In a Word

 no-brain·er [noh-brey-ner] 

noun.  Informal. anything requiring little thought or effort; something easy or simple to understand or do.

Origin:

1975–80

                                                                                                – Dictionary.com

As summer winds down, it’s once again time for some shorter, lighter fare.  Today’s ethics question ought to be a no-brainer:  “May Sally Olbilyalots, a solo attorney, practice law under the name “Olbilyalots & Associates?” 

Don’t laugh.  Okay laugh, but show a little compassion, because this particular no-brainer routinely stumps some solo practitioners who are oblivious that “& Associates” is not synonymous with “Attorney at Law” until they receive a communication from the Office of Attorney Regulation Counsel.

The Ethics of Making Yourself Look Bigger

 When encountering certain wild animals, survival experts recommend making yourself appear larger than you actually are.  Applying this technique to legal marketing apparently seems logical and desirable, at least to some solos.  This is because many clients not only want to know that “you’ve got their back,” they want to know you’ve got back-up.  The addition of “& Associates” to one’s name is a simple and expedient, albeit unethical, solution that has generated no fewer than 7 ethics opinions. 

The Colorado Bar Association’s Ethics Committee addressed this question way back in 1972 in its Opinion 50.  Opinion 50 considered whether attorneys practicing under an office sharing arrangement, but who did “not share in responsibility and liability for each other’s acts,” could collectively refer to themselves as “associates.”  

Decided under the former Code of Professional Responsibility, the Ethics Committee easily concluded, “It is clearly misleading for persons merely sharing office space to hold themselves out as associates.”  The Committee further opined that it would be similarly improper for attorneys who were in fact partners to refer to themselves as “associates,” since this would also violate Canon 2:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm. . . . DR 2-102(B).

Colo. Bar Ass’n Formal Opinion 50, Definition of Associates as Applied to Lawyers (29 November 1972). 

Although the 1 January 2008 revisions to the Colorado Rules of Professional Conduct jettisoned the long-standing prohibition against attorneys’ using trade names, revised Colo. RPC 7.5(a) continues to admonish, “A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1.”  Rule 7.1(a), in turn, prohibits “false or misleading communication[s] about the lawyer or the lawyer's services.”  Consistent with Opinion 50’s finding that “[t]raditionally, in connection with the practice of law, the word ‘associates’ is used to describe lawyers who are employees of a firm,” it would be patently misleading for a solo practitioner to refer to herself as having employees when, in fact, she has none.

For solo attorneys seeking a second opinion, here are six more:  

•  New York State Bar Association Committee on Professional Ethics Opinion 931 (7 September 12), held that a solo practitioner may not use “and Associates” based solely on employment of paralegal.
•  Alabama Opinion of the General Counsel RO93-11, addressed the finer points of whether an attorney must have more than one attorney-employee to ethically used the appellation “and Associates,” and whether an attorney who suddenly finds himself associate-less must quickly delete “& Associates” from his letterhead.
  

  Considering the first question, the General Counsel found that, while it is unclear under Rule 7.1 whether an attorney must employ more than one associate to use “and Associates,” “if the attorney has only one associate, the Disciplinary Commission is of the opinion that it is not necessary to restrict the name to the singular in order to avoid misleading the public.”  Compare D.C. Bar Ethics Opinion 189 (1988) (2/16/88) (use of “and Associates” requires the regular employment of two or more attorney-employees).

  With regard to an attorney who suddenly finds himself in solo practice after having associates, the General Counsel held, “Whether a lawyer who does not presently employ other lawyers can claim that he normally employs one or more associates depends upon how long the firm has been without one or more associate attorneys and the firm's efforts to engage more associates.” 

  Finally, the General Counsel held that a lawyer in solo practice may ethically use the words “Law Firm,” “Law Office,” and “Law Offices of,” together with her name, e.g., “The Law Offices of Sally Olbilyalots.” 

