Business Card Ethics Panel Outline

Business Card Ethics Panel - 1

“Is Your Business Card a Professional Licensure Complaint?” The professional responsibility all lawyers have for their business cards, both paper and

paperless.

Kirk T. Schroder, Esq. Schroder Fidlow, PLC

& Richard J. Idell

Idell & Seitel, LLP1

Panel Outline I. Source of Law.

All states have a professional code of conduct that governs an attorney’s

communications.

Generally, the ABA Model Rules of Professional Conduct (“Model Rules”) apply, but only the following states have adopted the Model Rules as their own code of conduct:2

• Alabama (5/2/90) • Alaska (4/14/93) • Arizona (9/7/84) • Arkansas (12/16/85) • Colorado (5/7/92) • Connecticut (6/23/86) • Delaware (9/12/85) • District of Columbia (3/1/90) • Florida (7/17/86) • Georgia (6/12/00) • Hawaii (12/6/93) • Idaho (9/3/86) • Illinois (2/8/90) • Indiana (11/25/86) • Iowa (4/20/05) • Kansas (1/29/88) • Kentucky (6/12/89) • Louisiana (12/18/86) • Maine (2/26/09) • Maryland (4/15/86) • Massachusetts (6/9/97) • Michigan (3/11/88) • Minnesota (6/13/85)

1 With special thanks to Yumi Nam of Idell & Seitel, LLP for preparing the materials for this presentation. 2 “State Adoption of the ABA Model Rules of Professional Conduct” http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules.html (last accessed 9/18/2012).


• Mississippi (2/18/87) • Missouri (8/7/85) • Montana (6/6/85) • Nebraska (6/8/05) • Nevada (1/26/86) • New Hampshire (1/16/86) • New Jersey (7/12/84) • New Mexico (6/26/86) • New York (12/16/08) • North Carolina (10/7/85) • North Dakota (5/6/87) • Ohio (8/1/06) • Oklahoma (3/10/88) • Oregon (1/1/05) • Pennsylvania (10/16/87) • Rhode Island (11/1/88) • South Carolina (1/9/90) • South Dakota (12/15/87) • Tennessee (8/27/02) • Texas (6/20/89) • Utah (3/20/87) • Vermont (3/9/99) • Virgin Islands (1/28/91) • Virginia (1/25/99) • Washington (7/25/85) • West Virginia (6/30/88) • Wisconsin (6/10/87) • Wyoming (11/7/86)

For the purposes of this presentation, the Model Rules will be applied, with some notes from official opinions by the bar organizations of particular states. The Model Rules can be accessed at http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html. II. The Model Rules. Business cards fall under the purview of Model Rules 7.1 and 7.2 as a card is a communication subject to State scrutiny. Model Rule 7.1 Communications Concerning A Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.


Model Rule 7.1 Rule 7.2 Advertising

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications

permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or

qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

(3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a nonlawyer professional

pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the

agreement. (c) Any communication made pursuant to this rule shall include the name and

office address of at least one lawyer or law firm responsible for its content. Model Rule 1.0(n) Terminology

“Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. . . .

The State May Regulate Commercial Speech

“[O]nly false, deceptive or misleading commercial speech may be banned.” Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990).

Use of designations and certifications in a dual profession qualifies as commercial speech, and the state may ban such speech only if it is false, deceptive, or misleading. Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy, 512 U.S. 136 (1994); see also, Zauderer v. Office of the Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985). Spirit of the Model Rules

As a general rule, lawyers cannot make any false or misleading claims in their public


communications. Therefore, err on the side of greater clarity. The purposes of the Model Rules with regards to communications via business card is to protect against misleading a client or potential client and to uphold the general duty of candor. III. Content Issues. Example:

Front Adam T. Reposa, Esq.

Lawyer/Winner

MOST DWI ACQUITTALS…BY FAR SOME LAWYERS CHARGE BIG FEES…BUT THEY NEVER WIN!!

