com/mikewhelanjr Mike Whelan

    Man this is frustrating. I’m a new lawyer who, like Rachel, had some business background before coming to law school (though not so much that I’d charge new lawyers $14k for my wisdom, but maybe that’s a confidence issue). I went through law school getting almost no ethics training. I knew early I wanted my own law practice and thought of things I could do to build a customer-oriented, profitable business. Unfortunately, many of my ideas turn out to violate ethics rules (selling my kids to fund a website was apparently bad for those ethics sticklers). I could do what many young lawyers do – push forward and ignore the rules, then later blame my law school for not teaching me any better – but I’m afraid of Brian.

    I don’t believe that any of the ethics rules were designed solely to put me and my ideas down. On some level they each protect the consumer, though usually in a paternalistic way. But we’re in a world where the assumptions of many ethics rules don’t work. Money and time are becoming more limited, for clients and lawyers. Many of the rules assume we can afford to have a fairly limited number of clients at one time and diligently serve them. For most lawyers, especially young lawyers only qualified to do low-end work that requires high volume, those assumptions will bury us. I can’t go to an ethics board and argue that their rules meant to protect consumers are breaking me financially, but I’d be lying if I said that wasn’t my main concern. Really all I can do is whine or get over it.

    That’s why I don’t try to go out and change the rules – most of them serve a higher purpose than my bottom line and I’d look like an absolute moron arguing against them. So, now that I’ve whined a bit, I think I’ll just get over it, adjusting my flat fee, pro se assistance, virtual office plans to fit the rules. Lame.

  • Brian Tannebaum

    Mike,

    BOO.

    Hey, listen, I just read the rules again and there’s nothing specific in there about not selling your kids to fund a website. I mean, someone like me could probably piece something together (that whole 8.4 dishonesty” thing) but my interpretation of the rules is from the days of when Journey hired that Philipino singer and tried to make a come-back.

    I say go with your gut, the rules are just there to act as the man trying to keep you down. Stay focused on important things, like building the practice of your dreams. I certainly cant sell you that information, I’m too busy getting yelled at by my wife for yet again giving my time to some young lawyer who wants to be an idiot and build a word of mouth reputation and practice.

  • http://twitter.com/mikewhelanjr Mike Whelan

    You always say the nicest things, you flatterer. Alright, watch Craigslist. I think I’ll post them under “baby and kids stuff.” That seems most appropriate.

  • http://samglover.net Sam Glover

    Random, but I just noticed that Rachel copied her “savvy entrepreneur” plans wholesale from my website (see http://startuplawyer.mn/services-pricing/, although I’ve eliminated the top-tier plans).

  • Brian Tannebaum

    Oh Sam, now you’re just being picky. The internet is a big happy place to share with our friends and colleagues. Just tell her how awesome she is for flattering you by using your material. Maybe she’ll retweet it.

  • Rachel Rodgers

    Sam, you may have forgotten this but I was a member of the LAB when I created my Savvy Entrepreneur Plans and you provided me with the template among other templates and recommendations. 

  • http://samglover.net Sam Glover

    I did give you my retainer agreement to help you write your own (I went back and looked at the forum before making my initial comment). That’s one of the main purposes of the Lawyerist LAB, after all: peer-to-peer mentoring between lawyers of all experience levels.

    You copied my website on your own, though.

    It’s not really relevant to this blog post, but I definitely did not create my website to be freely used as a template.

  • http://samglover.net Sam Glover

    I’m not sure Rachel needs anyone to come to her defense on the ethics issues in question. She’s doing a pretty good job on her own.

    I’ll be surprised if she continues to stick her neck out quite so far in the future, though. Her policy of taking on her critics online is bold, but in this case, she started out by taking the offensive and the result–an ethics complaint–would silence many.

  • Brian Tannebaum

    Sam, I think the ethics complaint came prior to her post. I may be wrong.

    I also disagree with this prevalent notion in the legal marketing/social media world that the best way to handle critics (what I deem to be merely questions raised) is to play ostrich. I’ve seen this more and more.

    I guess my upbringing as a criminal defense lawyer, where many say to me “how can you do what you do,” has always made me look at this differently. I see criticism and questioning of what I do as an opportunity to educate. I’d rather talk to the critics than the ass kissers, but that’s clearly a minority view from my perusal of the online world of lawyers today.

