Ethics Rules May Be Stupid, But Rules Are Rules

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.