Among my lesser faults (many others are much worse) is a propensity towards foul language, one that I do restrain with clients and in court, but one that I tend not to restrain as much on the phone with friends and peers in personal conversations. It is a regrettable fault, though it’s easier on the liver than dealing with stress through e.g. alcohol abuse, a problem affecting many members of the Maryland Bar and more than a few among the Maryland bench over the years.
It never occurred to me, however, to use the words (please excuse me Pastor Jones, Rabbi Miller, Father Smith and of course Mom) “ass” or “middle finger” in the marketing materials to promote my law services. However, the mere use of vulgarities in advertising does not self-evidently violate Maryland attorney ethics rules. This blog has discussed vulgarities in a First Amendment context, such as the scope of permitted use of the profane Dodecagrammaton that begins with “m” in the context of disorderly conduct, free speech and the reasonable expectations we may make of police professionalism in the face of that most Oedipal and severe invective of the American language.
It never occurred to me to offer legal advice without acknowledging that it is legal advice or to create what functions in substance as a law firm without acknowledging that it is a law firm. It is not self-evidently legal advice to write a book about the law, but advising clients what to do in legal situations (as opposed to advising them of potential issues to raise with a lawyer) is legal advice; the clue to this fact lies in the words “legal” and “advise/advice.”
There are two reasons why I will not copy the entirety of the homepage at the “Small Business Bodyguard” on this site for discussion, even under principles of copyright fair use privilege. One is that non-Maryland attorney Rachel Rodgers and her business partner non-attorney Ash Ambirge of the “Middle Finger Project Blog” and House of Moxie have the right not to have their content borrowed unreasonably, even for discussion purposes. Another is that I don’t want anyone, including in all candor Google but more specifically my clients or mentees, to think that her content is mine; it wouldn’t look good on my “resume” as it were. The biggest reason, though, is that I want you to go to that site and witness the 12-car pileup. Go look at it – read it slowly.
Three legal bullet points, pulled from their website, describe what people are supposed to do with their $275.00 package offered to Maryland (and, of infinitely less interest to this blog, non-Maryland) legal clients (although they would dispute the term “legal clients”, I am sure)
- EASY-TO-UNDERSTAND (AND IMPLEMENT), STEP-BY-STEP INSTRUCTIONS ON EXACTLY WHAT THINGS YOU NEED TO DO TO GET LEGAL
- LEGITIMATE, LAWYER-DRAFTED (AND PEER REVIEWED) SAMPLE AGREEMENTS
- INSTRUCTIONS ON EXACTLY HOW TO EDIT EACH CONTRACT AND USE THEM IN YOUR BIZ, BASED ON YOUR PARTICULAR SITUATION
Right. “Instructions on exactly what you need” and “how”, using “lawyer-drafted” content. Emphasize on “legitimate” content. Instructions on how to edit a contract. But it’s NOT legal advice – perish the thought!!
Neither Rodgers nor Ambridge is licensed in my state of Maryland to practice law according to the Client Protection Fund, and there is no indication from this set of legal-instructions-and-lawyer-drafting that they have malpractice insurance or other errors and omissions to cover the damage from reliance on their legal “instructions” in this state. They warrant, however, that their package applies in Maryland and in every other state:
DOES THIS APPLY IN MY STATE?
You bet. Most laws in the US are quite similar from state to state, and are often based on model statutes that are adopted by almost every state. (Thank goodness, or things would get pretty complex!) [Godfrey comment: actually, it is complex.] We are very specific in Small Business Bodyguard about which statutes apply to which states, so in the event that there’s something state specific we’re discussing, we’ll let you know about it. We do discuss state specific laws from California to Connecticut that affect online business–and you should know about them. We even have a cheat sheet related to business formation that lists the rules for all 50 states and our directory of modern lawyers at the end include lawyers from practically every state. Swanky, eh? [Godfrey comment: I have lived too long] Regardless of your state, Small Business Bodyguard will position you to succeed.
Spare me from the day when advising clients regarding their businesses, or compiling an attorney referral list and selling it with legal instructions for $275.00, becomes “swanky.” I object to the entire tone of the advertisement, regarding it as sassy and infantile rather than professional, but mere tone doesn’t rise to an ethics or liability issue.
But their point that most laws between states bear some similarities in many cases is both facile and irrelevant; it’s in the dissimilarities that an attorney will risk violating Rule 1.1 in Maryland and most other states – the rule about, you know competence. Further, it’s not in mere law but in procedure that many lawyers who make mistakes do so, and procedure does differ more between states even more than does substantive law.
I will give you a small but important example that has evaded (until I emailed him five years ago and he responded most graciously) both the co-author of one of the most important hornbooks on Maryland law as well as many a corporate counsel outside of Maryland:
When precisely can a worker or management enforce an arbitration agreement against the other in the State of Maryland?
Cite me the exact authorities in the comments; I suggest beginning your search in the Labor and Employment article of the Code. First attorney to get the Maryland answer precisely right (quote the code) gets a $10.00 Mexican lunch with me at California Tortilla (or a $10.00 gift certificate of your choice in lieu if your religion, doctor or geography won’t let you eat at California Tortilla at Quarry Lake.) Clients are not eligible for this; offer limited to Maryland-licensed attorneys. Getting this wrong for you means you don’t get fajitas on my dime; getting this wrong for your clients may mean many thousands of dollars of damage.
Check out part of the tiny-print “disclaimer” in difficult-to-read type that would likely fail the conspicuity test in the UCC Article 2 were this a sale of goods (note: I do not concede that it disclaims anything):
We think it goes without saying (but we’re gonna say it anyway because, ya know, covering our ass [sic] and all that), the legal resources provided within this website including the legal clinic for small business owners delivered via email, live events including webinars and screencasts educating business owners about laws affecting their businesses and the digital, full-length legal resource available for purchase are resources for educational and informational purposes only and should not take the place of hiring an attorney.
Using this website and the legal resources, paid and free, does not create an Attorney-Client relationship between you and Rachel Rodgers Consulting LLC and House of Moxie, Inc. or their founders (that’s us!). Customized legal advice is not provided within this website or any of the resources available for sale. Instead, Small Business Bodyguard is a legal resource designed to make you aware of the key legal needs of your business and provide tools you can use to meet those needs.
Yet the website emphasizes the cost-effectiveness of this “ass” [sic] -covering tool over the “private” use of an attorney:
Either you are claiming to be an effective economic substitute for higher-priced legal counsel and are selling instructions on what to do legally and promoting your content as lawyer-drafted content, or you aren’t. If you are, you are estopped from denying, even with a nice small-print disclaimer, that you are selling legal advice, which is a primary legal service regulated under Maryland’s unauthorized practice statute. The mere inclusion of a list of “modern attorneys” at the back of the book doesn’t make it not legal advice if you are instructing people on what the law is, what to do and emphasizing that your content is attorney-drafted content. I shudder to think what Maryland courts would do with this case if a client of this outfit filed a grievance or malpractice action after the “instructions” blew up and caused a $15,0000.00 mistake.
This website exceeds my capacity for parody; I guess I cannot get that dream job writing for Craig Ferguson on the Late Late Show, after all. I beg my Maryland attorney and Bar applicant mentees not to follow this dangerous example; it’s dangerous for you and dangerous for your clients.
UPDATE: Go read Jordan Rushie making some solid sense of this thing over at Philly Law Blog.