A Question For Rachel Rodgers – If It’s Not Legal Advice, What Is It?

I didn’t want to write about Rachel Rodgers again. Really, I didn’t. Rachel is smart, web savvy, and pretty cute. Honestly, I feel like a big hurtful bully by continually writing about the stuff she does. If Rachel were selling real estate or things on etsy, I would probably give her props. She is a heck of a business person and makes nice websites. We are also both are fans of Tim Ferriss.

But this is law we are talking about, and Rachel is continually finding new and clever ways to straddle that grey line of “is that ethical.”

Today, Rachel’s new venture takes the cake. Absolutely takes the cake. I tried not to write about it, I really did. But I just couldn’t resist. This is truly unbelievable…

Your Website Is Not a Reception Area #abatechshow

Today I was bored and decided to see what Rachel Rodgers is up to. Something she said caught my eye:

As a lawyer with an online-based law practice, your virtual law office website is your storefront and reception area. The first impression you leave with website visitors can often determine what they think of you and whether or not they will become clients. Its important that your virtual law office website be an interactive, trusted resource for your clients that reflects your personality and gives them a sense of what its like to work with you.

Ah, the future of law! Technology is going to change everything about lawyering! In the very near future no lawyer will have an office and everyone will work from either Starbucks or their living room. The cat will proofread your briefs. There will be no need for filing cabinets because all paper will be stored in the cloud (or the trunk of your car). Court will be held in a chatroom, and the judge will be a moderator. Judgements will be in bitcoin and people convicted of crimes will be banned from the internet or something. This is where it’s all going! Get your iPad ready!

Of course, this “future of law” is usually propagated by non-lawyers and failed lawyers who claim to be qualified to tell us about the future without ever having been part of the past.

So get this. In the future, your website serves as your reception area!

Err, wait, what?

As a young lawyer with a real office, here is my actual reception area:

The 4 Hour Reputation, and How I Built My Zoning Law Practice

[Editor’s Note: I wrote a piece about my zoning practice a little awhile back and then decided not to publish it. However, a few days ago I read this article by Rachel Rodgers in Forbes magazine. Her advice to other lawyers? Ditch the physical office and use social media to manufacture a reputation online, just like Tim Ferriss suggests in the book 4 Hour Work Week. The 4 Hour Expert method involves self creating publicity, and then using that publicity to perpetuate your self proclaimed “expertise.” The idea behind the 4 Hour Expert isn’t to acquire any actual expertise – just trick people into thinking you have them.

So who is Rachel Rodgers, and why is she in Forbes magazine?

To her credit, Rachel has implemented the 4 Hour Work Week model successfully. She started her own virtual law practice (called a “VLO” by cool fancy people), and declared it to be a success, thereby becoming a self-proclaimed authority on starting a VLO. How did she “become so successful?” According to this video (scroll to 19:45), Rachel initially used HARO (Help A Reporter Out) to get mentioned by a few “entrepreneur magazines”, including Forbes and MSNBC, which she then used as “proof” that she is an authority. It was a great story for the press – young lawyer starts a fresh new law firm on the internet and becomes successful. However, it all sort of fell apart when put under some scrutiny.

Nevertheless, Rachel became a “4 hour expert” in starting virtual law offices by generating publicity for herself, and then using that publicity to manufacture expertise in starting VLOs. Now she sells the same “4 Hour” model to other people, which you can do with just about any area of law. But is the 4 Hour method really worth anything to a law practice in the long run…?]

A Night Like This

“Looks cold and rainy outside”, I think to myself. “I’d sure hate to be out there today…”

[DING] Google Reminder: Hearing before Judge Robinson today at 11:30…

No, don’t worry, I won’t be schlepping to the courthouse in bad weather. That’s for fogies. Evidentiary hearings are done on Skype nowadays. Which is good, because I’m so warm in my robe. How anyone practices law in a “brick and mortar” setting is beyond me… morons.

