How not to advertise a law practice

“I do solemnly swear/affirm that I will at all times demean myself fairly and honorably as an attorney and practitioner at law” – from the Maryland Attorney’s Oath.

I don’t endorse this attorney.  I don’t know him, and if this piece of blaxploitation video production is his advertising, I will take pleasure in the fact that he is a Texan and not a Marylander.

Offensive/NSFW depending on your workplace internet and EEO policies. Exercise discretion.

The link (embedding disabled): http://www.youtube.com/watch?v=eEdqZWRl680&feature=share.

American Registry Wants Me to Pay Them to Lie to My Clients and Colleagues

If you work as an attorney, you might know American Registry.  You know Pat Barnes, the pseudonym or real name of some sales rep there who spams you for, you know, the heck of it. American Registry will sell you a plaque congratulating you for having passed the bar 15 or 20 years ago and having not died since.  (Actually, I do not know that American Registry doesn’t sell plaques to the dead; ask them.)

I am a 19-year member of the Bar of Maryland.  I have started, but not completed, my 20th year of practice.  My swearing-in date is December 13, 1994; most Maryland attorneys take the oath in mid-December.  But having failed for nearly five years to sell me a plaque celebrating, they offered me this email today:

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I don’t blame Pat Barnes or American Registry more (or less) than I blame any other hawker of nonsense.  I blame us attorneys for being so narcissistic that we are, apparently, a market for this nonsense.

Birthdays are nonsense (to the birthday boy or girl; their mothers deserve the credit) but they are traditional, so hey.  Saints’ name days are traditional for Orthodox Christians and some very religious Roman Catholics; most Americans don’t know about saints’ days but in parts of central and eastern Europe they are commonplace social holidays. But a swearing-in date is a nothing burger, unworthy of a spend of $159.00 plus possible taxes, shipping and handling.

Worse, a plaque marketed to me nearly 11 months before the 20th anniversary of my swearing-in date bears false witness to my experience (I have 19 years’ experience, not 20)?  Buying this and putting it up in my office would be a fairly mild case of fraud (I guess until December 14 of this year), but a severe case of corrupted personal and professional values.

Attorneys, if you are 20 years in the profession or thereabouts, and you want to impress me, show me your pro bono work.  Show me the difficult work you have done for clients – IF it’s ethical to do so (and it may well not be under confidentiality, depending your practice area.)  Show me how your writing or instructional materials are peer-reviewed within the Bar, officially or informally.  Show me how you have made efforts to improve the law or the profession (this counts as pro bono service in Maryland and most states.)  Show me that you know how to do well (earn a good living for yourself) while doing good (not screwing clients over or engaging in theft or fraud.) Show me young attorneys whom you have mentored.  Show me how judges rely on you. Show me who calls you for help when they have a nasty, gnarly mess of a case or situation.

If I see this nonsense from American Registry on your wall in your office congratulating yourself on not getting disbarred for 20 years, you will never touch any client or referral from my practice.  I just can’t trust your judgment, your honesty or perhaps equally importantly your self-respect.

Not every wrong act violates a black-letter ethics rule

Among the cardinal virtues promoted in Greek antiquity and classical Christianity are fortitude, prudence, temperance and justice. Prudence (originally, providentia, contracted to prudentia) is the wisdom and discipline to apply principles appropriately, reasonably and in proportion. Latin Christianity derived these terms from Plato through Cicero and the early Fathers of the Church; the English terms are Latin in origin but the cardinal virtues are not unique to the Church of Rome or indeed even to Western Civilization.

Part of prudence is knowing not only the content of a principle or rule but understanding that content its logical purpose. Sometimes rules are designed to provide for maximum liberty or economy of restraint; the common law jurisprudential principle that things not prohibited are permitted is such an example. On a football (American/gridiron) field, a player inside the field of play may, with some explicit exceptions for some plays and positions, use the entire field and may not use or take direct advantage of the field outside the sidelines. The purpose of the sideline rule is two-fold: to designate a field of full competition and a boundary beyond which competition may not play. Similarly, the boundary between pass interference and a legitimate contest for the pass by a defensive player represents a desire to promote some competition (tight coverage, threat of an interception) while prohibiting other competition (cheap no-skill brutality to kill a pass reception.)

