My Shingle

If Consumers Want to Know Where Their Tomatoes Are Grown, Don’t They Have A Right To Know Where Their Lawyer Is Located?

Carolyn Elefant — Wed, 07 Dec 2011 20:05:14 +0000

Yesterday, while shopping in WholeFoods (a reward to myself after a particularly grueling week consisting largely of take-out), I noticed several prominently displayed signs touting local produce. Though the Whole Foods stores in my area have carried local produce for some time, what made this display particularly interesting is that the sign disclosed both the name of the farm where the produce (in this case, tomatoes) were grown and its distance from the store (as an aside, I’m not sure why the sign offers two different distances, but they’re close enough).

So I got to thinking, if the source of consumers’ tomatoes is important enough for Whole Foods to identify on a sign, isn’t the location of one’s lawyer equally important? Though I support the concept of virtual law firms – among other things, they expand affordable access to law, enable lawyers to compete with online services like Legal Zoom and allow for increased work-life balance- I’m also troubled by those lawyers who hold themselves out as a virtual or “online only” firm to deceive or conceal information from clients.

For example, I’ve seen virtual or online law firms where the lawyer appears (say from Facebook or Twitter) to be physically located in State A (where the lawyer isn’t licensed) who target clients in State B (where the lawyer is licensed) — but who neglect to mention prominently on their website that they’re not physically located in State B. Or lawyers who merely state that they practice in California or New York, without providing an address indicating which part of the state where they practice.

So, what’s the problem, legal futurists ask. After all, law if fungible – and if Legal Zoom can deliver legal services from any location, why can’t lawyers do the same as well? And if consumers are purchasing legal services online, why would they care where the lawyer is physically located?

Truth be told, some clients do care. Even those clients who choose delivery of legal services online may be uncomfortable to learn that their lawyer isn’t located where they believe him or her to be. Take my own situation, as an example. Here in DC, I serve clients all over the United States and the world – and I rarely meet or interact with them in person. Much of what I do for my clients in DC can be transacted online – I rarely make a physical trip to FERC or the courts where I practice to drop off or obtain documents. But some of my clients believe that I do, while others like to know that there’s a theoretical possibility for me to do so. In short, they want me in Washington D.C.

Now, Washington D.C. is a bar with easy reciprocity. It wouldn’t be hard for lawyers in Idaho or Nebraska or Maine to gain admission and hold themselves out as FERC practitioners without mentioning that they’re not located in Washington D.C. And to me, that’s unfair. Moreover, because many clients may not specifically ask about location, or may assume the firm is located in DC, it gives those firms a competitive advantage because they can undercut my pricing.

I think location matters more than many folks let on. For those of you who have used virtual services, does it really not matter at all where the lawyer is physically located? Personally, if a New York licensed lawyer drafts an incorporation for me out of a home office in India, it wouldn’t bother me per se – so long as I know where the lawyer is located. If a lawyer didn’t disclose that information, I’d wonder what else he or she was holding back.

Of course, at the end of the day, the locational issue really isn’t about what lawyers want, but what clients deserve. Clients have an unfettered right to the attorney of their choosing, and have the right to choose an attorney for any reason. As most lawyers know, a client’s decision to hire a particular attorney is as much based on visceral considerations – the tone of voice or firmness of handshake – as skills and credentials. As much as we’d like to, we can’t deny that location is one of those visceral considerations. Many clients who hire a lawyer to handle a New York matter want to know that the lawyer is physically located in New York, that the lawyer has physical access to courts and other lawyers to ask questions and that the client, if needed, can drop by the lawyer’s office. This is true, I believe, even where the lawyer is virtual. Thus, when a client hires a lawyer who is licensed in New York, but fails to mention that his physical location is in Alaska – or even India – a client would be justifiably upset. I certainly would be.

