Category Archives: lawyer ethics opinions Groupon type marketing

ABA adopts Resolution 105 encouraging states to consider non-traditional legal service providers, including non-lawyer firm ownership

Hello and welcome to this Ethics Alert blog which will discuss the American Bar Association’s February 8, 2016 approval and adoption of Formal Resolution 105, which adopts the ABA Model Regulatory Objectives for the Provision of Legal Services.  The Final ABA Resolution 105 as Revised and Adopted is here: http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf

According to the ABA website, Resolution 105 “(a)dopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016 and urges that each state’s highest court, and those of each territory and tribe be guided by the Model Regulatory Objectives when they assess the court’s existing regulatory framework and any other regulation they may choose to develop concerning non-traditional legal service providers.” https://www.americanbar.org/news/reporter_resources/midyear-meeting-2016/house-of-delegates-resolutions/105.html

The ABA Resolution calls for the adoption of “regulatory objectives for the provision of legal services” that would help “identify and implement regulations related to legal services beyond the traditional regulation of the legal profession.”  With the exception of the District of Columbia, no jurisdiction in the U.S. permits non-lawyer ownership of law firms (although the United Kingdom and some U.K. commonwealth countries do permit it).

The arguments for non-lawyer ownership of law firms include that it would expand consumers’ access to legal services, encourage innovation, and reduce the cost of legal services; however, the Resolution has drawn criticism.  The arguments against non-lawyer ownership include that it would encourage profit making (and taking) over serving clients and the public.

According to a Wall Street Journal “LawBlog” article (quoting AmLaw Daily)”:

(T)he mere mention of “non-traditional legal service providers” raises hackles for some in the ABA. The Texas state bar board, for example, has asked Texas delegates to withhold their support for Resolution 105.  State bar president-elect Frank Stevenson II of Locke Lord said the board opposes the proposal because it seems to presume there’s a place for non-lawyers to provide legal services.”

The LawBlog article also states that “(t)he New York State Bar Association is also fighting against the resolution, saying it would open the door to nonlawyer firm ownership. ‘Nonlawyer ownership of law firms creates a whole new set of fiduciary responsibilities, which have nothing to do with the best interests of the clients we are duty-bound to serve,’ the state bar’s president, David P. Miranda, said in a statement.”

Bottom line: This is has been, and continues to be, a very controversial issue; however, there does not seem to be much support for non-lawyer ownership of law firms in Florida or other jurisdictions.

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Recent ABA Formal Ethics Opinion examines obligations of lawyers in providing file documents to former clients after termination

Hello everyone and welcome to this Ethics Alert which will discuss recent American Bar Association Formal Ethics Opinion 471 which discusses the obligations of lawyers to return file/documents to former clients.  The opinion is Formal Opinion 471 (Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled) (July 1, 2015) and is online here: http://www.abajournal.com/files/aba_formal_opinion_471(7-1-15).pdf

The opinion begins with the premise that lawyers must often return documents and materials to a client after the termination of the representation in order to protect client’s interests.  The opinion analyzed the following facts:  a lawyer had represented a governmental municipality for 10 years.  After the representation was terminated, the municipality requested that  the lawyer provide its new counsel with all files, including both open and closed files.

The opinion further states that lawyers’ obligations and responsibilities are generally outlined in ABA Model Rules 1.15 and 1.16.  Model Rule 1.15 provides that a lawyer must safeguard a client’s property and promptly return it to the client when requested. Model Rule 1.16(d) provides that lawyers take steps “reasonably practicable to protect a client’s interests.” These steps include “in providing file documents to former clients after termination.”  The Model Rules do not define what “papers and property to which the client is entitled.”

According to the opinion, most jurisdictions apply the “entire file” approach, wherein there is a presumption that lawyers must return all papers in the file unless a specific exception applies.  “In those jurisdictions, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld.  Commonly recognized exceptions to surrender include: materials that would violate a duty of non-disclosure to another person; materials containing a lawyer’s assessment of the client; materials containing information, which, if released, could endanger the health, safety, or welfare of the client or others;16 and documents reflecting only internal firm communications and assignments. The entire file approach assumes that the client has an expansive general right to materials related to the representation and retains that right when the representation ends.”

