Is Resistance Futile? The Trust Problem in the Legal Profession

/ David Cameron Carr / Leave a comment

Realizing that resistance was futile and that I would inevitably be assimilated, I chose to join the Borg Collective.

What I mean is that I embraced Facebook, Linked-In, blogging, Constant Contact and the digital paraphenalia that we are instructed are essential for marketing a law practice in the 21st Century.   The social media are part of an evolutionary process that will one day result in a “hive mind” where every being will share the same consciousness.  Scientists are already working on direct neural links between the wet computer inside your head and the dry computers outside your body.  Such interfaces will eventually be small enough in implant in your brain.  Individuality and privacy will cease to exist.  We will exist in a world of perfect connectivity only imagined in the fetishistic texting of many a teenager.

But in the meantime, we have to deal with our lingering notions of privacy and individuality in this new cyber world , the cyber world the our economy increasingly requires participation in (lawyers, too, of course.)  Because we cannot yet peer directly into the souls of those we transact business with, we have to rely on the information that they provide us.   In the past, people lived in communities where the information necessary to transact business was largely communicated face to face.   The amount of information that can be transmitted that way is relatively small but the reliability of that information is relatively high because this mode of communication has been evolving for millions of years.  That is one reason that important business (like trials, where credibility is at issue) is still conducted in person.  The problem with digitally mediated information is trust:  there is much more information than ever before but so much of it is unreliable that we don’t know how much of it we can trust.

The implications for legal ethics are huge.  If you can summarize the vast territory covered by that term in one word, it would have to be trust.  It’s hard to think of a legal ethics issue that doesn’t involve trust – confidentiality, marketing, conflicts, screening, non-attorney involvement in law practice, the duty of government lawyers to provide independent judgment, prosecutorial misconduct, you name it.

A good example of how the trust plays out in the new digital world of law business is presented in Carolyn Elefant’s excellent blog on solo practice My Shingle.  She writes about “the ill-conceived and misguided site, AttorneyFee.com.”   The intentions are good:  allowing consumers to comparison shop for lawyers based on price in the same way that they would for other kinds of services, like hotel rooms or airfare.   But the execution is flawed, first because an attorney’s services are not uniform in quality like hotel rooms or airfare and because an hourly or flat rates don’t really tell a consumer much about how much a particular legal problem will cost, and second because the hard information on the site seems to be widely inaccurate and composed by folks who don’t really understand law practice.  In fact, the site appears to be deceptively marketed to the lawyers who participate without being told that they are signing up for providing “free consultations.”

Another problem is presented by sites that purport to rate lawyers based on anonymous feedback, such as Avvo.  This week brought the arrival of a small turd on my doorstep, my first evaluation on Avvo, a highly negative one.   Avvo boats that it presents “unbiased” ratings  and only posts reviews that are “clearly” from clients but there is no way to check whether the review really comes from a client.   A perfect vehicle for anyone the lawyer might have pissed off to exact anonymous revenge.   I am completely certain that my Avvo review was not actually written by a former client, in part because they are all lawyers, articulate and not shy about expressing dissatisfaction face to face.  Avvo  bills itself as an attorney marketing service and the presence of a negative review naturally induces the lawyer to ask for positive reviews from his clients.  I have had clients who have participated in similar contests on other ratings sites, countering reviews posted by competitors purporting to be from clients with their own reviews purportedly from clients.  So much for unbiased ratings.  The fact that Avvo bills itself as a marketing solution for lawyers is telling.  The ratings thing is a gimmick; it gives legal consumers the illusion that being dealt with fairly, to establish a feeling of trust that is actually based on the deception that this is place to get the straight scoop on who is good and who isn’t.

The trust problem is a lot bigger than our profession,  It infects our sister realm of governance to such a degree that important work in our society is no longer getting done.  The legal profession is one of the institutions that is charged with maintaining the trust necessary to make both government and society work.  That vast territory might be summed up in one word as well:  “justice”.   My joke about the rules of professional conduct, essentially written in the mid-19th century to address a lack of trust in the legal profession, is that they were ideally suited for a town of 25,000 people with 25 lawyers.  Its not clear how we make rules work effectively now to address the trust problem while acknowledging that lawyers are actors in capitalistic system.