Other sets of rules are designed to provide specific but non-exclusive prohibitions towards the support of more general goals. Rules of professional conduct for attorneys, including the modern Model Rules published by the ABA and their local incorporations in various US jurisdictions, constitute such an example. Ethics as a rule set are not intended to express the totality of the ethical duties owed by an attorney to a client; while disciplinary proceedings may require a black-letter violation of a given code, ethics includes but does not terminate at the boundaries of black-letter rules for several theoretical and practical reasons.

Under the Model Rules, from which most states’ codes are derived, Rule 8.4(d) constitutes a “junk drawer” for bad attorney behavior that, in some way, is “prejudicial to the administration of justice.” When in doubt, call it an 8.4(d) violation and see if it sticks. While novel applications of Rule 8.4(d) might be in some ways unfair to attorneys from the perspective of parsimony and construction against the enforcer code-enforcement standpoint, it gives the attorney implicit notice that some behavior just damages the administration of justice – by making the Bar look bad, by lowering public confidence in the legal profession, by somehow damaging justice through bad acts.

An example I have used in the past is a legal services agreement that prohibits the client from seeking the advice of other attorneys. I cannot find, in the Model Rules or in any clause of Maryland’s dialect of them, a black-letter rule prohibiting such a clause. Other clauses are prohibited (e.g. contingent fees in criminal cases) or mandatory (explicit statement of how costs are to be allocated against attorney or client in unsuccessful contingent fee cases) but I cannot find such a rule. Yet every attorney should step back and be aghast at hearing that an attorney attempted, under pain of breach of contract, to keep a client from getting a second opinion. Why? Well, it’s not the act of a fiduciary, and it smells vaguely like a contract of adhesion. It’s also brick stupid for the attorney; if the client takes the case to another attorney, and that attorney spots a fixable mistake or oversight, the first attorney can be spared a malpractice claim. An attorney should simply realize – not because some committee thought ahead to prohibit it, but by exercising prudence – that the safety valve of a permissible second opinion is more important than keeping a profitable client locked in a services agreement.

You shouldn’t have to be told that you shouldn’t steal other lawyers’ website content and incorporate that into your own website, especially without attribution. A “rules lawyer” can argue that this is an 8.4(b) (criminal act, i.e. copyright infringement, reflecting poorly on fitness) or 8.4(c) (dishonesty), but this isn’t the point. You DEFINITELY shouldn’t do so regarding specific promises to be made to a client regarding the quality of your representation, and you shouldn’t plead ignorance that “the law student I hired back when stuck it there, it ain’t my fault” (my paraphrase.) Go read Scott Greenfield’s commentary; I often regard him as overly severe on young fools but on this one young attorney in Texas he actually seems restrained and temperate (another cardinal virtue.)  I hope that Carl Ceder, Esquire, sues me too if he decides to “sue the internet”, to use a phrase invented by Mr. Greenfield in another context.

I have a Client Bill of Rights on this site. I wrote it, along with every other non-attributed keystroke on this site (including every typo, which I blame on me, Godfrey.) I was inspired to write this Client Bill of Rights through the general example of Fred “Chip” Coover, Esquire of Columbia, Maryland, for whom I worked briefly about a decade ago. His Client Bill of Rights doesn’t read like mine; his style is different, his focus is different and he doesn’t do what I do and vice versa, for the most part. I do recommend Chip strongly for land use litigation and real estate transactional work in Howard County, Maryland and neighboring counties. Interestingly, my internet searches led me to conclude that Chip’s Client Bill of Rights and his firm’s declaration of philosophy have at least one set of very ardent, faithful admirers in South Carolina. Another firm in Denver admires Chip’s work too.  Draw your own logical conclusions.

As for my Bill of Rights, around the time when I published it, I contacted Chip informally to let him know that his prior work inspired my Bill of Rights, and he expressed no objection at the time (or since.)  I didn’t have a technical black-letter ethical duty to do so, but it’s what a decent human being and professional simply does.

 

Jan-Feb Issue of MD Bar Journal is worth reading

The Maryland State Bar Association’s Bar Journal is always a worthy read but there are particular articles worth reading for many solo attorneys in the most recent issue.  Preeminent attorney discipline attorney Alvin Frederick, Esquire, of Eccleston & Wolf and Associate Bar Counsel James Gaither, Esquire, provided an article on online professional ethics and cybersecurity, respectively.  Each article merits your time if you practice in this state.

I was interested to read that the Office of Bar Counsel of Maryland is now, as of the last 60 days or so, running a paperless office.  My own office is making that transition and it would be worth reading how the Office of Bar Counsel undertook the process; that fact was not the central point of Mr. Gaither’s piece, but of interest to me.

