Wednesday, October 24, 2018 2:00 3:15 PM General Session 1 ... · Ethics In The Fact Of Expanded Attorney Liability, by Robert G. Day 11 See, for example, Smith v. Damato, 172 Neb

Wednesday, October 24, 2018 2:00 – 3:15 PM

General Session 1

Bordering on the Edge: Multijurisdictional Practice Issues

for Inside and Outside Counsel

Presented to

2018 U.S. Shopping Center Law Conference JW Marriott Orlando Grande Lakes

Orlando, FL October 24-27, 2018

by:

Michael H. Rubin McGlinchey Stafford, PLLC

301 Main Street Baton Rouge, Louisiana 70801

[email protected]

mailto:[email protected]

BORDERING ON THE EDGE: MULTIJURISDICTIONAL PRACTICE ISSUES

FOR INSIDE AND OUTSIDE COUNSEL1

BY: MICHAEL H. R 2

UBIN

1. THE TUGS AND PULLS

Those of us engaged in real estate and business transactional issues, whether as inside counsel or

outside counsel, must carefully thread our way through a thicket of technicalities, state and federal court rules,

state and federal statutes,3 regulatory authority, and international laws,

4 as well as the ABA’s Model Rules of

Professional Conduct and the rules as adopted (and sometimes modified) by the various states in which we are

licensed to practice. Practical problems abound and the potential ethical problems are huge. There are many

Internet resources on ethics that may provide a starting point for research and links to a number of useful sites.5

1 A portion of this paper consists of adaptations of the author’s prior publications, including “Bordering on the Edge,” ICSC/OKIMP Retail Development and Law Symposium (Feb. 2014); “Multijurisdictional Ethical Traps for Real Estate Lawyers,” ALI-CLE Webinar (Dec. 2013); “Who’s The Client?”, ICSC Annual Law Conference, San Diego, California (Oct. 2013); “The Appellate Ethical Thicket, How to Survive While Traipsing Through the Titillating Tentacles, Tricks and Traps of Ethical Dilemmas,” Bar Association of the U.S. Fifth Circuit, 2011; “The Social Media Thicket: Surviving And Thriving In A Tangled Web And The Ethical Issues This Raises for Lawyers,” ALI-ABA Webinar (2011); “The Multiplying Multijurisdictional Morass: What’s A Transactional Lawyer To Do?” ABA Business Law Section Spring Meeting, March 2012, Las Vegas, Nevada, “The Ethical Utah Lawyer: What Are The Limits In Negotiation?,” 21 Utah Bar Journal 15 (March/April, 2008); “Ethics: A Conflict Of Interest? What Conflict?,” ABA Real Property Section CLE (2008); “The Intersection of Conflicts of Interest and Imputation of Knowledge,” 22 ABA Probate and Property 53 (Nov. 08); “Ethics,” The Construction Lawyer, Fall 2006; and “Labor Negotiations: Do Any Rules of Ethics or Professionalism Really Apply?” ALI-ABA Labor Seminar, Spring 2003; “The Ethical Negotiator: Ethical Dilemmas, Unhappy Clients, and Angry Third Parties,” 26 The Construction Lawyer 12 (2006); “Breaching the Protective Privity Wall: Expanding Notions of Real Estate Lawyers’ Liability to Non-Clients,” The ACREL Papers, Fall 2002 (ALI-ABA); “From Screens and Walls to Screams and Wails: A Selective Look at Screening Among The Various Ethics Rules and Cases and “A Consideration of Some Unanswered Questions,” The ACREL Papers, Fall, 2001 (ALI-ABA); and “The Ethics of Negotiations: Are There Any?" 56 Louisiana Law Review 447 (1995). 2

The author is licensed to practice law only in Louisiana. This paper, while it refers to and discusses the law of states other than Louisiana, reflects an outsider’s view of the laws and jurisprudence of those states. 3

For more on these points, which are beyond the scope of this paper, see, for example: D. DeMott, “THE

DISCRETE ROLES OF GENERAL COUNSEL,” 74 Fordham L. Rev. 955 (2005); Jill Barclift, “CORPORATE

RESPONSIBILITY: ENSURING INDEPENDENT JUDGMENT OF THE GENERAL COUNSEL--A LOOK AT STOCK OPTIONS Z,” 81 North Dakota Law Review 1 (2005); Frederick M. Gonzalez, “FOURTH ANNUAL DIRECTORS' INSTITUTE ON

CORPORATE GOVERNANCE - - THE CULTURAL, ETHICAL, AND LEGAL CHALLENGES IN LAWYERING FOR A GLOBAL

ORGANIZATION: THE ROLE OF THE GENERAL COUNSEL,” Practising Law Institute PLI Order No. 9158 September, 2006; Lewis D. Lowenfels, Alan R. Bromberg, Michael J. Sullivan, “ATTORNEYS AS GATEKEEPERS: SEC ACTIONS

AGAINST LAWYERS IN THE AGE OF SARBANES-OXLEY,” 37 University of Toledo Law Review Summer 877 (2006); Jason Thompson, “THE PARADOXICAL NATURE OF THE SARBANES-OXLEY ACT AS IT RELATES TO THE PRACTITIONER

REPRESENTING A MULTINATIONAL CORPORATION,” 15 Journal of Transnational Law and Policy 265 (2006); Anita Indira Anand, “AN ANALYSIS OF ENABLING VS. MANDATORY CORPORATE GOVERNANCE: STRUCTURES POST- SARBANES-OXLEY,” 31 Delaware Journal of Corporate Law 229 (2006). 4 For example, in addition to treaties and other matters that affect international transactions, there is the Financial

Action Task Force (FATF), an inter-governmental body whose purpose is the development and promotion of national and international policies to combat money laundering and terrorist financing. FATF seeks to generate legislative and regulatory changes to combat international money laundering. 5

See, for example the following sites: The ABA Center for Professional Responsibility, http://www.abanet.org/cpr/links.html; The Thomas Cooley Law School ethics site, http://www.cooley.edu/ethics/other_sites_of_interest.htm ; the Cornell Law School Professionalism web links

http://www.abanet.org/cpr/links.html

http://www.cooley.edu/ethics/other_sites_of_interest.htm

Transactional lawyers exist to do deals. We negotiate with parties concerning the creation of entities. We

negotiate with or for corporations and partnerships, lenders and borrowers, developers and contractors, and a

myriad of other clients and businesses. We negotiate with local, state, and national governmental entities. We

document deals at the front end, work through issues as deals are ongoing, and negotiate work-outs at the back-

end if and when things go wrong.

We usually do all of this from the confines of our offices, using land-lines, email, the Internet, smart-

phones, and all the accoutrements of modern practice. Yet, though we sit in our offices, our deals often extend

around the country and sometimes around the globe.

We tend to think that we are fully conversant with the “ethical” rules that apply within our own state, but

can we really rely on these rules when our deals are interstate or international?

This paper focuses on just a few of the ABA Model Rules that relate to multijurisdictional real estate

practices today. These involve matters that cross state lines, lawyers who travel around the country on business,

and the use of the ubiquitous Internet and the social media revolution it has spawned.

2. WHAT DO CLIENTS WANT IN NEGOTIATIONS AND WHAT CAN YOU GIVEN THEM? THE LAWYER AS THE ZEALOUS ADVOCATE.

Clients want a lawyer/negotiator who gets everything that the client desires, leaves nothing on the table,

and gives away the minimum. The dominant model of a lawyer is one who is a “zealous advocate”6 for the client’s

position: it is a term indicating that the client’s interest is paramount. As early as 1820, Lord Brougham declared

that an “advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.

To save that client by all means and expedients, and at all hazards and costs to other persons, and amongst

them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments,

the destruction, which he may bring upon others.”7

“Zealous advocate” is a term that is often used by lawyers to describe their role; however, that term has

not existed in the ABA’s promulgations since the Model Rules superseded the Model Code of Professional

Conduct in 1983.8 When the 1983 Model Rules (“MR”) were adopted, the term “zealous advocate” was deleted,

page, http://ww3.lawschool.cornell.edu/faculty-pages/wendel/ethlinks.htm,; the Georgetown Law Library legal ethics link page, http://www.ll.georgetown.edu/guides/legal_ethics.cfm, and the Santa Clara University business ethics links page, http://scu.edu/ethics/links/links.cfm?cat=BUSI. 6

The “zealous advocate” language was contained in Canon 7 of the Canons of Professional Ethics; it was not carried forward in the 1983 Model Rules of Professional Conduct or its subsequent versions. 7

2 Trial of Queen Caroline 8, quoted by Sharon Dolovich, “Ethical Lawyering and the Possibility of Integrity,” 70 Fordham L.Rev. 1629 (2002), in her citing of Deborah L. Rhode’s book, IN THE INTERESTS OF JUSTICE: REFORMING

THE LEGAL PROFESSION, 2000 at 15. 8 The term “zealous” advocacy appeared in the EC 7-1 of the Model Code.

http://ww3.lawschool.cornell.edu/faculty-pages/wendel/ethlinks.htm

http://www.ll.georgetown.edu/guides/legal_ethics.cfm

http://scu.edu/ethics/links/links.cfm?cat=BUSI

and in its place was a comment to MR1.3 that a “lawyer should act with commitment and dedication to the

interests of the client and with zeal in advocacy upon the client’s behalf.” The Comment (although not the black-

letter text of MR1.3) goes on to caution that a “lawyer is not bound to press for every advantage that might be

realized for a client.” This commentary has continued, almost verbatim into the 2002 Ethics 2000 Revision to the

Model Rules.

The fact that “zealous advocacy” has not been a requirement of the lawyer’s code since 1983, however,

has not stopped lawyers from using the phrase or courts from extolling or questioning it. Examples abound

throughout the U.S. For example:

The Nevada Supreme Court used the phrase with approval when it wrote: “However much it may

‘infuriate the jury,’ a properly zealous advocate must do all he can to defend his client.”

9

Law journals continue to use the phrase (sometimes even with approval) in titles to articles.10

Several Nebraska cases have used the phrase “zealous advocate” or “zealous advocacy.” Some

cases have used it to denote approval of conduct designed to protect the client’s interest.11

Other

cases, however, have indicated that zealous advocacy can cross the line into improper conduct. For

example, in State v. Koenig, 278 Neb. 204, 208, 769 N.W.2d 378, 384 (Neb. 2009), the Court stated:

“We agree . . . that attorneys have the right to negotiate on behalf of their clients and are even

charged by the Nebraska Rules of Professional Conduct to zealously assert their client's position. A

lawyer must zealously advocate, however, ‘under the rules of the adversary system.’ While [the

attorney’s] conduct might be considered zealous advocating of his client's position, it does not fall

within the ethical bounds of our adversary system.”

9 Brown v. State, 110 Nev. 846, 877 P.2d 1071,1073 (Nev. Jul 26, 1994). In the very next sentence, the Brown

court wrote: “As one eminent defender wrote, "[c]ross examination is the only scalpel that can enter the hidden recesses of a man's mind and root out a fraudulent resolve.... [It] is still the best means of coping with deception, of dragging the truth out of a reluctant witness, and assuring the triumph of justice over venality." Louis Nizer, My Life in Court 366 (1961).” 10

See, e.g., Broderick, “Understanding Lawyers' Ethics: Zealous Advocacy In A Time Of Uncertainty” 8 U. D.C. L. Rev. 219 (2004); Reimer, “Zealous Lawyers: Saints or Sinners?” 59 Or. St. B. Bull. 31 (1998); Brown, “A Plan To Preserve An Endangered Species: The Zealous Criminal Defense Lawyer” 30 Loy. L.A. L. Rev. 21 (1996); and Ventrell, “The Child's Attorney -- Understanding the Role of Zealous Advocate” 17 WTR Fam. Advoc. 73 (1995); 45 Stan. L. Rev. 645 (1993); and “Administrative Watchdogs Or Zealous Advocates? Implications For Legal Ethics In The Fact Of Expanded Attorney Liability,” by Robert G. Day 11

See, for example, Smith v. Damato, 172 Neb. 811, 817, 112 N.W.2d 21, 25 (NE 1961), quoting with approval from Sonneman v. Atkinson, 121 Neb. 752, 238 N.W. 5423 (1931): “Both parties had able, vigorous and apparently zealous advocates. In the temperature reached near climax of the trial they went about as far as permissible.”

