Legal Ethics

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.

 

Posted by Bruce Godfrey in Legal Ethics, 0 comments

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.”

Posted by Bruce Godfrey in Legal Ethics, News, Practice of Law, 0 comments

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:

Screen Shot 2013-08-30 at 9.13.01 PM

 

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.”

Posted by Bruce Godfrey in commentary, Legal Ethics, Legal Marketing, Practice of Law, 0 comments

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.

Screen Shot 2013-08-29 at 6.29.57 PM

 

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”

Screen Shot 2013-08-29 at 6.44.17 PM

 

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

Posted by Bruce Godfrey in commentary, Legal Ethics, Legal Marketing, 0 comments