• Arizona Bar Ethics Opinion 90-01 (16 February 1990), found that use of “X and Associates” is not an improper or misleading trade name provided Attorney X in fact employs one or more lawyers.
•  D.C. Bar Ethics Opinion 332 (18 November 2005), affirmed D.C Bar Opinion No. 189 (1988) (decided under the former Code of Professional Responsibility), finding that “a solo practitioner may not practice under the name ‘John Doe & Associates’ for the use of the word ‘associates’ would naturally be read to necessarily imply the existence of other legal staff in the practice.”  However, as did the Alabama General Counsel, this opinion further held that the use of “firm” or “law firm” by a solo practitioner is not inherently misleading under the D.C. Rules of Professional Conduct.
•  South Carolina Bar Ethics Advisory Opinion05-19 (2005), found that an attorney engaged exclusively in the practice of governmental affairs and lobbying, and whose firm consisted solely of the attorney and two non-attorney employees, could not use the form “John Doe and Associates, P.A.” without violating Rules 7.5(a) and 7.1 because there was only one attorney in the firm.
• Supreme Court Of Ohio Bd. of Commissioners on Grievances and Discipline Advisory Opinion 1995-1 (3 February 1995), decided under the former Code of Professional Conduct DR 2-102(B), found “It is improper for an attorney in solo practice to use the phrase ‘and Associates’ in the law firm name to indicate any of the following practice arrangements: that the attorney shares office space with other attorneys; that the attorney co-counsels with other attorneys; or that the attorney employs non-attorney support staff. The phrase ‘and Associates’ may be used in the law firm name if the attorney employs other attorneys.”

See also Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 754 N.E.2d 219 (Ohio 2001) (solo practitioner violated DR 2-102(B) by practicing as "Tom Furth Associates, Attorneys and Counselors at Law" when no other lawyers were associated with respondent).  Cf. Supreme Court of Ohio Bd. of Commissioners on Grievances and Discipline Advisory Opinion 2006-2 (10 February 2006) (proper for a solo practitioner to name his or her law firm “The X Law Group” where “X” is the solo practitioner’s surname and “X” actually employs one or more attorney as associates, but should not be used in a law firm name to refer to paralegals, other non-attorney personnel, office sharing attorneys, or “of counsel” attorneys).

 

Sonia Slips Up

Finally, lest one feel too smug about the ethical myopia of solo attorneys who, failing to heed the moral of Aesop’s The Frog and the Ox, attempt to inflate themselves through misleading monikers, legal blogger EricTurkewitz uncovered that no less a legal luminary than Sonia Sotomayor ran afoul of New York’s prohibition against solo lawyers employing “& Associates” if they are, in reality, an Army of One.  

 

Turkewitz noticed that, in responses to a questionnaire submitted to the Senate Judiciary Committee, Sotomayor responded to a question asking “whether you practiced alone, and if so, the addresses and dates” with “Yes, with Sotomayor & Associates . . . .”  Oops.  

Disclosed during her confirmation process, Sotomayor’s ethical gaffe created barely a tempest in a teacup, though the Obama White House was apparently sufficiently embarrassed that it sought to whitewash the blunder with a written rebuttal by Hal R. Lieberman, a former disciplinary committee chief counsel in New York.  Turkewitz properly called taurus excrementum on Lieberman’s exculpatory essay, and offered nominee Sotomayor far better counsel:

Forget that crap from Hal Lieberman about there being no rule and the ethics opinion being merely advisory. You are not before a court of law but the court of public opinion. The rules said you can’t mislead. You said you had associates and you didn’t. End of story. You screwed that up.

Touché Mr. Turkewitz on both the legal and political points.  Confession, and a good mea culpa, are good not only for the soul, but also in mitigation of discipline before most disciplinary regulators for such offenses.  After all, Sonia screwed up too.

Sonia’s unsuitable sobriquet, of course, did not derail her from becoming an “Associate” in the most exclusive “Law Group” in the country.  That said, solos lacking friends in high places, who do not wish to become members of the somewhat larger and less illustrious group of attorneys called out by regulators for publicly representing a legal singularity to be a synergy, should keep in mind and be comforted by the conventional wisdom that “clients hire lawyers, not firms.”  E pluribus unum.

When (and how) to Fire a Client

 Happy Fourth of July Weekend, everybody. 