“Good morning, Judge Robinson. I emailed you all the defendant’s exhibits before hand. Just a sec… cat! Get down from the counter! Sorry about that, Your Honor. My cat is always up on the counter, such a bad kitty. In any event, the court and opposing counsel have been emailed my exhibits. Anyway, my witness should be logging into Skype shortly. If I may make a proffer, Ms. Jones is going to testify to…”

That went well. I think I’ll go to the gym and do some food shopping. Then maybe take a nap. Work life balance is important, you know.

[DING] “Dear Jordan: we need to schedule depositions. Please give me some dates you are available. Your office or mine?”
Reply: “I don’t have an office, and I will be on a beach in France all of next month, so we’ll need to do them over Skype.”
Opposing counsel: “Sounds great.”
Reply: “You don’t need to mail me a confirmatory letter. I’m a virtual lawyer, so I don’t get mail. Emails are all I accept.”

Oh cool, an email from a new client. How did I get this client? No, I didn’t meet them out at the bar. No, I didn’t meet them through a civic association, or through an organization I’m in, nor were they referred to me.

“Networking” and having a good reputation is for old people.

I did it the new way – by manufacturing a reputation on the internet. I wrote a blog post and Tweeted about taxes. Based on my blog and Tweets, this guy decided to trust me with some of the most important legal decisions in his life. How cool is that, eh? Here I am sitting on my couch, raking in new clients AND being a lawyer.

How to Build the Practice of Your Dreams – Listen to George Harrison, Not Rachel Rodgers

Since I’m usually mean to Rachel Rodgers, I will start by saying something nice about her (even though she blocked me and Leo on Twitter. And Leo’s not even a jerk like I am.) Rachel’s branding is very polished and her website looks great. Last week she wrote an article about technology that gave me some ideas to implement in my own physical, as in, not virtual, practice. I wasn’t even dumber after I read it.

A Primer: Young Lawyers, Social Networking, and Privileged Communications – Why I Don’t Give Legal Advice on Facebook

Young lawyers, tell me you’ve never gotten a private Facebook message before that went like this:

“Yo, brah… I know you’re a lawyer so I want your advice. Last night I got pulled over by the cops and got a DUI. Yeah, I had like 10 rum and cokes, and I was pretty wasted, but they can’t pull me over like that, right? I mean, I was only doing like 10 over the speed limit. Can’t we fight this shit in court??? You can get me off, right???”

I’m sure many young lawyers have received a private Facebook message, a direct Tweet, a LinkedIn message, or some other type of seemingly private message over a social networking site seeking legal advice. Chances are you’ve answered it. You and the sender both probably believed that the message is privileged, because it was a private piece of correspondence made to an attorney containing legal advice. This is because in law school, you learned that private communications between an attorney and someone seeking legal advice are privileged. You believe that if someone sends you something private seeking legal advice and it’s privileged. You respond with your sage advice, and that’s privileged too, because the law protects this sort of thing.

Ergo, common sense suggests the a private message on a social network sent to a lawyer for the purpose of obtaining legal advice is privileged, right…?

Too bad it ain’t that simple. Especially here in Pennsylvania…

You see, unfortunately, sometimes the law is stupid and the courts “don’t get it”. They don’t always use common sense. Often the law develops slowly, sometimes stupidly, and it doesn’t reflect the realities of modern life. However, the law it is what it is, and you have to take steps to make sure your correspondence with clients and potential clients remains confidential.

Let’s take a quick look at the law here in Pennsylvania…

All the way back in 2007 (which, by my calculations, is about 100 years ago), the Superior Court affirmed an order of the Court of Common Pleas requiring the Appellants to produce communications containing their outside counsel’s legal advice, analysis, and opinions. The Superior Court held that these documents were not protected by the attorney-client privilege because they were communications made by an attorney to a client. In doing so, the Superior Court followed its decision in Nationwide Mutual Insurance Co. v. Fleming, 924 A.2d 1259, 1264 (Pa. Super.2007), which held that the privilege protects communications from an attorney to a client only to the extent such communications contain and would thus reveal confidential communications from the client. The Superior Court stressed that “[a]s a published Opinion, unless and until the Supreme Court overrules Fleming, it is controlling on this Court.” (Op. 4 n.2.) (emphasis added). (Read: We think this is stupid but the law is what it is.)