For that reason, all law firms, and virtual firms no exception, must be fully transparent about their physical location. Specifically, they should be required to disclose — prominently — on their websites where they’re located. I don’t think it has to be the actual physical location -for instance if a lawyer works from home, but has a local PO Box in the vicinity, that would suffice for purposes of disclosure. Clients deserve this information to make a fully informed decision about the lawyer they’re going to hire — and it’s deceptive for a lawyers to lead clients to believe that they practice in a particular location when they don’t. After all, if location matters for tomatoes, shouldn’t it matter for lawyers?

First Amendment Challenge to Restriction on Lawyer’s Blog Likely to Flounder – And Bring Other Blogs Down With It

Carolyn Elefant — Mon, 10 Oct 2011 06:11:39 +0000

As the saying goes, bad facts make bad law. And there’s going to be some very bad law for lawyer blogs indeed if Virginia small firm lawyer Horace Hunter loses his First Amendment challenge to the Virginia Bar’s attempt to require the firm to include certain disclaimers on its blog.

Don’t get me wrong – I’d love to see Hunter pull this one out. If there’s one thing I relish even more than a win for the First Amendment, it’s when that victory comes by the hand of a solo or small firm lawyer. And the Virginia Bar’s action is hardly sympathetic as it it arises not out of a consumer complaint of deception but rather, an overreaching practice of randomly auditing lawyer websites and more recently (to the best of my knowledge), social media profiles.

Unfortunately, the law and facts are still on the Virginia Bar’s side. According to the Washington Post, the Virgina Bar alleges that Hunter violated Virginia’s ethics rules by failing to include on his blog a disclaimer stating that the results reported are specific to the unique facts of the case and do not guarantee favorable results in other future cases. Hunter responds that his blog is not an advertisement but instead, disseminates news and commentary. Therefore claims Hunter, both before the board as well as in an earlier Section 1983 challenge (dismissed per the Younger Doctrine), a disclaimer intrudes on his First Amendment rights.

Except…Hunter’s “blog” really isn’t a blog at all, at least as I define the term. It’s more akin to a running news feed, with at least half of the “posts” reporting on cases that Hunter or his firm handled. Not to diminish Hunter, his record is fairly impressive. Nevertheless, the Virginia Bar rules whether posts on recent cases are accurate or not, Rule 7.2 of the Virginia Bar rules require a disclaimer, presumably to prevent members of the public from hiring a lawyer on the belief that the results obtained obtained in one matter will govern future proceedings. As Andrew Flusche opines, many (but not all) of Hunter’s posts (such as this one) consist of specific case results and thus, in the absence of a disclaimer, “clearly” violate Virginia Ethics Rule 7.2.

I’m not a big fan of disclaimers, preferring instead to assume that the potential clients have the intelligence to understand that not all cases are the same, and just because a lawyer’s won one case doesn’t mean that he’ll ever win another. But here, I don’t find this disclaimer – or at least some kind of caveat stating that the cases are “representative” matters – entirely unreasonable or unduly burdensome on the First Amendment. Without any type of disclaimer specifying that a listed case is representative or not a guarantee of results, lawyers can “cherry-pick” the cases that they seek to list on their website giving the impression that the lawyer has only enjoyed a string of victories and is capable of winning any case that comes his way. Moreover, I’d even argue that where lawyers summarize the results of their own cases, they should be required to link to the actual decision if available online to let clients judge for themselves whether the victory is consistent with the lawyer’s description (recall that Rakofsky posted on Facebook that he’d won a mistrial…he just didn’t say why).

Trouble is, Hunter has made this case about more than just website disclaimers, but about blogging. Here, if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers. To impose disclaimer requirements on blogs and not any other types of scholarly or informational legal resources diminishes their credibility and in so doing, violates the First Amendment.

After Hunter, however, blogs will no longer be associated with scholarship or education or opinion in Virginia. Instead, all blogs, irrespective of content, will be regarded as tools designed to self-promote or market a law firm’s service rather than to educate the public, ignite debate amongst colleagues or inspire. Very bad law indeed.