Mr. Frederick’s piece (which I believe he co-authored, will give full credit when I return to the office tomorrow) discussed among other topics the issue of online puffery in attorney ads.  While puffery in attorney ads is not a new ethical concern, the Internet seems to have instigated (or at least accompanied) a race to the bottom.  The Bar Journal article noted that an attorney who claimed in such an ad to be the “most aggressive” would be engaging in misconduct unless the attorney could substantiate the claim objectively – a likely impossible task.  In my experience, the more common forms of online puffery are claims to be the “best” attorney in some field under either no objective criteria or under paper-thin rent-an-award standards from some attorney marketing company without peer review, comment or objective measurements.

I used to put my Avvo rating on this site; I won’t name my current rating but it presents me very well.  On the other hand, I have a substantially higher Avvo rating than some of the undisputed leaders of this state’s Bar.  There’s no way that I am a superior attorney to the some of the attorneys who were already Bar leaders on the day that I sat for the Bar exam in 1994, but Avvo will tell you that I am superior to them.  With some regrets, as there are things about Avvo that I did and do like, I no longer list that score here because to do so would be at least theoretically misleading to some clients.  Avvo unfortunately has the problem of profiting from this sort of serious misinformation.  Long-time attorney rating service Martindale-Hubbell (now owned by Lexis) has similar, though perhaps smaller, problems.

Just test this out: google “Best attorney [town]” and watch what comes up.  You can also google “attorney specialist [field of law] Maryland” and see the same sort of thing.  This blog has an attorney “specialist” [sic] finder for Maryland attorneys through Google some months ago, but I took it down because it seemed like overkill.  Many attorneys claim to be the “best” or the “top” attorney, in suspect if not outright definite violation of the rules against lying to clients about attorney skill sets and quality.

Every attorney should be and accordingly feel proud to claim to be competent.  Competence is Rule 1.1 of the ethics rules in Maryland and in most states; it’s at the top of the rule book.  Know what you are doing, or at a minimum associate with attorneys as needed to fill in the knowledge gaps.  But any claim above competence needs to be verifiable objectively if it’s designed for, or has the effect of, inducing a client to retain or keep the attorney.  If something is objectively true and verifiable as such, it’s probably fine to state that it’s true, but the number of attorneys (particularly new to practice) who claim to be “the top” or “the best” attorneys is almost staggering.  Many of the those attorneys may actually fall short of technical competence, let along being better than the attorneys who have been doing CLE for junior attorneys for 20 years or who wrote the Maryland hornbooks or standard manuals for their practice areas.

When I judge another attorney’s skill or leadership, here’s what I look for:

  • Peer-reviewed scholarship or publication, either in
  • Providing CLE in that’s attorneys field (if you have been teaching the material for a while, you are going to be getting it right in all likelihood).  Maryland doesn’t have much of a problem of garbage time-filler CLE because CLE is not mandatory (yet.)
  • Mentoring roles in helping other attorneys
  • Leadership in speciality bar associations
  • Pro bono work
  • Consistent high ratings over time from peer-reviewed ratings services
  • Appellate work in the practice field
  • Peer Review Committee work with the AGC
  • Representing other attorneys in any litigation, disciplinary or otherwise
  • The opinions of attorneys who fulfill 3-4 or more of the above
  • A website that deals in substance and actual practice issues, and not mere puffery
  • Humility regarding skills or experience – this actually makes me up-rate the attorney in my mind, for ethical caution and long-term thinking

An online ad claiming that the attorney is “top” or “best” is likely to make me down-rate the attorney, under the theory that the lawyer is both minimally accomplished and reckless regarding ethical compliance.  An online ad stating that the Maryland attorney “specializes” (or using any other part of speech) tells me that the attorney either is reckless regarding ethical compliance or is at least negligent regarding the supervision of the social media hacks that the attorney hired to “get eyeballs” or “make good SEO.”

Things you should not post on Avvo.com

I have mixed feelings about Avvo.com.  On the one hand, it has challenged the long-time attorney ratings monopoly of Martindale-Hubbell.  While lawyers can “rig” an Avvo rating, lawyers can also “rig” a Martindale rating to some extent.  Competition is healthy, even in semi-rigged BS ratings systems.  Hell, even Maury Povich has to take some maurylogical market challenges from Jerry Springer.

