Do you remember the 1997 movie Network, where the radical news anchor gets the mass of the people to yell, "I'm mad as hell, and I'm not going to take it anymore"?
Susan Cartier-Liebel on her blog, Build A Solo Practice, reported on the North Carolina State Bar issuing an ethics opinion, which essentially says you cannot give out a business card or printed firm information unless someone actually makes a request for it, and you can only given them one of each. NO MORE! More than one business card or trifold would be considered an ethics violation.
The North Caroline State Bar claims it is concerned about third party solicitations on behalf of its attorneys. But, is that not what a referral practice is all about -- third party solicitation on behalf of an attorney.
I was in England once and saw where the local government would not allow a McDonald's to put in a drive-thru lane at its restaurant. The reason was pretty amazing to me. The government claimed that allowing McDonald's to do this would be "anti-competitive". Because the other fast food restaurants did not want to put in drive-thru lanes (and only had "take away", meaning park, go inside, grab a sack of food and leave) this would be anti-competitive. This is the direct opposite of what "anti-competitive" means in this country. Gas stations and rest stops are not allowed on the highway in England, for example, because it is anti-competitive to the gas stations and rest stops in the villages. Can you imagine a gas station not being allowed to locate near where the automobiles are operating? How about not allowing gas stations to put in gas card readers at the pumps to prevent a trip inside the store to pay the tab? Can you imagine no drive-thu lanes all because allowing someone to provide an efficient, cost effect and convenient service would be anti-competitive to all of the competitors that did not want to do provide such a service? Yet, that is exactly where the bar-tenders would have us do. We cannot hand out business cards and law firm information because it might be anti-competitive to those who are not asked for this information or who do not want to print it up.
Many years ago I faught the Texas Bar on its advertising rules in Court and mostly won. Since then I have been more active in the Bar. What I have learned about the die hard bar-tenders that dominate the Bar is that they are generally obsessed with competition issues (mainly preventing competition), and they are crazy motivated to do something about it (namely stop competition). Especially those involved in the unified bars. Bar-tenders propose oppressive rules and appoint ethicist (?) that think up these ridiculous restrictions.
New York wants to do in law blogs. North Carolina does not want you to give out business cards and pamphlets. Texas wants you to disclaim to everyone that you are not board certified (as opposed to merely allowing those to promote themselves as board certified). Hey potential client, there maybe someone better than me that you should hire. Florida? Well, those in charge of rulemaking with Florida's Bar are just insane. The people who designed the butterfly ballot must have been Florida Bar officials.
The bar-tenders want to make the practice of law the legal equivalent of an Amish society. We would all ride circuit on horse back, in a group, and present ourselves, together, to clients at the various courthouses.
If allowed, bar-tenders would order you to a corner and forbid you from telling anybody that you are an attorney. Only through a warranted mind meld could one learn of your true identity as a lawyer.
Do not kid yourself. These rules and regulations are directed primarily at solo practitioners, small firms, and newly minted lawyers that do not have the political cover as does Big Law, which primarily solicits large corporations. And, the fact that they get to do this to us is silly.
What I learned years ago with my discussions in Court about these types of rules is that a state (or, as in Texas, the unified bar) can enact rules to protect a legitimate state interest, but those rules have to be tailored to be as least restrictive as possible. Certainly, in North Carolina's case, the state has an interest in lawyers not descending on accident victims in the hospital or foreclosure victims about to lose their homes. But come on. Passing rules to restrict all casual third party referrals is not the least restrictive. North Carolina's rules are tailored to be some loose fitting attire.
There is simply nothing wrong with my former client or friend encouraging someone who asks then to see me about a matter. I should not have to tell him or her to keep my card handy so they can write down the information when asked. To suggest that these are appropriate rules or rulings, as the North Carolina State Bar assumes, is wrong.
The reason that I suggest that putting up with these rules is silly is because solos, small firms and newly minted attorneys make up the overwhelming bulk of the Bar members. We also make up the overwhelming bulk of the lawyers who do not vote in Bar elections, or who fail to participate actively in Bar activities. Generally speaking Bar elections and selections are the least participated things in the World. They make some school board election turnouts look large. And, did you know, that most unified bars have provisions to add people to contests (other than the members chosen by the Bar) by collecting signatures. It just would not be that hard for solos and small firm practitioners to storm the Bar and turn these bar-tenders out.
I just do not believe you can be tame about it. It is like every election. You have to energize your base. You have got to put forth candidates and those candidates will have to say they intend to throw these rules out and redirect the careers of these ethicist.
I am reminded of a proctologist that ran for Congress back in the 80s. He traveled around his district holding up a proctoscope and his slogan was that he was "going to Congress to look up some new friends". He won. I think the same thing is needed here. We need to get our proctoscopes and go look up some new friends at the various state Bars.
Texas, for example, has a rule that requires attorneys to stamp on everything a conspicuous disclaimer that reads "Not Certified By The Texas Board of Legal Specialization". In reality, the vast Texas public does not know what that means. After years of complaining, primarily by solos and small firms, the Texas Bar put the matter up for a vote to remove this requirement, and allow certified attorneys in various specialty to market that fact as a plus. The majority of attorneys voted to remove the requirement, but so few lawyers voted that there was not a quorum of votes necessary to pass the measure. In short, the solos, small firm practitioners and newly minted attorneys that typically do not like the requirement, griped about the requirement, did not even send in their paper ballots. Less than half of all attorneys even bothered to vote on a measure important to them.
I think we need reasonable rules. I do not believe in anarchy. But, like in the movie Network, I think it is time for solos, small firm practitioners and newly minted attorneys to stand up and yell, "I'm mad as hell, and I'm not going to take in anymore"!!!
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