Other jurisdictions use the “end product” approach.  Under this approach, lawyers must provide all finished products in the file, such as pleadings and expert and investigative reports, but not work product, such as memoranda about conflicts of interest or ethics, drafts of legal instruments, and legal research and memoranda.  According to the opinion, “(a)dministrative materials related to the representation, such as memoranda concerning potential conflicts of interest, the client’s creditworthiness, time and expense records, or personnel matters, are not considered materials to which the client is entitled under the end product approach. Additionally, the lawyer’s personal notes, drafts of legal instruments or documents to be filed with a tribunal, other internal memoranda, and legal research are viewed as generated primarily for the lawyer’s own purpose in working on a client’s matter, and, therefore, need not be surrendered to the client under the end product approach.” Florida follows this approach.

The opinion states that lawyers should always return end product materials; however, “there may be circumstances in individual representations that require the lawyer to provide additional materials related to the representation.”  Also, any documents and/or materials which would likely prejudice the client’s interests if they are not provided must be returned to the client. The opinion also noted that if a filing deadline is imminent, a lawyer must timely provide “the most recent draft and relevant supporting research” to avoid causing prejudice to the client.

Bottom line: this opinion provides important guidance from the ABA regarding a lawyer’s duties and obligations when providing file documents and/or materials to a client after the representation is terminated.  Of course, lawyers must determine which rule their jurisdiction applies before acting.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

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New York ethics opinion states that lawyers cannot reveal client confidences solely to respond to a former client’s criticism on a lawyer-rating website

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York State Bar Association ethics opinion which states that lawyers cannot reveal client confidences solely to respond to a former client’s criticism on a lawyer-rating website. The opinion is: New York State Bar Association Committee on Professional Ethics Opinion 1032 (10/30/2014) and the opinion is here: http://www.nysba.org/CustomTemplates/Content.aspx?id=52969.

A New York law firm sent a request for an opinion stating that it “believes that a ‘disgruntled’ former client has unfairly characterized the firm’s representation of the former client on a website that provides reviews of lawyers. A note posted by the former client said that the former client regretted the decision to retain the firm, and it asserted that the law firm provided inadequate services, communicated inadequately with the client, and did not achieve the client’s goals. The note said nothing about the merits of the underlying matter, and it did not refer to any particular communications with the law firm or any other confidential information. The former client has not filed or threatened a civil or disciplinary complaint or made any other application for civil or criminal relief.”

“The law firm disagrees with its erstwhile client’s depiction of its services and asserts that the firm achieved as good a result for the client as possible under the difficult circumstances presented. The firm wishes to respond to the former client’s criticism by telling its side of the story if it may do so consistently with its continuing duties to preserve a former client’s confidential information.”

The question posed was: “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”
The opinion discussed whether a lawyer “may rely on the ‘self-defense’ exception to the duty of confidentiality set forth in Rule 1.6, which as to former clients is incorporated by Rule 1.9(c). Rule 1.6(b)(5)(i) says that a lawyer ‘may reveal or use confidential information to the extent that the lawyer reasonably believes necessary … to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct’ to disclose the former client’s confidential information in responding to a negative web posting, even though there is no actual or threatened proceeding against the lawyer.”

The opinion found that the above exception does not apply and that “(a) lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.”

Bottom line: Lawyers be aware: according to this opinion, a lawyer may not include confidential information in responding to a negative posting by an ex-client (or current client for that matter) on a lawyer-rating website (or other third party website).

Be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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Ohio Ethics Advisory Opinion states that Ohio lawyers are not prohibited from soliciting potential clients via text messages

Hello everyone and welcome to this Ethics Alert blog which will discuss the 2013 Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages with certain caveats. The Advisory Opinion is online here: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2013/Op_13-002.pdf

The Ohio Board of Commissioners on Grievances and Discipline issued Advisory Opinion 2013-12 in April 2013.  The advisory opinion states that lawyers are permitted to use text messages to solicit clients if the texts comply with all Ohio Bar rules, including lawyer advertising and other general Bar rules.  The opinion states that lawyers sending the text messages must pay all of the costs of the texting, cannot make false, misleading, or non-verifiable statements, or engage in coercion, duress, or harassment.

The advisory opinion states that “(t)he Board’s view is that a standard text message is more akin to an email than a chat room communication.  Accordingly, a typical text message is not a ‘real time’ electronic contact.”  The significance of this analysis is that, if the text was considered to be real time contact, such solicitations would be prohibited.