    People see criticism and debate as a blight on their perceived personal brand. It’s more about the appearance on Google than the ability to recruit a non-believer.

  • Anonymous

    Yes I believe that the complaint came first. Her first post references it obliquely – and the fact that it was not frivolous undermines the thrust of her post. Yes, if a lawyer filed a trumped up baseless charge or spread rumors about her, then the point of using ethics as a weapon to scare newbies or keep turf would ring true. Here, a lawyer familiar with ethics rules exercised his what he believed to be duty to report. In that light, Rachel’s post would have been more useful if it had said ” I made a mistake. I was new to the jurisdiction, eager to get on with my practice and I didnt review/didn’t correctly apply ethics and this is what happened — I got a bar complaint. The lesson I learned is that even if Im a great lawyer and do great work at reasonable prices for my clients, I am not above the law. I can’t ignore ethics but have to be scrupulous about applying them.”

  • http://samglover.net Sam Glover

    I definitely wouldn’t advocate playing ostrich, but there’s a long way between that and begging for trouble. Plus, sometimes it’s hard to distinguish the critics from the trolls.

    Despite her vindication (depending on how you see it, I suppose), I wouldn’t be surprised if Rachel laid a bit lower n the future.

  • http://samglover.net Sam Glover

    From her newer post, it looks like Rachel did have a virtual office arrangement in New York, and more recently moved her address to a famly member’s home there. So I’m not sure she was ever. I violation of the rules.

    I haven’t been following this in detail, though, so I might be missing some facts.

  • http://samglover.net Sam Glover

    As I read more about this, I’m reminded of the more-experienced lawyers like Eric Cooperstein who have given me a lot of helpful ethics (not just compliance) advice along the way, free of charge. Which reminds me to buy lunch for all of them in the near future.

  • shg

    Sam, do my eyes deceive me? You’re complaining that Rachel Rodgers stole your work and put it out as her own to sell her mad lawyer/consulting skills?

    Sam, you should be flattered. No one else has ever thought enough of your work to steal it.

  • http://samglover.net Sam Glover

    Of course, sometimes it’s really easy to pick out the trolls.

  • shg

    You called me a name and hurt my feelings. I hope you’re happy now.

  • marc

    Carolyn,
    What is the status of the Schofield case taking on 470 on a constitutional basis?  I think 5.5, which is not only an Arizona ethics rule, but appears in the ABA model rules, too, has serious issues and may not survive a rational basis challenge for the reasons you noted above.  There is a recent case in the Eastern District of Louisiana where a group of casket building monks was able to successfully (so far) challenge the funeral director licensing requirements in Louisiana on a rational basis challenge that may be a bit of a harbinger of things to come.  As with the monks in that case, I can’t think of any rational reasons why Arizona has a compelling state interest in regulating a lawyer licensed in another state but living in Arizona – Arizona citizens are not harmed, nor are Arizona lawyers in competition.  Now, New York or New Jersey have good reasons to discipline Rachel if she violates their rules, but not Arizona.

    Marc

  • http://mylawlicense.blogspot.com Brian Tannebaum

    Sam,

    A critic is someone who asks good questions. A “troll” is someone who is us the truth and hurtiually bringing out the truth about the fake manufactured personal brand of a liar and therefore the only way to deflect it is to call them a troll. I’ve seen it. It’s kinda funny.

  • A. Coward

    A troll is someone who lurks on the internet, waiting for someone to say or do something, then calling him or her names and making unsubstantiated accusations, all from the safety and warm glow of your screen.  Just because you attach your name to it makes you no less of a troll.     

  • Joe

    Suppose a person graduates from law school, takes a job in NYC for a year or two, hates it, and returns home.

    She is admitted to practice in her home state and has no desire to ever again see NY…much less practice there. But she is told she can’t go inactive and can’t drop her NY Bar membership unless she “retires” from the practice of law altogether everywhere – meaning she couldn’t even practice out of state or overseas, ever again, for the rest of her life.

    How is this not extortion? If anyone had told her that in agreeing to practice in NY for a year or two she’d be required to pay a lifetime annuity to the state of NY, she would have never even considered it.

    It is the most absurd thing I’ve ever heard in my life.

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