MyShingle’s Proposed Revisions to Ethics 20/20 Model Rules on Admissions and Model Rule 5.5

Carolyn Elefant — Wed, 05 Oct 2011 14:59:30 +0000

Though I started with the best of intentions to track the activities of the ABA Commission on Ethics 2020, I’ve been having some trouble keeping up with the Commission’s relentless pace. This month brings another barrage of proposals on Outsourcing, Client Confidentiality and Technology and Technology and Lawyer Marketing, and Attorney Admissions.

I’ve already provided extensive coverage, including comments and a powerpoint presentation on the the technology-related rules. Meanwhile, my friend and colleague Lisa Solomon has been offering detailed and ongoing analysis of proposed changes to the ABA’s outsourcing rules. Now, I’ve finally had a chance to review the Commission’s proposed changes to the Model Rule on Admissions (here) Model Rule 5.5 (here). As my comments below discuss, the proposed changes are a step in the right direction in that they relax admissions requirements. However, the rules don’t go far enough in alleviating lawyers of the onerous costs and compliance burden of gaining admission in another jurisdiction where they don’t plan to represent clients, but where their place of work is physically located. In addition, the proposed rules, presumably inadvertently, omit freelance and document review lawyers from the group of lawyers who may benefit from reduced eligibility requirements for seeking admission in another jurisdiction.

[passage deleted]

In any event, my comments are embedded below. Whether you agree with my approach or not, please take the time to provide your own input to the ABA Commission on Ethics 2020 to ensure that your voice is heard and that the rules that will govern lawyers into the 21st century reflect the interests and needs of solo and small firm lawyers.

ABA Ethics 20/20: Proposed Revisions to Model Admissions Rule and Rule 5.5

A Solo Fought the Law and the Solo Won! NY Jud. Code 470 Found Unconstitutional!

Carolyn Elefant — Thu, 08 Sep 2011 15:07:49 +0000

The wheels of justice grind slowly, but exceedingly fine.

Nearly four years have passed since New-York barred, New Jersey residing attorney Ekaterina Schoenefeld refused to play scofflaw and ignore a valid law requiring only non-resident lawyers to maintain an in-state office simply because she personally believed it to be outdated or unjust. Instead, Schoenefeld did what we lawyers are uniquely trained and empowered to do: in October 2007, she challenged the law in federal court, arguing that the in-state office requirement in New York Judicial Code Section 470 , which applies only to nonresident, New York-licensed attorneys infringed on her right to practice law in New York on substantially equal terms as her in-state colleagues in violation of the Privileges and Immunities Clause of the United States Constitution.

And then Schoenefeld waited. She waited and turned down business from New York State clients — even as the New York State Attorney General took the position that Schoenefeld was required to violate the law (thereby exposing herself to misdemeanor charges, treble damages and a bar disciplinary action) in order to challenge it. (The judge disagreed. She waited and placed herself at a competitive disadvantage to other non-resident New York lawyers who didn’t share the same sense of professional responsibility. She waited even as the legal landscape shifted underneath her feet — as nearly 15,000 lawyers (many from big New York firms) lost their jobs and thought about hanging a shingle in a lower-cost, adjacent state; as technology facilitated virtual law practice and even as the staid ABA initiated a fresh look at the relevance of multijurisdictional practice rules in the twenty-first century.

Now, Schoenefeld’s wait is over – and she has prevailed! Yesterday, U.S. District Court Judge Lawrence Kahn (ND NY) issued this decision, concluding that “as a matter of law [Section 470 is unconstitutional] because it infringes on nonresident attorneys’ right to practice law in violation of the Privileges and Immunities Clause. First, the court found that the practice of law is “a fundamental right within the meaning of of the Privileges and Immunities Clause because the profession has both a commercial and noncommercial role in the United States.” The court then determined that Section 470 impermissibly infringed on Schoenefeld’s right to practice law in New York based on residency by placing an additional threshold cost on all nonresidents who practice in New York.