Say… what?!?! Yes, you read that right. In 2007, the law in Pennsylvania was that attorney correspondence to a client was not privileged, except to the extent that it revealed confidential information sent from a client. The rationale was this – the Pennsylvania attorney / client privilege statute states that:

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

42 Pa. C.S. § 5928.

The Superior Court read the statute literally to mean that only communications from a client to an attorney were privileged. However, communications from an attorney to a client were not. Privilege in Pennsylvania was thus a “one way street.” Furthermore, the court in Birth Center v St. Paul Co., 727 A.2d 1144 (Pa. Super. 1999), held: “the attorney-client privilege … only bars discovery or testimony regarding confidential communications made by the client during the course of representation.”

However, in Gillard v. AIG Ins. Co., No. 10 EAP 2010, 2011 Pa. LEXIS 393, at * 40 (Pa. Feb. 23, 2011), the Pennsylvania Supreme Court overturned Fleming, holding that “in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” And believe it or not, there were dissenting opinions – this wasn’t a close call by any stretch of the imagination.

Alright, so this all makes sense. Although the law was stupid a hundred years ago until about a year ago, the Pennsylvania Supreme Court has stepped in and made everything okay. Now all communications between a lawyer and a client are privileged, right?

Errrr… not so fast, homie. That isn’t necessarily the case…

For instance, what if you discuss a sensitive legal matter with someone over Facebook or MySpace? I mean, it’s private correspondence between an attorney and client for the purpose of obtaining legal advice? That’s privileged, right?

I would agree, except for one problem: the issue hasn’t been addressed by an appellate court. And the trial courts who have addressed the issue have found that the communications are not privileged, because the court feels the communications are not private enough. For example, in Zimmerman v. Weis Markets, a trial court held that:

Thus, while it is conceivable that a person could use [social networking] as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.

The court’s rationale was this:

All the authorities recognize that Facebook and MySpace do not guarantee complete privacy. Facebook’s privacy policy explains that users post any content on the site at their own risk and informs users that this information may become publicly available.

The Zimmerman court relied on McMillen v Hummingbird Speedway, Inc., another trial court opinion, which also held that communications on social networking sites are not privileged. The McMillen Court’s rationale was this:

Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion. Implicit in those disclaimers, moreover, is that whomever else a user may or may not share certain information with, Facebook’s operators have access to every post.

In holding this, both the Zimmerman and McMillen courts compelled a party to turn over full and complete access to its MySpace and Facebook account:

AND NOW, this 9th day of September 2010, for the reasons articulated in the foregoing Opinion, it is hereby Ordered and Decreed that the Motion to Compel Discovery is GRANTED. Accordingly, the plaintiff shall provide his Facebook and MySpace user names and passwords to counsel for Defendants Hummingbird Speedway, Louie Caltagarone, and Dave Resinger within the next FIFTEEN (15) DAYS.

This means that counsel had access to all of a litigant’s private messages and chats. These could have been chats with a lawyer, a spouse, a priest, or who knows… yikes. But aren’t those communications privileged? At the very least, shouldn’t the court conduct a review first? The Zimmerman Court held that they won’t do this because it’s too much work:

In the alternative, Zimmerman also argued that the Court should conduct an in-camera review and decide what materials should be provided to Weis Markets. This argument is flatly rejected as an unfair burden to place on the Court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also would require the Court to guess as to what is germane to defenses which may be raised at trial.

In other words, turn over all the information, and the Court isn’t going to review it first to make sure privileged stuff doesn’t fall into the wrong hands.

In my view, the court’s reasoning is silly, because the same could be said about Gmail. A client could (stupidly) forward a privileged communication to someone, or in theory Google / AOL/ Comcast could disseminate private emails. I don’t think the courts understood that some Facebook posts are public, some are semi-public, and some are intended for one sole recipient (like a lawyer or spouse). I also firmly believe that the means of communication changes from generation to generation. Our grandparents wrote letters, our parents used the phone, we send each other messages over Facebook. Just because young people communicate differently than older people doesn’t mean it should be treated differently. No argument there.