6 NOT GUILTY VERDICTS IN JAN/FEB ’09; 10 IN 2008; 30+ IN 5 YEARS BREATH TEST NOT GUILTYS; BLOOD TEST,

FELONY DWI TRIALS 2 NOT GUILTYS IN 2008…UNEARD OF!

(512) 476-0444 WWW.DWINWINS.COM 607 W. 9TH ST, AUSTIN, TX 78701

Back

DON’T BE A FOOL!

Many people hire a lawyer on a friend’s recommendation or because they received a letter or saw a lighter… Don’t be a fool, hire a winner! Before hiring a lawyer ask how many acquittals they’ve won for their clients this year/last year…zero? Don’t hire a zero! Ask if they can do a better job than Adam Reposa and if so, how is that? Anyone who says they can is lying.

A. Law Firm Name.

Model Rule 7.5 Firm Names And Letterheads

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

(c) The name of a lawyer holding a public office shall not be used in


the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

Example of a bad business card due to law firm name:

Schmoe & Associates

Joe Schmoe, Esq. Attorney

1234 Movie Magic Blvd. Hollywood, CA 90028

(999)999-9999

[email protected]

The law firm name is “Schmoe & Associates” but if Joe Schmoe is actually a solo practitioner without any licensed attorneys associated with his practice, the name of the firm is misleading, and therefore, unethical. See In re Laubenheimer, 335 N.W.2d 624 (Wis. 1983) (firm name containing names of lawyers not truly associated was deceptive).

B. Attorney’s Name.

Generally, an attorney should use the name he or she used for licensure. However, New York accepts the use of a first name different from the one the attorney listed on the Official Roll of Attorneys, such as an accurate English translation of the first name or a nickname the attorney is commonly known by, so long as the name is not misleading as to the lawyer’s identity.3

C. Law Firm Address – Virtual Offices.

If operating a firm with virtual offices, the business card must indicate that the virtual office can be accessed only by appointment.

According to New Jersey’s Bar: A “virtual office” location is not a place where a client can meet with the attorney unannounced. An attorney is not routinely found at a “virtual office” location and would need to make arrangements to reserve the space. Accordingly, while “virtual office” locations may be listed on attorney or law firm letterhead, websites, or other advertisements, the communication must state that the location

3 New York State Bar Association Committee on Professional Ethics Opinoin 872 (6/3/11).


is “by appointment only.”4 Virginia’s Bar held similarly that the business card must accurately represent or list the virtual office as a “client meeting location” to not mislead clients and potential clients as to the actual location of the lawyer’s offices.5

D. Relationship to Firm.

Generally, the attorney’s relationship to the firm, e.g. Associate, Partner, Of Counsel, does not need to be disclosed on the business card of that attorney as long as it accurately portrays that the individual is an attorney.

In New York, the attorney’s relationship to the firm may, but need not, be indicated on an attorney’s business card. (DR 2§102 (A)(1)).

E. Jurisdiction.

If the attorney is not licensed to practice law in the state where the firm’s office is located, then it must be disclosed that the attorney is admitted to practice elsewhere.

In New York, the governing principle is that the principal office address on the letterhead implies that each attorney whose name is shown on the letterhead has been admitted to practice in the jurisdiction in which that address is located. If the implication is untrue, then it should be clarified with language sufficient to the task in order to avoid misleading the reader.

F. Slogans.

Comparative statements are prohibited if they cannot be factually substantiated. See Model Rule 7.1(a)(3). This is important to note as domain names and Twitter handles are displayed on business cards. For example, the Twitter handle @BestConnectionsLawyer and www.BestNYCEntertainmentLawyers.com would be unacceptable as these slogans cannot be factually substantiated.

The Florida State Bar rejected the use of a “pit bull” slogan for a law firm. The Virginia State Bar accepted “We’ll come to you” for use as a slogan for a

personal injury lawyer.

