Two Ethics Rules Ripe for Constitutional Challenge: Anyone Want to Take This On?

Post updated April 20, 2022 – As of April 2022, many states have eliminated the prohibition on trade names. See here.

In Part I of the Post , I blogged about solo Ekaterina Schoenefeld’s nine year battle to have New York’s out-of-state lawyer bonafide office requirement invalidated as unconstitutional.  Schoenefeld’s fight, however, shows the kind of fortitude that’s needed to unroot these 70-year old vestigial statutes and free the legal profession to come into the modern, digital era.

But NY Jud. Code §470 is just the tip of the iceberg. Below are some of the other stupid bar rules that I view as ripe for challenge:

Trade Name Restrictions  As I wrote here  jurisdictions like New York  (where I practice) and Texas – have onerous restrictions on trade names. New York, in fact, goes so far as to prohibit  a New York lawyer from serving as counsel to a D.C. law firm that practices under a trade name.  Kind of a classic restraint on commerce, not to mention a First Amendment violation.

Maybe there was a time when allowing lawyers to operate under a trade name may have lead consumers to believe that firms were bigger than they actually are – and if that’s the case, then the solution would be to require the firm to list its attorneys on its website. Not only is there a solution to the trade name problem, but it also places lawyers at a disadvantage when non-law firms like Axiom  and legal services operations like Legal Zoom can use trade names to build brand recognition whereas solos and smalls can’t do the same.

After the Second Circuit found several of New York’s ethics marketing rules to be in violation of the First Amendment, I was sure that the trade name prohibition would tumble down along with it.  If there are any lawyers who want to challenge this prohibition – or any lawyers who want to take on representation (could probably be brought as a Section 1983 action), let me know and I’ll see if we can match potential litigants with representation.

Fake Fee Splitting Prohibitions  Next on my hit list: so-called prohibitions on fee-splitting arrangements like Avvo’s Legal Services Program under which Avvo collects a flat fee from a client requesting legal services, that are performed by a participating attorney in the Legal Services Program. Avvo takes a cut for administrative and marketing services in connection with its program, and the rest goes to the attorney. Not sure how this is different from a situation like a credit card transaction where part of the money that the client pays goes to the credit card processor and the rest to the attorney. But bars have chosen to see it that way. There’s got to be some kind of Commerce Clause or restraint on trade challenge that can be brought to get rid of this stupid rule, if the bars won’t voluntarily reject them on their own.

What are your thoughts? Is there a stupid ethics rule that infuriates you? If there’s a constitutional basis for attacking it, or a way

Gated Ethics Content  One final bar policy ripe for challenge is the practice of the ABA, the Maryland State Bar Associations (and perhaps others) to imprison ethics opinions behind a paywall. Granted, these decisions aren’t binding like statutes, but read just about any bar or judicial decision involving ethics, and you’ll find heavy reliance on the ABA ethics opinions or state opinions as persuasive authority. Yet even though lawyers can be held accountable for running afoul of ethics opinions, we can’t access those rulings without paying a price (here in Maryland, I can’t figure out how to get those decisions even when I paid to join the MSBA  which purportedly allows me access to those decisions. Any due process violations here?

What ethics rules do you see as ripe for constitutional challenge. We solos and smalls can’t continue sitting around like a bunch of sitting ducks, waiting to be picked off by non-law firm competitors while we can’t even compete. I’m tired of waiting for the wheels of bar regulators to take action in incremental, copycat steps.  If the lawyers who challenged Arizona’s advertising ban – just a little over 40 years ago – in Bates v. Arizona  hadn’t done so, many of today’s  solo and small firms wouldn’t even be in business.  There’s no time to pussy foot around and wait for change – let’s take a lesson from Bates, and use the courts to make it so.

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