We have a duty to our profession, our clients and the courts to ensure that our legal theories are based on provable facts that support fairness and justice.
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“May you live in interesting times.” This saying is not really a wish for your entertainment. “Interesting times” are times of struggle, trouble and turmoil. It’s not boring, but it’s not what we want. The saying is also not what it seems in another way: it is often described as an ancient Chinese curse, but it is actually neither ancient nor Chinese.
Thus, the “interesting times” aphorism is apt for us today in two ways. First, we are in times that will test us both as lawyers and as citizens. Second, our understanding of what is true is being actively undermined. The use of social media to promulgate and spread falsehoods, as well as to rewrite history, has been a growing threat, made exponentially more dangerous through the use of generative artificial intelligence. As lawyers, we must resolve in this New Year to hold the line against misinformation that damages our institutions and our democracy. We have a duty to our profession, our clients and the courts to ensure that our legal theories are based on provable facts that support fairness and justice. As the Preamble to the Rules of Professional Conduct tells us: “(a) lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice.”
We also have a duty to our clients to keep abreast of changes in the rules that govern us. There have been significant changes in the Rules of Professional Conduct this year in three areas: advertising, relations with clients, and the definition of certain types of misconduct. Here’s a (somewhat) brief review:
Changes to Chapter 7 Advertising Rules: Still Don’t Lie!
Rules 7.1 through 7.5 and 7.7 are consolidated into Rules 7.1, 7.2 and 7.3, aligning with the ABA Model Rules and making the rules clearer. For instance, rules against misleading communications (RPC 7.1) and examples of improper firm names and letterheads (formerly RPC 7.5) have been merged. But the basic prohibition of the advertising rules has not changed: don’t lie. The court made clear that an accurate statement, which is also misleading, violates the Rule against false advertising. Specifically, the court added a comment that prohibits lawyers from implying to potential clients that there is an urgent pressure to act when no such urgency exists. RPC 7.1, Cmt. 2.
To me, the most welcome, helpful, and sensible change is the expansion of who may claim to be a specialist. When I first started practicing law (in the olden days) I worked in a “general practice” firm that and handled estates, family law, criminal defense, plaintiffs work, and basically anything that walked in the door. But today’s lawyer is usually someone who chooses an area of specialization and sticks to it. Previously, a lawyer could only claim specialization if certified by an organization approved by the Pennsylvania Supreme Court. Noncertified lawyers may now say they specialize, if that is the objective truth, based on their experience, expertise and training.
The most unexpected change is a change to Rule 7.3, the solicitation rule. This rule prohibits soliciting legal work using live person-to-person contact under circumstances that would be improperly coercive. According to Comment 2, such person-to-person contact now includes text messages. The new rule has been challenged in the U.S. District Court for the Western District of Pennsylvania by a company that had created a texting program to assist criminal defense attorneys in reaching potential clients. See Text Ads and Marketing v. Rafferty, 2:24-cv-01468-RJC (W.D.Pa.). I do understand the court’s hesitation to allow lawyers to join the legions of scammers and “tax relief” organizations showing up in my texts daily—but there are good arguments that these texts do not have the immediacy or coercive potential of in-person solicitation. The Text Ads case provides a welcome opportunity to debate these issues.
Change to Rule 1.8(j): Sexual Relations with Clients: Still Don’t Do This!
Speaking of texting, the court also modified the definition of prohibited sexual relations to include “communications of a sexual nature.” The court had originally proposed including this definition in the comment section of the rule. The comments are interpretive and not mandatory. Thus, the court’s inclusion of this new definition in the Rule itself signals its interest and seriousness in this issue.
Change to Rule 8.4 (c): Sometimes It’s OK to Lie!