On the other hand, Avvo encourages people to produce discoverable information like this:

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Not that many people fit this description in 4000-odd strong Pocomoke City, in which town pretty much the only institution is the University of Maryland Eastern Shore, a relatively small historically Black university.  I suspect that the prosecutor in this case would not be interested in trolling Avvo for admissions, but why not?  Maybe in a small county like Worcester County, Maryland, that is inundated disproportionately with criminal infractions from the seasonal crowd in Ocean City, some paraphernalia charge from a decade ago in Pocomoke isn’t very interesting to the local State’s Attorney’s office.  But what if this were a felony accusation?

You know who can read Avvo?  Every prosecutor, police officer, probation agent, ex-girlfriend, ex-boyfriend, town newspaper reporter, town gossip, pimp, prostitute, drug dealer, co-defendant, co-defendant’s defense lawyer (private or PD) and the stupidest trifling busybody friend and cousin of all of the above.  Make it a robbery case and not paraphernalia, and this is looking like Teh Big Stoopid really quickly.

The best advice that can be given to many of the inquirers is to get their business off of Avvo ASAP and to consult legal counsel – NOW.  I await a service that will collect, index and data mine stupid posts like these in order to get the occasional gem in critical criminal and civil cases; while there’s a lot of junk here, there is probably an occasional “Antique Roadshow” unexpected find too for the inquiring and diligent lawyer working a high stakes case.  I don’t know that law enforcement isn’t doing so.  If NSA is going to tap or trace phones, you can bloody bet that they can collect and collate something like NSA.  When will local police be able to do so efficiently, on their own or for a fee to a consultant in a big case? While it may not be admissible evidence in itself, it may lead to admissible evidence and who knows what sort of a subpoena a judge might authorize against Avvo upon receiving an officer’s “TKE” and affidavit with an attachment from that website?

I await the next gem to find its way into a divorce deposition: “I screwed around on my wife of 18 years twice, both times with a cutie from my church.  How likely is it that my wife can take my kids away from me in court if she finds out? I don’t make much as a minister of the Gospel here in Pocomoke City.”

I Observe Big Butts and I Cannot Lie: TotalAttorneys’s Deceptive Cold Call Today

The rule of honesty for attorneys needs to be The Rule in Sir Mix-A-Lot’s Case.

If a casual acquaintance, seeking to buy a dress or suit, asks whether the dress or suit makes the buyer’s derriere appear more plump, the superficially polite response of the observer might be a less than candid “well, I don’t notice any such thing.” This would fall under the category of lie that in the Catholic Church is called a “mental reservation” or in the Jewish tradition as a lie to preserve “shalom bayis” or peace in the home. A similar example would be stating to a cold-caller that “Mrs. Smith/Attorney Jones is not available” when they are available in a certain sense.

A friend – not a Hollywood friend or mere acquaintance but a real friend, the sort of friend who tells you difficult news to your face out of good will – will find a warm-hearted but direct way to tell you, if she or he believes it true, that that suit or dress may be a poor fit and that another choice would better flatter your curvature.

The attorney – YOUR attorney – on the other hand, has to tell you the truth. If you are charged criminally you need to your attorney to tell you how you are exposed, if you are exposed – NOT to make you feel better. You owe it to yourself and your attorney owes it to you to be able to make certain decisions with “informed consent” – enough information to allow you to exercise reasonable judgment. If your attorney observes your big butt, so to speak, she must tell you that it is as big as it is, and that the dress or suit is an innocent bystander. Maybe your psychologist or priest doesn’t owe you full candor on every single issue for your psychological or spiritual benefit; I don’t know, go ask them. But on the decisions that matter, giving you feel-good nonsense (or feel-bad nonsense, if it is nonsense) on substantive, material issues on your case is unethical to the extent that it impedes your ability to make the decisions that you need to make.

An irritation in my main areas of practice is callers who call for a family member, particularly a family member who isn’t in jail and is over 18. More irritating are callers who pretend that they are the client, but then at some point confess that they aren’t the employee, but the employee’s girlfriend (after several minutes of “I” and “my job” deceptive nonsense.) I hate it, but I expect it to continue; clients’ family members and “comares” will continue to engage my time under false pretenses and it’s on me to flush those callers out of my practice.

What I don’t expect is that a legal marketing company will front as if it were a law firm itself. That I didn’t see coming.