Unfortunately, I don’t decide the law.

And sometimes stupid law is what governs. For example, most Pennsylvania lawyers agreed that Fleming was silly and that all private communications between a lawyer and a client should be privileged. While most didn’t like Flemming, and thought the Superior Court was mean, it nevertheless remained the law until the Pennsylvania Supreme Court said differently in Gillard. But before Gillard, Pennsylvania lawyers had to comply with Fleming and take adequate steps to protect their clients until told differently.

Even though the law was silly, stupid, out-dated, didn’t make sense, and probably decided by a court that didn’t own one Apple product. Not even an old iPod.

Which brings me to my point – as a lawyer, our job isn’t to write the law. Our job is to protect our client’s interest. Given that the case law is, at best, unsettled, why risk it?

That’s why I don’t give legal advice on Facebook. If you’re a young lawyer, consider limiting your legal correspondence to emails, letters, telephone calls, and in person communications. Though I firmly believe a private message sent over Facebook, MySpace, or a message board should be privileged, the courts might disagree. Since that’s the case, it’s probably not a good idea to jeopardize your clients’ interests by risking it.

Put it this way – the the courts only decided in 2011 whether communications from an attorney to a client are privileged. Even though common sense prevailed, it was a close call. What makes you think they’re going to decide social media issues (which they might not even understand) any time soon? And, given the past, what gives you confidence that the issue will be decided correctly?

Hopefully young lawyers are thinking privilege issues through before dispensing legal advice over social networks. I know, the courts are big mean bullies who don’t get it, and it kind of sucks, but don’t jeopardize your clients’ interests until a higher court says otherwise.

(Thanks to that big giant meanie Brian Tannebaum. Last night Brian Tweeted:

Brian Tannebaum ‏ @btannebaum Legal question? RT @CoreyLeja @RachRodgersEsq did you ever get a chance 2 look at my legal question ? 🙂

5:45 PM – 2 Mar 12 via TweetDeck · Details)

What’s the Worst That Could Happen? Mentorship [Updated]

A good mentor isn't there to build your self esteem

When I first started practicing in 2008, I had a head full of steam, a desire to be a rainmaker, and very little experience. I thought clerking for a law firm, graduating law school, and passing the bar exam had taught me everything I needed to be a lawyer. I was wrong.

Now, I had gone from college straight to law school. So admittedly, I had no idea how lawyers generate clients. Like any person my age, I punched in a Google search and tried to learn all I could about lawyer marking, how to get clients, and how to build a law practice. Man, there was a whole world out there just looking for lawyers on Facebook, Twitter, and the internet. I learned about what search engine optimization (“SEO”) meant and how that had to be “optimized” to make sure potential clients (or “PCs” as it’s called by all the cool kids) could find me.

And there were all kinds of great organizations out there willing to help a young lawyer like me generate clients and build the practice of my dreams. For a reasonable fee, of course.

I’ve written about this before, but my boss James wasn’t too impressed. His opinion went something like this: “Kid, you gotta learn how to be a lawyer first. Worry about that stuff later. Try a jury case or two and then we’ll talk.”

At the time, I thought James was just old, critical, and “didn’t get it.” Naturally, I ignored him and decided to talk to people who specialized in attorney advertising.

One piece of advice I got was this: “As a young lawyer, you shouldn’t put when you graduated on your website. PCs will know how green you are. You don’t want that.”

Made sense at the time. I believed this person was “in the know”, and that’s what you had to do as a young lawyer to become successful.

Later that year I finally convinced James to put up a website. (this was more for my benefit than his.) Before putting it up, I discussed my bio with him:

“Looks good but the year you graduated isn’t there.”

“I don’t want to put that in my bio.”

“Okay. Why not?”

“I was told that potential clients will know that I’m a newbie lawyer and be less inclined to hire me.”

