Category Archives: Uncategorized

The duty to inquire about a fraud — it’s real and it’s spectacular

Burying your head in the sand could be pretty lucrative for a lawyer.  Some lawyers over the years got pretty wealthy that way.  They were the kind of lawyers who talked to a shady client and said things like, “I didn’t hear you say that,” or, “Don’t tell me anything. If you tell me I can’t continue to represent you, so I don’t want to know.” 

Lawyers who are willing to put on earmuffs like that are pretty popular with a particular kind of client. Criminals.

Well, recently the ABA issued an ethics opinion that made it clear that the days where a lawyer could ignore a client’s bad deeds are a thing of the past. While the opinion contains an interesting ethics analysis, the reason it is truly notable is because it signals a paradigm shift. The opinion makes it clear that lawyers can’t bury our heads in the sand anymore.

ABA Formal Opinion #491 (April 2020) deals with a lawyer’s obligation to avoid counseling or assisting a client in the commission of a crime or fraud. This issue appears to have gained importance recently because of an increased risk to lawyers. Governments around the world are putting more pressure on terrorist groups and other nefarious actors. That pressure has created a greater need for the bad guys to try to conceal their financing, and that increases their need for elaborate money laundering transactions.  Oftentimes those bad guys will need a lawyer to help them carry out their scheme, and that’s when the lawyer can have problems. That’s when a lawyer might be put in the position to assist that client in committing a crime. 

There is no question that lawyers can not assist in their client’s illegal activities.  Rule 1.2(d) explains that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”  If a lawyer knows that’s happening, they need to withdraw, at the very least.  But what if a lawyer isn’t sure? The client’s tactics might smell like money laundering — maybe they’re paying with large amount of cash or routing money through a jurisdiction where laundering is common. But in some situations there might not be much more evidence than that.  In those cases there might not be enough evidence on the surface to confirm that the client’s objectives are fraudulent.  The question the ABA is wrestling with in Opinion 491 is, does a lawyer have to dig deeper? Does a lawyer have a duty to ask the client whether the objectives that smell bad are actually bad? The answer is yes. 

In explaining their reasoning, the opinion starts with the easy stuff. If the lawyer “knows” that they are getting involved in a client fraud — if the facts are so strong that the fraud is obvious — a lawyer has an obligation to talk to the client about it. That’s clear from Rule 1.2(d), and it’s been confirmed over the years. Both the rules and advisory opinions have established that lawyers aren’t allowed to avoid the obvious. 

But the opinion went further. It explained that a lawyer has to make inquiry even if the facts aren’t so strong that the fraud is obvious. A lawyer is required to check into the matter if there’s a “high probability” that the client is engaging in fraudulent conduct. The opinion explained that, “When a lawyer deliberately or consciously avoids knowledge that a client is or may be using the lawyer’s services to further a crime or fraud, discipline is imposed.” Op. 491 at 5, citation omitted. 

And the opinion didn’t stop there. Yes, a lawyer needs to inquire if she knows the client is pursuing a fraud. Yes, a lawyer also needs to inquire if there is a high probability that the client is pursuing a fraud. Well, the opinion further noted that some cases held that a lawyer should make an inquiry if there is a suspicion that the client’s actions might be fraudulent. And some jurisdictions have an even broader requirement. States like South Carolina require a lawyer to consult with a client if they “reasonably should know” that the client is getting the lawyer to assist in a crime or fraud. Op. 491 at 5.

All of that begs the question — when is a lawyer deemed to have a “suspicion” sufficient to require further inquiry? When can it be said that a lawyer “should have known”? The answer, as usual, is that it depends on the circumstances.  Unfortunately the drafters don’t give us a clear explanation of when this duty to investigate is triggered. It seems like they’re saying, “if it smells bad, ask.” But while the trigger might be murky, there is one thing that’s clear. The lawyer’s obligation to inquire about whether a client is asking the lawyer to assist in a fraud exists.  And Opinion 491 states clearly that a lawyer would be facing disciplinary action if an inquiry is required and they don’t do it.

Interestingly, I don’t think the unanswered questions here are so concerning. That’s because I don’t think this opinion is really about defining when a lawyer must make this inquiry. I think this opinion is really about sending a message. 

Think about it— the actual ethics issue is pretty basic and not all that controversial. A lawyer can’t assist in a client’s fraud, they should talk to the client about whether they are engaging in a fraud, and if they learn the client is doing so the lawyer should withdraw. Not exactly earth shattering.  But consider the “feel” of the opinion. 

The opinion spends a tremendous amount of time establishing the ethical justifications for requiring the lawyer inquiry.  They explain the nuances of Rule 1.2, they talk about criminal law, and they note a variety of other rules which can be read to require that a lawyer inquire further. That effort — which goes on for several pages — is extensive. They put a lot of effort into a pretty basic concept. It’s almost like the drafters are making their case. It seems as if they know that the audience will be skeptical. They know that lawyers will question whether this duty is real. Maybe the drafters realized that they would face resistance, so they felt the need to go to great lengths to make it abundantly clear that the duty to inquire exists. They nearly overdo it with the justifications. It’s as if they are saying, “let there be no mistake about it. This duty exists. It’s real.” 