Some courts in New York use the phrase “zealous advocate” favorably, but mostly in the context of

criminal cases discussing the role of defense counsel.12

Other New York cases, mostly in a civil,

disciplinary, or commercial context, use the phrase either cautiously or as a method of warning

lawyers about improper tactics, although there are still cases extolling the zealous advocate’s role.13

12 See: People v. Garcia, 17 Misc.3d 1106(A), 851 N.Y.S.2d 60, 2007 WL 2871008, (Unreported Disposition,

N.Y.Just.Ct., September 24, 2007), “When should an attorney disqualify or recuse himself or herself in a criminal case? The Court finds that an attorney should decline representation or ask to be relieved when the appearance of a conflict rises to the level where the lawyer cannot be a zealous advocate due to the nature of the conflict, and the defendant's rights are being compromised. * * * * Whether they are before the Supreme Court of the United States or this humble Village Court, or whether they are representing the wealthy or the poor, the duty of attorneys remains unchanged, and that is to be zealous advocates for their clients within the bounds of the law”; Wahid v. Long Island R. Co., 15 Misc.3d 1120(A), 839 N.Y.S.2d 438, 2007 WL 1119905, 2007 N.Y. Slip Op. 50777(U), Unreported Disposition, N.Y.Sup., April 16, 2007(No. 25132/2004.), “In all cases, attorneys, whether they work as in-house counsel or as outside legal counsel, must be aware that they serve not only as zealous advocates, but also as officers of the Court subject to discovery obligations, the CPLR, and Disciplinary Rules of the Code of Professional Responsibility.”; People v. Henriquez, 3 N.Y.3d 210, 818 N.E.2d 1125, 785 N.Y.S.2d 384, 2004 WL 2339594, 2004 N.Y. Slip Op. 07407, , N.Y., October 19, 2004, “In this case, the trial court was confronted with a defendant attempting to abuse the process. * * * It is far preferable for an accused, bent on controlling every aspect of the defense case and undermining counsel's ability to act as a zealous advocate, to accept self-representation and proceed pro se with assigned counsel serving not as an attorney but as a standby legal advisor.”; Then as well as now, however, it appears that the defense's perception of the trial evidence is as was seen and heard by a zealous advocate. That view is noble and faithful to the highest traditions of the profession.”; People v. Dean, Not Reported in N.Y.S.2d, 2003 WL 21276355, 2003 N.Y. Slip Op. 50933: “Then as well as now, however, it appears that the defense's perception of the trial evidence is as was seen and heard by a zealous advocate. That view is noble and faithful to the highest traditions of the profession.”; People v. Toms, 191 Misc.2d 585, 743 N.Y.S.2d 690, 2002 WL 1315434, 2002 N.Y. Slip Op. 22565, , N.Y.Co.Ct., May 24, 2002, “What ought to be of greater concern is the appearance and, indeed the potential, that attorneys may be less than zealous advocates because they can-not afford to invest the time to do so in cases that are complex and/or protracted because of an inability to obtain fair compensation for the additional work needed in those cases which present extraordinary circumstances. Attorneys, even the most dedicated ones, are human. Faced with harsh economic realities of being reimbursed at rates which barely cover their office overhead, they will be forced to avoid cases that are complex and/or protracted because of the diminishing economic return for their investment of the additional hours it takes to address such cases at the expense of the balance of their practices.” (quoting with approval from People v. Brisman, 173 Misc.2d 573, 588, 661 N.Y.S.2d 422 [Sup. Ct. New York County 1996]); People v. Deblinger, 179 Misc.2d 35, 683 N.Y.S.2d 814, 1998 WL 892130, 1998 N.Y. Slip Op. 98680, , N.Y.Sup., November 06, 1998, “Attorneys are required by the rules of ethics to be zealous advocates for their clients' causes. Even if counsel's objections strike at the heart of the court's conduct, there is no excuse for failing to register a timely protest.”; People v. Collins, 173 Misc.2d 350, 660 N.Y.S.2d 946, 1997 WL 405463, 1997 N.Y. Slip Op. 97367, , N.Y.Sup., May 30, 1997, “Unlike a defense attorney, whose duty is zealous advocacy on behalf of his client, a prosecutor is a quasi-judicial official. His conduct must meet a higher standard because he has the resources and power of the state to utilize against the accused.”; State v. Brisman, 173 Misc.2d 573, 661 N.Y.S.2d 422, 1996 WL 905940, 1997 N.Y. Slip Op. 97369, , N.Y.Sup., October 09, 1996, “Several competing public policy concerns and issues are implicated in the consideration of the issue-at-bar, to wit: * * * the assertion that an appearance of impropriety may be created in situations in which attorneys are perceived as less zealous advocates for their clients to avoid alienating a judge with the power to increase fees; and 6) the allegation that the fact that some judges * * *”; 13

See: In re Heller, 9 A.D.3d 221, 780 N.Y.S.2d 314, 2004 WL 1415461, 2004 N.Y. Slip Op. 05529, , N.Y.A.D. 1

Dept., June 24, 2004, “In our view, however, it strains credulity that respondent, the self-proclaimed “zealous advocate”, would sign a critical affidavit in a serious matter without thoroughly vetting it. In any event, in signing an affidavit, an affiant swears to the truth of the statements therein.”; B.A. v. L.A., 196 Misc.2d 86, 761 N.Y.S.2d 805, 2003 WL 21246118, 2003 N.Y. Slip Op. 23579, , N.Y.Fam.Ct., May 09, 2003, “Since there exists a reasonable possibility that the law guardian can take an adverse position to that of one party in any visitation or custody case in which they represent the child, to describe the law guardian's role as “a neutral” discounts their role as a zealous advocate for the child participating fully in both pre-trial and trial procedures. * * * A trial court

Cases from Rhode Island, Kentucky, Iowa and Florida also use “zealous advocate” in ways that

have both positive and negative connotations.14

Some of the cases criticize lawyers for failing

cannot substitute its judgement [sic] for that of a defense attorney, who, within the bounds of ethics and law, must be a zealous advocate for his client.”; Adams v. Clark, 224 A.D. 336, 230 N.Y.S. 684, , N.Y.A.D. 4 Dept., September 26, 1928, “We are aware that in a closely contested trial the heat of conflict sometimes partially overcomes zealous advocates, and that oftentimes counsel must be allowed some latitude in their efforts to excel in deportment. But the claimed infractions in the instant case upon the rule that counsel must be fair and temperate may have had an improper influence upon the jury. And, while we are not disposed to base our reversal directly upon irregular conduct of counsel, we feel impelled to express our disapproval.”

Cf: O'Malley v. Macejka, 44 N.Y.2d 530, 378 N.E.2d 88, 406 N.Y.S.2d 725, , N.Y., June 06, 1978, “For a

legislator properly may act as the zealous advocate of the most partisan of causes. Indeed,**90 legislators often seek election on the basis of their support of particular programs or groups with whose special interests they may openly align themselves.”; and Lewis v. Few, 5 Johns. 1, 1809 WL 1233, , N.Y.Sup., 1809, “The defendant was a man of talents, possessed of great political information, a conspicuous and zealous advocate for liberty, and well instructed in all the rights and privileges of British freedom; yet we do not find a hint of any such privilege of an elector, as that now claimed by the present defendant.” 14

For cases from Rhode Island, see: See: McGinty v. Pawtucket Mutual Ins. Co., 899 A.2d 504, 508 (R.I. 2006): “the attorney is duty-bound to serve as zealous advocate for his client. . . .”; and Carlson v. Gillie, 1997 WL 839902 (R.I. Super. 1997), unreported: “The ethical attack mounted by plaintiff's counsel is a tactical ploy of an overly-zealous advocate who cannot accept the jury's verdict and who is willing to do anything (including attacking the Court and the system) to try and overturn it. I will not be a part of this ploy.”

There are only a few cases from Kentucky. Adams v. Lexington-Fayette Urban County Government, (Cite as: 2009 WL 350600 (Ky.App.), reh. den. 5/28/09): “However, having reviewed the record, we find no reason to believe that [the attorney] was dishonest with the court concerning his participation in the investigation. He was a zealous advocate for his client. Again, we emphasize that disqualification is a drastic action taken only when absolutely necessary . . . .”; Woodall v. Commonwealth of Kentucky, (not reported in S.W.3d, 2005 WL 3131603 (Ky., reh. den. 2/232/06) “The record reflects that defense counsel acted reasonably, and advocated Appellant's plight as appropriate under the circumstances. Furthermore, even if defense counsel had been a more zealous advocate of this evidence . . . .” and Forean v. Bowen, 7 T.B.Mon. 409, 23 Ky. 409, 1828 WL 1287 (Ky. 1828) “The others are so obviously and palpably against Forean, that even to notice them would give them a consequence which the most zealous advocate can not be presumed to suppose them entitled to.”

There appear to be only seven reported cases from Iowa courts that use the term “zealous advocate,” and only one of them appears to use the term in a purely favorable fashion: Iowa Supreme Court Attorney Disciplinary Bd. v. Rauch, 746 N.W.2d 262 (Iowa, 2008),

“Our legal system depends on zealous advocates who are diligent and honest. Also see Comm. on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990), (“Fundamental honesty is the base line

and mandatory requirement to serve in the legal profession.”). Rauch possesses neither of these qualities.”

Other Iowa cases merely use it in passing, refer to law review articles with this name, or mention it as defense asserted in a disciplinary matter. See: State v. Boggs, 741 N.W.2d 492 (Iowa,2007); Hartnell v. State, 695 N.W.2d 505 (Table) (Iowa App.,2005), State v. Williams, 2000 WL 1157832 (Iowa App.,2000); Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Zimmermann, 522 N.W.2d 619 (Iowa,1994); State v. Fryer, 226 N.W.2d 36 (Iowa 1975); and Koehler v. Hill, 60 Iowa 543, 14 N.W. 738,(Iowa 1883).

Cases from Florida courts, include; State v. Green, 395 So.2d 532, 538 (Fl. S.Ct. 3/5/1981), “ ‘But not even the most zealous advocates suggest coverage of all trials in all courts.’ ”; Whipple v. State, 431 So.2d 1011, 1015 (Fl. 2

nd DCA 5/13/1983), “The fact remains, however, that most of the cases cited by zealous advocates as being in

direct conflict with our PCA decisions are simply not close enough to write about.”; Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fl. S.Ct. 8/15/1985): “However, we will be the first to agree that our judicially neutral review of so many death cases, many with records running to the thousands of pages, is no substitute for the careful, partisan scrutiny of a zealous advocate.”; accord: Fitzpatrick v. Wainwright, 490 So.2d 938, 940 (Fl. S.Ct. 6/26/1986) and Hamilton v. State, 573 So.2d 109, 111 (Fla. 4

th DCA 1/4/1991); Key Largo Restaurant v. T.H. Old

Town Associates, Ltd., 759 So.2d 690, 692 (Fl. 5th DCA 4/14/2000), involving a motion to disqualify an attorney who received confidences that a “zealous advocate” would likely use; Yang Enterprises, Inc. v. Georgalis, 988 So.2d 1180, 1183 (Fl 1

st DCT 8/7/08), citing the dissent in Key Largo and finding that a writ for certiorari was filed

to recognize that zealous advocacy does not excuse improper or sanctionable conduct.15

Similar comments are found in some state Bar’s ethics opinions.

16

as a “litigation tactic” which “caused the other party prejudice); National Union Fire Ins. Co. of Pittsburgh, Penn. V. KPMG Peat Marwick, 742 So.2d 328, 331 (Fl. 3

rd DCA 7/28/1999), “. . . an attorney cannot be a zealous advocate

for his client if he reveals confidential information about the client.”’ Haliburton v. Singletary, 691 So.2d 466, 472 (Fl. S.Ct. 1/9/1997), “Haliburton first claims that because appellate counsel failed to act as a zealous advocate, he was deprived of his right to the effective assistance of counsel. We disagree with his assertion . . . .”; Olive v. Maas, 811 So.2d 644, 654 (Fl. S.Ct. 2/14/2002); “Olive maintains that adhering to these provisions would cause him to violate the Rules of Professional Conduct. Specifically, Olive asserts that these ‘restrictions’ would prohibit him from acting as a zealous advocate by, for example, preventing him from asserting a claim based on a change in the law applicable retroactively, or arguing for the expansion or modification of existing law. This contention lacks merit because the rules themselves prohibit a lawyer from asserting frivolous or successive claims.” Foster v. State, 929 So.2d 524, 535 (Fl. S.Ct. 3/23/2006), “ ‘What is abundantly clear is that every member of this group of mostly African-Americans is convinced that neither Mr. Smallwood nor Mr. Kelley has any racial bias whatsoever, and that both attorneys have demonstrated themselves to be zealous advocates for clients of all races. The Court finds no reason to conclude otherwise.’ ” 15

See, e.g. The Florida Bar v. Morgan, 938 So.2d 496, 500 (Fl. S.Ct. 6/22/2006), in which a lawyer was given a 91-day rehabilitative suspension for a colloquy with the trial judge. In sustaining the suspension, the Florida Supreme Court stated: “Like the attorney in Wasserman, Morgan admits his conduct was inappropriate, but seems to believe it is his obligation as a zealous advocate to take a judge ‘to task’ if he comes to believe he or his client is being treated unfairly.”