“That’s probably true, but did you think of this… let’s say a client hires you. Then let’s say something goes wrong, and they complain about you to the disciplinary board or file a malpractice claim. That stuff does happen. Don’t you think one of their issues is going to be that you made it seem like you had more experience than you actually did? That they were mislead? So don’t you think it’s better to to have a bio that accurately reflects who you are and what you’ve done, so that a potential client can make a fair and informed decision about whether to hire you? I’m not saying it’s “unethical” to omit the year you graduated on the website, but I think the more open and honest you are, the less of a chance you have of something blowing up in your face if something goes wrong. I would use that omission against you in a malpractice claim, personally.”

I hadn’t thought of that. All I had thought of is getting potential clients – not “what’s the worst that could happen.” However, James had prosecuted many malpractice actions before, and knew what to look for.

And I think this reflects the difference between real lawyers and legal marketers. When you present a scenario before a lawyer like James, they’ll analyze it with a mind towards “What’s the worst that could happen?” And they’ll do this by relying on their past experiences. In contrast, lawyer marketers, some who have little or no legal experience, have one goal – to get PCs on the phone. And they don’t usually have the type of experience James has to truly view it from a “what’s the worst that could happen” standpoint.

Which brings me to Rachel Rodgers.

Rachel has built a law practice for GenY, vowing to do things differently and “her way.” A column on Solo Practice University describes Rachel:

When she graduated from Benjamin N. Cardozo School of Law in 2009, she decided that she was not going to let her hefty law school debt and the troubled economy stop her from practicing law her way.

…

Rachel uses techniques that have not been widely accepted among private law firms to gear her practice towards young business owners.

However, Rachel’s legal career has been somewhat controversial. For instance, Tempe Criminal Defense Lawyer Matt Brown wrote an article questioning her use of a virtual office in Arizona although she is only licensed to practice in New York and New Jersey. This week Brian Tannebaum and Carolyn Elefant wrote pieces concerning a few of Rachel Rodgers’s YouTube videos, where she may or may not have dispensed legal advice about forming LLCs. Brian suggested that Rachel may not have appreciated all of the risks about putting up a video like that, despite a disclaimer saying “This isn’t legal advice.” Just because you say “this isn’t legal advice” doesn’t necessarily make it so.

What I’m wondering is where Rachel is getting her mentoring advice.

A quick trip to Solo Practice University advertises:

For myself, Susan Cartier Liebel, and for thousands of law students and new lawyers who want to call their own shots practicing law right now – shuffling paper under someone else for the next few years wasn’t an acceptable option.

…

Solo Practice University® was created to replace the apprentice experience – without sucking up years of your life. It’s a single online destination where lawyers and law students learn the basics of running a solo practice, take classes and get expert feedback from professionals in specialized fields.

That sounds like a great idea.

But there’s just one problem – you don’t become a competent lawyer overnight. It takes time, experience, and good mentorship.

Part of the “apprentice experience” involves being told “no” and “that’s a bad idea because it will possibly get you sued for malpractice or in trouble with the state bar. Trust me, I’ve seen it happen.” It also involves being told that the practice law is adversarial, and you can’t expect clients, judges, or adversaries to be nice to you because you’re a baby lawyer.

A true mentorship experience isn’t always a fun or nice experience. It does not involve building your self esteem and being told how great you are. Sometimes it involves scaring the fear of God into you, because bad things can happen. Many young lawyers will grow up being told they’re a precious little snowflake to build their ego. A good mentor will break that ego down.

If Rachel had called a lawyer like James before hand and said “I want to put up a YouTube video about forming an LLC”, James probably would have responded “Don’t you think that it could be construed as legal advice? Even if you say it’s not? And that it could possibly have ethical and malpractice ramifications? Even if it’s not, do you really want to be answering the question before a malpractice lawyer or the state bar?”

I appreciate that James told me “no” so many times. And it’s not because James is a mean person who likes to shoot down my hopes and dreams, it’s because he’s seen “the worst that could happen” in his long legal career. He’s prosecuted professionals who have made mistakes. He has seen colleagues lose their law licenses and livelihood. If he wanted to see that happen to me, he would have said “Go for it!”

