Lawyers: Be Afraid of Ghostwriting

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Lawyers: Be Afraid of Ghostwriting

Lawyers: Be Afraid of Ghostwriting
What Lawyers Need To Know About Electronic Tobacco
Is Lady Justice Striking Out?
Three Reasons Why Lawyers Shouldn’t Be Afraid of Technology

Lawyers: Be Afraid of Ghostwriting

Posted: 16 Oct 2014 05:00 AM PDT

As Halloween draws near, I thought it would be appropriate to bring up the issue of ghost stories. To be more specific, I’m talking about “ghostwriting.”

To say that attorneys are creatures of limited time is to wildly understate the amount of work and pressures we face on a day-to-day basis. Not only must we be masters of prose and the written word in order to maintain successful relationships with our existing clients, but we must also be constantly reaching out to potential clients by offering innovative and valuable expertise that will encourage the public to rely on us as experts in our particular field of law. Because of these time constraints, many lawyers engage ghostwriting services to populate their websites and blogs with new and interesting information.

For most professionals where writing is intrinsically involved in their services, this is a reasonable and necessary course of action that allows them to stay relevant while keeping their clients and prospective clients informed to changes in the marketplace. Unfortunately, we attorneys are not like “most professionals.” In fact, we are bound to a higher standard in the activities and company we keep.

Allow me to draw your attention to the ABA model rule 7.1 “Communication Concerning a Lawyer’s Services.” Under the ABA’s Center for Professional Responsibility, it states the following:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Ideally, a lawyer who engages a ghostwriter would have the sophistication to review the ghost writer’s work in order to make sure the topics they write on are both materially and factually truthful. However, what lawyers need to consider is the second part of 7.1 which states that if a lawyer omits a material fact, it could potentially render their statements false or misleading.

So, if you do not have a disclaimer that informs the public you are using a ghostwriter, could you potentially run afoul of rule 7.1? I believe the answer to this question is yes.

When an individual hires an attorney, they are essentially purchasing the intellectual property of the attorney’s work product. It is this creative je ne sais quoi that the client relies so much upon and pays so much for that makes an attorney’s service so valuable. A client generally makes the decision to engage an attorney based on many of the intellectual materials that the potential client has seen from the attorney; this could include their website, recommendations from other attorneys or clients, or even blogs like the one you’re reading here.

Therefore, engaging a ghostwriter without informing readers that someone else is providing your content unequivocally creates a misleading impression that what they are reading is the effervescence of your personal legal mind.

Now, I know many will argue that lawyers generally don’t write their briefs or pleadings and their opinions are almost always written by paralegals and other staff – so why should ghostwritten blogs and website content be any different? Consider this: blog posts and website content are considered by many to be a form of content marketing and advertising. While it is a form of legal work product, it is pointedly a message about a lawyer’s services and thus inextricably linked to rule 7.1.

For those of you out there who lament that maintaining your own content will reduce your amount of billables: I commiserate. I often carve out more time than I should to produce my own content, but there’s something incredibly satisfying when I see it published on the Internet and know that my voice is genuinely my own.

Writing your own blog posts and website content is definitely not something you should be scared of this Halloween. In any event, it will keep rule 7.1 from haunting you in the future.

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What Lawyers Need To Know About Electronic Tobacco

Posted: 14 Oct 2014 05:00 AM PDT

I consider myself to be somewhat of a cigar aficionado; for those of you who are interested, I highly recommend trying a Montecristo Number 2 (you won’t be disappointed). It’s well-settled law at this point that my interest in cigar smoking is generally relegated to sparse and difficult-to-find cigar lounges with a few close personal friends or secret meetings (if you will, those smoke-filled back rooms) with these same close friends away from public viewing.

But take heart my cigar smoking brethren: a new technology has burst onto the scene that could potentially make smoking couture again, and it isn’t just smoke and mirrors.

E-cigarettes, or electronic cigarettes, are battery-powered devices that turn liquified nicotine and other combustibles into a vapor that the user then inhales. In fact a whole new subculture has been developed by young people who call themselves Vapers, or Vapes for short.

According to the Milwaukee Journal Sentinel, retail sales of e-cigarettes have tripled over a two-year period, to an estimated $1.8 billion last year.

While some states have imposed restrictions or bans on where e-cigaretts or e-cigars can be used, there currently is no federal law in place and the local laws and ordinances are murky at best. Many local bans and ordinances opposing e-cigarette or e-cigar use state that these devices should be banned wherever general smoking is prohibited.

In short, e-smoking or vaping is rapidly creating an entirely new field in the legal world where the vortex between legal norms and legislatively controlled substances intersect. Recent case law is indeed leaning toward vitiating the inclusion of e-smoking into these general smoking bans. See: The Matter of Kuhn at the local level and Smoking Everywhere, Inc. v. US Food and Drug Administration at the federal level.

Smoking bans are enacted to protect the public from the harm of secondhand smoke, but e-cigarettes have not been shown to cause harm to bystanders. In fact, all evidence to date shows that the low health risks associated with e-smoking is comparable to other smokeless nicotine products.