It is a vital question.  The last great wave of change triggered by Bates v. Arizona, the decision that extended commercial speech protection to lawyers, is about to be supplanted by the next great wave of change, non-lawyers involvement in financing of legal service providers.    This change, like the last one, is economics: like Bates, it will be sold, at least in part, in terms of making legal services affordable by encouraging price competition (see Bates at 377-378.)  Think we have a trust problem now?  A few decades from now, joining the Borg might seem quite attractive; at least you would know who to trust.

Is it OK for State Bar counsel to lie?

/ David Cameron Carr / Leave a comment

He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you.  Nietzsche, Beyond Good and Evil, Aphorism 146

When the President does it, that means that it is not illegal.   Richard M. Nixon

Consider the following facts:

A State Bar discipline prosecutor assigned to an investigation of attorney misconduct telephones the office of a target of the investigation.  Along with another discipline prosecutor, they represent themselves to be a married couple from another state who received a direct mail solicitation from the lawyer and that they are interested in employing the lawyer.  They speak to a non-lawyer who identifies herself as a member of lawyer’s staff.  She makes a number of statements to the State Bar prosecutors that are later alleged to constituted the unauthorized practice of law.

Consider the following black letter law regarding the duties of an attorney:

6068.  It is the duty of an attorney to do all of the following:… (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth…

6106.  The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.

Finally, consider that State Bar discipline prosecutors are charged with upholding these very laws and routinely prosecute lawyers for violating them.

Similar fact patterns have come to known be known as “pretexting”  or “dissemblence”.  One ethics opinion quotes Black’s law dictionary as defining “dissemblance” as  “To give a false impression about something; to cover up something by deception (to dissemble the facts.”  NYCLA Committee on Professional Ethics formal opinion no. 737.  This is, without a doubt, dishonesty. Some courts have upheld the use of “dissemblance” by investigators working under the direction of attorneys; for instance, the decision in Apple Corps Limited v. International Collectors Society 15 F. Supp.2d 456, 475 (D.N.J.) which involved private attorneys attempting to enforce intellectual property rights.  They hired investigators who posed as consumers and telephoned direct marketers to investigate their sales activities.  And the use of undercover agents who dissemble in the investigation of criminal activity has long been recognized (see e.g. United States v. Parker 165 F. Supp.2d 431 (W.D.N.Y.)  The underlying rationale is that dissemblance is necessary to investigate some types of wrongdoing that cannot otherwise be penetrated.   Limited dishonesty can be tolerated to fight certain monsters.

The use of dissemblance by attorneys themselves, as opposed to non-attorney investigators working under the direction of attorneys,  has been met with different results.  In Re Paulter  47 P.3d 1175 (Colo. 2001) involved a deputy district attorney who told a criminal suspect holding a hostage that he was a public defender to induce him to surrender. The Colorado Supreme Court, noting that there was no exception to Colorado Rule of Prof. Conduct 8.4(c) (“It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and imposed discipline of probation with a stayed suspension of three months.   The Colorado Supreme Court upheld the disciplinary board’s finding that a secondary motive behind Pautler actions was to keep the suspect talking about his crimes without the benefit of requested legal counsel.

They said this about what honesty means to the profession:

The jokes, cynicism, and falling public confidence related to lawyers and the legal system may signal that we are not living up to our obligation; but, they certainly do not signal that the obligation itself has eroded. For example, the profession itself is engaging in a nation-wide project designed to emphasize that “truthfulness, honesty and candor are the core of the core values of the legal profession.” Lawyers themselves are recognizing that the public perception that lawyers twist words to meet their own goals and pay little attention to the truth, strikes at the very heart of the profession – as well as at the heart of the system of justice. Lawyers serve our system of justice, and if lawyers are dishonest, then there is a perception that the system, too, must be dishonest. Certainly, the reality of such behavior must be abjured so that the perception of it may diminish.