The NBI National Webcast behind me, and a trek through the Eagle Cap Wilderness and the 68th edition of Chief Joseph Days ahead of me later this month, here is my July blog -- When (and how) to Fire a Client -- published on the pages of the Denver Business Journal.

Coming up in August a new post: In a Word.

National Webcast: Legal Ethics: The Latest Malpractice Risks and Prevention

Happy Memorial Day, everyone.  Please forgive my inattention to the blog lately.  I've been busy writing materials for a national webcast to be recorded at NBI's headquarters in Altoona, Wisconsin in June.  My ethics presentations have been recorded live many times, but never for a national ethics webcast.  Exciting yes, but it has sucked virtually all writing time out of my weekends for the last two months.  If you can't tune into the webcast on Friday 28 June, if you need ethics CLE credit it is still available (for a fee) as on-demand video from NBI.

Although I am finally done writing for NBI, I just promised the Denver Business Journal an article in June, tentatively titled How to Fire a Client.  So it's going to be a while yet before I get back to the blog.

Mirror Lake in the Eagle Cap.  (photo by denisseattle)

Fear not, though.  I've been stockpiling what I think are some great ideas for the blog -- some lighter, summer fare.  I should have time to write and post at least one article before the start of my my first summer vacation in 5 years -- a mid-July backpacking trip through the Eagle Cap Wilderness Area with my oldest daughter.  New hiking boots have acquired to be broken in, new gear must be purchased, and I need also need to re-up my FAA medical and biennial flight review in June.  It's going to be a busy summer.

Does Blue Horseshoe Still Love Anacott Steel?

Ethics Is Easy, Until . . . 

Early in my legal career I was given an opportunity to teach at Denver University’s College of Law by John Carver, a long-time faculty member who was also Of Counsel to our firm.  Phil Figa — later to become Judge Figa — was taking a leave of absence from teaching to chair the Colorado Bar Association’s Ethics Committee, so D.U. needed a Lecturer in Law to teach Phil’s Professional Responsibility class.  John knew I had a teaching bug so, either to help me scratch that itch or cure me of it, he recommended me for the job.

I’m not sure there was much competition.  It was the night division of the law school and if it paid anything it was an honorarium so small I can’t recall what it was.  But I loved it.  Here was a group of students, most of whom were holding down day jobs, who so badly wanted to become lawyers that they were willing to pull double or triple shifts to achieve their goal.  I was determined to give them their money’s worth and engage and challenge them.  

 If “Legal Profession” was considered to be an “easy ‘A’” at most law schools, it wasn’t going to be in my class.  I not only had a casebook, I created a 100-page supplement.  My goal was not to be a hard-ass, but to go well beyond the Code of Professional Responsibility to show how ethics applies in real legal practice.  For, to paraphrase Lt. Commander Riker, “When has ethics ever been as simple as a rule book?” 

To this end, one evening when I sensed my charges growing incredulity at the brazen ethical lapses that filled their casebook, I dramatically pulled out my wallet and, holding it aloft, proclaimed, “Ethics is easy, until this gets in the way.”  Melodramatic?  Sure, but also more accurate than I could have possibly then known.

I recalled this bit of classroom stagecraft recently while watching Wall Street: Money Never Sleeps, the sequel to Oliver Stone’s classic Wall Street.  In the original film, the protagonist, Gordon Gekko, preaches that “Greed . . . is good,” at least until you’re caught.  In Money Never Sleeps, after several years in prison and another seven years out of public view, Gekko is back in the limelight pitching his book, a story of personal redemption, Is Greed Good? 

Throughout the film the audience is left wondering whether prison has truly rehabilitated Gekko, or whether his public reformation is simply another con.  The uncertainty of Gekko’s salvation, set against the backdrop of the 2008 financial meltdown, and featuring a cast including ethical, unethical, and morally ambiguous characters, is surprisingly engaging and suspenseful.