Quoting Schoenefeld’s brief, the court described:

Under Section 470, nonresident attorneys bear a significant competitive cost that resident attorneys do not: whereas “new York resident attorneys may practice law out of their basements,” “nonresidents are required to rent offices in New York (no matter how few in number their New York clients may be) in addition to maintaining offices and residences in their home states.”

Thus, the court found that Section 470′s requirement that nonresident attorneys maintain an office in-state implicates the fundamental right to practice law under the Privileges and Immunities Clause.

The court then went on to examine whether Section 470′s differential treatment could be justified by a substantial state interest. The court identified – and dispatched as non-meritorious - three potential state interests in an in-state office requirement for out of state residents: (1) service of process, (2) availability at court proceedings and (3) ensuring the availability of the remedy of attachment of property when a resident sues a non-resident attorney.

With regard to service of process, the court found that the state has less restrictive means available to ensure service on attorneys, such as requiring out-of-state lawyers to designate a registered agent within the state. The court noted that in Mississippi, lawyers admitted to practice are deemed to have appointed the Mississippi bar as their agent for service of process.

Next, the court found that the state’s interest in ensuring attorney availability is not necessary served by an in-state office requirement which “erroneously presumes a link between an in-state office and proximity to a courthouse.” For example, Schoenefeld, who resides in New Jersey “may be better able to travel to a court proceeding in New York City than would an attorney in Syracuse or Buffalo,” noted the court. Moreover, a court could require all attorneys located a long distance from the courthouse to retain local counsel for the duration of the proceedings who could be available on short notice. This type of requirement is geographically-independent (it would apply equally to the Buffalo lawyer handling a case in New York City as it would to the Philadelphia lawyer doing the same) and thus, would not implicate the Privileges and Immunities Clause.

Finally, the court found that Section 470, as currently applied, does very little to further the state’s purported interested in ensuring the availability of attachment of property in the state. Because the requirements of Section 470 may be satisfied through an of counsel affiliation with a New York lawyer, or even a rented desk space in a shared office, many attorneys who comply with Section 470 will not necessarily have any significant property to attach if sued. The court acknowledged that “the majority of attorneys maintain some form of professional liability insurance,” which offers a more efficient means for potential plaintiffs to recover in malpractice against both resident and nonresident lawyers.

So does Judge Kahn’s decision open the door for any New York licensed lawyer living anywhere in the country, or even the world to hang up a virtual shingle to serve New York clients? Not so fast. First, although the decision takes effect immediately, meaning that Section 470′s nonresident office requirements are now invalid, the case will likely be appealed to the Second Circuit. Second, the decision leaves open the door for New York to require out-of-state lawyers to designate registered agents within the state or to purchase malpractice insurance to enable the state to lawfully accomplish the purposes that it can no longer achieve now that Section 470 is no longer valid.

In addition, the New York bar can and should require all lawyers who advertise in the state or target New York clients to disclose to clients their primary, physical location. Even in a world rapidly going virtual, many clients (myself included) want to know where their lawyer is physically located. A client who lives in Manhattan may not have any objection to hiring a lawyer who works from a New Jersey or Connecticut office — but might not be too happy to discover that the lawyer who held himself out as licensed in New York happens to work from Israel or China. On the other hand, many clients may not have a problem with hiring a remotely located New York attorney. However, in either case, the client is entitled to information about the lawyer’s physical location in order to make an informed decision.

Overall, I was thrilled with Judge Kahn’s ruling – both because it removes barriers for non-resident New York solos to make use of their law license, no matter where they’re located and because the victory would not have been possible but for the heroic efforts of a single solo who didn’t settle for anything less than changing the law. So here’s a salute to Ekaterina Schoenefeld – for a job well done, and more importantly, for setting a shining example as a solo lawyer in the best sense.