In Re Gatti 8 P.3d 966 (Ore.2000) involved a lawyer who misrepresented himself to be chiropractor in telephone conversations while investigating fraud on behalf of several clients.  The Oregon Supreme Court applied Oregon’s disciplinary rule DR 102(A)(3), almost identical to ABA Model Rule 8.4(c), and found that there was no exception to the rule.  The United States Attorney’s office for the District of Oregon appeared as amicus and, along with the Oregon Attorney General, argued that the court should recognize an exception to the honesty rule for government lawyers.  Amici for a number of consumer protection organizations also appeared an argued for an judicially created exception for their dissembling activities.  The Court declined to adopt those exceptions, finding that the rule requiring honesty is applicable to all lawyers and imposed a public reprimand.

Following Gatti, Oregon amended is disciplinary rules, adopting a version of the Model Rules with this exception:

(b) Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these Rules of Professional Conduct. “Covert activity,” as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. “Covert activity” may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.

The exception is limited to supervising “lawful covert activity”.  Lawyers in Oregon are still directly bound by a duty of honesty.

There is no exception to the rules in California imposing on lawyers the duties to be honest in personal and professional life and to use only truthful means in the maintaining the causes confided in them.

Despite this, the position of the State Bar is that State Bar counsel are entitled to employ dissemblance (or in plan speak, lie) about their identities because the State Bar as an arm of the Supreme Court is involved regulatory work that is in nature of law enforcement and its attorneys are government attorneys.  The Bar sees no distinction between misrepresentations made by investigators and misrepresentations made directly by bar counsel themselves.  Like the US Attorney in Oregon, the State Bar sees an implied exception to the honesty rule simply because they work for the government.

This despite a litany of discipline cases that speak of the importance of honesty as cornerstone value of the legal profession and the lack of any exception to the duty of honesty.  “The conduct of petitioner violates the fundamental rule of ethics—that of common honesty—without  which the profession is worse than valueless in the place it holds in the administration of justice.  Tatlow v. State Bar of Calfornia. (1936) 5 Cal.2d 520, 524. “Subdivision (d) of section 6068 obligates an attorney to “employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth.” The statute requires an attorney to refrain from misleading and deceptive acts without qualification. [citation].  It does not admit of any exceptions.”  Rodgers v. State Bar (1989) 48 Cal.3d 300, 315.  “The State Bar Act makes any act of dishonesty or misleading of a court to be disciplinable.”  In the Matter of Lais (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 112, 122.   “The commission of any act of dishonesty constitutes a violation of section 6106.” In the Matter of Farrell  (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 490, 497.

The State Bar it seems has lost sight of the truth eloquently stated by Colorado Supreme Court:  “if lawyers are dishonest, then there is a perception that the system, too, is dishonest.”  This despite the fact that it is exactly that truth that its Office of Chief Trial Counsel purports to serve.   Every California lawyer should now take notice of the the possibility that the next client that they talk to might not be a client at all.   Once unwritten and undefined exceptions to a fundamental value of the legal profession are condoned, the danger is that they will naturally expand.   Anyone who still takes the fantasy that the legal profession is still a self-governing body should take heed:  this marks the maturation of State Bar as an aggressive government law enforcement agency, a body more concerned with protecting consumers than protecting the values of the legal profession.

Some will naturally applaud this as long overdue and inevitable.

Others will wonder what new abyss  this will lead us to.

“The State Bar is Here and They’re Taking Everything”

/ David Cameron Carr / Leave a comment

The seizure of a several lawyers’ law practices made the news this week.   Not the lawyer news, but the mainstream media.   Except that you might have missed that detail if you read the LA Times story quickly.  Nevertheless, the raid conducted by the State Bar with the Attorney General puts a little light on just how much power the State Bar can exercise.   That is the power to assume jurisdiction of a lawyer’s practice with the approval of the Superior Court conferred by California Bus. & Prof. Code section 6180 et seq. and section 6190, et seq.  Not many lawyers, let alone members of the general public, know that the State Bar can obtain an ex parte order without notice to the attorney allowing them to seize most the assets of a law practice, including files, computers, records, bank accounts, as well as redirect telephone and mail intended for the lawyer to the State Bar.  There is little more I can say on this topic but that the existence and exercise is sobering reminder of just how much power the State Bar of California can exercise.

When the Going Gets Tough, the Tough Start Marketing

/ David Cameron Carr / Leave a comment

A motto for the lawyer business in the early 21st century.