Let me provide some additional ammunition for those of you looking to defend a client from an onerous e-smoking ban:

The low risks of e-tobacco is supported by research done by Dr. Siegel of Boston University, Dr. Eissenberg of Virginia Commonwealth, Dr Maciej L Goniewicz of the Roswell Park Cancer Institute, Dr. Laugesen of Health New Zealand, Dr. Igor Burstyn of Drexel University, and by the fact that the FDA testing, in spite of its press statement, failed to find harmful levels of carcinogens or toxic levels of any chemical in the vapor.
A comprehensive review conducted by Dr. Igor Burstyn of Drexel University School of Public Health based on over 9,000 observations of e-cigarette liquid and vapor found “no apparent concern” for bystanders exposed to e-cigarette vapor, even under “worst case” assumptions about exposure.
Electronic cigarette and cigar use is easy to distinguish from actual smoking. Although some e-cigarettes resemble real cigarettes, many do not. It is easy to tell when someone lights a cigarette from the smell of smoke. E-cigarette vapor is practically odorless, and generally any detectable odor is not unpleasant and smells nothing like smoke. Additionally, e-smoking users can decide whether to release any vapor (“discreet vaping”). With so little evidence of use, enforcing use bans on electronic cigarettes would be nearly impossible.
Currently there is no California or federal law that restricts where people can use e-smoking accessories. Unless your local smoke-free law defines “smoking” to include e-cigarette or e-cigar use, the use of this product may be legal in places where smoking cigarettes is prohibited.

According to a new report by XpertHR, employers and management can find themselves in new legal territory when dealing with employees who might want to “vape” while at work or on a break. XpertHR recommends advising clients to have an “Acceptable Use of E-Cigarettes” policy in place with their existing employee manuals and I would even go so far as to have clients who deal with the public provide visible notice to their customers and clientele regarding an e-cigarette policy in order to minimize public liability.

For some people, electronic tobacco will never be able to replace the real thing. Nevertheless, I believe this new electronic tobacco technology has given rise to a healthy public discussion as to what reasonable tobacco regulation should look like. Now, if you’ll excuse me, I’m late for a meeting in a smoke-filled backroom with some close friends to discuss the future of electronic tobacco policy.

Happy Labor Day, Samuel Gompers!(
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Is Lady Justice Striking Out?

Posted: 10 Oct 2014 02:18 PM PDT

Back during his 2005 Senate judiciary committee confirmation hearings to become the Chief Justice of the United States Supreme Court, John Roberts tried to allay Democratic senators’ fears that he was a conservative ideologue by famously comparing the role of judges with baseball umpires and declaring, “It’s my job to call balls and strikes and not to pitch or bat.” By likening his job to that of a home plate umpire who has little discretion to “interpret” pitches, Roberts was painting the law as something that is “objective” and “non-partisan” and not, to momentarily switch sports analogies, a “political football.” That alleviated concerns, or hamstrung objections, to Roberts, whereupon he was confirmed and promptly took his place on the bench as a reliable member of the conservative wing of the court (with a few exceptions, the most notable one being the swing vote affirming the constitutionality of the Affordable Care Act).

It’s impossible to know if Roberts believed his “umpire” analogy, or if he even believes it still. What made it palatable at the time is that it fit with how most of us prefer to regard the judicial system: above allowing the personal biases of the judges to topple what legislators have decreed. At worst, torturing the sports metaphors still further, some judges might have an “expanded strike zone,” allowing for a liberal interpretation and others a more restrictive “narrow strike zone” but even in those cases, the judge/umpire equally applies that zone to both teams. “Agendas” are antithetical to the strike zone. Unless you’re Antonin Scalia. The guy is so open and brazen about his predilections, you just shake your head and go, “That’s Antonin. Whaddaya gonna do?”

If at those confirmation hearings Roberts had instead compared judges to home team sportscasters, unapologetic partisans for the side that hired them, it’s pretty unlikely he would’ve gotten the job. Yet, in reality, whether a particular law is called a “strike” or a “ball” (constitutional or not) often depends on which team the majority of judges ruling were appointed by – the Democratic Lefties or the Republican Righties. It’s so taken for granted that, even as the New York Times declares that history is “full” of examples of judges who defied the expectations of the elected official who appointed them, it cites the well-worn case of the first President Bush being unpleasantly upended by David Souter, who is brought up in this context as often as folks who argue that Hollywood isn’t just a bastion of left-leaning liberals dredge up Kelsey Grammar and Chuck Norris, because, well, there really aren’t that many others.

Yet somehow it still seems “wrong.” The United States Constitution is supposed to stand for inviolate principles, not malleable vagaries. But what are we to make of it when great constitutional issues like voting rights and the right of corporations to pour unlimited money into political campaigns are too often decided by one vote majorities aligning with whichever political party held an advantage in determining the court’s make-up at the time?

I’m bringing this up because last month, the New York Times remarked that one of the most enduring and profound – but least noticed or understood – legacies of President Obama’s time in office is that for the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican ones, including nine of the 13 US Courts of Appeals, up from but one when Obama took office.

Moreover, the advantage and rate of increase has accelerated since senate Democrats employed the so-called “nuclear option,” which stopped Republicans from routinely filibustering Obama’s nominees.