Also see De Vaux v. Westwood Baptist Church, 953 So.2d 677, 684-685 (Fl. 1st DCA 4/4/2007) (footnotes

omitted): “This case is not an instance of a court chilling creative lawyering. See generally, Monroe H. Freedman & Abbe Smith, Understanding Lawyer's Ethics 97-8 (Matthew Bender 2004). Certainly, lawyers are expected to be zealous advocates for the interests of their clients. They are also officers of the court, however, even though these two roles may sometimes appear to be in conflict. See generally, Eugene R. Gaetke, Lawyers as Officers of the Court, 42 Vand. L.Rev. 39, 40 (1989). As an officer of the court, among other things, a lawyer must not file frivolous claims, rule 4-3.1, Rules Regulating The Florida Bar, or unnecessarily burden third parties, rule 4-4.4. See generally, David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L.Rev. 799, 815 (1992). Said another way, an attorney has a duty to refrain from advocacy, such as filing frivolous claims, which undermines or interferes with the functioning of the judicial system. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1546 (11th Cir.1993)(“An attorney's duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. This concept is as old as common law jurisprudence itself.”). A lawyer who files a frivolous lawsuit or a meritless appeal on the instructions of the client without informing the client of the weakness of the claim is violating both a duty to serve the client's interests and a duty to the judicial system. See generally, Mullins v. Kennelly, 847 So.2d 1151, 1154 (Fla. 5th DCA 2003).”

Further, see Rosenberg v. Gaballa 2009 WL 129611 (Fl. App. 4 Dist. 1/21/09): “This Court did not find credible Mr. Rosenberg’s testimony that he was acting merely as a zealous advocate for his clients.”

The Nevada Supreme Court has used the phrase with approval when it wrote: “However much it may ‘infuriate the jury,’ a properly zealous advocate must do all he can to defend his client.” Brown v. State, 110 Nev. 846, 877 P.2d 1071,1073 (Nev. Jul 26, 1994). In the very next sentence, the Brown court wrote: “As one eminent defender wrote, ‘[c]ross examination is the only scalpel that can enter the hidden recesses of a man's mind and root out a fraudulent resolve . . . . [It] is still the best means of coping with deception, of dragging the truth out of a reluctant witness, and assuring the triumph of justice over venality.’ Louis Nizer, My Life in Court 366 (1961).” 16

See, e.g., the following Kentucky Bar Association’s ethics opinions: E-425 (June 2005) (“Some commentators have suggested that the lawyer’s participation in the collaborative process may be inconsistent with the duty of zealous representation. This so-called “duty” has its roots in Canon 7 of the former Code of Professional Responsibility, and was most often associated with the tough lawyer involved in litigation (the hired gun). Today’s Rules of Professional Conduct, adopted in Kentucky in 1990, no longer impose a duty of zeal, but rather impose duties of competence and diligence.”); E-331 (Sept. 1988) (“The insured is entitled to competent and zealous representation, . . .”); E378 (March, 1995) (“We have previously held that the insured is entitled to competent and zealous representation that is not adversely affected by prohibited conflicts of interest. KBA E-331.”); E-272 (July 1983) (“pressure . . . which would prevent the attorney from zealously and independently representing the client (Canon 7 and 5); E-279 (January 1984) (“Canons 6 and 7 of the Code of Professional Responsibility require a

In contrast, the comments to §16 of the ALI’s Restatement of the Law Governing Lawyers (“ALI”) warns

that “zealous advocacy” is not a synonym for hardball tactics. The Comment states that the “term sets forth a

traditional aspiration, but it should not be misunderstood to suggest that lawyers are legally required to function

with a certain emotion or style of litigating, negotiating, or counseling.”17

While the label of “zealous advocate” gives some solace to forceful assertion of a client’s position, it also

gives others concern about hard-ball tactics. Thus, some assert that a “zealous advocate” is merely a “neutral

partisan,”18

a term that suggests moral relativism. A “neutral partisan” is one who “passes no judgments,” and

whose “zeal on behalf of the client is unmitigated and noncontingent.”19

The revisions to the Model Rules maintain

the view that a lawyer’s personal morality is not impugned because of a client’s activities. See the Model Rule

1.2(b): “A lawyer's representation of a client . . . does not constitute an endorsement of the client's political,

economic, social or moral views or activities.”

It is often said that, by serving a client’s interests, a lawyer furthers society’s goals, in contrast to an

accountant auditing a publicly traded company; in the latter instance, an accountant’s duty may run primarily to

the public and only secondarily to the client. As the Securities and Exchange Commission opined more than 40

years ago: “Though owing a public responsibility, an attorney in acting as the client's advisor, defender, advocate

and confidant enters into a personal relationship in which his principal concern is with the interests and rights of

his client. The requirement of the [Exchange] Act of certification by an independent accountant, on the other hand,

is intended to secure for the benefit of public investors the detached objectivity of a disinterested person.”20

Whether we prefer to be called “zealous advocates” or “neutral partisans,” this standard view of a lawyer’s

role has been described as “both amoral and highly ethical. It is amoral in the sense that, however morally

questionable the clients' ends and however zealous the lawyer is in their pursuit, the lawyer is thought to bear no

moral responsibility for either the content of the ends or their achievement.”21

While lawyers look askance at such

lawyer to exercise competence in the zealous representation of his client.”) E-159 (Jan. 1977) (When lawyers who share offices represent adverse interests, there must always be some temptation to moderate zeal on behalf of the client in the interest of harmony in the office. . . . However, a large part of the lay public believes that in these circumstances, one or both of the clients will get representation that is less than zealous.”) 17

ALI §16, Comment (d). 18

Dolovich, supra, (her article fn7), traces the origin of the term to William Simon in his article “The Ideology of

Advocacy: Procedural Justice and Professional Ethics,” 1978 Wis. L. Rev. 29. For more on ethicist Simon’s views, see William H. Simon, THE PRACTICE OF JUSTICE: A THEORY OF LAWYER’S ETHICS (1998). 19

Sharon Dolovich, “Ethical Lawyering and the Possibility of Integrity,” 70 Fordham L.Rev. 1629 (2002). 20

In re American Fin. Co., 40 S.E.C. 1043, 1049 (1962), quoted by Dolovich, supra. 21

Dolovich at 1633.

criticism, claiming not only that an adversarial system of justice is the most just but also that, without the ability to

represent unpopular interests, constitutional rights cannot be fully protected, others ignore the higher aims of

protecting the constitutional and statutory rights of all and aim criticism at the profession, claiming that, “[f]or most

lawyers, most of the time, pursuing the interests of one's clients is an attractive and satisfying way to live in part

just because the moral world of the lawyer is a simpler, less complicated, and less ambiguous world than the

moral world of ordinary life.”22

3. ARE THE “RULES OF ETHICS” REALLY ETHICAL?

“Ethics” is the term that lawyers and professors commonly use when they discuss the ABA’s Rules of

Professional Responsibility and its predecessor, the Code of Professional Conduct. These 1983 Model Rules and

the current Model Rules, however, do not use the word “ethics” at all, other than in the Scope section to indicate

that the rules “simply provide a framework for the ethical practice of law.” The question is whether the Rules

actually do this.

One critic of the lack of ethical emphasis in the Model Rules uses the pejorative term “amoral

technicians”23

to describe lawyers, claiming that the Model Rules provide “a highly simplified moral universe which

offers easy guideposts for action that allow lawyers to sidestep wrenching ethical dilemmas, and with the luxury of

acting on behalf of clients free from the risk of moral censure.”24

Another has commented that a lawyer “sees his

more degrading activities as licensed by a fundamental amorality lying beneath conventional morality.”25

The three main federal rules and statutes that regulate sanctionable conduct (FRCP 11, FRAP 38, and 28

U.S.C. §1927) do not use the term “ethics” either.

The problem is that there is an unresolved tension between two concepts: (a) the need to represent a

client fully and zealously and to maintain client confidences, and (b) the expectation of some members of the

public and press, and of some federal regulators, that lawyers, as officers of the Court, should reveal matters that

can cause losses to others. These two concepts are inherently irreconcilable; you cannot fully protect one without

eviscerating the other. The greater the protection one gives to client confidences, the less “truth” the lawyer is

able to reveal, for any revelation of a client confidence is a breach of that obligation. On the other hand, the more

22Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues,” 5 Hum. Rts. 1, 9 (1975), quoted with

approval in Dolovich, fn. 33. 23

Id. at 1638. 24

Id., describing the views of Deborah L. Rhode in her book, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL

PROFESSION, 2000. 25

Nancy Lewis, supra at 813, quoting William H. Simon.

one seeks to have lawyers disclose information that may prevent losses to non-clients, the less protection a client

has for the confidences reposed in and disclosed to the lawyer.

This tension is apparent from what some have said about a lawyer’s role.

"To mislead an opponent about one's true settling point is the essence of negotiation."

26

“I still believe that most lawyers are wise enough to know that their most precious assets is their

professional reputation.”27

“Just as the orderly and systematic slaughter which we call war is thought perfectly right under

certain circumstances, though painful and revolting: so in the word-contests of the law-courts, the

lawyer is commonly held to be justified in untruthfulness within strict rules and limits: for an

advocate is thought to be over-scrupulous who refuses to say what he knows to be false, if he is

instructed to say it.”28

“We might exercise our supervisory powers if we thought there were an ethical violation

involved.”29

4. MULTIJURISDICTIONAL PRACTICE OVERVIEW

There are three interrelated concepts that must be addressed whenever the issue of multijurisdictional

practice arises.30

First, most states, by statute or court rules, regulate or define the “unauthorized” practice of law and

provide sanctions for those who engage in the unauthorized practice.31

Sometimes these sanctions are solely

26 White, MacElvelly "Ethical Limitations on Lying in Negotiations," 1980 American Bar Foundation RES.J. 926,

928. 27

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 413, 110 S.Ct. 2447, 2464-65 (1990), Justice Stevens,

concurring in part and dissenting in part. 28

H. Sidgwick, The Methods of Ethics, 7th Ed. (London: Macmillan & Co., 1907). 29

U.S. Bautista, 23 F.3d 726, 732 (2nd

Cir. 1994), cert. den. 513 U.S. 862 (1994). The alleged breach was a prosecutor talking to a witness during an adjournment; the Court find no problem with this since the issue was elicited by the prosecutor on re-direct and the witness was subjected to cross-examination on this topic. The Court, however, did not exercise supervisory powers for a breach of a potential professional violation. 30

For a sampling of the many articles and texts that can be consulted on the unauthorized practice issues, see: Catherine J. Lanctot, “Does LegalZoom Have First Amendment Rights?: Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law,” 20 Temple Political & Civil Rights Law Review 255 (Spring 2011); Paul A. Stewart Christopher M. DiLeo Wendy K. Peterson, “Are You Engaging In The Unauthorized Practice Of Law In Other States?” 53 Orange County Lawyer 32 (2011); Bryce Benjet, “Multijurisdictional Practice, Unregulated Advertising, And The Unauthorized Practice,” 52 The Advocate (Texas) 47 (2010); John Levin, “Illinois Needs To Re-Examine Its Rules Prohibiting The Unauthorized Practice Of Law, 23 Chicago Bar Association Record 61 (2009); Jason Green, “Websites May Create Unauthorized Practice Questions,” 9 Allegheny County Bar Lawyer’s Journal 6 (2007); Susan D. Hoppock, “Enforcing Unauthorized Practice Of Law Prohibitions: The Emergence Of The Private Cause Of Action And Its Impact On Effective Enforcement,” 20 Georgetown Journal of Legal ethics 719 (2007); Marie Connolly, “How the Unauthorized Practice of Law Ruling Affects Your Law Firm,” 23 Montana Lawyer (2007); Thomas D. Zilavy, Andrew J. Chevrez, “The Unauthorized Practice Of Law: Court Tells Profession, Show Us The Harm,” 78 Wisconsin Lawyer 8 (2005); and Celeste M. Hammond, “The Unauthorized Practice Of Law: How Transactional Lawyers Can Avoid It,” 19 Probate and Property (2005).

civil; other times they are criminal penalties, and sometimes they are both. Yet, there does not exist any uniform

definition of “the practice of law.”

Second, Model Rule 5.5 deals with both the unauthorized practice of law and multijurisdictional practice.

While this Rule provides “safe harbors” for those engaged in litigation, mediation and arbitration across state

lines, the Rule is far less clear on how transactional lawyers may avoid becoming ensnared in multijurisdictional

practice issues.

The American Law Institute’s Restatement of the Law Governing Lawyers (§§3 and 4) does not provide

any additional guidance for real estate lawyers in multi-state transactions; in fact, the ALI Restatement notes that

transactional lawyers may be at far more at risk than litigators.32

The ABA’s “Ethics 20-20” Commission33

proposed, and the ABA House of Delegates adopted34

changes

to Rule 5.5 (dealing with multijurisdictional practice). The amendments to Rule 5.5 deal primarily with

“outsourcing” of certain services. The changes to Model Rule 5.5 attempt to provide a “safe harbor” for multi-state

and international transactional lawyers who rely on advice of local lawyers.35

Many states, however, have not yet

adopted these changes, and the former version of Rule 5.5 was primarily a “safe harbor” for litigators.