Why would they need such overkill? Maybe it’s because they are signaling a paradigm shift. The drafters seem to be saying that the game-playing days are over.  The days where you could bury your head in the sand and remain willfully ignorant are a thing of the past.  

Maybe they spent so much time talking about the duty to inquire because that’s the only way they can make it obvious that they want us to behave differently — they want us to shed the old ways. They’re saying, times have changed and we really mean it. Look. We put a lot of ink on the paper. That shows we’re serious. We gave you all of this research because we want to send a clear message. The old days are over. Get with the program. In today’s practice they expect more from you.

There are other opinions which confirm this shifting paradigm and they’ve got to do with enhanced obligations being put on lawyers because of international money laundering. But let’s talk about that on another day…


Advance Conflict Waivers are on Life Support

A recent case about advance conflict waivers reveals that they are probably no longer viable, and here’s why. The issue revolves around the lawyer’s need to get informed consent.

The only way a lawyer can get around a conflict of interest is if (in addition to some other things) they get informed consent from the client. That phrase “informed consent” has a lot of depth and it is discussed in several places throughout the code. Much attention is given to the quality of the conversation between lawyer and client.  A lawyer needs to discuss a bunch of specific items in order to be said to have obtained proper informed consent. Rule 1.0 requires that the lawyer communicate “adequate information,” provide an “explanation about the material risks” and talk about the “reasonably available alternatives to the proposed course of conduct.” Rule 1.7 requires that the communication include: a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct, and a discussion of the client’s or other person’s options and alternatives.  

So where do advance conflict waivers come into play?  A law firm always has to get informed consent from the client in order to take a conflicting matter. The only question is whether the firm gets that informed consent during a contemporaneous consultation with the client once the conflict becomes apparent, or by advising the client of potential conflicts before they become apparent and obtaining that informed consent before the conflict even arises. That latter situation is essentially what an advance conflicts waiver is all about.  You’re getting your client’s informed consent in advance. But you can probably sense the problem with that. 

The inherent problem with blanket advance conflict waivers is that when you are negotiating the waiver, the future client is not yet known…which means that the exact risks that your client could face from the future conflicting representation are not yet known…which means that you can’t build those risks into the conversation you need to have with the client…which means that you can’t get proper informed consent because you can’t talk about all of the required details set forth in the rules.  So it seems that there is just no way to have an advance conversation that contains the requisite specificity needed to obtain proper informed consent.

This issue came to a head in 2018 in a critical case out of California.

The law firm Sheppard Mullin was asked to represent a client (J-M) who was defending a large False Claims Act suit. FN1 There were 200 plaintiffs suing J-M in that matter.  The problem was that one of those 200 plaintiffs was the City of South Tahoe, an entity that a Sheppard Mullin partner represented on and off for years. The firm had an advance conflict waiver in place with South Tahoe. 

The firm took on the J-M case, despite the fact that it was already representing South Tahoe. The firm included a conflict waiver in the J-M fee agreement, but they did not disclose that they were representing South Tahoe in an unrelated matter. FN2 When South Tahoe found out about the conflict, they moved to disqualify the firm. FN3

It appears that the firm never notified either client about the conflict because the firm thought they were covered already. The new matter wasn’t related to the False Claims Act matter, and the firm also had an advance conflict waiver in place with both clients.  According to a report, “Sheppard Mullin pointed to a provision in the engagement agreement that allowed the firm to engage in conflicting representations ‘provided the other matter is not substantially related to our representation of [J-M] and in the course of representing [J-M] we have not obtained confidential information of [J-M] material to representation of the other client.’” FN4 Regardless, the lower court invalidated the advance conflict waiver and disqualified the firm. The firm later sued J-M to collect the fees that were outstanding, but the client resisted and the court ultimately ruled in the client’s favor. 

The court held that since Sheppard Mullin engaged in an impermissible conflict, their fee agreement was unenforceable because it was contrary to public policy. As a result, the firm couldn’t get the balance of their fee. The court further ordered that the firm had to return the portion of the fee that was paid by J-M as of the date that the impermissible conflict started. The court “made clear that when the conflict surfaced, Sheppard Mullin had a duty to tell the client and obtain its informed consent rather than relying on a broad advance waiver in its engagement agreement.”  FN5 Finally, “The court rejected the firm’s reliance on that provision—or “boilerplate waiver,”…saying the firm’s argument ignored the reality that Rule 3-310(c)(3) requires truly informed consent from the client. ‘Written consent to all potential and actual conflicts in the absence of any knowledge about the existence of such conflicts cannot comply with the requirement of ‘informed written consent’ in Rule 3-310(C),’ the court said.” FN6

At the end of August in 2018, the California Supreme court upheld the lower court.  While the case was remanded for an issue that doesn’t concern us here, they stated:

…“because Sheppard Mullin knew of” its conflicting interest with South Tahoe and failed to inform J-M about it, J-M’s advanced blanket conflict waiver was not supported by consent that was “informed” within the meaning of the Rules of Professional Conduct.  Furthermore, since the consent was not informed, the entirety of the engagement agreement with J-M was unenforceable.