The Times noted that this shift will likely have wide-ranging ramifications when the courts decide cases before them regarding health care, climate change, immigration reform, gay marriage, and other divisive issues. With Congress at almost a complete gridlock and Obama increasingly willing to issue controversial executive orders on a host of matters, the courts, if they rule as widely expected, will almost function as a quasi after-the-fact legislative branch, “passing” Obama’s reforms after he unilaterally signs them.

The whole rationale for the judge appointment process not being subject to elections is to ensure their independence and inoculate them from being pressured by momentary prevailing vicissitudes. But if they rule as predictably for one side as most legislators vote, that rationale seems imperfect, at best.

In some ways, it’s a good thing that the public doesn’t pay much attention to the judiciary. If the public perceived that it was as overtly partisan as the other two branches, justice, as Chief Justice John Roberts might put it, will have “struck out.”

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Three Reasons Why Lawyers Shouldn’t Be Afraid of Technology

Posted: 05 Sep 2014 05:00 AM PDT

Any attorneys out there have nightmares about the Big Bad Wolf of Technology huffing, and puffing, and blowing away our law firms?

The American Bar Association’s Rule 5.5 regarding the unauthorized practice of law notes: “The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons.” Rule 5.5 makes it clear that the key element in the unauthorized practice of law is “personal advice” as opposed to “general advice,” where the latter is permitted and the former proscribed.

This, of course, has given rise to the most disruptive and revolutionary technology in the legal profession: the application of self-help services at the user’s specific direction. These “general advice” services (the fastest growing of which is Rocket Lawyer) have demystified the legal profession and offered everyone the opportunity to access and create legal documents and on their own or with an attorney at a discounted rate.

Many of us, as attorneys, wring our hands and lament how our profession is rapidly changing and forcing us to work with more sophisticated clients who demand more and expect to pay less. In fact, there’s a whole new series of technologies that are right around the corner which won’t do much to quell such fears.

New startup Legal Sifter uses natural language processing to scan a document (Word format only at this point) and assign that document a score based upon how favorable the terms are to the user. The service provides a general explanation of the clauses and provisions in the document and can even suggest potential changes, additions, or deletions that are most likely not in the user’s best interest.

Google Scholar can be extremely powerful if you know all the tips and tricks for using the service. For one thing, Scholar has a fairly significant cache of articles and case law that runs back about 60 years and encompasses federal district court cases, state and federal appellate decisions, and other topics generally reserved for the legal community. Anyone can use Scholar to see how a case was previously cited and even provide hyperlinks to other cited precedent.

There are even a variety of “Legal Generator Engines” that will provide extensive privacy policies for website operators and even provide terms and conditions. On a surface level, this would appear to take away the need for any Dot Com to seek legal counsel for their business.

Many attorneys have become very vocal about the need for the Bar to take action against these services, arguing that these up-and-coming providers are blurring the lines between legal self-help and legal advice. For now, the Bar seems to be conflicted about how to best deal with these new technologies.

Ultimately, I think the legal profession will need to come to grips with the fact that our profession in the very near future will be materially different from what it is today. Indeed, I would argue that all of these new services and technologies will increase our value as attorneys and solidify our role in the marketplace if — and only if — we embrace these technologies and learn how to leverage them to serve our clients’ interests. Consider these three points:

First, while it is true that these different types of search capabilities empower our clients to become more educated and sophisticated, it also adds to their confusion as to the best course of action they should take to resolve their particular legal matter. They may bring several different printouts of case law, statutes, and forms to our office, but ultimately, they are going to rely on us to make heads or tails of the data they collect. Think of it this way: a patient may print out lists of symptoms from WebMD, but will ultimately rely upon a doctor to provide a diagnosis and treatment plan.

Second, a sophisticated client who has done the research prior to meeting with you can be much easier to work with; a level of prerequisite understanding can deepen your relationship with them, and make it easier to expand your practice. For example, I have a client who recently asked me to form an LLC for them and in passing, briefly mentioned that they saw an article about adding a written operator agreement into the LLC. This led to a complex discussion about setting up an operating agreement and I was able to secure that work on top of forming the LLC.

Finally, tools like Rocket Lawyer offer attorneys opportunities to serve potential clients that they may not have had previously. As a member of Rocket Lawyer’s On Call® Network, I receive many requests and questions from potential clients through the company’s user-friendly, online Q&A platform. While I may offer my services at a discounted rate in some cases, these initial discounted services often lead to other full-service opportunities and longer-term relationships.

So, I think it’s best to sum things up this way: My wife and I continually go through the same argument. She asks me to call my plumber Herman to fix our toilet or change a faucet. I proceed to tell my wife that I’m capable of performing the task on my own, go to Home Depot to buy the tools, and watch some videos on YouTube before getting to work. In the middle of the job, I wind up having to call Herman to pick his brain or ask him to come out to fix a bigger problem that I created myself. When Herman eventually does come over, he encourages me to continue repairing things on my own because he’s confident in the outcome.

Which reminds me, if you’re reading this Herman, I’m hoping you can come out next Tuesday and fix the leak I created under my sink.

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