In contrast, if Rachel were to ask a legal marketer what to do, I’m guessing that the advice would probably be “Go for it! I’m sure you’ll get lots of phone calls!” Because the focus of a legal marketer is making the phone ring, not figuring out what’s the worst that could happen. Most lawyer marketers haven’t defended a state bar inquiry, handled a malpractice claim, or had to subdue an angry client. Their experience involves how to use Twitter and Facebook, and using social media to make the phone ring.

Is anyone telling Rachel “no” or “Did you consider this…?”

Which begs the question – is Rachel getting advice from a good mentor, or lawyer marketers?

[Update] A day after Brian Tannebaum pointed out why giving legal advice on YouTube is a bad idea, even if there is a cheeky disclaimer, Rachel Rodgers decided to double down and up the ante by giving really bad legal advice posting a video on how to draft your own contracts. Well, how to draft your own contracts, which you shouldn’t do, but if you do, here’s how to do it. Etc etc.

In response, here’s some free advice from yours truly: for the love of God, don’t try and draft your own contracts. Hire a lawyer in your state who will discuss your individualized needs and the current state of the law. A lot more goes into drafting a contract properly than Rachel’s video suggests.

Rest assured, there will be things you don’t think to think about. There may also be case law floating around affecting certain types of contracts – i.e., the law concerning a contract with a restrictive covenant might be different than a contract for the purchase of goods. A commercial lease might be viewed differently than a residential lease, and certain provisions might be enforceable in one context but not another. There may be certain statutes that could affect the contract. Plus, that contract you downloaded from the internet might have been good at one time, but the law changed and now it’s not. It all varies from state to state, could depend on the type of contract, plus the state of the law changes from time to time. It’s more complex than one would think. A lot of thought goes into avoiding pitfalls for the unwary. Avoiding these pitfalls is what lawyers are trained to do.

I’m sorry for the “typical lawyer” answer, but drafting a proper contract depends on factors too individualized to be appropriately addressed in a video or a blog post. In addition, a template may not address certain issues that are unique to your business, because what’s appropriate for one seemingly similar business might not be for another. (which Rachel did kind of address) For instance, what works for a supermarket might not be appropriate for a food truck, even though they both sell food.

That’s why a competent lawyer will analyze these issues and help you come up with something that fits your specific needs, and avoids pitfalls the untrained might not know about.

You see, real lawyers don’t simply sell fancy sounding documents. They research the state of the law, learn about your business, and then draft something appropriate for whatever it is you want to do. Drafting contract is not like hard boiling an egg, and there are a lot of pitfalls for the unwary, many of which depend on very specific bodies of law.

That’s why a video like this, in my view, is irresponsible. Rachel starts by saying “You should hire a lawyer” (good advice), then goes on “but  if you don’t want to do that, here’s what you should think about”. To borrow a line from Scott Greenfield: “I advise against testing to see if the electric is on with your tongue, but if you want to, here’s a video on how to do it.” The video itself gives the viewer the impression that maybe they don’t really need a lawyer, and maybe drafting a contract isn’t all that difficult. Then she omits, well, a ton of other things a person should probably look for. Because those “other things” can’t be addressed in a short video – they will depend on the specific situation, the state of the law, other factors that need to be individually tailored to one’s needs.

So, without further ado, I will tell you that, like Rachel, I think using templates is a bad idea. However, I don’t think you should try and draft important legal documents like contracts yourself. There are too many pitfalls out there that you might not know about, which a good lawyer will help you avoid.

My advice: hire a lawyer in your state who does this type of work. Period. Your business is worth spending what it would take to have a competent lawyer protect your interests. Chances are, you will save a lot of money in the long run by doing it right from the start.

I’m not saying this to keep law “inaccessible” to lay people, I’m saying it because you don’t know what you don’t know. Contract law is very complex, and varies from situation to situation. It’s often state and subject matter specific. Lawyers are professionals whose job it is to help you navigate these issues, not simply salespeople of fancy documents.

And you can quote me on that.