For a conflict waiver to be “informed,” the Court reasoned, “the client’s consent to dual representation must be based on disclosure of all material facts the attorney knows and can reveal.”  The Court stated that “An attorney or law firm that knowingly withholds material information about a conflict has not earned the confidences and trust the rule is designed to protect.”

Applying this standard, the Court noted that the Sheppard Mullin advanced waiver to J-M “did not disclose any particular conflict, or even any area of potential conflict, and did not mention” the Firm’s concurrent representation of South Tahoe.  Accordingly, the Firm’s advanced waiver was insufficient to inform J-M’s consent to the representation where, as here, the Firm was aware of a more specific and concrete conflict that already existed when the engagement agreement was executed.  The representation of South Tahoe “was not merely a future possibility; it was a present reality.”  Informed by this legal standard, the Court had no trouble concluding “the conflicts waiver here was inadequate.” FN7

Now, it’s true that the court said they were not invalidating all advance conflict waivers in this decision.  Defenders of advance conflict waivers will further argue that the Supreme Court’s decision is tailored. They will argue that the decision only relates to that category of conflicts where the conflict is known to the parties when they enter into the representation.  But I would not feel very comfortable relying on that narrow interpretation of the decision. 

I think the reason the court didn’t invalidate advance conflict waivers in general is because they didn’t have to go that far, given the facts of the case. They took the typical appellate court approach— limit the opinion to the facts before you.   I believe that the court narrowed their decision because of appellate court protocol, not because of the substance.  In fact, if one looks at the substance, one can see that advance blanket conflict waivers are very much on life support.  

This case is about a client feeling that they didn’t have adequate information about a conflict and that their advance waiver should be ineffective because of that lack of information.  This case is about a client who lacked enough information to provide adequate informed consent.  It is not going to be very difficult for a client in the future to extend the underlying logic in this decision from a case where the conflict is known at the time the representation commenced, to a case where a conflict is not known at the time the representation commenced.  That’s because the heart of the decision is about informed consent. 

Of course, one might think: But we’ve already had blanket waivers. They’ve been around forever. Why are they under attack now? 

The answer is money.

I’m guessing that past cases where a client disputed the efficacy of an advance conflict waiver were settled.  The lawyer and the client simply negotiated a settlement and they moved on with their lives. But this was very likely the first case where the fee was so high and the consequences of losing the case were so costly to both parties that there was no way for the parties to settle.

Here’s the takeaway: One day there is going to be a client who wants a lawyer out of a case really badly (and they’ll want to avoid paying the large legal fee, too). They are going to try to achieve their goal by arguing that the fee agreement with the lawyer should be void because of the firm’s failure to obtain genuine informed consent before entering into a blanket advance conflict waiver.  They will argue that a blanket advance waiver can not, by definition, confer the informed consent required in the rules. Mark my words— they will win. 


FN1 Unless otherwise cited, the synopsis of the case throughout this section is summarized from the article found at, last checked by the author on March 8. 2019. 

FN2, last checked nether author on March 8, 2019. 

FN3, last checked by the author on March 8, 2019. 

FN4, last checked by the author on March 8, 2019. 

FN5, last checked by the author on March 8, 2019. 

FN6, last checked by the author on March 8, 2019. 

FN7, last checked by the author on March 8, 2019.


Links to my on-demand programs in (almost) 50 states

My on-demand programs are approved in almost all 50 states (and some territories). Below are the links I’ve got together so far.




















New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota




Puerto Rico

Rhode Island

South Carolina



United States Virgin Islands





West Virginia


Links to States’ Attorney Ethics Opinions

Finding a link to the attorney ethics opinions issued by every state in the country is tough.  Some states don’t make the opinions available, others don’t issue opinions, and still others might be behind pay walls. I’ve tried to compile a list of links for each state’s ethics opinions and I’ve listed them below.  Since the states are constantly messing with their websites, some (…heck, many) of these links could be wrong.  All I can say is they were working when I checked them!

If you have a link for one of the states that I haven’t been able to get please feel free to send them to me at

Arkansas- no new opinions??
Connecticut- couldn’t find a good link
Kansas- ???
Kentucky- Link is no good
Louisiana- Link is no good
Maryland- restricted
Michigan- link NG
Minnesota- ???
Montana link NG
Nebraska link NG
New Hampshire link NG
Pennsylvania- couldn’t find a state site.
South Dakota- Can’t get them.  Only provided to bar members on request, per
Tennessee       Lawyers- links to formal and informal opinions on this page
Wisconsin (behind a pay wall?)
Wyoming: Opinions?

Be very quiet…I’m hunting Jurors!

Ex parte communications with prospective jurors and members of a sitting jury have long been prohibited.[1] (See Rule 3.5(b)). But the advent of social media has created a difficult wrinkle because lawyers are using social media to research both prospective and sitting jurors. That isn’t frowned upon, per se.  In fact, the New York City Bar Association recognized that this type of research is consistent with a lawyer’s fundamental duties. It noted that, “…standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” [2]

The problem is that part of the lawyer’s investigation process through social media could include communicating with the jurors, thereby violating Rule 3.5(b).  There could be friending, exchanges of messages, or a lawyer might just observe a juror’s social media page.  The issue is trying to figure out which of those actions actually constitute a “communication” that violates the Rule. The authorities are concerned because “social media…can blur the line between independent, private research and interactive, interpersonal ‘communication.’”[3]

The City Bar didn’t make many waves when it opined that “friending” a juror constituted a prohibited communication.[4]  That’s pretty much a no-brainer.  It shook things up slightly, however, when it stated that simply researching a juror’s social media page could constitute a communication.