31 For example, an article in Wisconsin asked the Supreme Court to clearly establish the limitations and definitions

of the unauthorized practice by rule. See: Thomas D. Zilavy, Andrew J. Chevrez, “The Unauthorized Practice Of Law: Court Tells Profession, Show Us The Harm,” 78 Wisconsin Lawyer 8 (2005). The article stated:

Most states, including Wisconsin, permit only licensed lawyers to practice law. Licensure and regulation by the Wisconsin Supreme Court are primarily intended to assure consumers that lawyers admitted to practice in our state possess a minimum level of ongoing competency and to provide a potential remedy should a consumer be harmed by a lawyer's unethical or incompetent behavior.

However, the kind of activity that constitutes the practice of law and is reserved for licensed lawyers is not spelled out clearly by statute or court rule. Until recently, in many states including Wisconsin, the kinds of activities that constitute the practice of law often were defined on a case-by-case basis in the course of litigation -- a disjointed approach that led to more confusion. While other states have moved to define these kinds of activities, Wisconsin continues to rely on a case-by-case approach. Charlatans who inflict harm on the public either through their lack of training in the law or intent to defraud have capitalized on these ambiguities.

Although many states including Wisconsin have criminalized UPL, district attorneys often are reluctant to prosecute wrongdoers. Some states have concluded that to properly and effectively protect the public interest regarding UPL, it is necessary to create a comprehensive and clear definition of the practice of law and to provide for noncriminal methods of enforcement. Several states have already accomplished this by supreme court rule.

32 See ALI Restatement of the Law Governing Lawyers, §3, Comment (e), recognizes that “there is much to be

said for a rule permitting a lawyer to practice in any state, except for litigation matters or for the purpose of establishing a permanent in-state branch office.” Yet, the Comment also recognizes that this is not within the scope of the ABA Model Rule or state court adoptions of their own versions of the Model Rules. The Comment goes on to note that transactional lawyers face problems that litigators do not have to address, because “there is no equivalent of temporary admission pro hac vice for [transactional matters] as there is in litigation.” 33

See: http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html 34

The adoption occurred in February, 2013. 35

The February 2013 change to Rule 5.5 amended 5.5(d). The complete text of Rule 5.5, including the changes, are shown below:

http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html

Third, Model Rule 8.5 deals with the choice of law in disciplinary matters.36

If a lawyer is not licensed to

practice in a state where the conduct takes place (even if the lawyer believes that his or her own state’s rules

cover these activities), the lawyer’s actions may be subject to regulation in that state.37

Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that :

(1) are provided to the lawyer’s employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on concern the law of this or another jurisdiction or of the United States, such advice shall be based upon the advice of a undertaken in connection with a U.S. lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.

(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.

36 ABA Model Rule 8.5 provides:

Rule 8.5 Disciplinary Authority; Choice Of Law

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

The ABA 20/20 Commission’s proposed amendments to Rule 8.5 were adopted in February 2013 by the

ABA House of Delegates. These amendments, however, did not alter the “black letter” text of Rule 8.5; they

merely amended one portion of the comments.38

The amended comment appears to permit a lawyer and client to

agree to which state’s disciplinary rules apply in multi-state transactions. Even if states adopt this amendment,

however, it is unclear what impact it will have since the “black letter” provisions of Rule 8.5 were not altered.

The interrelationship of a state’s unauthorized practice rules, Model Rule 5.5, and Model Rule 8.5, form

potential traps for any leasing lawyer who is licensed in State A, whose client’s main office is in State B, whose

client’s state of formation is in State C, and whose leasing issues for which the lawyer is consulted are in State D.

5. A QUICK LOOK AT 5 STATES’S VERSIONS OF RULE 1.6, 4.1, 5.5, and 8.5: OHIO, KENTUCKY, INDIANA, MICHIGAN, PENNSYLVANIA VERSIONS OF RULES 1.6, 4.1, 5.5, and 8.5.

The issues arising from ABA Model Rules 1.6

39 (confidentiality) and 4.1

40 (dealing with non-tribunal

negotiations) and Rules 5.541

and 8.542

(dealing with multijurisdictional practice issues) all interrelate. Differences

(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

37

As Comment (2) to Model Rule 8.5 notes (emphasis supplied): “A lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer’s conduct may involve significant contacts with more than one jurisdiction.”

38

The 20/20 Commission’s recommendation, adopted by the ABA’s House of Delegates in February 2013, added a sentence to Comment 5. The new sentence reads:

“With respect to conflicts of interest, in determining a lawyer's reasonable belief under paragraph (b)(2), a written agreement between the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client's informed consent confirmed in the agreement.”

39

ABA Model Rule 1.6 states:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

in state formulations of these rules, however, can lead to traps for lawyers whose deals take them to different

states. While it is beyond the scope of this paper to look at all the differences or similarities in every state, an

overview of some of the Rules in just five states (Ohio, Kentucky, Indiana, Michigan, and Pennsylvania) may

illustrate some of the issues involved.

a. OHIO

Ohio has not adopted verbatim either Model Rule 4.143

(dealing with transactions with third parties) or

Model Rule 1.644

(dealing with client confidentiality, and which is referenced in Model Rule 4.1). Unlike ABA

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

40

ABA Model Rule 4.1 provides:

Transactions With Persons Other Than Clients

Rule 4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

41

Quoted at fn 35, above.

42

Quoted at fn 36 above.

43

Ohio Rule 4.1 (“Truthfulness in Statements to Others”) states:

In the course of representing a client a lawyer shall not knowingly do either of the following:

(a) make a false statement of material fact or law to a third person;

(b) fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client.

44

Ohio Rule 1.6 (“Confidentiality of Information”) states:

(a) A lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by division (b) or required by division (c) of this rule.

Model Rule 4.1, Ohio does not allow client confidentiality to supersede a lawyer’s obligation to not remain silent

concerning a material fact when doing so is “necessary to avoid assisting a criminal or fraudulent act by a client.”

Ohio’s Rules 5.545

and 8.5 generally track the ABA’s pre-2013 version of the Model Rules.

b. KENTUCKY

Kentucky’s Rule 4.1

46 differs from the Model Rule, as does its version of Rules 1.6

47 and 5.5.

48 Under

Kentucky Rule 4.1, unlike under Model Rule 4.1, a lawyer has an affirmative duty to “take reasonable remedial

(b) A lawyer may reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary for any of the following purposes:


(2) to prevent the commission of a crime by the client or other person;

(3) to mitigate substantial injury to the financial interests or property of another that has resulted from the client’s commission of an illegal or fraudulent act, in furtherance of which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including any disciplinary matter, concerning the lawyer’s representation of the client;

(6) to comply with other law or a court order.

(c) A lawyer shall reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary to comply with Rule 3.3 or 4.1.

45

The Comments to Ohio’s Rule 5.5 explains its differences from the Model Rule:

Rule 5.5(d)(1) substitutes a reference to the corporate registration requirement of Gov. Bar R. VI, Section 3 for the more general language used in the Model Rule. Comment [16] is stricken and Comment [17] is modified to conform to the change in division (d)(1).

Comment [4] is modified to warn lawyers that advertising or solicitation of Ohio residents may be considered a “systematic and continuous” presence, as that term is used in division (b).

Comments [9] and [11] are modified effective January 1, 2011, to recognize Gov. Bar R. XII, which also became effective on that date. Gov. Bar R. XII governs pro hac vice registration and defines “tribunal” for purposes of such registrations.

46

Kentucky’s equivalent of Rule 4.1 reads:

SCR 3.130(4.1) Truthfulness in statements to others

In the course of representing a client a lawyer:

(a) shall not knowingly make a false statement of material fact or law to a third person; and

(b) if a false statement of material fact or law has been made, shall take reasonable remedial measures to avoid assisting a fraudulent or criminal act by a client including, if necessary, disclosure of a material fact, unless prohibited by Rule 1.6

. 47

Kentucky’s equivalent of Rule 1.6 reads:

SCR 3.130(1.6) Confidentiality of information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client

gives informed consent, the disclosure is impliedly authorized in order to carry out the

representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the

measures to avoid assisting a fraudulent or criminal act by a client including, if necessary, disclosure of a material

lawyer reasonably believes necessary:


(2) to secure legal advice about the lawyer's compliance with these Rules;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including a disciplinary proceeding, concerning the lawyer's representation of the client; or

(4) to comply with other law or a court order

48

The Kentucky version of Rule 5.5 states:

SCR 3.130(5.5) Unauthorized practice of law; multijurisdictional practice of law



(1) except as authorized by these Rules or other law, establish or maintain an office or other presence in this jurisdiction for the practice of law; or


(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction if

such services:

(1) comply with SCR 3.030(2), or they do not require compliance with SCR 3.030(2) due to federal statute, rule or regulation; or

(2) are in, or reasonably related to, a pending or potential proceeding before a tribunal or alternative dispute resolution proceeding in another jurisdiction for a client, or prospective client pursuant to Rule 1.18, if the services arise out of, or are reasonably related to, the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission pursuant to SCR 3.030(2); or

(3) are not within paragraph (c) (2) and arise out of, or are reasonably related to, the representation of the lawyer’s client in the jurisdiction in which the lawyer is admitted.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from

practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) comply with SCR 2.111 regarding a Limited Certificate of Admission to Practice Law in this jurisdiction; or

(2) are services that the lawyer is authorized to provide by federal law or other law of this

jurisdiction.

(e) A lawyer authorized to provide legal services under this Rule shall be subject to the Kentucky Rules of Professional Conduct and shall comply with SCR 3.030(2) or, if such legal services do not require compliance with that Rule, the lawyer must actively participate in, and assume responsibility for, the representation of the client.

Note that SCR 3.030(2), referenced in SCR 1.130(c), above, states:

(2) A person admitted to practice in another state, but not in this state, shall be permitted to practice a case in this state only if that attorney subjects himself or herself to the jurisdiction and rules of the Supreme Court of Kentucky, pays a one time per case fee of two hundred seventy dollars ($270.00) to the Kentucky Bar Association and engages a member of the association as co-counsel, whose presence shall be necessary at all trials and at other times when required by the court. No motion for permission to practice in any state court in this jurisdiction shall be granted without submission to the admitting court of a certification from the Kentucky Bar Association of receipt of this fee.

fact, unless prohibited by Rule 1.6” On the other hand, Kentucky’s version of Rule 8.5 appears to track the pre-

2013 version of the Model Rule.

c. INDIANA

Indiana’s version of Rule 1.6 appears almost identical to the Model Rule except that Indiana appears not

to have adopted 1.6(b)(7), dealing with laterals moving between firms and revealing potential conflicts.

Indiana’s version of Rule 4.1 appears to be identical to the Model Rule, and its version of Rule 5.5 tracks

the pre-2013 version of the Model Rules; however, its version of Rule 8.5 does not include the final sentence in

Model Rule 8.5(b)(2), which refers to a lawyer’s “reasonable belief.”49

d. MICHIGAN

Michigan’s Rule 1.650

differs from the Model Rule, as does its version of Rule 4.1. In fact, under

Michigan’s 4.1,51

a lawyer may remain silent about anything, including crime and frauds, because Michigan did

not adopt Model Rule 4.1(b).

49 This final sentence of Model Rule 8.5 reads “A lawyer shall not be subject to discipline if the lawyer’s conduct

conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.” For the full text of Model Rule 8.5, see footnote 36, above.

50

Michigan’s version of Rule 1.6 reads:

(a) "Confidence" refers to information protected by the client-lawyer privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

(1) reveal a confidence or secret of a client;

(2) use a confidence or secret of a client to the disadvantage of the client; or

(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

(c) A lawyer may reveal:

(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;

(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;

(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and

(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.

(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee.

51

Michigan’s version of Rule 4.1 states:

Rule: 4.1 Truthfulness in Statements to Others

On the other hand, Michigan’s versions of Rule 5.5 and 8.5 appear to track the Model Rules.

e. PENNSYLVANIA

Pennsylvania’s Rule 1.652

differs from the Model Rule; it both adds provisions not in the Model Rule and

omits some that are in the Model Rule.

Pennsylvania’s Rule 4.1 generally tracks the Model Rule, but it substitutes “aiding and abetting” for

“assisting” in reference to criminal or fraudulent acts.53

Pennsylvania’s Rule 5.554

generally tracks the pre-2013 version of the Model Rule but adds specific

reference to another Pennsylvania rule that deals with limited licenses for in-house counsel.

In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

52

Pennsylvania’s version of Rule 1.6 reads:

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.

(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:


(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another;

(3) to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used; or

(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(5) to secure legal advice about the lawyer’s compliance with these Rules; or

(6) to effectuate the sale of a law practice consistent with Rule 1.17.

(d) The duty not to reveal information relating to representation of a client continues after the client- lawyer relationship has terminated.

53

Pennsylvania’s version of Rule 4.1 reads:

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

54

Pennsylvania’s version of Rule 5.5 states:

Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice Of Law.