I got a call today from area code 312, Illinois. Midwesterners may recognize that number as a Chicago number but I am from Baltimore and as far as I am concerned, Chicago doesn’t really exist. New York exists; Philly exists; DC exists and Baltimore is the center of the universe. Chicago doesn’t exist. But Chicago called me.

A voice of a young man called saying that he was looking for criminal lawyers in my area to whom to make several referrals, that he was handling matters for the office of attorney Kevin Chern (it was hard to make it out but I got the spelling later) and he wanted to set up appointment times for the clients. I expressed interest generally, but requested that the law firm send me some information by email, that I needed to make conflict checks against my own caseload and that Maryland was strict about ethical conflicts involving co-defendants, such that I’d probably have to make a referral of any co-defendants to local counsel. I indicated that Maryland was not a large statet but that I preferred to handle matters within a 30-mile radius of my office or Baltimore generally. The young man sounded disappointed but said that the matters were for Baltimore City as best as he knew, and that he would have a Mr. Pistorius contact me with more information.

I got the following email from a Brian Pistorius maybe 20 minutes later or so.

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So this wasn’t a law office, but a marketing company pretending to be a law firm through the ambiguity in English between “office of Attorney Joe Blow,” from which one assumes logically that an “office of attorney” is “an attorney’s office” as defined under the applicable parts of e.g. the Maryland Lawyers’ Rules of Professional Conduct.  I note that “Total Attorneys” is a marketing company, not organized as a law firm; they are an internet marketing outfit that also bought out attorney Stephanie Kimbro’s online virtual law firm software platform a few years ago.

Kevin Chern, as CEO of this regular business corporation, is knowingly or un-knowingly allowing his reps to present themselves as his personal agents and only secondarily (in Pistorius apparently reluctant case) or not at all (in the case of Joel the cold-caller) as representatives of Total Attorneys marketing shop.  My questions – about attorney ethics, demanding written confirmation of the identity of the cold-calling shop – blew their cover.  Both Joel in his tone and Pistorius in the sort of sad-sack tone of his email reflect that they probably knew they blew the sale.

I note how Pistorius refers to Chern as “my attorney.”  No, wrong.  Chern is not your attorney.  My clients can call me “my attorney.”  Chern is Pistorius’ boss as CEO of the company, not “my attorney.”  “My attorney” has a pretty big national presence – really?  I hope that this blog post makes it a lot bigger.  Sure, Baltimoreans are calling Mr. Chern’s Chicago law office.  Right.  Riiiiiiight.  “My attorney.”

I don’t expect a legal marketing company’s agents to misrepresent what their principal is.  I REALLY don’t expect an attorney to allow such nonsense to happen.  So this was my response to Pistorius. Sorry for the misspelling of “Chern”

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Total Attorneys, I don’t know how thick your butt is but your ethics are thin.

George Zimmerman’s Lawyer Reprimanding Client Publicly

Washington Times, August 25, 2013:

“We understand how George [Zimmerman] visiting the factory that produces the gun used to shoot Trayvon Martin is seen as inappropriate,” a spokesman for attorney Mark O’Mara told Reuters on Friday.

***

Mr. Zimmerman, 29, shot Trayvon, who was 17, in the heart with a 9 mm Kel-Tec pistol.

Recent events have encouraged me to take a less self-righteous attitude about a lot of things, including but not limited to professional ethics. Anyone can make a mistake, including either a professional or non-professional mistake.

But it is difficult to see the wisdom in a law firm sending out a messenger deliberately to criticize its client’s conduct. Why not say nothing; “nothing” is a rather clever thing to say and it seems smarter than “this is how we in confidence advise our murder suspect clients.”

Am I wrong? If so, tell me why saying something to an internet reporter was wise, professional, loyal, diligence, prudence and becoming of a confidential fiduciary. Tell me why I am wrong.

Let’s All Help “Pat Barnes” Find Decent Employment

I pity “Pat Barnes”. He or she is a representative of a company that wants to sell me, an 18-year member of the Maryland Bar, a plaque commemorating my 15th year of membership in the Maryland Bar. And be darned if she or he isn’t persistent:

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I have gotten maybe half a dozen of these emails this year, two of them on consecutive days last week.

They want $159.00 for this hunk of self-congratulatory garbage, but will “let me have it” for $50.00 off.

I feel like I should be organizing an intervention, whether for Pat or for the attorneys who, 15 years into practice, would apparently be such wounded narcissists that they would feel a deep-seated need for this hunk of wood on their wall to assure their clients that, yes, they are practicing attorneys of some duration.