G. Specialties and Expertise.

A majority of states permit descriptions such as “specialists” or “experts” in a certain

4 New Jersey’s Advisory Committee on Professional Ethics and Committee on Attorney Advertising, March 25, 2010 (http://www.judiciary.state.nj.us/notices/2010/n100326a.pdf). 5 Virginia State Bar Ex. Rel. Second District Committee v. Atchuthan Sriskandarajah, Case No. CL 2012-4137 (VSB Docket No. 10-022-081527), June 18, 2012.


subject area, but have requirements about using them, ranging from additional disclosures to certification of the organization by the American Bar Association. For example:

• Alabama: Indicating one is a certified arbitrator by the American Arbitration Association does not violate Rules 7.1 and 7.7 because an arbitrator is a non-lawyer, and such designations may be placed on the business card.

• New York: Prohibited for an attorney to indicate on business card or letterhead that “he was a member of the legislature, that he was a judge or former justice of the peace, that he was formerly counsel in any capacity to any federal, state or municipal body or organization, or that he was also a doctor, C.P.A. or engineer.”

• Virginia: Lawyer disciplined for indicating on card that he was a retired judge. “The bar thought it implied an ability to influence a tribunal.”

• Florida: “A lawyer may indicate that he is a retired Navy Judge Advocate by placing “CDR, JAGC, USNR (Ret.)” on his letterhead and business cards. Pa. Eth. Op. 94-10 (1994).

H. Dual Practitioners.

Even in non-attorney positions, attorneys are subject to the Model Rules.

Particular attention must be paid to conflicts of interest.

• California: If a practicing attorney has a business card for a separate profession, avoid unethical communications by expressly providing a disclaimer that attorney is not offering and does not intend to provide legal services or legal advice on communications for the other profession in which such materials provide the attorney is a license practitioner and/or has a specialty in some practice of law.

• The ABA Code of Professional Responsibility from 1983 states DR 2-102(E):6

“A lawyer who is engaged in both the practice of law and another profession or business shall not so indicate on his letterhead, office sign or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.

o In order to comply, the attorney must use separate letterheads, cards, office signs, and the like and he must regrain from referring to himself or allowing others to identify him as an attorney in any publication related to his second occupation. (so can’t list this on linkedin?)

o Any advertisement by a lawyer for a non-legal service wherein he is identified as a lawyer would be improper. (i.e. the following is improper for an attorney\pharmacologist: “John Doe, Ph.D., J.D., Pharmacologist—’74 Law School grad; drug research/teaching experience at Medical Schools; expert witness/consultant, available for medical consultation in civil and criminal matters. Write, Box, City, State, Phone.”).

o Second occupation must be “kept physically and functionally separate.” (Florida Advisory Opinion 73-18 (1973)).

o The general principle behind this rule “is to protect the public and the profession against improper solicitation, advertising or commercialization,

6 Some states have maintained this provision in their codes of conduct.


and to keep the other occupation from being used as a cloak for improper solicitation or from being deliberately used as a direct or indirect feeder of legal work. ¶ If the second business is one in which advertising and promotion are permitted, no material used in connection with the second business may disclose the fact that a participant is a lawyer, and the business should be conducted on premises sufficiently separate from . . . the law practice to avoid having the clients or customers of the business gain the impression that the two are related . . . the lawyer should not accept as a legal client for matters originating through the other occupation, a person whose initial contact with him as a client or customer of such other occupation, unless the lawyer-client relationship clearly developed entirely on the initiative of the client without solicitation on the part of the lawyer and was not dependent upon the lawyer’s participation in the other occupation.”

I. Non-lawyers.

All business cards for a firm’s non-lawyers must indicate their non-attorney

capacity.

• Alabama: (Rule 7.6) “A lawyer shall not cause or permit a business card of a nonlawyer which contains the lawyer’s or firm’s name to contain a false or misleading statement or omission to the effect that the nonlawyer is a lawyer.” The title of “Legal Assistant” is appropriate where the individual is “employed in that capacity by a lawyer or law firm, that the lawyer or law firm supervises and is responsible for the law related tasks assigned to and performed by such individual, and that the lawyer or law firm has authorized the use of such cards.”

