The new attorney is often savvy enough to realize that the general practice of law is a vestige of the profession. (I far prefer the term “new attorney”, to the term “young attorney”, since, although many new attorneys are young attorneys, that is not always the case. The term “new attorney” is a far more accurate descriptor.) In the modern era, specific legal niches have become far too administratively complex to allow for solo or small firm attorneys to adopt the role of jack-of-all-legal-trades, and to expect to do well, or competently. New attorneys, though they realize that they must choose a practice area, or set of practice areas, to settle into, are, nonetheless, not experts in any of the areas they will assume, to practice in, at least not at the beginning. Thus, there is a question of balance to be addressed. New attorneys wish to present themselves as niche practitioners, as they must do, in order to get the clients they really want; but, they don’t want to be held to the standards of a specialty practitioner, should an ethical issue arise. In many cases, however, the Board of Bar Overseers will assume specialty practice, unless certain language is used, to disclaim such specialty practice. So, new attorneys must be careful about the language that they use, in marketing themselves, if they do not wish to be held to the standards of a specialty practitioner, in the event of an ethical action.

This issue has recently come to the fore with the publication of a 2009 BBO admonition. Admonition No. 09-12, categorized under “Holding Out as a Specialist”, covers the issues addressed above, as applied to a specific set of facts. You’ll likely want to review the admonition yourself; but, for purposes of our discussion, the relevant sections of the admonition appear as follows: An attorney with practice experience from 1991 to 2004 passes the Massachusetts bar in 2004, and subsequently establishes a law office in Massachusetts, at which he will concentrate in immigration law, a new practice area for him. His website advertises his services as follows: that he will provide “professional legal services to American and international clients with respect to corporate and commercial transactions, small business matters and immigration law”. He takes on an immigration client, and subsequently flubs the case, giving his client incorrect advice. He gets dinged by the BBO, for making a misleading statement on his website, re: his expertise in immigration law; read: he was holding out as an immigration law specialist when he was not; read: Admonition 09-12.

As with any BBO admonitions, suspensions, disbarments, it is about reading the tea leaves, for still-practicing, unscathed attorneys. How can you treat these as lessons, so that the same will not befall you? How will you be as a modern-day augur?

The initial question, based on the Admonition No. 09-12 and the existing Massachusetts Rules of Professional Conduct, is: How do you advertise your niche without advertising yourself as a specialist? Well, it’s pretty clearly in the way that you use it, language, that is. The admonished attorney’s choice of language, as follows: “professional legal services . . . with respect to . . . immigration law”, was not the appropriate formulation. It was not enough to provide a self-classification for “non-specialist”. “With respect to” seems a rather innocuous enough descriptor; but, the BBO position is that even that language, when affiliated with specific practice areas, is enough to act as an advertisement of specialty. Rule 7.4(a)(3) stands for the proposition that association of a lawyer’s name with a specific practice area, or areas, is enough of an indication to create the advertisement of a specialty. That is, unless you use the specific language provided in Rule 7.4(c), which allows an attorney to hold out in a way that does not imply expertise. The appropriate formulation for indicating that an attorney is a non-specialist, then, is as follows: that that attorney “handles” or “welcomes” certain sorts of cases, but that that attorneys is “not a specialist” in that area of law, or those areas of law. Now, this is the specific language presented in Rule 7.4(c); and, there is some indication that similar language could also be used for the replacement of “handle” or “welcome” (synonyms?); but, trying alternative, similar formulations is done “at your own risk”, given that other formulations have not been given the specific sanction of the BBO, as “handle” and “welcome” have. Now, this is rather difficult, because it means that you’ll be broadcasting to your clients, if you use the complete formulation, that you are not a specializing attorney; but, if you wish to know for sure that you are protecting yourself from treatment as a specialist, this is the only formulation that you can use to do so.

What else can be gleaned from this admonition? The admonished attorney had roughly fourteen years of practice experience when the events leading up to admonishment occurred. Yet, he did not have experience in immigration law, the field in which he provided the defective advice. We have addressed previously at the LOMAP blog the necessity, for new lawyers, of finding mentors; and, this becomes an important issue within the admonition analysis. The BBO noted that the admonished attorney did not consult a lawyer who specialized in the field of immigration law before providing advice to his new client, the obvious assumption here being that he should have; this despite the fact that the attorney had nearly fifteen years of general practice experience at the time of his disseminating of immigration law advice to his new client. What does this mean? Well, it seems to clearly point to the fact that, not only should new attorneys seek advice in all practice areas, but that attorneys taking on new practice areas should consult mentors when taking cases in their new practice areas, regardless of their experience in other areas of practice. That is, certainly, tough to swallow, as well, that CLE courses, for example, are not enough. But, this does seem to be the clear position of the BBO. And, it is equally clear that the matter of accessing of mentors also enters into the resolution of the question of an attorney’s competency in particular matters. The commentary to Rule 1.1, covering attorney competency, specifically addresses the issues of mentorship at comments 1 (“In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include . . . whether it is feasible to . . . consult with . . . a lawyer of established competence in the field in question.”), 2 (“Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”) and 3 (“In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s int
erests.”). When in doubt, seek the counsel of an experienced attorney, whether you are a new attorney, or new to a practice area. And, even in emergency situations, you should seek to limit the advice you provide in an unfamiliar area to that which is reasonably necessary, under the circumstances.