The Bar was concerned about situations where a lawyer researched the jurors page and the website sends a message to the juror letting them know that the lawyer had viewed the juror’s page.  How could this happen? Consider these two specific examples: LinkedIn automatically generates a message that tells a user who has viewed the profile recently.  Also, Twitter lets a user know the identity of a new follower.  The City Bar considered those type of platform-generated messages to be considered “communication” under the rules. [5] They stated that the key factor was the effect that such knowledge would have on the receiver (in this case, the juror).[6]

The Bar held that “it is the ‘transmission of,’ ‘exchange of’ or ‘process of bringing’ information or ideas from one person to another that defines a communication”[7] and that in the world of social media, “this focus on the transmission of information or knowledge is critical.”[8] In a situation where a juror was notified that a lawyer was viewing the juror’s social media page “…the researcher imparted to the person being researched the knowledge that he or she is being investigated.”[9]  The City Bar believed that “The transmission of the information that the attorney viewed the juror’s page is a communication that may be attributable to the lawyer and even such minimal contact raises the specter of the improper influence and/or intimidation that the Rules are intended to prevent.”[10] In addition to being intimidating, the knowledge of that research might “tend to influence the juror’s conduct with respect to the trial.”[11] Thus, the key question is whether the juror would have learned of the lawyer’s research.[12]

Note that the City Bar made a distinction between whether the lawyer knew that the notice would be generated, or whether it was inadvertently sent.  The former was considered to be a clear violation of the rules, but the Bar wouldn’t say if they thought that the rules were broken if the message was sent by the social media page inadvertently.[13] They said it “might constitute a prohibited communication even if inadvertent or unintended.”[14] Either way, they see the communication as a no-no.

But—lest you think that the ethics world is a boring place—there is a bit of controversy on the topic.  The ABA has also opined on the topic and came down with a contradictory (and in my opinion, troubling) result.

In Formal Opinion 466 (April 24, 2014) the ABA’s Standing Committee on Ethics and Professional Responsibility evaluated the same question that NYC considered.  Knowing that Rule 3.5 prohibits communications with jurors, they considered whether a lawyer can investigate a juror/potential juror’s social media page.  The ABA resolved the easy question the same way as the City Bar. That is, overt contact with a juror (like friending) is a prohibited communication that violates Rule 3.5(b).[15]  The ABA came down differently, however, on the tough question—whether a lawyer may passively review a juror’s social media page if that review will become known to the juror. In that scenario, the ABA disagreed with NYC. The ABA thinks it’s okay.

According to the ABA, a lawyer is not communicating with a juror when a website sends an automatically generated notice to the juror telling them that the lawyer was reviewing their website. They stated, “This Committee concludes that a lawyer who uses a shared ESM platform[16] to passively view juror ESM under these circumstances does not communicate with the juror.  The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM.”[17]

What’s amazing, is…that’s it.  That’s pretty much the crux of the decision.  The opinion is almost devoid of analysis.[18]  The only statement that in any way resembles some deeper thought is an analogy.  The opinion states, “This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”[19] Personally, I think the ABA has it all wrong.

When a lawyer passively investigates a juror’s social media page, that lawyer is reading the details to the page.[20] They are inspecting the contents and looking for information.  It’s a lot less like driving down the street near a juror’s house and lot more like standing on the juror’s lawn peering over their bushes through the picture window in their living room, or rifling through the juror’s garbage cans.  I believe it’s more intrusive than the drafters of the opinions make it out to be. And intrusive can be intimidating.

But the ABA never talked about the potential intimidation.  They failed to explore that key underlying issue all together. They simply made a distinction about who is actually initiating the communication.  Since the website sent the message, it’s not a lawyer communication.

The mistake the drafters are making is focusing on the technical manner in which the message is sent.  The issue is not about who (or what) sent the communication, rather, it’s about what triggered that communication.  The impetus for the system sending a communication to the juror was the lawyer’s research.  The website-generated communication was only triggered because the lawyer made an appearance on the juror’s webpage.  The lawyer’s snooping caused the message to be sent.

The concern that prompted the City Bar opinion was the fact that knowledge of the lawyer’s presence on the juror’s social media page could be intimidating.[21] The message, regardless of who sent it, makes the juror aware that they are being watched. The key factor to the City Bar was the effect that such knowledge would have on the receiver (in this case, the juror).[22]  That’s why they stated that “even such minimal contact raises the specter of the improper influence and/or intimidation that the Rules are intended to prevent.”[23]

To date there haven’t been any other states that have chimed in on the matter.