• New Jersey: Degree designations (i.e. J.D.) for non-practicing lawyers are appropriate on business cards.

IV. Distribution Issues. Distributing one’s business card is subject to the ethical requirements for solicitation. Model Rule 7.3 Solicitation of Clients

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional

relationship with the lawyer. (b) A lawyer shall not solicit professional employment by written,

recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited


by paragraph (a), if: (1) the target of the solicitation has made known to the lawyer

a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

Virginia defines a solicitation as “A written or e-mail communication that bears the lawyer’s or firm’s name and the purpose of which in whole or in part is an initial contact to promote employment for a fee, sent to a prospective non-lawyer client who is not: (1) a close friend, relative, current client, former client; or (2) one who has initiated contact with the attorney; or (3) one who is similarly situated with a current client of the attorney with respect to a specific matter being handled by the attorney, to the extent that the prospective client’s rights may be reasonably expected to be materially affected by the outcome of the matter. . . .” North Carolina states “An attorney is prohibited from giving a client, a non-client, a fellow attorney or an allied professional more than one business card or one firm brochure.” (2007).

Inquiry: If a client, non-client, fellow attorney, or allied professional requests one or more business cards or firm brochures from the estate-planning attorney, may the estate-planning attorney oblige the request? Opinion: The attorney may give a third party one of this business cards or one brochure in response to a request. The attorney may not give the third party multiple cards or brochures because of the risk of in-person solicitation by the third party on the attorney’s behalf. Inquiry: Along with a thank-you letter from the attorney to a client for the client’s having allowed the attorney to provide services to that client, may the attorney include a business card and/or firm brochure with the suggestion that the client, if so willing, pass it along to someone who the client thinks might need similar services? Opinion: No, because of the risk of in-person solicitation by the third party on the attorney’s behalf.

The North Carolina opinion is problematic as an attorney’s information can be distributed without limitation to physical copies of the business card due to applications


that make the distribution of business cards electronic (where unlimited copies of the business card are available). See for example BUMP by Bump Technologies, Inc. and the vCard (available on most e-mail clients).

Screenshot of BUMP from iTunes App Store:

Screenshow of vCard creation from Microsoft Outlook:

V. Summary.

A. General Checklist for unethical content.

□ Contains any false or fraudulent statements or claims (7.1(a)) □ Contains any misleading or deceptive statements or claims (7.1(a))

o Contains misleading or false information (7.1(a)(1)) o States or implies that the outcome of a particular legal matter was not or

will not be related to its facts or merits (7.1(a)(2)). o Compares the lawyer’s services to other lawyer’s services where the

comparison cannot be factually substantiated (7.1(a)(3)). o Contains information that is likely to create unjustified expectations (i.e.

references to prior successes, specific case results, promises of positive


outcomes, etc.) without a disclaimer that (a) puts the case results in a context that is not misleading; (b) states that the case results depend upon a variety of factors unique to each case; and (c) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. (7.1(a)(4)).

□ Contains any misleading fee information. □ Contains an endorsement by a celebrity or a public figure, who is not a client of

the firm, without disclosing that the speaker is not either a member of the firm nor a client of the firm and does not indicate the speaker is being paid for the appearance or endorsement. (7.1(a)(2)).

□ Contains a corporate, trade or fictitious name, that is not a registered trade name, and the lawyer does not actually practice under the same name, including displaying that name on letterhead, business cards, office signs, pleadings and other firm documents. (7.5).

B. General Guidelines for Passing Out Business Card.

□ Be sure to communicate to the recipient of your business card the nature of your

relationship. □ You can freely distribute your card to lawyers or members of your family or

closer, personal or prior professional group.

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Documents

Business Card Ethics Panel Outline