UPDATE: Other Coverage

Eric Turkewitz, New York Personal Injury Attorney Blog

Ethics Rules May Be Stupid, But Rules Are Rules

Carolyn Elefant — Sat, 13 Aug 2011 02:56:54 +0000

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.

The North Carolina Bar’s Double Standard for Data and Dollars

Carolyn Elefant — Mon, 20 Jun 2011 12:29:10 +0000

Two months ago, North Carolina released Proposed Formal Ethics Opinion 6 , Subscribing to Software as a Service (SaaS) While Fulfilling the Duties of Confidentiality and Preservation of Client Property. As others, including my Social Media for Lawyers co-author Nicole Black, NC Bar LPM Advisor Eric Mazzone, e-lawyering pioneer Richard Granat and North Carolina virtual lawyer Steph Kimbro have already written, the decision represents a step backward for lawyers – and indeed, may have the effect of precluding lawyers from using popular services like Google docs, Mozy, email or texting even for entirely non-confidential purposes.

It’s bad enough that North Carolina’s proposed opinion will make it nearly impossible for lawyers to take advantage of new technologies that could reduce the cost of legal service. But to add insult to injury, FEO 6′s stringent regulations apply only to use of SaaS (or cloud) vendor services a companion opinion, FEO 7 gives a pass to lawyers who rely on online banking for trust account management. Yet, there’s no rational justification for North Carolina to maintain a double-standard for online management of client dollars and client data.

North Carolina’s proposed FEO 7 requires lawyers using online banking to exercise reasonable care, specifically, taking steps to minimize the risk of loss or theft of client money. Though the Opinion states that lawyers have an affirmative duty to understand the risks of online banking and to employ best practices such as strong password policies, the Opinion goes on to state that:

Understanding the contract with the depository bank and the use of the resources and expertise available from the bank are good first steps toward fulfilling the lawyer’s fiduciary obligations.

Simply put, lawyers can meet their ethics obligations by relying on banks as a trusted source of information regarding online banking security practices.
Contrast the bar’s deferential approach towards online banking with its adversarial attitude towards SAAS companies. Lawyers can’t simply rely on a cloud providers’ expertise in security practices or on the company’s representations regarding its security practices. Instead, lawyers are required (not encouraged, but required!) to:

• personally, or through a security expert, evaluate the company’s measures for safeguarding the physical and electronic security of data, including but not limited to “firewalls, encryption techniques, socket security features, and intrusion-detection systems.”
• investigate a cloud provider’s financial history;
• review the cloud provider’s security audits and
• install special security software to ensure that users connected to cloud vendors are protected against malware and viruses.

I could understand if there were a need for these rules – for example, a string of identity thefts or a pattern of security breaches — committed by, or resulting from a cloud provider’s data storage. But the North Carolina Bar does not cite a single incident to justify the addition of onerous conditions which if followed to the letter will cost solos and small firms (who don’t have in-house IT or accounting staff) several thousands of dollars in added compliance. By contrast, the past six months has been rife with news of banks’ misdeeds ranging from incompetence such as lost loan modification documents to outright fraud a la robo-signing. Yet, in spite of the banks’ abysmal track record, the North Carolina Bar apparently does not believe that banks’ security practices justify any additional scrutiny. To the contrary, the Bar regards banks as a source of “resources and expertise” upon which lawyers can rely to fulfill their ethics obligations in using online banking for trust account transactions.

Of course, I don’t advocate imposing the same security restrictions on online banking services as North Carolina has proposed for cloud vendors. Instead, I use banking as an example of a situation where bars have, for decades, permitted lawyers to rely on other providers for protection of client property. Moreover, if a client’s trust account is compromised, that money can’t be replaced, particularly if it’s a large sum. By contrast, most data that lawyers house on cloud providers is created on a local machine or filed with a court or regulatory body, so even in a worst case scenario if a cloud provider were to lose data (and again, I stress, there is no evidence that this has ever happened), it could be recovered from other sources.