Despite these deviations from the Model Rules in Rules 1.6, 4.1, and 5.5, Pennsylvania’s version of Rule 8.5 appears to track the Model Rule.

6. Current Rule 5.5 and the Issues for Transactional Lawyers

In light of the state variations in the Model Rules, and considering the fact that many transactional

lawyers’ practices involve multistate matters or issues arising in states other than those in which the lawyer is

licensed to practice, traps may exist for the unwary transactional lawyer.

ABA Model Rule 5.5 begins with the general blanket prohibition that prevents a lawyer from practicing law

in a jurisdiction in which the lawyer is not admitted to practice. The remainder of Rule 5.5 contains exception to

this general prohibition.

Litigators engaged in multijurisdictional practice have an easy way of complying with Model Rule 5.5.55

They can handle legal matters in states in which they are not licensed to practice if (a) the matter that they are


(1) except as authorized by these Rules, Pa.B.A.R. 302 or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or


(c) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:



(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may, subject to the requirements of Pa.B.A.R. 302, provide legal services in this jurisdiction that:

(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission, except that this paragraph (d) does not authorize a lawyer who is not admitted in this jurisdiction and who is employed by the Commonwealth, any of its political subdivisions or any of their organizational affiliates to provide legal services in this jurisdiction; or

(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. 55

Current Model Rule 5.5 provides:

Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law


working on is “in or reasonably related to a pending or potential proceeding before a tribunal in . . . . another

jurisdiction,56

(b) “are in or reasonably related to a pending or potential arbitration, mediation, or other alternative


(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or


(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:



(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.

(e) For purposes of paragraph (d):

(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,

(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this rule by, in the exercise of its discretion, [the highest court of this jurisdiction].

56

Model Rule 5.5(c)(2).

resolution proceeding in . . . another jurisdiction; 57

or (c) seek pro hac vice status in courts in which their cases

are being heard.

On the other hand, the ability of transactional U.S. lawyers to engage in non-continuous, non-systematic

practice in a states where they are not licensed is limited to two narrow categories: either (a) the lawyer must be

working with local counsel who actively participates in the matter;58

or (b) the services must “arise out of or are

reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.” 59

The following two hypotheticals, which reflect the real world of transactional lawyers, illustrate the problem

with the current language of Rule 5.5:

a. Hypothetical #1, The Nationally-Known Transactional Lawyer

Eleanor Expert is a nationally known practitioner who is one of the country’s leading attorneys when it

comes to negotiating and drafting commercial leases in shopping centers. Eleanor handles matters involving

shopping center leasing all over the country.

Eleanor is licensed only in State A. Eleanor, however, has done numerous deals in states B, C, and D, all

initially with the assistance of local counsel. None of this work is either systematic or continuous.

As time goes by and Eleanor handles more and more deals in these states (but not systematically or

continuously), she finds that she has acquired knowledge of and researched the applicable laws of those states

and knows them as well as (if not better than) local counsel.

Three new deals come in, one from New Client B in State B, one from New Client C in State C, and one

from New Client D in state D. While certain aspects of federal law are triggered in each of these matters, each

primarily involves state law and contractual rights.

The new clients do not have offices in State A, where Eleanor has her office. Each of these matters is

unique to each state. Each client wants Eleanor to handle the drafting and negotiations of each commercial lease.

Each client wants to keep costs down and doesn’t want “local” counsel involved other than as minimally

necessary, mainly for the recordation of the lease or extract of the lease.

57

Model Rule 5.5(c)(3).

58 Model Rule 5.5(c)(1).

59 Model Rule 5.5(c)(3).

Discussion of Hypothetical #1

Under Rule 5.5, Eleanor cannot handle this matter under the 5.5(c)3’s exception for services that

“are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice,”

because none of these matters are related to Eleanor’s practice in State A.

It might be argued that as long as Eleanor handles these matters in States B, C, and D from her

office in State A, she is doing something related to her practice in State A, because the clients from out-of-state

sought assistance from her by contacting her in State A. This argument, however, may be stretching the existing

rule too far, because these are new clients and nothing about these matters concerns State A or “arise out of or

are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice” [Rule

5.5(c)(4)]. Further, as the Birbrower case and its progeny show, simply doing work from your “home” office is not

a necessary defense to engaging in the practice of law in another state.60

Likewise, Rule 5.5(c)(1)’s exception involving work “undertaken in association with a lawyer who

is admitted to practice in this jurisdiction and who actively participates in the matter” does not protect Eleanor in

these circumstances, for the local counsel’s work in handling recording may not meet the “active” participation

test. Moreover, Rule 5.5 actually works against the client’s interest, for the only way that Eleanor can comply with

Rule 5.5 is to get local counsel more deeply involved in the matter, even though neither she nor the client needs

that active involvement. Adding more involvement by local counsel merely adds costs to the transaction without

aiding the client; all it does it to protect Eleanor’s license under the current Rules. Additionally, non-lawyers may

be able to do the recording work as effectively as an attorney and far less inexpensively.

The arguments advanced in favor of having a local lawyer’s involvement are usually twofold. One

is that it is important to disciplinary authorities in a state to be aware when an out-of-state lawyer is rendering

legal services in the local area. For litigators, a court’s issuance of a pro hac vice order constitutes one form of

policing out-of-state lawyers. For transactional lawyers, the requirement of having an in-state lawyer involved

creates a form of local involvement that ultimately may come to the attention of the authorities if necessary. The

second argument is that it is somehow “unfair” to local lawyers to have out-of-state competition.

60 Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Ct. of Santa Clara County, 17 Cal.4th 119, 128-129,

70 Cal.Rptr.2d 304, 949 P.2d 1 (1998). As Birbrower stated:

[O]ne may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means. Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law “in California” whenever that person practices California law anywhere, or “virtually” enters the state by telephone, fax, e-mail, or satellite.

On the other hand, as this example illustrates, requiring in-state lawyer involvement does not

increase client protection but does increase client costs. Should a client who desires to hire an out-of-state lawyer

be required to also engage a local lawyer to “actively participate” in the matter (as required by 5.5(c)(1)) as long

as the out-of-state lawyer’s usual and customary practice makes that person the best and most cost-effective

attorney to handle the transaction? Of course, in such instances, the attorney may need to make the client aware

that the lawyer of the clients’ choosing is not licensed in that state. See original Comment 20 to Rule 5.5

(renumbered as Comment 21, below). Further, whatever the out-of-state lawyer does in the local jurisdiction will

subject that lawyer to the disciplinary authority of the state. See Rule 8.5.

b. Hypothetical #2, The Nationally-Known Transactional Lawyer, Part II

The facts are the same as in Hypothetical #1, except that the new clients contact Eleanor during

a commercial leasing convention being held in State X, a state where Eleanor is not licensed to practice and

where none of the new clients have any business.

While in State X, Eleanor clears conflicts with her office, generates an engagement agreement on

her laptop, has each of the new clients sign it, and then has private meetings with each of them during the

convention. At these private meetings, she gives each client legal advice on how to proceed in each of their

states. She keeps track of her time and bills the clients for the time spent giving them advice while in State X.

Discussion of Hypothetical #2

Under 5.5, Eleanor has an additional problem. By having the new clients sign engagement

agreements in State X and giving advice to each while she is in State X, Eleanor is clearly practicing law in State

X. The fact that she bills them for this time only confirms that she is practicing law in State X.

Further, all the problems noted above still exist.

7. SOCIAL MEDIA AND MULTIJURISDICTIONAL PRACTICE ISSUES

Social media usage can create multijurisdictional practice problems. A few hypotheticals may help illustrate

the issues.

a. Social Media and Potential Unlawful Practice of Law: The Case of the Tech-Savvy Lawyer

Lucy Lawyer has a Facebook page linked to her Twitter account and her blog. She updates items daily.

She is trying to build up her real estate practice. She posts her thoughts on recent legal issues, and even has a

section of each post entitled “Practical Tips” where she gives specific advice related to the issues about which she

is posting.

Lucy recently had a post on business formation issues for real estate ventures. She has written a series

of blogs about the dangers of signing personal guarantees, of “springing guarantees” and “bad boy” carve-outs, of

operating as an unincorporated “d/b/a,” and of not insulating your other assets from your business creditors. Each

post has the following “Practical Tip”:

Forming a corporation or a limited liability company is always advisable for any business, for it can limit your personal liability and protect your assets. Click here for links to forms that are good in any state, click here for sample defenses you can file that can protect your assets if you’re sued.

Does Lucy’s post constitute the “practice of law”?

Discussion about “The Case of the Tech-Savvy Lawyer”

The ABA Model Rules of Professional Conduct do not define the practice of law. Because lawyers are

licensed in each state, one must look to each state’s statutes and court rules to determine what constitutes the

practice of law.

While many cases deal with attempted unlawful practice of law issues involving non-lawyers attempting to

represent others in court, fewer cases deal with transactional law issues. It is instructive, however, to look at a

sampling of opinions on transactional law.

Rhode Island’s Bar has issued a report indicating that a non-lawyer who advertised on the Internet as a

“low cost paralegal” for document preparation had engaged in the unlawful practice of law.61

Massachusetts has held that certain matters involving real estate closings and transactional work

constitute the practice of law.62

This rule is broadly accepted in other states. See, for example, opinions in

Arkansas,63

Ohio,64

Delaware,65

and South Carolina.66

61 See: In re Low Cost Paralegal Services, 19 A.3d 1229 (R.I. 2011). Among the findings were that “Low Cost

Paralegal Services and Dominique M. Salazar a/k/a Michelle Salazar have engaged in the unauthorized practice of law in Rhode Island in violation of G.L. 1956 § 11–27–12 by falsely holding itself/herself out to Rhode Islanders, through Internet advertising targeting Rhode Island, as competent and qualified to prepare legal documents for uncontested divorce and to assist with a child support problem, which conduct constitutes ‘the practice of law’ as defined in § 11–27–2(4).” 62

See: Real Estate Bar Ass'n for Massachusetts, Inc. v. National Real Estate Information Services, 459 Mass. 512, 514, 946 N.E.2d 665 (Mass. 4/25/11): “Nevertheless, we conclude that the closing or settlement of the types of real estate transactions described in the record require not only the presence but the substantive participation of an attorney on behalf of the mortgage lender, and that certain services connected with real property conveyances constitute the practice of law in Massachusetts.” 63

See, e.g.: Creekmore v. Izard, 236 Ark. 558, 565, 367 S.W.2d 419, 423–24 (1963) (preparation of deeds, mortgages, and bills of sale constitutes the practice of law) and Pope County Bar Ass'n, Inc. v. Suggs, 274 Ark. 250, 256, 624 S.W.2d 828, 830–31 (1981).

Pennsylvania and Kentucky67

have each issued formal ethics opinions holding that providing forms can

constitute the unauthorized practice of law.68

64

See: Disciplinary Counsel v. Foreclosure Alternatives, Inc., 127 Ohio St.3d 455, 940 N.E.2d 971,976 (Ohio 12/23/10): “Based upon the facts in this case, we have no difficulty concluding that FAI, Alexakis, and Lance Trester engaged in the unauthorized practice of law. The general business plan adopted by FAI as well as the specific handling of the Chandler matter and the foreclosure against the second homeowner demonstrate that FAI, Alexakis, and Lance Trester (1) gave advice to homeowners in the context of pending or threatened foreclosure proceedings, in particular, advice concerning whether to continue making mortgage payments and the wisdom of legal alternatives such as bankruptcy, (2) made representations to creditors on behalf of homeowners facing foreclosure, and (3) evaluated for and with homeowners the terms and conditions of settlement in the foreclosure proceedings.” 65

See, e.g., Nieves v. All Star Title, Inc., 2010 WL 4227057 (Del.Super. 10/22/10), aff’d at 21 A.3d 597 (Del.Supr. 6/14/11) (text in WESTLAW, NO. 724, 2010), discussing the decision in In re Mid-Atlantic Settlement Services, Inc. 755 A.2d 389, 2000 WL 975062 (Del. May 31, 2000) (TABLE), “which adopted the conclusions of the Board on the Unauthorized Practice of Law that real estate settlements constitute the practice of law, and that the closing of a loan secured by Delaware real estate generally must be conducted by a Delaware attorney. All Star moved to dismiss Nieves' Complaint for failure to state a claim upon which relief could be granted. Specifically, All Star denied that Nieves' Complaint established that it had breached any legally-recognized duty or caused him cognizable damages. All Star also adopted the position that Nieves' suit constituted an attempt to secure private enforcement of this state's rules against the unauthorized practice of law. 66

See: Wachovia Bank, N.A. v. Coffey, 389 S.C. 68, 698 S.E.2d 244, 247-48 (S.C.App. 5/6/10): “As early as 1987, lending institutions doing business in South Carolina were on notice that they could not prepare legal documents in connection with a mortgage loan without review by an independent attorney and that the loan closing had to be supervised by an attorney. See State v. Buyers Serv. Co., 292 S.C. 426, 431-434, 357 S.E.2d 15, 18-19 (1987) (holding that a commercial title company's employment of attorneys to review mortgage loan closing documents did not save the company's preparation of those documents from constituting the unauthorized practice of law and that the closings should be conducted only under an attorney's supervision), modified by Doe v. McMaster, 355 S.C. 306, 585 S.E.2d 773 (2003); see also Doe Law Firm v. Richardson, 371 S.C. 14, 17, 636 S.E.2d 866, 868 (2006) (citing Buyers and McMaster ) (clarifying that a lender may prepare legal documents for use in financing or refinancing a real property loan as long as an independent attorney reviews them and makes any corrections necessary to ensure their compliance with the law and reaffirming that mortgage loan closings should be conducted only under an attorney's supervision).” 67

See Kentucky KBA U-63 (March 2006), found at

https://cdn.ymaws.com/www.kybar.org/resource/resmgr/Unauthorized_Practice_of_Law/kba_u-63.pdf (last visited

06/05/18):

QUESTION 1: Does a non-attorney business entity or corporation, whose business is the creation, preparation or typing of legal forms and documents, engage in the unauthorized practice of law when, in addition to creating, preparing or typing the forms, the non-attorney or entity assists in the identification of the purchaser’s legal goal and advises the purchaser on the proper choice and utilization of the forms to achieve their legal goal?

