Mad Men on Ice
“What is the difference between unethical and ethical advertising? Unethical advertising uses falsehoods to deceive the public; ethical advertising uses truth to deceive the public.”— Vilhjálmur Stefánsson, Canadian Arctic explorer and ethnologist
All aspects of opening a new law office are in one way or another facets of advertising. Your business name, office design, and letterhead choices are important because how the market perceives you depends on them.
At the point you’re ready to open a new office, you (should) already have decided what kind of legal practice you are opening, what kind of legal structure you are creating, what kind of work you want to get, where you will locate your office, and who will staff it. It is your next tasks—choosing your business name, setting up your business plan, designing your physical and/or virtual business space, even making up your letterhead—that more directly involve communications concerning your services. Communications concerning legal services may constitute advertising. And there’s the ethical rub.
The intersection of ethics and communications can be seen in various state and national guidelines. Section 7 of the ABA Model Rules of Professional Conduct (Model Rules), called “Information About Legal Services,” has six overlapping rules: “Communication Concerning a Lawyer’s Services” (7.1), “Advertising” (7.2), “Solicitation of Clients” (7.3), “Communication of Fields of Practice and Specialization” (7.4), “Firm Names and Letterhead” (7.5), and “Political Contributions to Obtain Legal Engagements or Appointments by Judges” (7.6). (I’m not sure why the last rule is in this group, but it interestingly forbids lawyers who make or solicit political contributions in order to gain employment from accepting such employment.)
Although California, which has not adopted the Model Rules, has separate statutes in its Rules of Professional Conduct (RPC) regulating lawyer advertising (Bus. & Prof. Code §§6157-6159.2) and solicitation (Bus. & Prof. Code §§6151-6154), the RPC contain only a single rule, Rule 1-400 (“Advertising and Solicitation”), covering lawyer communications, including law firm names, letterhead, stationery, business cards, brochures, office signs, lawyer websites and Internet use, professional announcements, and “advertisements.”
What’s in a Name?
The first rule in choosing a business name is the same for most ethics rules: don’t mislead. States cannot ban attorney advertising, but they can regulate false, deceptive, or misleading advertisements. Bates v. State Bar of Arizona, 433 U.S. 350, 383–384 (1977). South Carolina, for instance, reprimanded a solo practitioner for exaggerating his experience in online profiles and law firm websites.
Attorneys may use a trade name under Model Rule 7.5 if it does not imply a connection with a government agency or a public or charitable legal services organization and is not otherwise in violation of Model Rule 7.1 (don’t mislead). California also allows for a trade name, provided it is not false, deceptive, or misleading. RPC 1-400(D); Model Rule 7.5, Comment 1.
So, what is misleading? What is allowed beyond real names? Well, not even all real names are allowed. Many jurisdictions restrict or forbid the use of deceased or retired lawyers’ names, as well as names of lawyers who are not actual firm partners or members.
It is likewise improper to use a name suggesting the law firm is larger than life. Several bar associations have issued opinions criticizing sole practitioners who tack “& Associates” onto their own names (e.g., Minn. Lawyers Prof. Resp. Bd. Op. No. 20, citing opinions from a number of jurisdictions) or who list names of “associates” alongside their own (In re Sussman and Tanner, 241 Ore. 246, 248; 405 P.2d 355, 356 (1965): use of “associates” to describe lawyer relationships other than that of employer-employee “is likely to be misleading”).
Whether using trade or real names, implying a government connection is never allowed. “Washington D.C. Law Offices” and “Superior Court Attorney Team” would likely be prohibited everywhere.
Be aware that some jurisdictions even question the ethics of using the plural “offices” to describe a single law office. The San Diego County Bar Association’s Legal Ethics Corner (undated) concluded that using the singular “law office” would be safer: “The ultimate question is whether the lawyer’s use of the plural ‘offices’ is likely to deceive, confuse or mislead the public by implying the lawyer is in practice with additional attorneys.”
An issue related to law firm and trade names concerns Internet domain names: Can a law firm “advertise” an Internet domain name that is different from its real name? Yes, according to Arizona Ethics Op. No. 2001-5. However, Ohio Supreme Court Ethics Op. 99-4 concludes that a domain name is not a trade name, and that domain names may be unethical depending on the particular words used. They would frown, for instance, on “willwineverycaseforyou.com.”
Even a firm not named “Money & the Bank” or using “We Always Win” as its slogan can have problematic letterhead. Many people perceive lawyers’ names listed on letterhead as conveying might and ability. So, too, other lawyers. But some lawyers go too far in wanting their letterhead to resemble big-firm letterhead.
A communication is presumed to violate RPC Rule 1-400/Model Rule 7.5(d) if it falsely states or implies that a lawyer has a relationship with another lawyer or law firm, whether as a partner, associate, officer, or shareholder.
Similarly, listing the names of lawyers who are not actual members of the firm violates Model Rule 7.5(b). Listing other office addresses on your letterhead is fine if they truly are firm offices, but don’t list “affiliate” offices on your new letterhead—that would mislead one into thinking the affiliate office address belongs to your firm, not to the affiliate.
