Some recent developments on the national stage provide common sense insight into two perennial issues faced by lawyers: lawyer advertising and what file materials lawyers must provide to clients when the lawyer stops representing the client. I have written on both topics before, but there is always more to say—especially when it’s good stuff that sheds light on these two important topics.
Lawyer advertising is the law-of-lawyering topic that keeps on giving, in part because the standards give imprecise guidance, yet from time-to-time a lawyer faces formal discipline for having failed to comply with them. I have written before about this topic, most recently about a case that I viewed as a missed opportunity to provide greater guidance to the bar. Lundberg, Law Tiger, Hidden Dragon: New Uncertainties with Lawyer Advertising, Vol. 57, No. 10 Res Gestae 23 (June 2014).
Lawyer advertising regulation has spawned recent, significant federal court litigation, although not in Indiana, raising First Amendment challenges. See, Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010); Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011); Harrell v. The Florida Bar, 915 F.Supp. 2d 1285 (M.D. Fla. 2011); Searcy v. The Florida Bar, 2013 WL 6493683 (N.D. Fla. Dec. 11, 2013); Rubenstein v. The Florida Bar, 2014 WL 6979574 (S.D. Fla. Dec. 9, 2014).
On June 22, 2015, the Association of Professional Responsibility Lawyers (“APRL”) issued its 2015 Report of the Regulation of Lawyer Advertising Committee. http://aprl.net/publications/downloads/APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf. For those of you unfamiliar with that organization, APRL is made up of a diverse group of practicing lawyers and academics who focus of the law of lawyering. The ad hoc Regulation of Lawyer Advertising Committee was made up of a distinguished group of lawyers from around the country, including a liaison from the national lawyer regulator’s organization, the National Organization of Bar Counsel.
The APRL Report is an important addition to the literature on lawyer advertising regulation, in part because it was partially based on a survey of regulators in the fifty states plus the District of Columbia. Thirty-four of the fifty-one jurisdictions responded. It does not say whether Indiana was one of the responding jurisdictions.
The survey asked questions about the source and frequency of lawyer advertising complaints, how regulators handled lawyer advertising complaints, whether jurisdictions monitored lawyer advertising even if no one complained, and whether actual consumer or client harm was an element of lawyer advertising disciplinary decisions. The survey form was included in an appendix to the Report, although state-by-state results were not. The survey results were summarized as follows:
Lawyer advertising complaints are rare.
- Other lawyers, not consumers, complaint most about lawyer advertising (73% versus 3%).
- Formal discipline for advertising violations is rare; they are mostly handled informally.
- Few jurisdictions pre-emptively monitor lawyer advertisements.
- Most formal discipline for advertising violations would be punishable for violating Rule of Professional Conduct 8.4(c)’s definition of professional misconduct as including conduct involving dishonesty, fraud, deceit or misrepresentation.
In 2008, when I was on the regulatory side, I conducted a somewhat similar survey that was discussed in the Report. Lundberg, Some Thoughts About Regulating Lawyer Advertising, 34th Nat’l Conference on Prof’l Responsibility (May 28-31, 2008). Twenty-two of my fellow regulators responded to my survey. In general, I found that while there was disagreement about how lawyer advertising should be regulated, most jurisdictions fell on the non-interventionist end of the lawyer advertising regulation spectrum. I commented that there was dubious correlation between advertising regulation and protecting the public from tangible harm. In fact, I observed that regulators feel best about their work when they feel confident that they are protecting the public. They tend to shy away from regulating lawyer advertising because the very people who they are supposed to be protecting don’t seem to care. Or else, if they must devote resources to lawyer advertising regulation, it tends to be demoralizing work because of its remoteness from tangible public protection.
The APRL Report did not just describe the current state of affairs in the regulation of lawyer advertising, it suggested different substantive and procedural approaches to the issue. Substantively, it recommended doing away with all black-letter rules on lawyer advertising except for the general prohibition in Rule 7.1 on false and misleading communications about lawyer services. The other advertising rules (Rules 7.2, 7.4 and 7.5) would be eliminated with the comments to Rule 7.1 expanded to include much of the content of the eliminated rules and their comments. In sum, the Report suggests that it is not a useful investment of scarce resources to use formal discipline to deal with advertising concerns that don’t involve outright lying or that only relate to theoretical or potential consumer harm.