In perhaps my favorite scene Gekko runs into his former protégé, Bud Fox, at a lavish philanthropic event at the Metropolitan Museum of Art.  Catching up on their lives, Bud tells Gordon that, “after a little time away” (in prison for insider trading) he turned his father’s airline “into one of the largest private jet brokerages in the world and sold it . . . made millions.” Fox now lives the life of ease he sought in Wall Street – “golf, winters in St. Barths, philanthropy,” and a gorgeous woman on each arm.  Fox then asks Gekko, “Does Blue Horseshoe still love Anacott Steel?” (the code phrase used in the original Wall Street to signal others to start buying and bidding-up the price of Anacott Steel.)  Gekko smiles and, laughing, replies, “You know it.”  But the audience is left wondering is Gekko just playing Fox?  Is he kidding himself?  Is “greed,” still “good” for Gekko?  Is the thrill of the game, and the desire too win, simply too intoxicating, too all-consuming, for Gekko to resist?  And are lawyers all that different from Gekko?

Why Do Good Lawyers Go Bad?  

Most lawyers are hard-working, honest, and ethical.  Still there are notable exceptions – the kind that filled my students’ casebook.  How many lawyers succumb to Gordon Gekko’s mantra “Greed Is Good”?  

One gets some idea reviewing the 2012 Annual Report of the Colorado Supreme Court’s Attorneys’ Fund for Client Protection.  Established in 1999 to reimburse losses caused by dishonest Colorado attorneys, as of December 2012 the Fund had made total disbursements of $5,127,474.47 on claims totaling $10,057,474.09.  That represents quite a few believers — and more than a few true believers — of the Gekko gospel among our legal brethren.  

Sadly, fraud, theft and other dishonest conduct by lawyers is frequent enough that, a few years removed from law school, the novelty is gone and we are generally anesthetized to the monthly “Roll of Shame” published in The Colorado Lawyer. That is, until it happens to someone we know and like.  Then we ask, “why did this happen?” and, if we have the temerity, “could this have happened to me?”

The Curious Case of Mark W. Fischer   

Fischer's Confession

My “there but for the grace of God” moment arrived in April 2007 when Mark Fischer, an attorney I had worked with years earlier, made a startling confession.  In 2005 Fischer had fabricated an order and forged the signature of federal judge Phillip Figa – the same Phil Figa whose Professional Responsibility class had been entrusted to my care years before.  

The faux order purported to stay execution of all judgment liens in a protracted and bitterly contested theft of trade secrets case in which Fischer had been engaged as defense counsel.  Fischer gave this forgery to his client, Judy Heumann, to record.  The counterfeit order purportedly enabled Heumann to stave off foreclosure and possible bankruptcy, continue to borrow against the property, and thus continue to finance her defense.  In his confession, Fischer stated:

I want to be absolutely clear.  Ms. Heumann and her husband had absolutely no knowledge that this document was false.  They had no reason to believe anything other than the document had been legitimately secured from the Court.  As evidence of this, before giving Ms. Heumann the document, I required her to provide my firm with $90,000 which I told her I would deposit into the Registry of the Court in order to secure the stay of execution.  Of course, no such deposit was ever made.

When I first met Mark Fischer in 1995 he was a young IP associate with Chrisman, Bynum & Johnson.  CBJ was an established Boulder firm which had grown to become the largest in town.  Although Mark struck me as a bit formal, he also impressed me as intelligent and hard-working.  I never had any occasion to question, or even consider, his honesty.  Although I had been practicing for ten more years than Mark, we were the same age and, both being IP lawyers, I felt a kindred connection with him, even more so because we both lived in Boulder.

In the twelve years since that encounter, CBJ merged into Faegre & Benson, and Mark had become a partner.  Reading his confession in Above the Law and other contemporaneous news accounts, I was disturbed that Mark could have done such a thing.  

Mark’s disbarment was a foregone conclusion, but offered no resolution for me.  Six years later, whenever I thought about it, his possible motivation and the forces that led to Mark’s downfall still bothered me, like a personal poltergeist.  In an attempt to make some sense of this tragedy I recently dug into the public record.  The clues I discovered left me better informed, but in ways more mystified.

