Boies Will Be Boies

The other good firm in this part of Westchester, Boies Schiller, is running into problems relating to its use of a document management firm, Amici, in connection with matters it handled, such as that of the Adelphia bankruptcy. David Boies' children have a financial interest in Amici which interest was apparently 'inadvertently' not disclosed.

Adam Smith. Esq. has a commentary, noting that Boies' high-profile in corporate governance matters makes this matter particularly embarrassing.

An interesting point to consider is proper procedure for 'selling' ancillary services (note: even the act of recommending another lawyer within your firm to a client is conceivably 'conflicted' advice).

Question for discussion: The law places a lot of stock in disclosure. Is disclosure sufficient protection when a lawyer gives advice where his or her interests or not necessarily aligned with those of the client?

Because Of, Not With

Here's FindLaw's lawyer marketing page, launched this week, including this article mentioning BL, quoting Tom, and weighing in on the "are blogs advertising" issue: "Do lawyers need to be concerned about the ethics rules on lawyer marketing when they blog? Well, yes. But no more so than in any other forum in which a lawyer writes or speaks."

But Should They?

ABA Journal eReport, Is a Lawyer's Blog an Ad?: "'The rules always lag behind the technology,' [J. David Boswell, chair of the Kentucky Attorneys' Advertising Commission] says."

Denise re: Real Estate for Lawyers

Commenting on a post at my other blog about the session on "The Law Now" that will be part of next week's Gnomedex, Enrico Schaeffer writes:

The thought that new business models in the law can thrive is starting to take hold. I have launched a firm, branded, marketed and implemented around the concepts of technology and service. We use flat fee, project-based and shared risk billing models which clients love. Our blog generates several new clients per month and will certainly generate six figures in revenue this year. Within 4 months, we have grown from one attorney and one secretary to include one additional office staff person, three virtual law clerks and one virtual paralegal. We have already grown out of our space.

I attribute our success to our alternative business model. How hard is it to distinguish yourself from a bunch of stuffed suits who can't see beyond hourly billing?

Good for you, Enrico! (Careful about those wacky and endlessly confusing lawyer advertising rules though.)

[Update:] And see Enrico's comment to an earlier BL post.

Denise re: The Wacky and Endlessly Confusing World of Lawyer Advertising Regulations

Dennis writes that, despite his far from meager intellect and his best efforts to be a good soldier, he doesn't "have a clue about what you can and can't do anymore" regarding being a lawyer and being on the Web, and prays for rules that make sense for 2005 and beyond. Amen to that. Two quick hits as well in response:

• An old post of mine discussing the blurring of distinctions between the personal and professional online, and the failure of the ethical rules to keep up: "[W]hat's a 'blawger' to do?"
• An upcoming program sponsored by the Orange County Bar Association will discuss Legal Ethics in Cyberspace. The panel will consist of several professor and attorney experts on this subject, including members of the California Commission for the Revision of the Rules of Professional Conduct. I'd like to go but can't, schedule-wise. It sounds like J. Craig Williams will be there though, hopefully he'll be able to share some further thoughts.

The Wacky and Endlessly Confusing World of Lawyer Advertising Regulations

On The Trademark Blog, Marty recently pointed to a story about a "controversial" ad by a Florida law firm that was originally determined to be iimpermissible, at least until cooler heads prevailed.

In the ad, the Florida firm had the unmitigated audacity to use a print ad that featured a row of ice cream cones, with the final ice cream cone in the row (note to lawyers: this ice cream cone metaphorically represented the law firm) having three scoops of ice cream rather than the single scoop found in the other cones.

However, it was neither the use of pictures nor the use of metaphors that caused the concern.

The ad had a tagline that said: "expect more from your law firm." No, it wasn't even the lack of initial capitalization that caused the problem.

Instead, the problem was this: "the phrase 'Expect [sic] more from your law firm' created 'unjustified expectations about results the attorney can achieve' and 'compares the services of one attorney to another without factually substantiating the comparison.'"

In a nutshell, there you have the lay of the land in the sometimes incomprehensible world of lawyer advertising.

The good news is that the Florida authorities reversed their decision. The bad news is that there is a regulatory environment that provides disincentives for lawyers and law firms to use any kind of normal (meaning "effective") advertising methods while seemingly ignoring what would seem to be violations of advertising rules if you could even figure out what the rules mean.

I've complained about this state of affairs before (here, here and here, for example). My belief is that it is too difficult for a well-intentioned law firm or lawyer who wants to comply with all of the rules to have any confidence that they have done so with any level of confidence.

I've also studied and tried to comply with the advertising rules for lawyers for the ten years that I've had a website. I wrote about and spoke about these issues nearly ten years ago. I think I know the rules and the decisions interpreting these rules pretty well.

And I don't have a clue about what you can and can't do anymore. The wheels on this train went off the track a while back and it's time to give some thought to getting things back on a track that makes sense for 2005 and beyond. Who was being protected by the first decision of the Florida authorities about teh ice cream cone ad?

Let's discuss.

Here's a quiz. Can you spot at least three issues raised by the following seemingly innocuous description of a law firm and its services under common interpretations of the ethical rules covering lawyer advertising?

XYZ law firm is a national full-service law firm with offices in the eastern United States. XYZ has the breadth and depth of resources to deliver the highest quality legal services to a broad range of individual, corporate, nonprofit and government clients.

ANSWER:

(1) Use of term "national" when they only have offices in eastern US.

(2) "full-service" has been considered an inaccurate, misleading term, based on the reasoning used with ice cream cone ad.

(3) "highest quality" is, of course, not objectively provable and at least implies a comparison to other lawyers.

You may have additional answers.

What, then, is the purpose of these rules and do they (and state-based regulation in general) make sense in 2005? I simply ask the question.