ANSWER: Yes. See Opinion

QUESTION 2: Does the answer to Question 1 change if the non-attorney business entity or corporation uses the services of an attorney, even if referred to as a “supervising,” “on call” or “employee” attorney?

Answer: No.

68 See Pennsylvania Formal Opinion 2010-01, the synopsis of which is:

"It is the opinion of the Pennsylvania Bar Association Unauthorized Practice of Law Committee that the offering or providing [in Pennsylvania] of legal document preparation services as described herein (beyond the supply of preprinted forms selected by the consumer not the legal document preparation service), either online or at a site in Pennsylvania is the unauthorized practice of law and thus prohibited, unless such services are provided by a person who is duly licensed to practice law in Pennsylvania retained directly for the subject of the legal services.

See http://www.pabar.org/public/committees/UNA01/Opinions/Opinions.asp (last visited 6/5/18).

http://www.kybar.org/resource/resmgr/Unauthorized_Practice_of_Law/kba_u-63.pdf

http://www.kybar.org/resource/resmgr/Unauthorized_Practice_of_Law/kba_u-63.pdf

http://www.pabar.org/public/committees/UNA01/Opinions/Opinions.asp

On the other hand, the ABA has issued an ethics opinion indicating that ghostwriting pleadings (not other

legal documents) is permissible and does not violate the Model Rules.69

b. Social Media Postings Viewed In A State Where You’re Not Licensed To Practice Law: The Case Of The Broadly-Read Lawyer

What if Lucy Lawyer (who wrote the postings described above) is licensed in State A, but her postings are

broadly read across the country? Is Lucy engaged in the unlawful practice of law in States B, C, and D?

Discussion on the Case of the Broadly-Read Lawyer

As can be seen from the materials in the previous section, what constitutes the practice of law varies from

state-to-state. Even if Lucy’s activities are perfectly acceptable in State A, they may not be in States B, C, or D.70

For example, at least one Florida court has held that selling legal forms is acceptable and does not

constitute the unlawful practice of law.71

On the other hand, courts have found there to be a distinction between

merely supplying a form and helping someone fill out a form (even if the assistance is electronic or on-line) – the

latter (in some states) may constitute the unlawful practice of law.72

69 ABA Formal Opinion 07-446, “Undisclosed Legal Assistance to Pro Se Litigants” (2007) (a lawyer can furnish

ghostwriting assistance without disclosing to the court or to the opposing party under certain circumstances): “Whether the lawyer must see to it that the client makes some disclosure to the tribunal (or makes some disclosure independently) depends on whether the fact of assistance is material to the matter, that is, whether the failure to disclose that fact would constitute fraudulent or otherwise dishonest conduct on the part of the client, thereby involving the lawyer in conduct violative of Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c). In our opinion, the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation.” 70

See, e.g., Lanctot, “Scriveners in Cyberspace: Online Document Preparation and the Unauthorized Practice of Law,” 30 Hofstra L. Rev. 811 (2002). 71

See: Florida Bar v. Brumbaugh, 355 So.2d 1186, 1194 (Fla.1978): “We hold that Ms. Brumbaugh, and others in similar situations, may sell printed material purporting to explain legal practice and procedure to the public in general and she may sell sample legal forms.... In addition, Ms. Brumbaugh may advertise her business activities of providing secretarial and notary services and selling legal forms and general printed information. However, Marilyn Brumbaugh must not, in conjunction with her business, engage in advising clients as to the various remedies available to them, or otherwise assist them in preparing those forms necessary for a dissolution proceeding.”

We hold that Ms. Brumbaugh, and others in similar situations, may sell printed material purporting to explain legal practice and procedure to the public in general and she may sell sample legal forms.... In addition, Ms. Brumbaugh may advertise her business activities of providing secretarial and notary services and selling legal forms and general printed information. However, Marilyn Brumbaugh must not, in conjunction with her business, engage in advising clients as to the various remedies available to them, or otherwise assist them in preparing those forms necessary for a dissolution proceeding. 72

See, e.g., Janson v. LegalZoom.com, Inc., --- F.Supp.2d ----, 2011 WL 3320500 (W.D.Mo. 8/2/11):

In its Motion for Summary Judgment, Defendant LegalZoom argues that, as a matter of law, it did not engage in the unauthorized practice of law in Missouri. Thus, the Court must decide whether a reasonable juror could conclude that LegalZoom did engage in the unauthorized practice of law, as it has been defined by the Missouri Supreme Court. See First Escrow, 840 S.W.2d at 843 n. 7 (“the General Assembly may only assist the judiciary by providing penalties for the unauthorized practice of law, the ultimate definition of which is always within the province of this Court”); Eisel, 230 S.W.3d at 338–39 (reaffirming that “[t]he judiciary is necessarily the sole arbiter

c. Social Media And Inadvertent Attorney-Client Relationships: The Case Of The Too- Fast-To-Respond Lawyer

Arnie Attorney is a prolific user of Facebook, Linked-In, Twitter, PartnerUp,

73 Ryze,

74 Networking for

Professionals,75

Jase,76

and Ziggs.77

Arnie rapidly responds to any queries or comments and prides himself on his fast turnaround and 24/365

availability. He wants to build his brand as a “responsive” attorney.

Arnie gets the following query on one of the sites he maintains:

My house is in foreclosure. I put a first mortgage on it when I bought the house and a second mortgage to finance my business. A guy I know promised that he could stop the foreclosure for a $1,000 fee and help me save both my house and my business line of credit. I paid the fee and the foreclosure is continuing. Any ideas on what I can do now?

Concerned Business Person

Arnie quickly responds with information about the FTC rule on loan modifications and the liability of those

who don’t comply with the rules.78

Has Arnie formed an attorney-client relationship with Concerned Business Person?

of what constitutes the practice of law,” and finding no conflict between § 484.020 and the Missouri judiciary's regulation of the practice of law).

Plaintiffs argue that the Missouri Supreme Court has declared on multiple occasions that a non-lawyer may not charge a fee for their legal document preparation service. Defendant responds that its customers—rather than LegalZoom itself—complete the standardized legal documents by entering their information via the online questionnaire to fill the document's blanks, which it concedes that customers never see. While the parties dispute the proper characterization of the underlying facts, there is no dispute regarding how LegalZoom's legal document service functions.

It is uncontroverted that Defendant LegalZoom's website performs two distinct functions. First, the website offers blank legal forms that customers may download, print, and fill in themselves. Plaintiffs make no claim regarding these blank forms. Indeed, this function is analogous to the “do-it-yourself” kit in Thompson containing blank forms and general instructions regarding how those forms should be completed by the customer. Such a “do-it- yourself” kit puts the legal forms into the hands of the customers, facilitating the right to pro se representation.

It is the second function of LegalZoom's website that goes beyond mere general instruction. LegalZoom's Internet portal is not like the “do-it-yourself” divorce kit in Thompson. Rather, LegalZoom's Internet portal service is based on the opposite notion: we'll do it for you. Although the named Plaintiffs never believed that they were receiving legal advice while using the LegalZoom website, LegalZoom's advertisements shed some light on the manner in which LegalZoom takes legal problems out of its customers' hands. While stating that it is not a “law firm” (yet “provide[s] self-help services”), LegalZoom reassures consumers that “we'll prepare your legal documents,” and that “LegalZoom takes over” once customers “answer a few simple online questions.” [Doc. # 119 at 51–52.] 73

http://www.partnerup.com/ 74

http://www.ryze.com/ 75

http://networkingforprofessionals.com/ 76

http://www.jasezone.com/ 77

http://www.ziggs.com/ 78

See 16 C.F.R. Part 322: Mortgage Assistance Relief Services; Final Rule and Statement of Basis and Purpose.

Also see: http://www.ftc.gov/opa/2010/11/mars.shtm (last accessed 9/03/11).

http://www.partnerup.com/

http://www.ryze.com/

http://networkingforprofessionals.com/

http://www.jasezone.com/

http://www.ziggs.com/

http://www.ftc.gov/opa/2010/11/mars.shtm

Discussion on The Case of the Too-Fast-To-Respond Lawyer

The general rule is that an attorney-client relationship is formed by looking at what the client believed, not

what the lawyer intended.79

Articles have cautioned that the Internet can lead to inadvertent attorney-client relationships.80

Can Arnie prevent an inadvertent attorney/client relationship if he puts a disclaimer in every posting?81

Model Rule 1.2 states: “A lawyer may limit the objectives of the representation if the client consents after

consultation,” and “consultation” means “communication of information reasonably sufficient to permit the client to

appreciate the significance of the matter in question.” Can Arnie even craft an appropriate disclaimer? If he can,

does it undermine his marketing efforts? Does it make his postings less likely to be read?

Moreover, if Arnie has created an attorney-client relationship, he now has three additional problems. First,

his “public” posting of advice to Concerned Business Person may have created a breach in Arnie’s duty of

confidentiality to the client.82

Second, his posting may have violated rules on contacts with prospective clients.83

79 See Cydney Tune and Marley Degner, “Information Technology Law Institute 2009: Web 2.0 and the Future of

Mobile Computing: Privacy, Blogs, Data Breaches, Advertising, and Portable Information Systems,” Practising Law Institute, Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series, PLI Order No. 19051, 962 PLI/Pat 113 (2009):

In general, courts and other disciplinary bodies have found that an attorney-client relationship exists when the client reasonably relies on the advice of the attorney. The test focuses on the client's subjective perceptions and beliefs. Attorneys must take care that undesired attorney-client relationships are not unwittingly formed by blogging or maintaining a profile on a social networking site.

Attorney blogs and social networking profiles should contain a disclaimer, making it clear that information provided on the blog or social networking site is not intended to create an attorney-client relationship. Disclaimers of any and all liability that might arise from the contents of the blog or social networking profile could also be used. However, such provisions may not be enforceable unless a user affirmatively accepts the terms. Disclaimers are also likely to be unenforceable if they are inconsistent with the subsequent conduct of the parties.

80 See, e.g., Carrie Pixler and Lori A. Higuera, “Social Media: Ethical Challenges Create Need for Law Firm

Policies,” 47 Arizona Attorney 34 (2011); Abigail S. Crouse and Michael C. Flom, “Social Media for Lawyers,” 67 Bench and Bar of Minnesota 16 (2010); Catherine J. Lanctot, “Attorney-Client Relationships in Cyberspace: The Peril and the Promise,” 49 Duke Law Journal 147 (1999); and Nelson, “Is a Visitor to Your Firm's Homepage Your Client?” 69-SEP Wis. Law. 25 (1996). 81

For more on this, see the quotation at footnote 79, above. 82

For more on this, see: Andrea Utecht and Abraham C. Reich, “Successful Partnering Between Inside and Outside Counsel,” Chapter 31, footnote 10:

See, e.g., Cal. State Bar Comm. on Prof'l Responsibility and Conduct Op. No. 2005-168 (when lawyer maintains a web site allowing visitors who are seeking legal advice a means of communicating with him, lawyer owes a duty of confidentiality to the visitors unless a disclaimer exists in sufficiently plain terms to defeat visitors' reasonable belief that the lawyer is consulting confidentially with the visitor); Nev. Comm. on Ethics and Prof'l Responsibility, Op. 32 (Mar. 25, 2005) (attorney/client relationship may be created by a unilateral act in response to an advertisement or e-mail to an attorney's website); and S.D. State Bar Ethics Op

. 2002-2 (April 22, 2002) (e-mail from prospective client can create attorney/client relationship).

