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Andrew Perlman
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I don't think Rule 1.1 applies here, but even if it did, I don't think it was per se improper from a cybersecurity perspective for HRC to use a personal email account. If she used a strong password, encryption, and other appropriate protections, she arguably ensured that the emails were more secure than if she used the federal government's account. Of course, I'm not saying that her actions complied with the law in other respects. I'm just saying that her use of a personal email account was not necessarily problematic as a matter of cybersecurity.
I think that new service providers are qualitatively different from the traditional providers you describe, because the new providers are offering legal services directly to the public without any lawyer intermediaries. That heightens the need for greater regulatory oversight and a more robust body of law beyond the law governing lawyers. I can live with the "law governing the legal industry" to describe this new body of law, but of course, I like my own phrasing better. :)
Thanks for the information. I've made the correction.
Milan, The survey is much richer than my post implies. It breaks down responses by practice area so that you can see what transactional attorneys consider to be the most important, litigators, etc. The stats I offered were cumulative across all practice areas.
For starters, have a look at this site: I think it offers a nice survey of office technology that young lawyers should learn. The top five for me would be: Word processing -- learning how to manipulate Word documents effectively and efficiently, including how to use styles and templates, compare/redline documents, use section breaks and cross-references, and save to different file formats (among many other features) Document Management Systems -- learning what they are and how they are used Knowledge Management -- learning the basic concept and why it is important Excel -- having some familiarity with how a spreadsheet works (see the website above for skills that might be useful) Electronic discovery -- not really "office technology," but an essential area for any aspiring litigator; it requires a fair bit of knowledge about a range of office technologies and file formats Adobe -- how to manipulate documents in PDF Outlook -- I know that it sounds silly to say that young lawyers need to learn how to use email, but there are lot of useful features in Outlook that law students don't necessarily know how to use, including creating email groups, scheduling appointments, creating and organizing contacts, searching emails effectively, etc. But I think there's more to it than just office technology. I think students should be exposed to automated document assembly concepts using readily available platforms (e.g., HotDocs) as well as expert systems (e.g., Neota Logic).
Fair enough. Thanks for the exchange.
Monroe, Let me try to understand how your approach would work. You suggest that, before offering to provide legal services, a lawyer would have to "make sure that the families are willing to talk to the lawyer about legal representation." What do you think of this? Lawyer [walks up to family member]: "Hi. I'm a lawyer. I'm so sorry for your recent loss. Are you willing to talk with me about the legal issues involved in your case? If so, would you mind if I record our conversation just in case anyone accuses me of engaging in vexatious conduct?" Family member: "Screw you" The family member then reports the lawyer to the bar. Has the lawyer violated Rule 7.3? I think your answer is yes, because the conversation was not recorded and the lawyer has no way to satisfy the burden of proving what happened. If that's right, how exactly is the lawyer supposed to approach the family member? If the answer is to make a general presentation about the law and wait for the family member to approach the lawyer, that's not really in-personal solicitation. That's just a response to an inquiry after giving an educational program.
Monroe, Assuming for the sake of argument that Ohralik stands for the proposition that you suggest (i.e., a lawyer has a constitutional right to engage in in-person solicitation if the lawyer can prove that her conduct was not vexatious), how exactly does the lawyer carry that burden? Does the lawyer have to record the conversation? Can you cite any case or other authority that explains how this burden is satisfied? Let me put this a different way. If a lawyer came to you and said that he'd like to go to Malaysia to solicit clients, what would your advice be? Would you say, "That's fine. You can go right up to the families and offer your services as long as you record the conversation and don't engage in any vexatious conduct." Is that the advice you would give?
Monroe, I did some quick and dirty research and found a few relevant items. First, check out In re Universal Bldg. Products, 486 B.R. 650, 658-59 (Bkrtcy. D. Del. 2010) (rejecting a First Amendment challenge to Rule 7.3, where the lawyer had argued that in-person solicitation caused no harm and was directed at sophisticated business people). Second, see Falanga v. State Bar of Ga., 150 F.3d 1333, 1338-44 (11th Cir. 1998) (upholding a general restriction on in-person solicitation despite a First Amendment challenge) Finally, here's a discussion of Rule 7.3 by North Carolina's disciplinary counsel, Alice Mine,,2.asp, concluding that the Rule prohibits all types of in-person solicitations no matter how "genteel."
Monroe, Here's a fuller passage from Ohralik that follows the passage you quote above: "The Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert. In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed. The State's perception of the potential for harm in circumstances such as those presented in this case is well founded. The detrimental aspects of face-to-face selling even of ordinary consumer products have been recognized and addressed by the Federal Trade Commission, and it hardly need be said that the potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter's qualifications or the individual's actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence. Although it is argued that personal solicitation is valuable because it may apprise a victim of misfortune of his legal rights, the very plight of that person not only makes him more vulnerable to influence but also may make advice all the more intrusive. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual's privacy, even when no other harm materializes. Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by lawyers more often than not will be injurious to the person solicited." It's hard to read that passage to mean that a lawyer can engage in in-person solicitation for pecuniary gain as long as the lawyer can show that there was no injury from it. If the case actually stands for that proposition (as you suggest, Monroe), can you cite any case since Ohralik that has interpreted the case that way?
I should note that I am simply offering my opinion about what I think the rule *should* be, not what it is.
I appreciate the force of that argument, John, which is why (I suspect) the Code of Conduct is written as broadly as it is. But I've always been somewhat skeptical of "public respect" arguments, because they were long used to limit lawyer speech, particularly lawyer advertising, unnecessarily. That said, if a judge opines about a case that subsequently comes before that particular judge, recusal would be appropriate. But if the judge is merely offering an opinion about a case pending in another court, I don't see the harm, as long as the judge's comments are as measured as Judge Calabresi's were. On the other hand, the potential problem in this particular case is that I suppose SCOTUS could remand the case to the Court of Appeals, and Judge Calabresi might have to address the case anew. If that were to happen, Judge Calabresi might have to recuse himself, but I don't see why he should be restricted ex ante, especially when his comments were as tame as they were. After all, all he said is that it would be "too bad" if the Supreme Court reversed the case. I don't see how a comment like that (or the other comments attributed to him) would affect the public's perception of the justice system or the administration of justice in this particular case. What judge doesn't think it would be "too bad" to get reversed?
Andrew Perlman is now following John Steele
Jun 7, 2010