Mark’s confession — in which he also professed “I am uncertain as to why I did what I did” — demonstrates a disturbing lack of self-awareness and/or candor.   I always assumed that money was at the root of his behavior.  An Amended Complaint filed against Fischer, Faegre & Benson, and their clients by Infant Swimming Research, whose judgment lien had been released by the ersatz order, seemed to confirm my suspicion:

10.   In late 2004 and into 2005, Faegre & Benson was pressuring Defendant Fischer to get its bill paid for legal fees in the Prior Action.  Otherwise, Fischer risked losing his job, his income, and his partnership interest in Faegre.

. . . .

16.   Through the forged order, Fischer retained his job and partnership, Faegre & Benson’s bill was paid, and Heumann was able to proceed with AGR’s work on the property and avoid foreclosure.  Fischer and Faegre & Benson were also able to bill more fees for an appeal for Heumann in the Prior Action, even though they lost.

Mark’s confession certainly hints that the $90,000 was used to pay Faegre’s legal fees, and I found nothing in the record to contradict drawing that inference.  Mark’s Conditional Admission of Misconduct resulting in disbarment was based solely on the creation and presentation of the fabricated order.  There was no claim that he converted the $90,000 he required from his clients as a condition of “securing” the stay of execution.  There is no other mention of what happened to the $90,000 in the public record – only the statement in Mark’s confession that “Of course, no such deposit was ever made.”  Since this “deposit” was given by Judy Heumann two years before the deceit was discovered, it is reasonable to infer it was used to pay outstanding legal fees which must have been substantial given the many years over which the Infant Swimming Research case was prosecuted.

However, in an affidavit submitted in support of Faegre’s successful motion for summary judgment, Mark categorically denied that his actions were the result of any pressure placed on him by his firm:

3.  . . . At no time leading up to the fabrication of the Order did Faegre “intensify its pressure on [me] to get its bill paid.”

4.  I was never under the impression, and no one ever indicated to me in words or substance, that my job or partnership interest in Faegre were in jeopardy should Heumann fail to pay her bill.

5.  My decision to fabricate the Order had nothing to do with insuring that Faegre was paid for services performed on behalf of Heumann.

Declaration of Mark Fischer dated 19 June 2007 (emphasis added).  

How does one reconcile this statement with the allegations of the Amended Complaint that Mark’s position at Faegre was at risk?  

One way is to discount the affidavit as disingenuous.  As the plaintiff argued, this was, after all, the statement of someone who had confessed to fabricating a court order and forging a federal judge’s signature, and who was at the time under investigation for violating federal criminal law[1].  Parsing the affidavit, Mark does not attest that he felt no pressure for Heumann’s bill to be paid, only that Faegre did not “intensify its pressure on [me] to get its bill paid.” (Emphasis added.)  

It is also entirely believable that Faegre did not “indicate[] to [Mark] in words or substance, that [his] job or partnership interest in Faegre were in jeopardy should Heumann fail to pay her bill.”  The pressure to collect large receivables is rarely so overt in law firms, yet it is palpable.  Most firms regularly provide accounts receivable reports to partners, and one’s compensation, if not one’s equity status, is determined on the basis of “productivity,” a central component of which is collections.

Moreover, for any conscientious partner the pressure to collect fees is internalized.  Faegre would not have had to have threatened Mark with expulsion.  $90,000 — assuming, as the record suggests, that the requested “deposit” had some relation to Heumann’s outstanding legal fees — is a substantial receivable.  The pressure to collect it would have been enormous, omnipresent and more insidious than any overt threat.  

There is, however, another explanation which comports the allegations of the Amended Complaint and the most interesting statement in Mark’s affidavit – that his “decision to fabricate the Order had nothing to do with insuring that Faegre was paid for services performed on behalf of Heumann”: The possibility that Mark had become lost in his case.

If one assumes a relationship between the $90,000 “deposit” and fees owing to Faegre, that Faegre would not have remain engaged as counsel indefinitely without a substantial payment of fees owed and/or a retainer against future fees and costs, and also considers that Faegre’s representation continued for two years following the fabrication of the order, Mark’s statement that his conduct “had nothing to do with insuring that Faegre was paid” can be explained as the actions of an attorney who had become so involved in his defense that he could not bear to see, and would not allow it to end for something as crass as non-payment of legal fees.  Having admittedly practiced a gross deceit against the court, his clients and his firm, Mark’s actions may be understood as those of an attorney who could not disengage; one who not merely adopted his client’s cause, but usurped it.  This possibility is far more disturbing than assuming that Mark acted out of financial self-interest for, if true, it evidences of complete loss of professional objectivity.