- Changes in technology have also complicated this issue. For instance, several opinions have considered attorney postings on listservs, N.M. Ad. Op. 2001-1 and Los Angeles County Bar Assoc. Prof'l Responsibility and Ethics Comm. Op. No. 514 (2005). 83

See ABA Model Rule 7.3, discussed in more detailed in footnote 88, below.

Third, if he is held to have an attorney-client relationship but has given bad advice, will he be covered by his

malpractice insurance?84

d. When Does Social Media Constitute Advertising?

A caveat is in order for the hypothetical 7(e), below. At the time this paper is being written, the ABA has

not yet changed it rules on advertising;85

however, the author is aware that there may be a proposal submitted to

the ABA House of Delegates in August, 2018 that may completely rework the Model Rules concerning

advertising. If these proposals are adopted, it will eliminate detailed strictures on legal advertising and replace

them with rules that focus on whether an attorney has made a false or misleading communication about the

lawyer, the lawyer’s firm, or the lawyer’s services.

e. The Case of the Clever Firm Name

Billie “BullDog” Barrister maintains a website for his firm, Barrister, Barrister, and Solicitor. The URL for

the website is “Bulldoglawyer.com” and on the front page of the website is this statement:

Every business needs a fighter who knows how to protect your business. Barrister, Barrister, and Solicitor are bulldog lawyers who’ll fight to protect your rights!

84 See a discussion of this issue by Christine D. Petruzzell, “Don’t Go Blindly Into That Law Blog,” 20 New Jersey

Lawyer, the Magazine 80 (2008):

In New Jersey, this is illustrated by the controversy triggered in early 2007 by the Chubb Group of Insurance Companies, one of the largest carriers of lawyers' professional liability insurance. Initially, upon learning of a law blog proposed by a New Jersey firm, Chubb declined to provide coverage, stating that “this is not a risk they are interested in undertaking.” Shortly thereafter, Chubb modified its position, stating that it would insure this new form of communication “within select parameters.”

Chubb distinguished between what it described as an “informational blog,” that presents information or provides a forum for the discussion of issues in a neutral way, and an “advisory blog,” by which a law firm offers advice, for example through a question and answer format, and often being interactive, potentially establishing attorney-client relationships that can lead to malpractice suits. Although Chubb stated that its underwriters would evaluate each submission on its own merits, Chubb suggested that it may not provide coverage on what it deemed to be an “advisory blog,” which, by its nature, increases the risk of a malpractice lawsuit against the firm.

Referencing the risks presented by advisory blogs, Chubb noted it is often difficult to perform conflict checks, and that comments/questions are posed by consumers in states where the attorney may not be licensed to practice. In contrast, Chubb noted that informational blogs, which it defined as a forum for discussion of issues in a neutral unbiased way, “pose a minimal level of risk from Chubb's underwriting perspective.”

85 There are hundreds of articles in law reviews in journal published in the last five years dealing with social

media, advertising, and legal ethics. Just a few of them include: J. Nick Badgerowa, “Lawyers' Electronic Advertising: Websites, Blogs, Linkedin, Etc.,” 87 Journal of the Kansas Bar Association 40 (2018); Pamela A. Bresnahan, Lucian T. Pera, “The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney--Client Privilege, Confidentiality, And Social Media,” 7 St. Mary's Journal on Legal Malpractice & Ethics 2 (2016); Justin Orra, “Digital Marketing in an Analog World,” 29 Georgetown Journal of Legal Ethics 1203 (2016); and Blake A. Klinkner, “Social Media And The Rules Of Professional Conduct: When Is an Attorney's Social Media Account Subject to the Advertising and Solicitation Rules?” 38 Wyoming Lawyer 68 (2015)

There is no indication on Billie’s firm’s homepage of the states in which its lawyers are licensed to

practice.

Every one of Billie’s Tweets and Facebook responses has this signature:

Billie “Bulldog” Lawyer, an expert business lawyer. See www.bulldoglawyer.com.

Does Billie’s signature line constitute improper advertising? Does the link to his website create any ethical

problems? If Billie had renamed his firm “Bulldoglawyers,” would that violate any rule?

Discussion on the Case of the Clever Firm Name

While the ABA Rules of Professional Conduct permit Internet advertising,

86 the ABA Rules do not

specifically address the form or contents of such advertising, other than prohibiting false and deceptive

advertising87

and prohibiting direct electronic communications with potential clients under limited circumstances.88

In 2013, the New Jersey Supreme Court amended its Rules of Professional Conduct to permit law firms to

have trade names under certain circumstances.89

Concluding that over 40 states had adopted modifications of

their Rules to permit trade names, the New Jersey Court held that trade names did not harm the public as long as

they were not deceptive, and the trade name must “be accompanied by the name of the attorney who is

responsible for the management of the organization.”90

86 ABA Model Rule 7.2(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.” 87

ABA Model Rule 7.1: “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.” 88

ABA Model Rule 7.3: Direct Contact With Prospective Clients (emphasis supplied)

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client 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 from a prospective client 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 prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment. 89

See: In the Matter of the Letter Decision of the Committee on Attorney Advertising, Docket No. 47–2007, 213 N.J. 171, 61 A.3d 930 (March 14, 2013). 90

Id., 61 A.3d at 937 et seq, the Court stated:

Our evaluation of this matter cannot ignore that most states now allow use of trade names by law firms, and we will not disregard their experience. None of the states that permit use of trade names report any adverse impact to the public. We also recognize the changing and more multijurisdictional nature of the legal profession. On balance, we have become convinced that trade names need not be forbidden in New Jersey and that we should align our law firms' naming options more in keeping with our sister states' recognition that use of trade names can be incorporated in the profession without harm to the public. Further, we do not believe that that step should only be allowed if and when required as a matter of

http://www.bulldoglawyer.com/

On the issue of advertising, numerous state bars and state courts specifically regulate advertising and

firm websites. In the words of a California Bar Formal Opinion: “There is no certain method or form of notice that

provides assurance that an attorney’s Internet web site will not be found to be an advertisement, holding oneself

out as available to practice law or the unauthorized practice of law in other jurisdictions.”91

Each state’s rules are

constitutional command. For that reason, we need not reach the First Amendment question posed as to the validity of our current RPC 7.5. The abiding concern animating the RPCs governing law firm names and attorney advertising is to ensure that the public is protected from deceptive or misleading communications by attorneys when advertising who they are and the services they provide. The firm's name is undoubtedly part and parcel of the firm's advertising. See Friedman, supra, 440 U.S. at 11, 99 S.Ct. at 895, 59 L.Ed.2d at 111 (noting that “trade name is used as part of a proposal of a commercial transaction”); Opinion 475, supra, 89 N.J. at 85, 444 A.2d 1092 (treating trade names as form of commercial speech). That said, the public policy against misleading and deceptive attorney advertising can continue to be advanced notwithstanding the amendment of RPC 7.5 to allow for use of trade names as we have proposed.

We conclude that our RPC governing law firm names as a matter of sound policy should be brought in closer alignment with sister jurisdictions. The proposed amended RPC 7.5 provides a balanced solution. It permits use of a trade name—but only when accompanied by an attorney's name—and imposes additional limitations on the selection of descriptive language. The rule allows the use of a trade name that provides an accurate and informative description of an attorney's practice while preventing misleading and unethical attorney advertising. Permissible trade names must adhere to the prohibitions against the use of any inherently superlative or comparative language. The express prohibitions in the revised RPC 7.5 are consistent with RPC 7.1's restrictions on communications concerning a lawyer's service. Thus, the revised RPC 7.5 and RPC 7.1, in complementary fashion, promote our overriding desire and intent to instill public confidence in the professionalism of attorneys and the dignity entailed in the practice of law in New Jersey.

Accordingly, we now hereby adopt the proposed changes to subsection (e) of RPC 7.5, with minor revisions to promote clarity, along with an official commentary to accompany the amended RPC 7.5. The amended RPC 7.5(e) shall read as follows:

(e) A law firm name may include additional identifying language such as “& Associates” only when such language is accurate and descriptive of the firm. Use of a trade name shall be permissible so long as it describes the nature of the firm's legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results. Such trade names shall be accompanied by the name of the attorney who is responsible for the management of the organization. Any firm name containing additional identifying language such as “Legal Services” or other similar phrases shall inform all prospective clients in the retainer agreement or other writing that the law firm is not affiliated or associated with a public, quasi-public or charitable organization. However no firm shall use the phrase “legal aid” in its name or in any additional identifying language.

The amended rule shall be accompanied by the following official comment in order to provide the bar with illustrative examples:

Official comment (2013): By way of example, “Millburn Tax Law Associates, John Smith, Esq.” would be permissible under the trade name provision of this rule, as would “Millburn Personal Injury Group, John Smith, Esq.” However, neither “Best Tax Lawyers” nor “Tax Fixers” would be permissible, the former being comparative and the latter being suggestive of the ability to achieve results.

91

See: The State Bar of California Standing Committee on Professional Responsibility And Conduct Formal Opinion No. 2001-155, which includes this statement (emphasis supplied):

This leaves two options for California attorneys who maintain Internet web sites for their law practices. They can choose to use their web site to advertise in multiple jurisdictions. This is not necessarily inappropriate, but it requires that they assure themselves that they are complying with any applicable rules of the different jurisdictions involved, including rules governing the unauthorized practice of law

distinct,92

and many state bar associations have issued formal opinions on the use of the Internet and advertising.

See, for example, state bar advertising rules that exist or have been repealed in Arizona,93

Louisiana,94

Virginia,95

and Florida.96

The federal courts have gotten involved, and there are decisions from the U.S. Second97

and Fifth

Circuits98

on what form of regulation of lawyer advertising is permissible.

Recently, the Virginia Supreme Court in the Hunter case99

squarely faced the interrelationship of

blogging, advertising, First Amendment rights, and Bar discipline. Hunter maintained a blog on his firm’s website;

the blog primarily focused on cases that Hunter handled successfully for his criminal clients. The blog gave the

name of the cases (which revealed the name of the clients). While the blog was not interactive, the website had a

link where readers could click to “contact us.”

The Virginia Bar Association brought disciplinary charges against Hunter, claiming that the blog was

advertising, that the blog did not have the required advertising disclaimers necessary for their validity, and that

revealing client information and names (even though these were publicly available) without the client’s consent

violated the confidentiality provisions of Rule 1.6.

The Virginia Supreme Court ruled for the Virginia State Bar in holding:

(assuming that there is no inconsistency in the applicable rules that would make this impossible). Alternatively, they can take steps to make clear that they are not advertising in other jurisdictions.

There is no certain method or form of notice that provides assurance that an attorney’s Internet web site will not be found to be an advertisement, holding oneself out as available to practice law or the unauthorized practice of law in other jurisdictions. We make the following suggestions as examples of the kind of statements which, if accurate, might assist in avoiding regulation in other jurisdictions: 1) an explanation of where the attorney is licensed to practice law, 12 2) a description of where the attorney maintains law offices and actually practices law, 3) an explanation of any limitation on the courts in which the attorney is willing to appear, and 4) a statement that the attorney does not seek to represent anyone based solely on a visit to the attorney’s web site.

92 See, for example, Adam R. Bialek, Paris A. Gunther, and Scott M. Smedresman, “Attorney Web Sites: Ethical

Issues Are Only the Beginning,” 81 New York State Bar Journal 10 (2009). 93

State Bar of Arizona Ethics Opinion 97-04: Computer Technology; Internet; Advertising and Solicitation; Confidentiality 04/1997. 94

Louisiana Rule of Professional Conduct Rule 7.6, “Computer Accessed Communications.”

See: https://www.ladb.org/Material/Publication/ROPC/ROPC.pdf (last visited 6/5/18). 95

Virginia State Bar Rules 7.1-7.5; Virginia deleted its former Rule 7.2 in 2013 and deleted its former Rule 7.4 in 2017. See: http://www.vsb.org/pro-guidelines/index.php/rules/information-about-legal-services/rule7-2/ (last visited 6/5/18) and http://www.vsb.org/pro-guidelines/index.php/rules/information-about-legal-services/rule7-4/ (last visited 6/5/18) 96

See Florida Bar Rules 7.11-7-22:. See https://www.floridabar.org/wp-content/uploads/2018/05/2018_10-April-

30-Ch.-4.pdf (last visited 6/5/18). 97

Alexander v. Cahill, 598 F.3d 79, 92–95 (2d Cir.2010), cert. denied, 562 U.S.1123, 131 S.Ct. 820, 178 L.Ed.2d

576, 79 U.S.L.W. 3102 (2010). 98

Public Citizen Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 1/31/11). 99

Hunter v. Virginia State Bar, 285 S.E.2d, 285 Va. 485 (Va. Supreme Court, Feb. 18, 2013), 2013 WL 749494.

https://www.ladb.org/Material/Publication/ROPC/ROPC.pdf

http://www.vsb.org/pro-guidelines/index.php/rules/information-about-legal-services/rule7-2/

http://www.vsb.org/pro-guidelines/index.php/rules/information-about-legal-services/rule7-4/

https://www.floridabar.org/wp-content/uploads/2018/05/2018_10-April-30-Ch.-4.pdf

https://www.floridabar.org/wp-content/uploads/2018/05/2018_10-April-30-Ch.-4.pdf

The blog was commercial speech.

