Monthly Archives: November 2010

Don’t Try This At Home …

I came across this headline on yesterday:

Lawyer Got Secretary to Take His CLE Courses, Disciplinary Complaint Contends

While online CLE offers attorneys incredible flexibility and convenience, this is not how online CLE should be utilized. Please be advised, that while you may have secretaries and legal assistants create accounts and even sign up for classes, if you do not personally participate in your online classes you may possibly be slapped with a suspension and fine on top of heaps of embarrassment.

Earlier this month an Illinois Administrator filed a complaint alleging that an attorney falsely certified that he had completed online Continuing Legal Education (CLE) courses. However, instead of watching the online courses himself, the attorney allegedly “directed a secretary in his office to watch the courses on a laptop computer and respond to the prompts as if he were watching the courses” according to Count 6 of the Complaint.[1] Miraculously, state attorney ethics authorities somehow found out about this alleged activity and filed a disciplinary complaint.

In the complaint, an Attorney Registration and Disciplinary Commission prosecutor contends that the attorney acted dishonestly and in a manner that tends to bring the courts or the legal profession into disrepute by falsely certifying that he completed the CLE courses himself.[2]

According to Count 10 of the Complaint, the attorney engaged in the following misconduct:

  • Conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990);
  • Conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990)
  • Conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

Ironically, two of the courses that the attorneys received credit for were: “10 Ways to Reduce Your Chances of Being Sued or Disciplined,” and “At the Crossroads of Compliance: Which Way to Turn?”

Just a word to the wise …. please do not have other people in your office complete your CLE requirements for you.  Happy Thanksgiving!

[1] In the Matter of D. Michael Rickgauer

[2] Lawyer Got Secretary to Take His CLE Courses, Disciplinary Complaint Contends

Kentucky Proposes Social Media Restrictions

The Kentucky Bar Association appears to be the latest regulatory body to examine attorney’s uses of social media – this on the recent release of the ABA’s release of an Issues Paper seeking comments on the use of social media by attorneys.

The amendment to the Ethics Rules proposed this week by the Kentucky Bar would extend traditional restrictions on client solicitations to online communications posted by an attorney on social networking sites like MySpace and Facebook. In fact, the bar has gone as far as proposing a regulation that would bar solicitations through social media – unless lawyers pay a $75 filing fee and allow their comments to be regulated by the bar’s Advertising Commission.[1]

On one hand, the proposal is a predictable response to the growing use of social media sites as ‘client development’ tools by lawyers. Further, the rule is not supposed to affect postings that are ‘non-legal’ in nature, according to the proposal.

However, these types of restrictions often face First Amendment challenges and are often struck down as being overbroad because they over restrict legitimate speech. The Kentucky regulation may fall into this category because “advertisement” is too vague to provide adequate notice of the specific type of communications that are prohibited:

‘Advertise’ means to furnish any information or communication containing a lawyer’s name or other identifying information and an ‘advertisement’ is any information containing a lawyer’s name or other identifying information. Except the following … Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues provided there is no reference to an offer by the lawyer to render legal services.

The public has until Dec. 15 to submit written comments on the proposed rule to the Executive Director of the Kentucky Bar. Again, it’s best to let common sense be your guide when blogging, tweeting, or posting to Facebook. I have seen some blatant solicitations out there. But regulators must not be quick to limit the technology simply because of a few bad actors.

[1] The proposed Kentucky regulation is in response to Louisville attorney Christian Mascagni’s Facebook advertising during Breeders’ Cup weekend. Instead of using traditional adversiting mediums, Mr. Mascagni posted to his more than 2,000 friends, that he wanted the Breeder’s Cup and weekend partiers to call if they got into trouble or needed to get out of jail before Monday.

Kentucky Bar Association seeks to regulate attorneys’ Facebook comments offering services.

Judges Gone Wild

What has happened to the judiciary? Only a few months ago we had reports that Senior Judge Jack T. Camp had been arrested on drug charges after allegedly taking part in multiple drug induced romps with an Atlanta stripper:[1]

“A 67-year-old federal judge’s wild relationship with a stripper started with a lap dance, prosecutors said, and quickly escalated into escapades of prostitution and gun-toting drug deals for cocaine and prescription pills.”