Of course, the remedy in every case is to provide the correct advice to begin with. If you provide the right advice, you don’t have a disgruntled client, and since you don’t have a disgruntled client, there is no one to call the BBO to complain. But, that’s easier said than done, of course, especially given the many interpretations that the law is open to.

If you do not wish to hold out as a specialist, or cannot hold out as a specialist, be sure of your position, and of the way that the BBO will read your position, by using the handle/welcome + not a specialist language provided as an exemplar in Rule 7.4(c), do your own research and consult a specializing attorney in a field that is new for you.

. . .

Liner Notes

The unfortunate thing about trying to create a list of best Thanksgiving songs for your blog that is obstensibly about law practice management is that there just aren’t many Thanksgiving songs that aren’t religious, or whose meanings aren’t stretched so as to appear to be somewhat about Thanksgiving. Not that I have anything against religious songs, generally, or the stretching of meaning, particularly, but there aren’t that many songs about Thanksgiving that have hit a nerve in the popular culture, so becoming standards.

The closest thing that I have found to a Thanksgiving song is Adam Sandler’s “The Thanksgiving Song”. Not exactly the Perry Como of Thanksgiving, I know.

(Incidentally, Do you know who the official founder of the American Thanksgiving is? No, not the Pilgrims. That’s right, it’s my dog Abraham Lincoln.)

So, What in the hell can we talk about now?

How about cover songs? That’s just as good as any other topic, I figure. And, usually the corn is “covered” at Thanksgiving to keep it warm, and stuff, so, well, um . . . yeah.

To my mind, cover songs break down across three categories; there are (1) those cover songs that are so well-done that they become the standard version of the song; (2) those cover songs that either do a passable enough job to be recognized as “good” covers, or those cover songs that make enough significant tweaks to the original song to make the new version uniquely the covering artist’s; (3) those cover songs that are just horrific train wrecks that you, nevertheless, can’t turn away from.

Let’s go through several examples of each sort of cover song, covering the original, as well as the, uh, cover:

Covers that have Become Standards

How Sweet It Is (to be Loved by You)”–original by Marvin Gaye, cover by James Taylor

Some Guys Have All the Luck”–original by The Persuaders, cover by Rod Stewart

Hound Dog”–original by “Big Mama” Thornton, cover by Elvis Presley (See what Warren Zevon has to say about such things in “Porcelain Monkey”–not yet covered)

After Midnight”–original by J.J. Cale, cover by Eric Clapton

Lake of Fire”–original by the Meat Puppets, cover by Nirvana, unplugged

Covers that are “Good”

Take Me Home, Country Roads”–original by John Denver, cover by Toots and the Maytals

“Back in the High Life Again”–original by Steve Winwood, cover by Warren Zevon

Move It On Over”–original by Hank Williams, cover by George Thorogood and the Destroyers

Here Comes My Baby”–original by Cat Stevens, cover by The Mavericks

Come Together”–original by The Beatles, cover by Aerosmith

Covers that Suck, (Travesties)

Hey, Hey What Can I Do”–original by Led Zeppelin, cover by Hootie & the Blowfish (well, they certainly blow)

Hey Jude”–original by The Beatles, cover by Wilson Pickett

Big Yellow Taxi”–original by Joni Mitchell, cover by Counting Crows

Girls Just Want to Have Fun”–original by Cyndi Lauper, cover by Miley Cyrus

American Pie”–original by Don McLean, cover by Madonna

If you’re looking for other covers, check back entries to this blog, where I throw in cover tune links every now and then, including for “Hurt”, “Blue Yodel No. 9: Mule Skinner Blues” and “Devil Went Down to Georgia”, among others.

In the interests of time and space, I have left off some of my favorite covers, and also some of the covers that I can’t stand. (Yes, I do leave things out sometimes. Don’t be smart.) If you want to add some of your own personal favorite covers, or some covers that you think are just godawful, feel free to drop those in the comments.

For your inspiration, there are a couple of fulsome online lists out there, including from Esquire, and from the Digital Dream Door (whatever that is–I wouldn’t go in there if I were you), that run down a number of cover songs: good, bad and middle.

(Perhaps my inspiration for this edition of “Liner Notes” was my recent purchase of James Taylor’s “Other Covers” EP, which includes a fantastic cover of the outstanding old-timey tune, “Get a Job” (by The Silhouettes; I’ll take 1950s doo-wop for $800, Alex), redone with an outro of JT mumbling nearly incoherently, and probably angrily, the sound of which always brings a smile to my face.)

Happy Thanksgiving!