North Carolina’s treatment of cloud vendors is typical of how many lawyers approach technology – as something entirely new and never before seen rather than an automated version of other tools and practices we lawyers already have in place. North Carolina generally got it right with in its opinion related to online management of trust accounts. Why can’t it simply apply that same reasoned approach (along with the other suggestions I made here to cloud services as well?

Whether you’re a member of the North Carolina Bar or not, please make your views known to Alice Neece Mine. Other jurisdictions, including yours, may be inclined to follow North Carolina’s lead, so please weigh in so that this proposal does not become precedent.

ABA report: No New Rules Needed for Law Firm Rankings

Carolyn Elefant — Wed, 15 Jun 2011 18:22:24 +0000

The following is a guest post by Roy Ginsburg

When U.S. News & World Report decided to rank law schools, this ranking – for better or worse — fundamentally changed the law school admissions process.

So when U.S. News announced that it would join forces with Best Lawyers to publish rankings of lawyers, that announcement got the ABA’s attention. Would this be a game-changer in the already-controversial issue of law firm and lawyer rankings? Apparently, the ABA thought it might – and felt compelled to examine the issue.

Based on this examination, the ABA Commission on Ethics 20/20 recently published a draft informational report on law firm rankings.

As an attorney coach, as well as legal marketing ethics counsel to the Super Lawyers publication, I was very interested to see what the ABA recommended. The gist of the report is good news — no new rules are needed. I couldn’t have said it any better myself, although I probably could have said it in fewer than 15 single-spaced pages!

Briefly, here’s why the ABA is fine with the status quo:

Despite extensive outreach seeking feedback from bar associations, disciplinary counsel and consumer groups, little input was received. The feedback that was received indicated no problems with current rankings.

ABA evaluation of ranking methodologies would be very difficult. First, since many rankings are conducted regionally, there are literally hundreds of lists. Second, even limiting evaluation to national law firms could subject the ABA to accusations of preferential treatment or inappropriate targeting – or even litigation. Third, conducting such an analysis would be prohibitively expensive. Finally, were a methodology approved by a panel of experts, any analysis could open the door to claims of an ABA endorsement.

The existing Rule 7.1 – which prohibits misleading communications – is sufficient to regulate rankings. Some states have already used the rule to define the boundaries on communicating ratings or rankings. The credential cannot be based on a payment; in other words, “no pay to play.” In addition, enough details about the ranking process must be included to put the ranking into an objective context.

Q & A for solos

How can a solo practitioner best make use of an Avvo rating of 10, a Martindale-Hubbell rating of A/V, a Super Lawyers inclusion — or some other accolade? As a lawyer coach, here are some of the questions I am asked most frequently.

Q: When a ranking or rating company wants me to promote my practice by purchasing ads, reprints or other adjunct materials, should I participate?

A: It depends on your location, your practice area and the price. As part of a strategic and targeted marketing plan, it can be an effective tool. As a random vanity purchase, it can be a waste of money.

Q: Should I mention the accolade on my website?

A: Definitely. It is free and will likely look impressive to someone scanning your website. It is always a good idea to briefly describe what the accolade means. Even better, provide a link to the selection-process description of the ranking or rating company’s website.

Q: Which ethical concerns should I keep in mind?

A: Under Rule 7.1, you cannot call yourself the “best” or “super.” That is a disallowed comparison. However, you can say that you are included in a particular list of “Best Lawyers” or “Super Lawyers.” That is a fact.

Roy Ginsburg is an attorney coach in the areas of business development, practice management and career development/transitions. He helps his nationwide clients achieve individualized practice goals and career satisfaction.