Apparently, the 67-year-old federal judge had got himself caught up in drugs, guns and strippers … but eventually his nefarious activities were exposed by the FBI after he was caught purchasing drugs from an undercover agent. The stripper had tipped the FBI about Camp’s activities and set the whole thing up because she feared for her safety!

Now this week here in San Diego we have DeAnn Salcido … who obviously won’t be working for the Supreme Court any time soon. It appears that the former Superior Court judge allowed filming in her court by her bailiff-husband as part of an audition for a reality TV show … and then tried shopping the tape it to an entertainment lawyer! If you have some free time and need a good laugh please take a look at some of the allegations from her response to the Commission on Judicial Performance’s inquiry. Among other things that she admits to:

  • Promoting herself for a role in a potential television entertainment program featuring a judge
  • Providing the videotape from her court proceedings to an entertainment lawyer who passed it on to a producer
  • Not providing notice of the filming to counsel or litigants
  • Scheduling cases with the broadest appeal (substance abuse)
  • Telling a parolee: “cause you will definitely be screwed and we don’t offer Vaseline for that”
  • Making the courtroom audience scream, “woo, woo, woo” in Arsenio Hall-lie fashion every time the work ‘THC,’ marijuana or pot was used
  • Asking a defendant, “ Do you want a tissue now or later because you are going into custody right now”

Wow, some tough love from the judge! Basically, the comedic list of unethical acts continues on down the complaint – and she admits to most of it. It would definitely make for some good weekend reading. On Wednesday of this week, the California Commission on Judicial Performance publicly censured Salcido and stated that she had agreed to resign and never hold judicial office.[2]

Can I get a, “woo, woo!!!”

[1] FBI: Stripper, drugs, guns and judge don’t mix

[2] The panel of judges, lawyers and members of the public says Salcido’s television audition made a mockery of the judicial system and gave the unseemly impression that she was playing to the cameras.

ABA Ethics 20/20 Issues Paper … Much Ado About Nothing?

One major topic of discussion this week was a recently released ‘issue paper’ from an ABA technology commission. The issue paper concerned lawyers’ Use of “Internet Based Client Development Tools.” In English – can you ethically use Twitter, Facebook, LinkedIn, blogs, adwords and other electronic media and methods to promote yourself and your firm online. Some commentators felt this was the death knell for social media, with Larry Bodine quipping:

The ABA is quietly gathering support to choke off lawyer marketing on the Internet.

There have been bytes of content generated on the subject by those with much more expertise than I. I merely seek to bring light to the subject. In short, I think you just have to look at the ‘Regarding’ line of the letter which the Commission’s purpose wand what is for comment: “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools”. They are merely seeking comments on the issues, nothing is imminent.

The goal of the Commission is to examine possible ethics issues involving:

  1. Social and professional networking services (such as Facebook, LinkedIn, and Twitter)
  2. Blogging
  3. “Pay-per-click” advertising
  4. Lawyer websites

Given the First Amendment principles involved and the fact that many attorneys are already on LinkedIn, Facebook, and Twitter, I don’t see how the ABA could really issue any major decisions for social media, pay-per-click advertising, or websites. Although Chief Justice Roberts did ask what the difference between was between email and a pager at oral arguments a few months ago.

Here is some further analysis:

Generally, whether a given electronic activity is ethical often depends on the specific conduct of the attorney.  For example, some personal injury attorneys have a tendency to use blogs as thinly veiled advertising to specific victims injured in accidents. LinkedIn on the other hand is a professional networking site used to connect with other attorneys and professionals – although I have seen some trolling in the Groups.

Websites are a must – although there are many areas that attorneys can run afoul of the rules.[1] Some guidance in the area would be a step in the right direction – as long as the ABA doesn’t go over board in their advertising regulation like New York and Florida.

Lastly, the ABA is considering whether pay-per-click advertising such as Google’s AdWords constitutes an impermissible payment for “recommending” the lawyer’s services under Model Rule 7.2(b). This could be an area where the ABA may tend to over regulate because in the ABA’s words these “arrangements require the lawyer to pay a fee for each ‘lead’ that the third- party generates.”

As it stands now the issues presented in the paper are up for comment so it will be under review for the time being. Please contact the ABA with your comments if you have any concerns.

[1] Website may: contain information that is either false or misleading, create inadvertent formation of attorney-client relationship, give legal advice, reveal confidential information about current or former clients or about current or past legal matters, lead to an unauthorized practice of law claim.