Legal Ethics

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.

Posted by Bruce Godfrey in Criminal Law, Legal Ethics, 0 comments

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?

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

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.

Posted by Bruce Godfrey in Legal Ethics, 0 comments

“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.

Posted by Bruce Godfrey in Legal Ethics, 0 comments