Procedurally, the Report recommended a non-disciplinary approach to lawyer regulation that would require a notice to the allegedly offending lawyer pointing out advertising deficiencies and giving the lawyer an opportunity to correct them. The matter would be over if the lawyer made the correction. If not, the regulator could refer it to formal discipline. The Report suggests that the resources spent in pursuing formal discipline in lawyer advertising cases could be more effectively used to encourage lawyers to correct advertising that crosses the line. After all, the vast majority of lawyers are interested in complying with the rules, not challenging them. Think how many regulatory resources would have been freed up for other purposes from the Law Tigers case alone.
Our Disciplinary Commission already has the discretion to handle lawyer advertising matters using an alternative procedure to formal discipline. A formalized, non-disciplinary approach would make that process more transparent to the bar.
The APRL Report is a good catalyst for a serious discussion about lawyer advertising. Ever since the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 748 (1976), held that regulation of lawyer advertising was circumscribed by the First Amendment protections for commercial speech, there has been a push and pull between regulators and the bar over where the line between public protection and free speech should be drawn. What is curious is that the public seems to have stayed away from the debate in droves, communicating by its silence that it is not all that interested in being protected. Constitutional considerations aside, in a world of infinite resources, I suppose spending time and resources regulating lawyer advertising is a harmless enough pursuit. But when the regulatory pie is largely fixed, every hour and dollar spent regulating lawyer advertising is an hour and dollar less protecting the public on matters it really cares about.
Client File Rights
In Indiana, we struggle with a lack of clear guidance concerning client file rights. I have written on this topic before and suggested that our case authority is circular, telling lawyers that the client is entitled to receive what the client is entitled to receive; thereby begging the ultimate question: what file materials are clients entitled to receive? File, File, Who’s Got the File? Client Rights to Return of Property, Vol. 51, No. 2 Res Gestae 29 (September 2007). The American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471, entitled “Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client Is Entitled,” on July 1, 2015 collecting the various approaches to the question of client file rights and adding, in my opinion, a common sense perspective on the issue. The opinion is available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_471.authcheckdam.pdf for a year without charge, and thereafter by purchase from the ABA.
The question of client file rights is often driven by state law, not rules of ethics. But when state law is not clear, this opinion gives guidance that strikes a good balance between client and lawyer rights and obligations.
The opinion was written with the assumption that the client has paid the lawyer’s fees when the issue at the time the client asks for the file. This removes from the equation the lawyer’s right, recognized under Indiana common law, to assert a retaining lien on the client’s file.
Initially, the opinion describes the two prevailing approaches to client file rights. The first and, according to the opinion, the majority view is the “entire-file” approach. Under this approach, the client is entitled to the return of original property plus a copy of the lawyer’s entire file. There are exceptions, but not many. These include materials that would violate an attorneys’-eyes-only protective order if delivered to the client; materials that consist of the lawyer’s assessment of the client; materials that are in the nature of internal firm administrative communications; and materials that, if released to the client, could endanger the client or others.
The other approach is the “end-product” approach. Under this approach, the client is entitled to return of the client’s own property plus the end products of the lawyer’s work: correspondence on the client’s behalf, reports and memoranda, contracts, wills, pleadings and the like. But the lawyer is not required to provide the client with the materials developed to create the end product, such as legal research, interim drafts, lawyer notes, etc.
As indicated, there is not good Indiana authority on point. This opinion advances the ball by taking a more nuanced approach to the question. It takes its cue from the injunction in Rule of Professional Conduct 1.16(d) that a lawyer must to the extent reasonable practicable protect a client’s interest at the conclusion of a legal representation.
Thus, “at a minimum a lawyer’s obligation under the Rules reasonably gives rise to an entitlement to those materials that would likely harm the client’s interest if not provided.” Expanding on that theme, what the lawyer must provide the client will generally be different if the representation is complete, compared to if the representation is going to continue in the hands of another lawyer.
In the former instance, the client should generally be entitled to the end product of the lawyer’s work since that is generally what matters once the work is complete. In the latter instance, the client is entitled to what is akin to the entire file so the value of the lawyer’s work, for which the client has paid, can be provided to successor counsel to minimize the new lawyer’s up-to-speed time.
This opinion strikes a reasonable balance grounded in the core principal of minimizing harm to the client when a legal representation ends. For states, like Indiana, it is a thoughtful opinion to be considered as our courts chart their way through this territory.