He is also a solo practitioner and practices in the area of legal marketing ethics. One of his clients is Super Lawyers magazine. A few years ago, he helped lead this publication’s successful defense in the “Opinion 39” case — when regulatory officials in the State of New Jersey attempted to prohibit lawyers from advertising their selection by the magazine. www.royginsburg.com

Practice Tips, Courtesy of Rakofsky v. The Internet

Carolyn Elefant — Tue, 07 Jun 2011 03:24:54 +0000

(updated, 7 am 6/7/11 to change a few points)

As I mentioned a few weeks back, I’m one of the 81 defendants who’s
been sued by Joseph Rakofsky. The post that won me an admission ticket to the front lines of this lawsuit tracked a theme common to 45 other posts I’ve written: what not to do as a solo.

Since teaching other solos about conduct to avoid is what brought me into this lawsuit, it seems fitting then that I also use the lawsuit itself as a source of lessons for solos. The first motion filed by my attorneys contains a treasure trove of do’s and don’ts for court filings. Here are just a couple of quick examples:

DON’T oppose a motion seeking pro hac vice admission for a lawyer with a national reputation on the subject matter of the lawsuit when you’ve availed yourself of pro hac vice admission on multiple occasions (referencing Rakofsky’s intention to oppose pro hac vice admission of Marc Randazza as counsel; Motion at 2). And DON’T think that a judge will miss the irony.

DO use neutral, objective language and solid evidence when raising hotly-charged and potentially sensitive claims regarding ethical misconduct. (relates to portions of the complaint describing Rakofsky’s websites depicting offices in Connecticut, New York and Washington D.C. though Rakofsky is only licensed in New Jersey; Motion at 3-4). Many lawyers raise frivolous charges of ethics misconduct in pleadings as a way to intimidate or gain leverage – indeed, I’ve been the subject of unfounded accusations once or twice myself. Thus, many judges have grown immune to these types of claims. This action differs in that there’s a electronic trail of unethical conduct (unauthorized practice of law, deceptive advertising) created by the lawyer who has been the subject of the commentary. So rather than offer extensive commentary, it’s most important to get these facts in front of the judge quickly and cleanly and let them speak for themselves. Consider the analogy of cooking – when you’re using fresh ingredients, you don’t need much seasoning and when you’ve got damning facts, embellishment isn’t required.

DON’T, DON’T & DON’T ever suggest that a judge – any judge – was part of a conspiracy or “slandered” an attorney in the courtroom. Let’s just say that those kinds of allegations aren’t going to get your complaint anywhere – except on to the trash heap with the filings by pro se prisoners and the mentally delusional. On the other hand, if your opponent happens to make these allegations, by all means DO make note of them. (Motion at 5, referencing Rakofsky’s complaint);

DON’T ever make a representation to a court, either directly or by omission, that contradicts a recorded statement. Here, Rakofsky’s complaint suggested that the judge ordered a mistrial at Rakofsky’s request due to conflicts between him and his client. Let’s just say, however, that the trial transcript, does not support Rakofsky’s version.

That’s just a quick list for now – if you have any others you’d like to add, feel free to comment below.

An Issue-Spotting Exercise in Revenue Stream Opportunities That Solos Should Avoid

Carolyn Elefant — Fri, 27 May 2011 13:38:38 +0000

In these uncertain economic times, many solo and small firm lawyers must struggle to make ends meet. Thus, they’re always on the look-out for side jobs to supplement their income. And while waiting tables or working as a barista in a coffee house are options, most new solos would prefer law-related freelance or per diem jobs which enable them to use their legal skills and gain more experience.

Yet, there are some side jobs that solos should never, ever consider no matter how desperate you feel. I’ve offered cautionary examples here and here. And I just came across this winner at Shitlaw Jobs that’s worth sharing.

From the ad that appeared Craigs List (where else?):

I am a solo practitioner in New York seeking one or more attorneys to serve as my local counsel in California. Familiarity with state court rules of civil procedure and making court appearances required. Familiarity with foreclosure defense (mortgage modifications and short sales) and/or credit card collection defense a plus.

