Mark Dubois Mark Dubois

In a recent article in the ABA Journal, Carolyn Elefant, who publishes a blog called “My Shingle,” suggested that ethics rules on advertising and fee splitting are hampering efforts by solos and small firm lawyers to compete in a rapidly changing technological environment. I don’t disagree with her, but I think there’s a better way to address the issue than to think/hope/pray that the ethics rules are going to change.

Elefant’s complaint deals with those rules of professional conduct (and properly called such) which really have little to do with ethics but a lot to do with how lawyers and law firms conduct themselves. They govern how lawyers organize themselves into business enterprises, use business and trade names, advertise, supervise each other and employees, manage their books and records, and distribute compensation.

These rules deal with important aspects of the business of law, but, for my money, are pretty removed from the lofty ethics that imbue much of the rest of lawyer regulation. Yet, they can be investigated and enforced much the same way as a violation of a truly “ethical” issue, such as client confidentiality or loyalty. There are some exceptions to this, and one of those may be a template to give the bar the relief Elefant thinks we need without throwing out the rule book and letting the forces of commerce take over.

I speak of our advertising regime. That system focuses, in the words of State Bar Counsel Mike Bowler, more on compliance and less on enforcement. Mike’s office has a lawyer who handles advertising, Kerry O’Connell, and the way she does her job is a model of problem solving instead of “gotcha” enforcement. For instance, I dealt with her when an issue came up about a lawyer’s use of the fact that he had been recognized by Super Lawyers or some such group on his website. She reminded me that he needed to put a link to a page which explained the selection process and such. The text was changed, she hit refresh on her computer, and the case was closed. She also is available when I and others have questions about aspects of advertising, such as proposed ad copy or trade names.

The advertising program has an advisory opinion feature where you pay a small fee and a subcommittee of the Grievance Committee reviews the ad and gives you a green or red light. If the ad is approved, you cannot be prosecuted for using it. A compendium of advertising opinions is published on its website. One of Carolyn Elefant’s criticisms of her state’s lawyer ethics system was that its opinions were hard to research. Not so with regard to Connecticut lawyer advertising.

This approach gets rid of the fear that a simple mistake on the business side of the law office might result in a permanent ethics record. This focus on compliance is also found in the random audit program. It’s no secret that most lawyers who are audited have a few mistakes or miscues on their “report card,” but as long as they agree to change their ways and set things straight, there is no enforcement. I’ve lost a lot of business opportunities in the last few years when I have schooled lawyers with advertising issues or a pending audit that the folks from East Hartford are very reasonable and will help them get into compliance. Often I get a call later on thanking me for calming them down and sharing how professional and helpful the folks they dealt with were.

Maybe the answer to Elefant’s perceived problem is to move the “ethics” rules which are less about ethics and more about rules into what some states call a Law Office Management Assistance Program. When the focus is on helping rather than prosecuting, lawyers can go to the regulators and get schooled on how to do things right. Often, there is a legal work-around to what initially seemed to be an insurmountable barrier. Those who cannot or will not comply will feel the sting of enforcement, but the great majority will emerge from the process without a disciplinary record.

As I said, I tend to agree with Elefant that some of the rules on how we run law offices are unnecessarily constraining, but changing them will take a generation, if ever. There is always blowback whenever anyone suggests loosening things like sharing fees with nonlawyers or taking on nonlawyer investors in law firms. But with regard to the everyday stuff, such as using a firm name which includes Galileo (it’s a real advertising case, go look it up), a lawyer shouldn’t be in jeopardy of picking up a reprimand just because he believed Galileo is an inspiration to those of us who want to change the world.