I am resigned to never knowing for certain what drove Mark to commit professional suicide.  There was no discovery or trial because the civil suit against Fischer, Faegre and their clients was shortly dismissed on summary judgment.  The dismissal was affirmed by the Tenth Circuit because, “notwithstanding Fischer’s abhorrent conduct, ISR suffered no injury-in-fact because its judgment was paid in full immediately after the final judgment was entered; thus, it never needed to execute or rely on its lien.”  

Perhaps Mark simply thought that, because Infant Swimming Research’s judgment was promptly paid, his actions would go unnoticed.  In fact they were for two years, until Infant Swimming Research’s counsel discovered the faux order, which forced Mark to “out” himself and Faegre to withdraw.  However, while calculating that the risk of discovery was small may have weighed in Mark’s decision-making, it does not explain his reasons for undertaking such a brazenly unethical and fraudulent criminal act in the first instance.  Was “greed,” i.e., financial pressure to blame?  Was the defense too simply too all-consuming for Mark to disengage?  Or was he driven by something else?  Like Gordon Gekko’s, Mark’s motives are consigned to remain a mystery.

Epilogue 

Once or twice in the past when I thought about this case I entertained the idea of driving over to Mark’s house and demanding point-blank “Why did you do it?”  It was brief entertainment.  I didn’t know Mark well.  It would have been intrusive and self-indulgent, and Mark had already paid the ultimate professional price.  Moreover, if Mark was unwilling to be candid with himself (“I am uncertain as to why I did what I did”), there was no reason to believe he would be honest with me.  It is, in any event, too late.  In researching his case I discovered that Mark passed away last summer from complications of bladder cancer.

Following his disbarment, Mark appears to have found peace and accomplishment outside the practice of law.  He was employed by CGQ in Denver, where he rose to become its Vice President of Product Management.  He was beloved by his family, and admired by his colleagues.  De mortuis nil nisi bonum dicendum est.

What lessons can be drawn from the legal life Mark Fischer? 

First, assuming that the financial pressure of a client being behind in its bill was at least partly responsible for Mark’s actions, allowing one’s client to incur a large debt, even in a perceived good cause, is not charitable; it has adverse consequences.  A client with a large account payable is under duress, and a lawyer with a large account receivable is, at a minimum, distracted from focusing on solutions to the client’s problems.  This combination rarely bodes well for the quality of representation.  If a client is falling far behind in her financial commitments and/or cannot afford the cost of litigation going forward, an attorney must at least consider that litigation — “The Sport of Kings” as one of my former partners called it — may not be in the client’s best interest. 

Second, a legal cause belongs to, and must at all times remain, the client’s.  An attorney provides value through professional objectivity and dispassionate representation.  Undertaking the client’s cause as one’s own, or worse, covertly converting it to one’s own, is both unethical and unwise.  The function of law is to resolve disputes.  Litigation is not an end in itself, no matter how irresistibly intoxicating the Sport of Kings may be.  A client deserves an honest lawyer, which requires first that a lawyer be honest with himself.

For me, though, the greatest lesson taken from Mark Fischer’s legal life may be humility.  In the Mark Fisher that I worked with as a professional colleague I saw a reflection of myself: a Boulder IP lawyer, just my age, hard-working, reasonably intelligent, whose integrity I never had cause to question.  In the tragedy of Mark’s fall from grace I cannot ignore that there are dark paths upon which even an ethical lawyer may somehow be tempted to stray.

John Donne

No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were: any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bells tolls; it tolls for thee.

John Donne, Meditation XVII.  

Rest in peace, Mark.

---

[1] On 15 February 2008 Fischer pled guilty to one count of violating Title 18, United States Codes §505, forging or counterfeiting the signature of a judge or court officer.  His conditional admission of misconduct and disbarment occurred one month later, on 24 March 2008.