I would like most court filings to be made under my firm’s name, signed by you as local counsel.

Compensation:
- $50 per court paper signed*

*I will draft most court papers. I may ask you for a sample to familiarize myself with local formatting requirements. I would also expect you to review the court papers before you sign them and share any comments, etc., and to share guidance on the litigation process.

- $125 per court appearance

So why should you avoid this job like the bubonic plague? First, the solo who placed the ad is licensed only in New York – but he’s seeking multiple local counsel. This means that Mr. New York Solo either has or plans to build a practice in California. Which raises the question…just how did Mr. New York Solo drum up the business in California for which he’s seeking local counsel? It’s possible Mr. New York Solo took a trip to California and set up shop briefly at Starbucks or a temporary workspace to lure clients. Or Mr. New York Solo may be targeting his website advertising with keywords or meta-tags designed to attract California residents (like “California foreclosure defense”) even though he isn’t licensed in California. Either scenario, raises serious concerns about unauthorized practice of law.

The second problem with Mr. New York Solo’s proposed arrangement is that he wants to buy a lawyer’s signature (for fifty bucks) rather than engage the lawyer’s expertise. Sure, Mr. New York Solo says that you ought to review the documents before you sign them – but how can local counsel know if the claims are accurate without having the ability to consult the client or at least review the case files? Moreover it’s difficult to miss the irony in Mr. New York Solo ‘s solicitation for local lawyers to effectively robo-sign pleadings on behalf of defendants in mortgage foreclosure cases when that constituency was already gravely harmed by the banks’ use of robo-signers.

And there’s more that any lawyer considering this arrangement needs to know. For example, did Mr. New York Solo disclose to his clients that he’s not licensed in California and is retaining local counsel? Does Mr. New York Solo have a malpractice insurance policy, and does it cover him doing business in New York? Or are you expected to carry coverage for these matters as well? These are all ethical and practical considerations that need to be taken into account – because no matter what Mr. New York Solo represents, if your name is on the pleading, then you’ll be the one exposed in the grievance proceedings or malpractice actions that inevitably follow this kind of operation.

Pouring coffee or serving diners certainly isn’t any lawyer’s first choice. But it’s honest work that helps pay the bills – even if it isn’t exactly what you dreamed of doing, or trained for when you were in law school. But by the same token, you probably never dreamed that you might be suspended from the practice of law for signing pleadings based on documents you’ve never read or for causing clients to lose their homes because you relied on stock arguments made by an out-of-state lawyer instead of doing the research yourself. Yet that’s the nightmare that you’ll find yourself in if you sign up for this kind of job.
Editor’s Note: In part II of this piece, I’ll offer tips on how to avoid these kinds of dubious opportunities.

MyShingle’s Been Sued in Rakofsky v. the Internet

Carolyn Elefant — Fri, 13 May 2011 12:26:34 +0000

After seven and a half years of blogging at MyShingle, I thought that I’d seen the last of my firsts. But thanks to Joseph Rakofsky and the Rakofsky Law Firm PC, MyShingle.com is one of multiple defendants named in this first ever law suit against my site, keeping company with Above the Law, the Washington Post, the American Bar Associationand a whole host of other bloggers. Here is what I have to say about this matter. First, I stand by everything I’ve written on the matter and I have a longstanding policy of not taking down blog posts. Second, I will not be bullied. I will continue to write posts sharing my opinion — whether complimentary or critical — on the conduct of other lawyers consistent with my blog’s mission to educate solo and small firm lawyers. Though this lawsuit isn’t a club to which I ever wished an invitation, nonetheless, I intend to vigorously defend against this matter. I am proud to stand in the company of the other bloggers who take the time to post on ethical standards and appropriate lawyer conduct within our profession and grateful to have the collective support of so many solo and small firm lawyers.

Update: The co-defendant posts are coming in. Here’s Scott Greenfield at
Simple Justice. (I’m busy today but I’ll do a full update tonight).