Can someone please get a headhunter to help Pat Barnes get a job cold-calling for timeshares or overpriced lighting fixtures or something?

Beyond Parody: “Small Business Bodyguard”

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:

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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.

Ya know?

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.

“Skin in the game” and attorney ethics

In the United States, contingent fees for attorneys are regulated and usually prohibited in most criminal and family law matters.  Among the justifications for contingent fees are that they reward success, not attorney billable-hour churning.

In today’s New York Times Adam Liptak discussed Marek v. Lane, a class action case against Facebook involving privacy violations.  The Ninth Circuit approved, 2-1, a settlement that would require Facebook to make a $6.5 million donation to a foundation to be founded by Facebook, and to pay the class action plaintiffs’ attorneys $2.3 million dollars.  As for the class plaintiffs, they would get: nothing.  Not one dime.  The Supreme Court may take up the reasonableness of this class settlement.  Read the scathing quotes from the dissent in the link.

My newest favorite author, Nassim Nicholas Taleb, repeatedly urges that decision makers and experts need to have “skin in the game”, a meaningful downside personally if things don’t go well.  Taleb is a bond trader, economics commentator (if I call him an “economist” I know I will get a C&D letter) and philosopher and he attacks much of the economics establishment as charlatans in part because they aren’t held accountable for their (in Taleb’s view) irresponsible and damaging bad advice.  Taleb has spoken with some favor of the rule in Hammurabi’s Babylonia in which builders of houses that collapse must suffer the sorts of harm, up to and including maiming and death, that befall the houses’ occupants.  While this seems perhaps unspeakably cruel, it does motivate the builder due to his literal skin in the game to take building and design extremely seriously, perhaps preserving generations of life.

In much of Europe, the contingent fee is considered immoral and is prohibited.  From a “skin in the game” standpoint, however, it may be immoral NOT to make lawyers suffer a hit when their advice fails.  We need not execute attorneys for being wrong but it protects the interests of clients if attorneys have a motivation to get it right beyond the mere happiest of current clients.  Attorneys who profit or lose according to their own smart or stupid judgments will be motivated, in a case, in a year, in a career, to be smarter.  Stupidity, like most other things, becomes less common when it is more expensive and the risk of loss has a disciplining effect on the attorney – both in the conduct of the case and in the preparation for many cases over time.

The class action case with no class remedies for the plaintiff pool seems somehow a case in point.  Lacking actual skin in the game, the attorneys allowed themselves to create a remedy in which their own interests and the interests of the counterparty were protected and funded, but their actual clients got nothing.  While we cannot know the psychology of the attorneys, it would seem that the disconnection between them and their client allowed them to reach a settlement where they got millions, a foundation set up by counterparties got millions and their clients got not a dime.  These lawyers had, it seems, no real skin in the game at risk, and now look at what happened.

In criminal defense and family law matters, contingent fees are prohibited; in the former case the fear of defendants pleading guilty when innocent in order to avoid legal fees justifies the prohibition whereas in the latter case the public policy in favor of reconciliation works against the attorney’s motivation for fees from a successful contested property split.  Interestingly, there are post-trial remedies to prevent some forms of attorney misfeasance that don’t exist in, say, car accident or contract disputes.  In criminal cases, habeas corpus, post-conviction relief for ineffective assistance of counsel and coram nobis relief may provide the court some ability, however painfully limited, to review the reasonableness of a sentence or confinement or the effectiveness of legal counsel.  In divorce cases, courts maintain continued jurisdiction over minor children, child support and alimony.  Malpractice actions against attorneys, of course, also put attorney skin in the game to some extent both in contingent fee-permissible cases and in those when contingent fees are prohibited.  The risk of wasting client money, however, is not addressed either by post-conviction relief, motions to modify or malpractice suits; at most there are fee arbitration committees, straight contract/unjust enrichment actions at law and in extreme cases disciplinary actions in some states for patently unreasonable fees.

In sum, the principle of “skin in the game” is easier to enforce when the definition of the “game” is simpler, purely financial and does not implicate major non-financial paramount equities.  Since law often deals with complex desired remedies involving non-financial concerns, the contingent fee is in some cases unnecessary, insufficient or outright contraindicated as a way to make sure that attorneys have “skin in the game” in the effects of their good or bad professional judgments, practices or decisions.