The blog was advertising that could be regulated by the Virginia State Bar.

The Virginia State Bar’s requirement of a disclaimer on every ad was reasonable and applied to every

blog post.

On the other hand, the Virginia Supreme Court held that the Bar overstepped Hunter’s First Amendment

rights when it alleged that his discussion of cases (with case names that revealed the client’s identity) violated the

confidentiality provisions of Rule 1.6.

The result of that case was only the imposition of the disclaimers on every blog post; no other disciplinary

action was apparently sought.

Hunter, however, is but one state’s interpretation of these issues. It can be expected that other states’

disciplinary officials may bring similar actions and urge that the Virginia Supreme Court was correct on all issues

but its First Amendment holding.

Other commentators, prior to the Hunter case, had reached the same conclusion that blogs could be

treated as advertising.100

f. The Social Media Vs. The First Amendment In Litigation: The Case Of The Disgruntled Business Litigator

Billie “BullDog” Barrister is in the midst of a lengthy trial involving one of his corporate clients. At the close

of the day’s hearing, Judge Aileen Tudor Sentor issues a ruling that Bulldog is convinced is dead wrong and

constitutes obvious reversible error.

Bulldog, on his way out of the courthouse, pauses on the courthouse steps to Tweet (which is linked to

his Facebook page):

“Judge Sentor today demonstrated what everyone knows; her rulings against the small businessman will always be overturned on appeal.”

That evening, in his office, Bulldog angrily posts the following statement on his Facebook page:

Judge Sentor issues rulings against the small businessman that are either the result of her ignorance of the law or her incompetence.

100 See: Leigh Jones, “Will Law Firm Blogs Be Regulated as Advertising?” The National Law Journal, October 11,

2006, http://www.law.com/jsp/article.jsp?id=1160471119300 (last accessed 5/17/13).

Also see Judy M. Cornett, “The Ethics of Blawging: A Genre Analysis,” 41 Loyola University Chicago Law Journal 221 (2009), which cites, among other sources: Sarah Hale, “Lawyers at the Keyboard: Is Blogging Advertising and If So, How Should It Be Regulated?,” 20 Geo. J. Legal Ethics 669 (2007); Connor Mullin, “Regulating Legal Advertising on the Internet: Blogs, Google & Super Lawyers,” 20 Geo. J. Legal Ethics 835 (2007); Adrienne E. Carter, “Blogger Beware: Ethical Considerations for Legal Blogs,” 14 Rich. J.L. & Tech. 5 (2007); and Justin Krypel, “A New Frontier or Merely a New Medium? An Analysis of the Ethics of Blawgs,” 14 Mich. Telecomm. & Tech. L. Rev. 457 (2008).

http://www.law.com/jsp/article.jsp?id=1160471119300

Has Bulldog done anything he can be sanctioned for by the Court? Has he done anything that violates the

Rules of Professional Conduct? Are his statements protected by the First Amendment?

Would the answer be any different if Bulldog had written, on his Facebook page:

There is a judge in this state who issues rulings in cases that always demonstrate her ignorance of the law or her incompetence. Email me if you want more information. Discussion of The Case of the Disgruntled Litigator

Courts clearly have the inherent power to punish lawyers for behavior that does not violate state or

federal statutes or court rules.101

Courts have sanctioned and disbarred lawyers for improperly accusing a judge

of incompetence and bias.102

There is always a tension between the “robust debate” that the First Amendment allows and improper

criticism of the court by an officer of the court.103

Lawyers, however, have a duty under Model Rule 8.2 not to

make false or reckless statements about a judge,104

and courts have tended to enforce Rule 8.2 sanctions even

101 Chambers v.. Nasco, Inc., 501 U.S. 32 (1991).

102 See: In re Evans, 801 F.2d 703 (4th Cir.1986), where a lawyer was disbarred for criticizing a judge without

investigating the basis of the charge. Evans stated that the “failure to investigate, coupled with his unrelenting reassertion of the charges ... convincingly demonstrates his lack of integrity and fitness to practice law.” Evans also stated (emphasis supplied):

A court has the inherent authority to disbar or suspend lawyers from practice. In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985). This authority is derived from the lawyer's role as an officer of the court. Id. Moreover, as an appellate court, we owe substantial deference to the district court in such matters:

On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the court itself. Ex parte Burr, 22 U.S. (9 Wheat.) 529, 529-30, 6 L.Ed. 152 (1824). See also, In re: G.L.S., 745 F.2d 856 (4th Cir.1984). In this case, we can only conclude that the district court's disbarment of Evans, based on his violation of the rules of professional conduct, is amply supported by the record and did not exceed the limits of the court's discretion.

Evans' letter, accusing Magistrate Smalkin of incompetence and/or religious and racial bias, was unquestionably undignified, discourteous, and degrading. Moreover, it was written while the Brown case was on appeal to this Court and was thus properly viewed by the district court as an attempt to prejudice the administration of justice in the course of the litigation.

103 See, for example, the statement in Fieger v. Thomas, 872 F.Supp. 377, 385 (E.D. Mich. 1994), quoting with

approval from another opinion:

It is a rare and unfortunate day when the judges of this district must sanction an attorney for conduct involving criticism of the bench, Robust debate regarding judicial performance is essential to a vital judiciary. If an attorney, after reasonable inquiry, has comments about a judicial officer's fitness for service, he or she may and should express them publicly. Conversely, baseless factual allegations contribute nothing to judicial accountability and undermine public trust in the courts.

104 ABA Model Rule 8.2(a):

when the lawyer has claimed that his or her activities or words were protected by the First Amendment.105

Other

courts also have found that, as officers of the court, attorneys’ First Amendment rights may be more limited than

those of the public,106

and the U.S. Supreme Court has cautioned lawyers from believing that their First

Amendment rights may not be circumscribed by their status as attorneys.107

For example, lawyers have been sanctioned for language used in their court filings, including unfounded

allegations of ex parte contacts,108

for statements accusing courts of ignoring the law to achieve a result,109

for

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

105 See, e.g., Board of Professional Responsibility, Wyoming State Bar v. Davidson, 205 P.3d 1008 (Wyo.,2009);

and Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 890 A.2d 509 (Conn.,2006). 106

See, e.g. In re Pyle, 283 Kan. 807, 821, 156 P.3d 1231 (Kan. 2007):

In re Johnson, 240 Kan. 334, 729 P.2d 1175 (1986), was a contested case in which this court found that Johnson should be disciplined for false, unsupported criticisms and misleading statements about his opponent in a county attorney election campaign. In its discussion of the First Amendment and lawyer speech, this court said:

“A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements against a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.” Johnson, 240 Kan. at 336, 729 P.2d 1175.

Our Johnson case also stands for the proposition that a lawyer cannot insulate himself or herself from

discipline by characterizing questionable statements as opinions. 107

See: In re Cobb, 445 Mass. 452, 838 N.E.2d 1197, 1210 (Mass. 2005):

The Supreme Court has said that “[i]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.... Even outside the courtroom, a majority of the Court in two separate opinions in the case of In re Sawyer, [360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959),] observed that lawyers in pending cases were subject to ethical restrictions on speech to which an ordinary citizen would not be.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). The Court went on to say that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of” other kinds of speech protected by the First Amendment.

108 See, e.g., Board of Professional Responsibility, Wyoming State Bar v. Davidson, 205 P.3d 1008, 2009 WY 48

(Wyo. 4/7/09, where a lawyer was sanctioned for, among other things, putting the following language into a court filing:

“How can an attorney have gotten a trial date from a judge who was not assigned to the case? That could only be done by having engaged in improper ex parte communications with the court. * * * It is obvious enough that Respondent filed his reassignment motion to achieve a procedural and tactical advantage. Yet no one notified the Petitioner of opposing counsel's communications with [the] Judges . . . at the time those communications occurred much less took any action to determine whether Petitioner would stipulate to the reassignment of the case or to the trial date. * * * It has been rumored that if one is affiliated with [opposing counsel's law firm], favoritism may be accorded her by [the] or those in his office. Because opposing counsel is with the law firm [ ], Petitioner believes that favoritism was at play here.”

109 See: In re Wilkins, 777 N.E.2d 714, 715-716 (Ind. 10/29/02), where an appellate lawyer stated in a brief (and

received a sanction, which was reduced on rehearing, 782 N.E.2d 985 (Ind.,2003)):

The Court of Appeals' published Opinion in this case is quite disturbing. It is replete with misstatements of material facts, it misapplies controlling case law, and it does not even bother to discuss relevant cases that are directly on point. Clearly, such a decision should be reviewed by this Court. Not only does it work an injustice on appellant Michigan Mutual Insurance Company, it establishes dangerous precedent in several areas of the law. This will undoubtedly create additional problems in future cases.

statements made in a letter that a judge is “an embarrassment to this community,”110

and for Internet postings

containing unfounded accusations against a judge.111

8. SOME ADDITIONAL HYPOTHETICALS

a. The New Deal

You have a national reputation as a “go to” lawyer on major real estate deals. You’ve been retained by

Conglomerate Inc., with its principal place of business in State X, to fly to State X (where you’re not licensed) to

consult with it about heading up a major multi-state real estate transaction that will involve states Y and Z (where

you’re also not licensed to practice). You’ll handle all the negotiations and review all contracts.

Any problems with this?

Would it matter if you retained Larry Local, a local attorney in State Y to assist you there and Linda

Lawyer, a local attorney in State Z to assist you there?

Would it matter if Larry and Linda had each been in practice for less than a year?

COMMENTS:

Does Rule 5.5 help protect you? Do the amendments to Rule 5.5 adopted in 2013 provide any

additional protections?

What if the amendments to Rule 5.5 had been adopted in your home state, but not in States X or

Y?

What if the amendments to Rule 5.5 had been adopted in States X and Y but not in your home

state?

b. The Case of the New Deal, Part II

Assume that the facts are the same as in 10(a) above, except that your engagement letter with

Conglomerate specifies that regardless of where you do your legal work or who you use in States X and Y, only

the Rules of Professional Conduct of your home state apply to your activities when working for Conglomerate.

COMMENTS:

Would this letter suffice to protect you in States X or Y if you are charged with being engaged in

the unauthorized practice of law?

Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).

110 Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 890 A.2d 509 (Conn.,2006).

111 See: Office of Disciplinary Counsel v. Wrona, 589 Pa. 337, 908 A.2d 1281 (Pa.2006).

Would it matter if State X or State Y had adopted the 2013 amendment to the comments to Rule

8.5?

c. The Case of the Hotel Room Office

You have left your home state on your way to State X to meet with Conglomerate. You’re sitting in your

hotel room at night in State X after meeting with Conglomerate and you check your smart phone and tablet

computer. There are emails and phone calls from potential clients, both back in your home state and also in

States Q and R where you’re not licensed to practice.

Can you open the emails?

If you open any of these emails, can you respond?

Can you return the phone calls?

If you respond, what can you say? Can you give legal advice via email or on the phone?

COMMENTS:

Can any of the work you’re doing in State X be described as the “practice of law” in State X?

If so, are you engaged in the unlawful practice in State X?

Does it matter if you bill for the emails and phone calls you review and respond to while you’re in

State X? Does anything in Rule 5.5 protect you?

d. The Case of the Vacation Home

You own (or lease) a vacation home out of state where you spend at least a couple of weeks at a time.

While there, you work “remotely,” reading emails, taking and making phone calls to and from clients, drafting and

reviewing documents and pleadings, and billing for your work.

• Are there any problems with this?

• Does it matter if you have a land line telephone number in your vacation home where your clients

call you or leave messages?

COMMENTS:

Does the analysis here differ from the situation at Section c, above? Why or why not?

9. CONCLUSION

There are no simple answers to the complex problems that face ICSC lawyers every day. There are no

easy solutions to problems that arise when almost everything we do involves some multijurisdictional issue.

As long as states continue to erect barriers to multijurisdictional practice on the one hand, and as long as

states enforce unlawful-practice-of-law rules on the other, perhaps only the lawyer whose practice is narrowly

confined could blithely remain unconcerned about these issues, but perhaps that lawyer also should be

concerned about whether his or her narrow practice can survive in this increasingly competitive and

interconnected world.

Perhaps we all should be more involved in questioning whether the current Model Rules (and our state’s

own variations on those rules) serve to protect the monopoly of local lawyers to the detriment of clients, whether

the rules elevate the interests of clients above those of lawyers, and what is the proper balance the Bar should

take in connection with transactional practices that are truly multi-state.

Documents

Wednesday, October 24, 2018 2:00 3:15 PM General Session 1 ... · Ethics In The Fact Of Expanded Attorney Liability, by Robert G. Day 11 See, for example, Smith v. Damato, 172 Neb