I would expect that when other states opine on the matter that they will review the rationale behind the City Bar opinion in a more meaningful way and it will be interesting to see how they decide. My gut tells me that many jurisdictions will side with the City Bar view and I think that’s a good thing. I agree with them—the knowledge of a lawyer poking around on someone’s social media page could be somewhat intimidating.  But there’s a practical problem with all of this.

The problem is that the courts are also claiming that diligence demands that we research the public internet life of jurors.  In some cases they are even encouraging us to do so.[24] So how do we reconcile those two mandates?  Do we just stay away from sites like LinkedIn and Twitter because we know that they generate these messages?  But what if that changes—maybe we know which sites generate automatic messages today, but the functionality of these platforms change daily. The answer is competence.

This is a perfect illustration of how understanding social media and technology is becoming a core competency. There is a way to fulfill your mandate of researching jurors while also avoiding these type of computer generated messages. It means, however, that you need to have an intimate understanding of the individual platforms.

A well-versed user would know that you could adjust your own LinkedIn settings so that your identity isn’t revealed to other users when you view their profiles.  A person who understands Twitter knows that you can watch what another user says without actually “following” them.  Could that all change? Yes.  And when it does, you need to know about it.  You need to stay abreast of how all these platforms work…and that’s why knowledge of social media is becoming a core competency.


[1] New York City Bar Association, Formal Opinion 2012-2 at 1

[2] NYC Opinion 2012-2 at 2

[3] NYC Opinion 2012-2 at 2

[4] NYC Opinion 2012-2 at 3

[5] NYC Opinion 2012-2 at 2

[6] NYC Opinion 2012-2 at 4

[7] NYC Opinion 2012-2 at 4

[8] NYC Opinion 2012-2 at 4

[9] NYC Opinion 2012-2 at 4

[10] NYC Opinion 2012-2 at 5

[11] This quote actually comes from a different opinion out of New York City.  NYCLE Committee on Professional Ethics, Formal Opinion No. 743, Issued May 18, 2011 at 3.

[12] NYC Opinion 2012-2 at 3

[13] NYC Opinion 2012-2 at 5

[14] NYC Opinion 2012-2 at 2

[15] ABA Opinion 466 at 4

[16] “ESM” stands for “electronic social media” in this opinion.

[17] ABA Opinion 466 at 5

[18] This is all a bit surprising.  ABA opinions are normally well thought out writings that delve into the rationale behind their decisions.  In this case, however, the opinion is far too superficial.

[19] ABA Opinion 466 at 5

[20] …to the extent those details are available to be seen- we’re not talking about pages that are behind a privacy wall.

[21] NYC Opinion 2012-2 at 5

[22] NYC Opinion 2012-2 at 4

[23] NYC Opinion 2012-2 at 5

[24] See NYC Opinion 2012-2 at 2 where it references the Missouri case of Johnson v. McCullough, 306 S.W.3d 551, 558-59 (Mo. 2010).


You Gotta Do What You Gotta Do

Recently a lawyer was telling me about some bad conduct that happened at their office. They had a run-in with a senior partner and the lawyer I was speaking with seemed pretty sure that the senior partner’s actions constituted a violation of the ethics rules. Before I could even ask if they were going to report the misdeed, the lawyer said, “It was probably reportable, but I didn’t want to make waves. I just kept my mouth shut, hoping it would all blow over. Eventually, I found another job and just moved on.”

That might be a sensible approach in life, generally, but it’s a dangerous approach in the world of attorney ethics. That’s because our duty to report is mandatory. Rule 8.3 requires that lawyers report misconduct. That’s right– requires. Don’t get me wrong, there are a bunch of hurdles that you need to jump over before the conduct becomes reportable per the rule. But once you reach that threshold, the duty is just that– a duty. If you fail to report that misconduct, you might be liable for an ethics violation of your own.


What everyone’s missing in the Virtual Law Office Debate

The Internet allows us to have virtual friends and virtual second lives. It even allows lawyers to have virtual law offices (VLOs). The phrase virtual law office or virtual law firm (or whatever derivation you choose) could be defined several ways. It all depends upon the individual lawyer and how they chose to form their practice. What’s consistent among the category is that virtual lawyers are using technology in a major way and they butt heads with the traditionalists of the practice

The virtual lawyer is usually a solo attorney or small firm. They are mobile, using technology to operate out of courthouses, coffee houses, and their personal houses. They work on files wherever they desire, using Wi-Fi connections to access client files from cloud storage sites. They use cloud-based practice management software that can be accessed through their phones and tablets. They rarely have a conventional brick-and-mortar office and meet their clients by appointment only, often in shared conference rooms that are rented on an as-needed basis. Is this a good thing or a bad thing? It depends whom you ask.

The issue of whether virtual law offices should be permitted has emerged as a defining issue between two camps in the law: the protectionists/traditionalists vs. the technologists/progressives. If, by virtue of the labels themselves I appear to have planted myself inside either camp, I apologize because I didn’t mean to. As you’ll see, I find merit in both positions. This is one of those issues, however, where the differences between the Hatfields and the McCoys become apparent and they’re even fighting over the advisory opinions on the topic.