Rule 8.4(c) includes “dishonesty, fraud, deceit or misrepresentation” in the definition of professional misconduct. This year the court provided an exception to permit a lawyer to “advise, direct, or supervise others, including clients, law enforcement officers, and investigators, who participate in lawful investigative activities.” As the comment explains, this permits a lawyer to participate in “otherwise lawful and ethical undercover investigation, in which the investigator does not disclose his or her true identity and motivation, regardless of the nature of the matter or substantive area of law involved.” Of course, the ability to participate in this type of investigation does not come with a free pass to violate any other rule, for instance, Rule 4.3 relating to communicating with a represented client, or Rule 4.4, prohibiting the use of methods to obtain evidence “violate the legal rights” of a witness or party.
SCOPA Limits Misconduct Defined by Rule 8.4(d): Inconvenience Happens!
Sometimes a matter will take longer than anticipated, or even longer than it could have had everything gone perfectly. This does not mean that the lawyer was incompetent—it just happens. The need to file additional pleadings, reschedule hearings, or even hold additional hearings was deemed by the Disciplinary Board to be conduct that “prejudiced the administration of justice.” In 2024, this changed. As the Pennsylvania Supreme Court explained in Office of Disciplinary Counsel v. Anonymous Attorney, ___ A.3d ___ (Pa. 2024) ([REDACTED], 2024 WL 5063430, at *11 (Pa. Oct. 24, 2024), “absent conduct violative of the rules prohibiting deceit, dishonesty, fraud or misrepresentations, a lawyer cannot violate Rule 8.4(d) unless the violation of the Rules results in the actual prejudice by thwarting or interfering with the administration of justice.” Thus, inconvenience to the court or the participants will not violate the rule.
SCOPA Limits the Application of Rule 1.5: It Does Not Cover Fee Petitions to the Court
In the same case, the court found that fee petitions presented to courts in fee-shifting cases are not governed by Rule 1.5, prohibiting excessive fees. The court reasoned that, “in the larger context of Chapter One governing the lawyer-client relationship—it becomes apparent that Rule 1.5(a) governs fee agreements between the attorney and the client, charges made to a client by the attorney and collection of fees by an attorney from a client. The fee petition at the center of this appeal is not encompassed by Rule 1.5(a) because the petition did not seek to charge or collect a fee from his client.” See Office of Disciplinary Counsel v. Anonymous Attorney, ___ A.3d ___ (Pa. 2024) ([REDACTED], 2024 WL 5063430, at *5 – 6 (Pa. Oct. 24, 2024). Obviously, this ruling does not protect fee petitions from being found to be excessive by the court to which they are presented, nor does it protect fee petitions from the requirements of the other rules.
There are two more disciplinary cases pending in front of the Supreme Court that may significantly change disciplinary practice. The issue of whether ODC’s burden of proof in disciplinary matters will be clear and convincing or mere preponderance is currently pending before the Pennsylvania Supreme Court in Office of Disciplinary Counsel v. Rayz, No. 2947 DD 3. The second is Office of Disciplinary Counsel v. Cappuccio, No. 1493 DD 3. The Cappuccio case may provide some significant elucidation of the standard for returning to practice after disbarment. I will be watching both these cases carefully.
In conclusion, the New Year’s wish I have for you is—may you live in just-interesting-enough times. And to accomplish this, let me suggest a few boring New Year’s resolutions:
- Get sleep! It’s the silver bullet for physical and emotional health.
- Memorialize your phone conversations with your clients (as much as you can.)
- Check that every client has an engagement letter in place, even your assigned or pro bono cases.
- Send your clients back retainers promptly when you are done with a matter. While you are at it, get in the habit of sending closing letters when a matter is done.
- Reconcile your IOLTA on a monthly basis and keep the required records. (This will help you sleep.)
- Be careful when you text, email or post on social media—pressing send is the most dangerous thing you will do all day.
- Keep up with your CLEs.
- Don’t delegate your duty to submit your annual registration. That’s how you get administratively suspended.
And remember, there’s always help if you need it. The Pennsylvania Bar Association and the Philadelphia Bar Association have excellent ethics hotlines and Lawyers Concerned for Lawyers is always there to provide confidential, expert assistance.
With these resolutions in mind, have a happy and healthy new year in 2025.
Ellen Brotman, of BrotmanLaw in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Reprinted with permission from the January 9, 2025 issue of The Legal Intelligencer. © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.