In the 19th century the “drummer” or traveling salesman was so despised that legislation was passed that required them to be licensed and pay large fees.  A large part of motivation was certainly protection of local merchants but would such legislation have been possible without the 19th century’s cultural norm emphasizing  privacy?  Probably not.  People wanted to rest easy in their own homes without being bothered.  When they needed something and could afford it, they made a trip to their local mercantile.  When they needed legal help, they went to the local lawyer, who they knew from church and trusted.   The merchant, the lawyer and the “consumer” (in quotes because such a designation would be puzzling to anyone from that time) were part of a community based on proximity and common culture.

In our time, the average American consumer (so-called because we define ourselves now by how much and what kind of goods and services we devour)  is exposed to anywhere from 1,600 to 3,000 advertising messages a day, depending on whose figures you want to accept.  You can’t avoid being bombarded with advertising; it has become ambient.  It is only a matter of time until we are renting advertising space on our clothes, a la NASCAR drivers.   The Hidden Persuaders are not so hidden anymore;  it is a challenge delivering your message against such background noise and advertising has for a long time relied on humor, irony and self-reflection to try to stand out from the crowd.  Advertising today acknowledges with a funny wink its nature as advertising, full of hype and something of a con;  for a contemporary example see the Dos Equis campaign with “The Most Interesting Man in the World.”

Anyone who clicked on that link will appreciate that the adoption of digital technology has created whole new opportunities for digital drummers.  With a little luck, your campaign becomes a cultural icon that anyone can participate in (my entry: ” I don’t always practice law but when I do, I prefer to do it in my briefs.”)  It hardly matters that I don’t like Dos Equis.   The campaign and culture reference have little to do with with the merits of  the beer and everything to do with creating something that will stick in the consumer’s overloaded brain.

This may be painfully obvious.  But then we come to the law business, and specifically where the law business collides with the legal profession.   The ethics rules regarding solicitation, advertising and marketing date from the early part of the last century and reflect some of same features of the anti-drummer laws, including protecting the home turf and the concept of privacy.   Even after the United States Supreme Court found that truthful lawyer advertising could not be prohibited under the First Amendment (Bates v. Arizona, 1977 , it found that states could prohibit in person solicitation (Ohralik v. Ohio State Bar Assoc., 1978) and could enact regulations prohibiting written communication with accident victims (Florida Bar v. Went for It, 1995) and their survivors within a certain time period after accident because of the “intrusion upon the special vulnerability and private grief of victims or their families” (Went for It, 515 U.S. at 625.)

Went for It, the last significant US Supreme Court case on lawyer advertising, came down in 1995, the year when the Netscape IPO launched the era of mass use of digital technology.  The world looks much different, just 16 years later.  Digital technology has created multiple new channels to bombard the consumer with information.   Perhaps even more important is that the technology works both ways.  In the old days you saw the billboard;  now the billboard sees you, too, and it wants to know everything about who you are, so it can figure out what stuff you are most likely to buy.   You may think that you are searching Google but Google is really searching you.  So called “social networking” sites take this process even further.  The goal is nothing less than the commodification of social relationships:  most everybody knows that Facebook Friends aren’t really friends at all but part of an effort to get inside your head and figure out what you will buy.

The law business has been slow to adopt this new technology but it is making up for lost time.   Digital media have long been considered an essential part of law business marketing.  The arrival of  latest iteration, the social network, coincided with the collapse of the economy, more than a whiff of desperation seems to accompany the modern push to Face, to Link, to Twit (or is that Tweet?).   The business of marketing consultants is thriving.  I get a least one solicitation a day from someone who had trouble finding my web site and really wants to help, proclaims an earnest affiliation with the magic word Google, or can deliver clients directly to my door.   (Of course, the appearance of robust business health may itself just be good marketing.)   These world of consultants exists in a different plane of reality than bar regulators,  as the June 2011 program in Memphis with the wonderfully named Kathy Bible, the Florida Bar’s advertising ethics counsel,  and almost equally well named marketing consultant Burkey Belder, illustrated (“The Ethics of Advertising: Regulating the New 2.0 Frontier“.)   The numbers of clients seeking advice from me on marketing ethics as gone up in the last few years, many of them seeking to understand the parameters of their marketing relationships with non-attorneys, the multi-jurisdictional limits on internet advertising, and to what extent their content can engage in traditional advertising puffery.