Several states have issued opinions about legal topics that impact virtual law offices. Many of them, however, haven’t passed judgment on their permissibility directly. Instead they address ethical issues in technology like cloud computing, safety of wireless networks, confidentiality, competence, and supervision. These apply to every tech-using lawyer, regardless of whether you’re involved in a VLO. However, there are some issues that pertain specifically to the VLO, and they’ve been taken on in several jurisdictions.

States including New Jersey, Pennsylvania, and California, have dealt with VLOs and, in NJ’s case, more than once. I’m not going to summarize them because the opinions are short and well written. They explain their reasoning in a clear, concise, and direct manner and it’s a good idea to review them in their entirety. And I recommend that you actually read the opinion– be careful when you read the analyses on the blogosphere, because almost every blogger is motivated by some agenda. Some believe, “We should retain the traditional values of the practice” while others’ mantra is, “We should redefine the modern practice.” As a result, their analyses are littered with cheap attacks at the other side which, while sometimes quite pithy, blur the real issues. The feud between the traditionalists and the technologists is muddling some key issues with which we must all be concerned.

Proponents of VLOs set forth compelling reasons for embracing the technology in this manner. The benefits they cite include increasing availability of legal services for the client, how technology and VLOs can keep down the cost of legal services, etc. The advisory opinions from around the country don’t take much issue with those items. The biggest variation of opinion and the defining sub-issue of the debate revolves around a lawyer’s office.

Here’s the issue: Do you need to have a brick-and-mortar office? Do the ethics rules require that you have an actual, physical office where you have secretaries and copy machines and the rest? The problem is that a hallmark of the virtual office is that there is no traditional office maintained by the lawyer. Instead the lawyer conducts their business wherever they prefer- the coffee shop, their bedroom, a library, whatever. Indeed in some instances the virtual lawyer doesn’t want to reveal where they work, since that might be their place of residence. They might not want to publicize where they live because they’re often home alone, or leave their children by themselves. That puts themselves and their families at potential risk from the crazies of the world. The problem is that the ethics rules as they are currently written don’t make it clear whether it’s acceptable to forgo having that physical space. In fact, some rules appear to require it.

There are two types of applicable rules. A clear bar to VLOs exists if a state has a rule that requires a bona fide office (like New Jersey had, pre-2013). In other states, a defacto prohibition exists if there is a rule that requires disclosure of one’s physical office address whenever they advertise. Let’s tackle the latter situation.

Many states have a derivation of Rule 7.2(c) (“Advertising”) which states, “Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.”

This isn’t necessarily a bar for VLOs. You just need to make sure that you never, ever advertise and you won’t run afoul of this rule. Can you see the sarcasm dripping from my fingers as that’s typed? Advertising is the lifeblood of a virtual law practice! Thus, it appears that there are two threshold questions we need to answer: (1) What is an advertisement, and (2) What is an office?

The term “advertising” is broadly defined. New York confirmed that for us in the New York State Bar Association Committee on Professional Ethics Opinion 964 (4/4/13). In that opinion, the Bar Association addressed the question of whether business cards were considered advertising. They stated, “When a business or professional card or letterhead is used in the ordinary course of professional practice or social intercourse without primary intent to secure retention – e.g., simply to identify the lawyer – it does not constitute advertising [citation omitted]” However, the Committee stated that business cards could be ads when they opined, “If such cards or letterhead were given or sent to someone other than an existing client or another lawyer, and primarily in furtherance of an effort to secure retention of the lawyer or law firm, then the card or letterhead would constitute advertising. [citation omitted].” The opinion made clear that in those cases the rule, “would require it to include a principal law office street address.”

Thus, at least in some instances, business cards are considered ads (the practical effect of that decision is that a NY lawyer must always treat their business cards as advertising). This is consistent with the broad view taken by other states when determining what is considered to be an ad. This categorization has a significant effect — it means that New York lawyers always need to have a physical office address listed on their cards. And yes, the opinion makes it clear that when they state, “office” they mean a physical office. Thus, it’s impossible to maintain a virtual practice in New York without having a brick and mortar office that one calls home.

Decisions like this are met with horror by the technologists. They shout that rules like this are “antiquated,” or evidence of the elitism of Big Law and perpetuation of the proverbial “Old Boys Club.” But all they need to do is follow the Turnpike out of New York, zip through New Jersey and head into Pennsylvania. They’ll find that state far more hospitable because Pennsylvania views the address requirement differently.

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility addressed the issue of virtual law offices directly in it’s Formal Opinion 2010-200. The Committee addressed a variety of concerns relevant to VLOs, like confidentiality and supervision, but it also tackled the office address issue. The Committee stated that Pennsylvania’s rule doesn’t require that an actual physical address be listed on advertisements; they simply require that the lawyer set forth the geographical location (by city or town) where the lawyers principally practice law. The opinion notes that the “goal of the Rules is to assure that clients are informed about the locations where the firm operates and the jurisdictions in which the attorneys at the firm practice. The opinion goes even further and states that it’s even permissible for lawyers to use a post office box as the address where services are rendered, so long as the geographic area requirement is met. Under the Pennsylvania interpretation, a VLO wouldn’t be precluded by the advertising rules. In fact, the opinion specifically stated that for this reason, and all of the others discussed therein, a virtual law office was permissible in the Keystone State.

