Saturday, August 13, 2011

My Public Apology To Rachel Rodgers

Dear Rachel,

In my post yesterday I offered that if you came through on your assertion that you had proof from the State Bar of Arizona that your practice was in compliance with the Arizona Rules, that I would publicly apologize.

And I will.

But first, I have some questions about your response to this issue. Maybe you can answer them.

[1] You stated that you had written confirmation that that you were in compliance with the State Bar of Arizona rules.

Why didn't you originally say that this was not written confirmation based on your request for said confirmation, but as the result of your (second) Bar complaint in Arizona?

[2] The letter from the Bar, both the initial letter sent to you, and the letter closing the investigation, have the date, name of bar counsel, and other information redacted that does not appear to be privileged.

Why is that?

[3] The letter from the State Bar of Arizona confirms your statement to them that you are a New York Lawyer. While this is true, I have one final question.

When did you write them back to make it clear to them that you (as you said you told them) are also admitted in New Jersey so they could determine whether the rules of the New Jersey Bar were determinative in whether you were (or are) committing the unauthorized practice of law in Arizona?

[4] You say that you typically don't meet with clients in person.

When you do meet with New York and New Jersey clients, are they invited to meet you in your Phoenix office?

I mean, I understand the "adjoining state" issue that arises in out of state practices, but I looked at a map and Arizona is a long drive from New York and New Jersey.

[5] What was the other complaint about?

Thanks for any insight. I really want to get this apology out quickly.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

11 comments:

shg said...

I leave this comment with the fear that I will be outed as an unhip dinosaur who throws around the word "ethics" to scare young, innovative lawyers away so they won't poach my clients and leave me destitute and alone.

Your focus on the technical questions raised by the Arizona bar letter (which appears focused on the UPL issue, but doesn't appear to address the misleading issue) is somewhat myopic. It's understandable, as bar discipline is part of your practice, but you ignore the bigger picture.

Along the ethical spectrum, conduct that results in discipline is at the lowest end. It is not ethical conduct, but merely conduct that isn't sanctionable. It's like punching someone for no reason, but not doing enough harm to warrant an assault prosecution. Just because you haven't committed a crime doesn't mean your conduct was proper or acceptable.

Let's not confuse the absence of punishment with acceptable ethical conduct. Adherence to ethical principles is not judged by having beaten the rap. There is a full spectrum of better conduct, more honest conduct, more appropriate conduct, from which to choose.

Why not promote the idea that lawyers can be better than the dodging the bullet of discipline? While there are some very curious aspects to this letter, it is merely the worst allowable conduct. Let's try to be better than the worst among us.

Jordan said...

I'm not even sure she appreciates just how serious that letter was. In fact, I am astonished that she is encouraging other young lawyers to put themselves at similar risk, which for her resulted in having to fend off an ethical inquiry from the state bar. If she was wrong, she could have had discipline imposed that would follow her for the duration of her legal career, and her practice shut down.

There are ways to ensure compliance with the ethical rules BEFORE taking action. Taking steps to ensure compliance before hand, a long with a written opinion from the bar with their blessing, would have been a much more prudent course of action. It would have shown maturity and someone who appreciates what huge responsibility the practice of law is, and how serious her ethical obligations are.

But no... do whatever you want if it's "cutting edge". Get bar complaints, respond to inquiries, and hope you win them. Don't be afraid of ethics. It's no big deal.

Great advice from the happisphere...

Brian Tannebaum said...

Scott,

Your point is lost in today's world of lawyering, where the word "tech" not only means shiny toys, but "technical."

It is of no matter whether this "looks bad" or is not how we want the citizenry to view lawyers, it is whether we can create a practice that technically complies with the rules.

It's all about compliance, not appearances.

Matt Brown said...

I couldn't agree with Scott more, just as I couldn't have agreed with him more when he posted a similar comment to my post. Although I suspect her bar troubles have only just begun, even if she is cleared in the end for some reason, I just can't imagine ever feeling okay about the kind of practice she promotes. Just because I can get away with something under the rules doesn't mean I should.

Mike Whelan said...

It's sad that it took all this to get me scared enough to proactively resolve the possibility of future ethics issues in my practice - but it has worked. I have a few months before I open a practice to make sure it complies. Better get on that.

Glenn said...

Brian:

You told her to put up or shut up and she met her part. Your failure to meet yours is a clear reflection of your character. You have the absolute right to quibble and obfuscate but she said she had it in writing that she was not in violation of the AZ rules regarding practice, you said she was digging a deeper hole and,in the end, it is you that is looking up from the ditch you placed yourself in. It might be that to her, the value of your apology is the same as the worth of the charge you made against her.
We all have to eat crow at times but the better of us do it with class and dignity. You haven't shown either.

Brian Tannebaum said...

Glenn,

Rachel is lucky to have people like you.

It is my only hope that one day I have the character and dignity that is worthy of a coward like you who comes to a blog and is too afraid to say who they are.

You're welcome here anytime "Glenn." My readers always enjoy a good laugh, and a splash of hyprocisy.

Brian Tannebaum said...

To the anonymous lawyer who wanted me to know his personal feelings, and then made it clear he's never read this blog by commenting that I "go after" anyone who disagrees with me, let me try and help you.

I am bored with people that agree with me. I get bored posting "great post," and "I agree" comments. I like "I disagree with you" comments. I don't go after those people, I engage them.

What I "go after" is liars and cowardly lawyers who spend their days posting anonymously on blogs, embarrassing our profession at every keystroke.

Now go hug Rachel

Joseph Cohen said...

Ok, so a personal question (yeah, well actually looking for free commentary).

I'm a relatively young lawyer, but I've always been under the impression that ANY letter from the BBO should throw up BIG red flags.

Although this may be admitting to a certain amount of ignorance (I'm ok with that) I'm not being Ironic.

Seriously am I missing something

Anonymous said...

I am sending this comment anonymously, so I don't expect you to post it. Although I am not a lawyer, I have been following this discussion with interest and have read the Arizona Rules of Professional Conduct. I don't think it takes a lawyer to reasonably conclude that Ms. Rodgers is in technical violation of the rules. It's not simply an ethics issue. However, I also have it on good authority that the letter she posted online is authentic and that the State Bar's investigation has been closed. Of course, you will want to check this for yourself. Having said that, I believe you do not owe Ms. Rodgers a public apology. You raised a legitimate issue. For whatever reason, the Bar chose not to act on it, and of course, they are the ones who interpret and enforce the rules.

Anonymous said...

Wait a second...this is not an apology at all! I bet you didn't even need that map. Lies, all lies.