Because of all this activity, it was surprising to some that the ABA Ethics 20/20 Committee did not propose substantial changes to the Model Rules regarding advertising.   The new digital media really are just new vessels for old wine in the eyes of regulators.   Whether this will prevent the profession from going the way of the “buggy whip” seem dubious.   Can the legal profession and the law itself stand as a rock against the tsunami of this rapid economic and technological change?  It seems more likely that it will be swept along with the rest of our society to unknown parts.

Meet the New Boss

/ David Cameron Carr / Leave a comment

State Bar of California Executive Director Joe Dunn wasted no time exercising his new-found authority over the State Bar’s Office of Chief Trial Counsel (OCTC) following the surprising resignation of James Towery as Chief Trial Counsel.  A little more than a week later he fired four of the seven remaining managers in the State Bar’s discipline prosecution office

Its a little like the Mayor firing the fire chief and most of the fire captains in the middle of three alarm fire.   OCTC has been valiantly struggling to reduce its backlog of investigations for some time now.  OCTC staff have been working harder than I have ever seen to keep up with the influx of new matters (many complaints about loan modification attorneys) and reduce the backlog of old matters.  Figures from the State Bar’s 2010 Annual Discipline Report tell the tale:

• The Intake Unit received 17,904 written complaints in 2010. This is roughly equal to the 2009 level, but sharply higher than the levels experienced in 2007-8 (under 13,600 complaints per year). The unit closed 13,235 cases, a 30% increase over the prior year, and forwarded 6,028 complaints to the Investigations unit.
• The Investigations Unit, in turn, closed 3,024 cases – up almost 50% from the 2009 level. It forwarded 1,362 cases to the Trial Unit, an increase of more than one third from the prior year.
• The Trial Unit closed 719 cases in 2010, up from 238 cases the year before. The unit also formally filed 636 cases with State Bar Court, a 50% increase from the previous year’s level of 423.

Despite these efforts, Mr. Dunn felt it necessary to wield the ax.  In the process, he deprived OCTC of about a hundred years of collective experience, including all of the managers who had any experience running the Intake Unit.  Intake is the part of the State Bar iceberg that you don’t see.  It’s critical function is to filter the mountain of information coming to the State Bar to determine what the State Bar is truly interesting in pursuing.

Why he took this extraordinary step is not clear on its face.  No real explanation had been given by the Executive Director beyond vague statements about moving in a moving in a new direction.  But figures from the most recent OCTC report to the Regulation, Admissions and Discipline Committee show a sharp rise in the backlog numbers in the first six months of 2011, from 309 cases at the end of December 2010 to 894 in June 2011.  “Backlog” refers to investigations that have been pending longer than the guidelines given the State Bar by statute, Business and Professions Code section 6094.5, six months for a “simple” case and one year for a “complicated” case.   These guidelines were imposed by the Legislature as part of the complete restructuring of the discipline system in the late 1980’s.   That occurred after a series of stories in the San Francisco Chronicle described the massive backlog of investigations built up as the then woefully underfunded discipline system was faced with a huge increase in the number of lawyers in the early part of that decade.   Backlog is bad.

Mr. Dunn is a politician (as is every Executive Director) and the OCTC purge is surely intended as the a signal to the Legislature that the status quo will change.  He has been quoted as saying that the backlog will be at zero before the end of the year and there will be no “fire sale” in settling discipline cases.  It’s hard to see how that will happen without more liberal settlement authority or “relabeling”, that is, designating incomplete investigations as “notice open” cases prematurely to take them out of investigation status, a strategy used in the past.  In the short run, the departure of most of the experienced managers can only lead to a decrease in productivity.

As with Jim Towery, I can’t be neutral about the firing of the four OCTC managers.  I worked closely with them at the State Bar and I found them worthy opponents after I left.   They deserved better than to be unceremoniously booted out after devoting their professional lives to the discipline system.  I wish Mr. Dunn luck with his tenure at the State Bar but I suspect that this move will be counterproductive and that he will be gone before the backlog is.