In order to get at the heart of the issue, however, one would need to backtrack in our travels and return to my home state of New Jersey. In my opinion, New Jersey’s rules do the best job of framing the key issue of the VLO debate.

For years, New Jersey was famous (or notorious, depending upon your point of view) for having a “bona fide office rule.” New Jersey’s Court Rules contained provision 1:21-1(a), which required that a New Jersey attorney maintain a bona fide office for the practice of law. The rule stated,

“For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.”

In 2010, New Jersey issued an opinion that outlawed virtual offices specifically because the powers-that-be believed that the physical location requirement was a key component of a proper law practice. The Advisory Committee on Professional Ethics issued Joint Opinion 718 with the State’s Committee on Attorney Advertising and stated that, “A virtual office” cannot be a bona fide office since the attorney generally is not present during normal business hours but will only be present when he or she has reserved the space.”  Later on, the opinion discusses the issue of listing offices on ads and it touched on the crux of the issue:

“An attorney must have at least one bona fide office but may also list satellite office locations on letterhead, websites, and other advertisements provided the listing of such office locations is accurate and not misleading…An attorney who has a bona fide office may also have a satellite office that is a “virtual office.” The attorney may list that “virtual office” satellite location on attorney or law firm letterhead, websites, or other advertisements, but the communication must state that the “virtual office” location is “by appointment only.” A “virtual office” location is not a place where a client can meet with the attorney unannounced. An attorney is not routinely found at a “virtual office” location and would need to make arrangements to reserve the space. Accordingly, while “virtual office” locations may be listed on attorney or law firm letterhead, websites, or other advertisements, the communication must state that the location is “by appointment only.”

Why were they so insistent upon an actual office? Sure, it could be for nefarious reasons, like protectionism for elite lawyers. But I think there’s another reason. The key phrase to focus on in the previous quote is, “A ‘virtual office’ location is not a place where a client can meet with the attorney unannounced.” I believe that that’s what this issue is really about. The real disagreement isn’t about misleading advertising or whether to use technology. Those are concerns that are relatively easy to resolve. The real divide revolves around communication and the allocation of power between the lawyer and client.

Permit me to illustrate with a personal anecdote.

I needed to hire a lawyer recently to deal with a personal legal problem, so I got the chance to see the system from the client’s point of view. My lawyer was a solo attorney in my hometown. He has a typical small office in a local office condo development, two secretaries and some loose relationship with another local lawyer (I couldn’t tell exactly, but it didn’t look like they had a typical partner/associate thing going). Throughout the representation we communicated mostly through email- I tried to make phone calls, but he was only there sporadically, so email worked best. The problem was that many of the responses I would get were single words or short phrases. Typical email exchanges resembled the following:

ME: “Did you hear from the other side about the stipulation yet?”
LAWYER: “Nope.”

ME: “When do you want to broach the settlement with the other side?”
LAWYER: “Not yet.”

I grew increasingly frustrated with the curt responses and at times I specifically asked for more detailed descriptions, but my pleas went unanswered. Responses continued to be short bursts like,

ME: “Have we received a response to our offer yet? It’s been a while- what do you think we should do if we don’t get a response by the end of the week?”
LAWYER: “Didn’t get a response yet. I’ll advise.”

As time passed I felt completely disconnected from my case. It made me very concerned and I wrote emails that said things like, “Please call me, I am really anxious and I’m in the dark.” Usually these went without response. No matter what I said and no matter how much desperation I built into the language of my emails, I wasn’t able to get any consistent or meaningful responses from the lawyer. My lawyer wasn’t communicating with me consistent with Rule 1.4.

I was at my wits end and I felt like I was running out of options. I had no choice but to go to his office, plant myself in his waiting room, and confront him when he walked in the door. When I did that, I got the answers I needed.

Frequently, and unfortunately, that’s the only way a client can get a hold of their lawyer. And the way I see it, it’s among the biggest reasons for requiring a physical office location. If there isn’t proper communication, the only weapon in the client’s arsenal might be to make themselves a fixture in the lawyer’s office. The concern is that the absence of an office denies the client that option. It makes the lawyer less accessible to the client.

Not every critic of VLOs is concerned with this ethical dilemma. Sure, there are protectionists whose motivation is to resist change. Yes, there are people in Big Law who want to use the rules to build a system that keeps the deck stacked in their favor. But set aside those motivations and review the matter free of any agenda and we can see that there are some respectable and important ethical motivations.

I think the disciplinary authorities believe that the client should have the ability to see their lawyer when the client wishes to do so. I’m sure that many diligent proprietors of VLOs bend over backward to accommodate clients’ requests for meetings. But a system that provides for face-to-face meetings with a lawyer “by appointment only” doesn’t afford the client the ability to see the lawyer at a time of the client’s choosing. Restricting lawyer-client personal meetings to an appointment only system puts the power in the hands of the lawyer and that’s not consistent with the most basic values of attorney ethics. Remember, it’s not about you; it’s about the client. Thus, the major divide with virtual law offices isn’t really about technology, rather it’s about empowering the client.