Files for Clients, But What about You?
Thousands of ethics complaints are filed against lawyers every year. Though an ethics complaint lodged against you would obviously be frivolous, it would still need to be defended. For one thing, silence is often taken to mean agreement; for another, even a complaint with no merit might reveal inadequate record keeping, a possible ground for discipline all by itself.
What is the key to defending against a complaint? Document! If an accusation of wrongdoing does ever come, it will surely be accompanied by a request for voluminous documentation. You’ll have to prove a negative—that you did not act unethically. Unless you keep records as you go along, you may have to reconstruct events many years later when a complaint is filed. And at that point, you may struggle to recollect the details.
What sorts of things should you plan on being able to document? Most bar complaints from clients include a “failure-to-communicate” claim, so plan on keeping copies of important client communications (for instance, engagement letters, fee agreements, and disengagement letters). Some jurisdictions explicitly regulate or require the retention of certain types of communication (for example, settlement communications, notices required by due process, or proofs of service). You might also consider keeping copies of calendars, but their retention is a double-edged sword: Calendars are often subpoena subjects.
No one wants to warehouse complex or lengthy litigation documents. Nevertheless, you might not otherwise be able to find or retrieve copies from the government when you need them. Consider keeping a copy of the docket or case summary, as well as critical filings. As long as you’re acting ethically, you should have no fear of documenting your activities.
It is both common and perfectly ethical for lawyers to engage in social media campaigns. But it is an activity fraught with ethical dangers for lawyers because, if you think about it, lawyers’ duties of confidentiality, loyalty, and even the attorney-client privilege are all antithetical to the “share everything” ideals that social media promote.
This article is not the forum to catalog all the ways and means by which—nor the cases in which—attorneys have hoisted themselves on their own petards, but be aware that some courts hold that users of social media networking sites can’t reasonably expect posted communications or content to remain confidential because the terms and privacy policies of the social media sites typically allow third-party site administrators access to all the content stored on their servers or in user accounts.
Model Rule 7.3 (Solicitation of Clients) prohibits real-time contact with prospective clients, such as, for example, “responding to a tweet from someone who says they’ve just been arrested for shoplifting by saying that you’re an attorney who handles shoplifting cases at a discount for your Twitter followers,” says Charles H. Gardner, special counsel, Much Shelist, Chicago (“Social Media and Legal Marketing: A Tricky Mix,” ABA News, May 23, 2013, tinyurl.com/mz7ujbp).
Be careful, too, because not all ethics rules are created equal. Some, especially regarding new technologies, are rather arcane. For instance, some jurisdictions treat lawyer blogs like websites, and some don’t. In Texas, a blog is not an advertisement if it consists of educational information or commentary. In California, a website is not considered a solicitation under Rule 1-400, but every piece of letterhead is deemed an advertisement.
Arcane rules are problematic to be sure, but social media seems to make some attorneys spew forth in ways that violate the most basic canons of ethics. An Illinois attorney was disciplined for publishing astounding client confidences and secrets on her Internet blog. She literally quoted her clients, derogated them, and volunteered that her clients had committed various uncharged crimes. Among the things she published, referring to clients by their first names or jail identification numbers:
This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he’s no snitch.” I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.” And: “‘Dennis,’ the diabetic whose case I mentioned in Wednesday’s post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn’t being managed well. (In The Matter of Peshek, No. 6201779 (Ill. Atty Reg. & Disc. Comm.) (2009); iardc.org/09CH0089CM.html)
We Don’t Need No Stinkin’ Petards
Opening a new law office involves much more than just advertising and communications when it comes to ethics. You need also to be sure that your new office space facilitates the work you want to do; at the very least, your new office shouldn’t adversely affect your work. Suppose you miss an e-filing deadline because of a problem with your new location’s Internet service provider? Maybe nothing bad would come of it. Maybe. But who wants to explain to a disappointed client that his or her critical document didn’t get filed because of a spotty Internet connection? Uh, my dog ate my Internet adapter.
Unhappy former clients file malpractice claims. If a professional duty is breached, constructive fraud might just be charged instead of simple negligence.
Open with Care
Good luck with your new offices. If you set up well and maintain your integrity, you shouldn’t have ethical problems—unless they walk in through the front door. Beware of strangers bearing gifts.
Looking for additional resources to help you steer clear of potential ethics traps when opening a new office? A fairly thorough New Law Practice/New Office Checklist is published by the Florida Bar’s Law Office Management Service (tinyurl.com/o6khn73). Anyone looking for a good list of things to consider when opening a new office should take a look at it. Also, at least two insurance companies publish well detailed “toolkits.” Lawyers Mutual Insurance of North Carolina offers its 65-page Opening a Law Firm Toolkit (tinyurl.com/ngthagl), which includes several checklists and lots of engagement letter and other forms. Wisconsin Lawyers Mutual offers its 282-page Law Practice Toolkit (tinyurl.com/2azcehw), which includes information about disaster recovery as well the Wisconsin rules for attorneys, many of which are in line with those in other jurisdictions.