The advisory opinion also states that, pursuant to Ohio Bar rules, “the text message must notify the recipient of the means by which the lawyer learned of the potential need for legal services, for example, from accident reports or a court docket, and include ‘ADVERTISING MATERIAL’ or ‘ADVERTISEMENT ONLY’ at both the beginning and ending of the message. These descriptors must be conspicuous and in capital letters as designated in the rule. The text message also cannot include an evaluation of the case or a prediction of the outcome.”

Bottom line:  The opinion’s finding that text message solicitations are “more akin to” a chat room and are not “real time” electronic communications means that Ohio lawyers can send text messages to potential clients, including potential personal injury clients, if the lawyer complies with the Ohio Bar rules

Let’s be careful out there!                          

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

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Filed under Advertising and solicitation with text messages, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, lawyer ethics opinions Groupon type marketing

ABA ethics opinion states that lawyers may use Groupon-type websites to market legal services; however, there are “numerous difficult” ethics issues

Hello and welcome to this Ethics Alert blog which will discuss the recent American Bar Association formal ethics opinion which states that lawyers may market using Groupon type websites; however, there are “numerous difficult issues associated with prepaid deals, especially how to properly manage payment of advance legal fees”.  The opinion is ABA Formal Opinion 465 (October 21, 2013).  The ethics opinion is attached and is also here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_465.authcheckdam.pdf

The opinion does not specifically mention the Groupon website except in a footnote referencing a state bar opinion (Alabama State Bar, Formal Op. 2012-01 (2012)); however, the opinion describes arrangements that are similar to Groupon which include “daily deals” that are advertised on a website and consumers who want deal notifications can sign up to receive them in e-mails.  After a certain number of people purchase a “deal”, the marketing organization and the business share the proceeds. The buyers get a voucher, code or coupon.

The ethics opinion says these “Deal-of-the-day or group-coupon marketing programs” are structured in two ways.  In a “coupon deal”, a lawyer would sell a coupon for a 50 percent discount for a certain number of hours of legal services.  In a “prepaid deal”, a lawyer would charge a certain reduced amount for up to a certain number of hours of legal services, which would be double the value of the amount paid. The payments are collected by the marketing organization and this “prepaid” structure is what primarily concerns the ABA Standing Committee in the formal opinion.

According to the ABA opinion, “(t)he committee believes that coupon deals can be structured to comply with the Model Rules.  The committee has identified numerous difficult issues associated with prepaid deals, especially how to properly manage payment of advance legal fees, and (the committee) is less certain that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.”

The opinion states that the reason that “coupon deals” may be structured to comply with the ethics rules is the fact that no legal fees are paid unless a lawyer/client relationship is established, after which time is spent and the discounted fees are collected.  According to the opinion, the aggregate amount collected from coupon sales may be deposited into a lawyer’s general account.  The opinion states that, conversely, the funds collected in “prepaid deals” amounts to advance legal fees that must be identified by purchaser name and deposited into a trust account.  The lawyer would therefore be required to obtain sufficient information about the prepaid deal buyers to comply.

Some other questions included what the lawyer must do if a deal is purchased and never used.  The opinions states that the lawyer can retain the funds from a coupon deal as long as the offer explains there will be no refunds; however, the funds collected in a prepaid deal most likely will need to be refunded to prevent the fee from becoming unreasonable/excessive under the ABA Model Rules. 

In addition, if a lawyer is unable perform legal services because of a conflict of interest or other ethical restriction, the lawyer must provide a full refund to the buyer, even if the deal is structured as a coupon.  If that happens, the lawyer must refund the full amount paid by the buyer, including the funds retained by the marketing organization.  According to the opinion, this is based on “the fact that it would be unreasonable to withhold any portion of the amount paid by the purchaser if the lawyer is precluded from providing the proffered services through no fault of the purchaser.”

The opinion noted several other ethical issues, including the duty of the lawyer to insure that the marketing statements are accurate.  The scope of services offered must also be clearly defined and the circumstances for refunds fully described, the opinion says.  Finally, the advertising should state that a client-lawyer relationship will not exist until the consultation takes place.

There is no Florida ethics opinion on Groupon type marketing; however, I have previously blogged about the recent Indiana ethics opinion (Indiana State Bar Ass’n Legal Ethics Comm., Advisory Op. 1 (2012)) which addressed this type of marketing.  The Indiana opinion reached virtually the same conclusions as the ABA opinion and stated that this type of marketing is “fraught with peril.”

Bottom line:  It is clear that lawyers who wish to participate in this marketing must be very wary of the numerous ethical “perils”.

Let’s be careful out there!

Disclaimer:  this blog is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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