Some argue that the cure is to clearly set forth your policy. “If the client knows that you can be met by appointment only,” the argument goes, “then they know what they’re getting into.” Yes…but. Sure, they are aware of the policy, but most clients don’t really understand the impact of such a policy until the representation unfolds in real life. Then, it’s too late. Besides, the issue is not just about whether you’ve adequately put a client on notice, it’s about giving your client the opportunity to find you when they want to find you.

Technologists also point out that the client could show up and the lawyer won’t be there. But it’s up to the client about whether they want to stay there and wait- if it’s the lawyer’s office they could feel reasonably assured that the lawyer will eventually come back. Heck, nothing’s perfect, but at least the client knows where home-base is.

Diligent virtual lawyers may take offense to the non-communication argument. After all, many are eager to meet their clients and keep them properly informed. But the disciplinary system isn’t concerned about the diligent virtual lawyer- that lawyer who understands the importance of communication and would likely do it even in the absence of an ethics code. The disciplinary system needs to craft rules to ensure that those among us who would not voluntarily communicate with our clients continue to do so anyway.

A review of the recent New Jersey amendments to their court rules further illustrates this issue. Recently, New Jersey passed a major amendment to its bona fide office rule. It reads:

“(1) An attorney need not maintain a fixed physical location, but must structure his or her practice in such a manner as to assure, as set forth in RPC 1.4, prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice, provided that an attorney may designate one or more fixed physical locations where client files and the attorney’s business and financial records many be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served on the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto.”

The change to the NJ rule illustrates perfectly the tight rope that the ethics authorities must walk. The critical concepts that this new language addresses are “communication” and “accessibility.” The drafters are clearly trying to find a balance– how do they allow the practice to use technology, while still protecting the public. We want virtual lawyers, not vanishing lawyers. We need to craft rules that allow a technology savvy lawyer to flourish while ensuring that unprincipled lawyers don’t use that technology to disappear.

How do the drafters permit lawyers to stay cutting edge while ensuring that the client retain some personal power in the attorney-client relationship? In the new rule, New Jersey appears to eliminate the need for a brick-and-mortar office, but continues to impose a requirement that the lawyer remain accessible. It’s going to be interesting to see how proprietors of VLOs execute this directive. I’m sure many will adopt an “appointment only” policy and we won’t know if that satisfies the rule until someone gets in trouble. But now we see that therein lies the hidden source of our undoing- communication and accessibility.

Some of you may be wondering, how do we reconcile the Pennsylvania opinion? If this is all about empowering the client, why did Pennsylvania go in the other direction? The answer is that I don’t think they went in another direction. Pennsylvania seems to have simply made a policy decision.

PA’s requirement that a lawyer reveal the geographic location where they practice may be motivated by the desire to allow clients to chose a lawyer that is familiar with the practice in the area where the client’s case is located. Presumably, the client will want to hire a lawyer who is familiar with local laws and customs. My reading of the opinion is that the authorities are more concerned about the client understanding that they are hiring a lawyer who is familiar with local practice.

When balancing conflicting policy considerations, the Pennsylvania drafters appear to be less concerned about lawyer accessibility and more concerned about the ability of the client to determine that the lawyer practices in a particular community. Notice, however, that even though PA comes to a different conclusion than NJ, their thought process was still client-centered.

For the most part, the issue of virtual law practices isn’t a battle between people who want to move forward and others stuck in the past. To a certain extent it’s a question about who’s interests will dominate your thinking- the lawyer’s or the client’s? The tech savvy lawyers who want to transform the practice see it from the lawyer’s perspective, while the disciplinary authorities look at it from the client’s. I’m not indicting the technologists. I’m not claiming that they don’t want to protect the client. I’m just saying that they are more concerned with helping lawyers leverage technology and create a practice that affords a certain lifestyle to the lawyer. While that’s a worthy goal, one must understand that it’s not completely shared by the disciplinary authorities. The primary motivation of the disciplinary authorities is to protect the client. We need to understand that critical difference so that when we use these new technologies we could craft our own best practices after proper consideration of the dangers.


ABA “Likes” Facebook for Judges

Recently the ABA issued Formal Opinion 462 that gave the okay for judges to participate in social media.  In the words of the opinion’s opening summary,

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”

The opinion isn’t binding on any states– it’s just the ABA’s opinion, but it’s indicative of a trend.  Social media can not be ignored…by anyone.

Self-Reporting Our Misconduct…the future?

Every once in a while we see a change in a state’s ethics code that might be an indication of things to come.  Earlier this year I think we saw that in Pennsylvania.

Pennsylvania amended the commentary to Rule 8.3 and expanded the requirement for reporting misconduct.  Now it’s not enough for us to report misconduct of other lawyers, we may also have to report ourselves.

The new section, Rule 8.3 comment (8), stated that an attorney convicted of a crime must report him/herself with 20 days of conviction. The comment states that, “the term ”crime” means an offense that is punishable by imprisonment in the jurisdiction of conviction, whether or not a sentence of imprisonment is actually imposed.”

The idea of being required to self-report things that we do wrong doesn’t seem objectionable when we’re talking about crimes, but where do we draw the line?  It’s going to be interesting to see if any states expand this idea.