2015.91: Will Anyone Help Matthew Out? [Updated]

 Posted on November 12, 2015 in Uncategorized

Sometimes when I've written about ethical issues and use specific examples, people whine at me that I should be nicer; that instead of publicizing other lawyers' misdeeds I should contact them and counsel them.

The theoretical problem with being nicer is that I might make more of a difference by writing here than by counseling. If I send an email to a lawyer who has strayed, I might put him back on the ethical path, but nobody else benefits from the lesson. If I write here, though, everyone might have the benefit of the lesson. No professional courtesy is owed between lawyers where misconduct is concerned. In fact, lawyers have a special public duty to police themselves, which means that preventing misconduct trumps being nice.

The practical problem with being nicer is that it isn't appreciated. Like Charlie Brown, I keep making those calls, and time after time I am rebuffed. "Nice" is really only appreciated in contrast with something else, so the people who I call don't realize that by taking the time to call them and offer them the benefit of my experience and education I'm being nice.

But still I keep trying. I tried this morning with Matthew. He didn't think I was being nice. He thought I was being arrogant. ((Matthew was a teacher before he was a lawyer, and-as I may have mentioned before-teachers and others have been calling me "arrogant" since my brief stint in eighth grade. It never has bothered me. Arrogance is an exaggerated sense of one's abilities, and I am fairly sure that my sense of my abilities is accurate-to-understated: I know some things, I understand some things, I've got a pretty good brain, but mostly I'm just lucky. Of course, if my sense of my abilities were exaggerated, I probably wouldn't know it, but it is congruent with the social proof.)) He told me to piss off.

So I suppose this is me pissing off.

This morning I got this email from Matthew:

I'm going down the list of Board Certified Texas Attorneys to find a solo attorney with 5 or more years of experience to make this offer to. I have 2 years experience, graduating from STCL in 2013.I have family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney's List; however, I have to wait a three more stupid years, as Fidelity now requires 5 years of experience to be placed on this list (which wasn't always the case).I need to find someone with 5 years who my friends can nominate; the business would be filtered through that someone, but wouldn't be intrusive AT ALL(I will set up a separate email acct or Google phone number for these clients).There is absolutely ZERO liability or accountability or responsibility on your part. In exchange, I'm willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list. I already have this type of policy myself.Let me know if you'd be interested, and I'll put you in touch with my Fidelity contact who can explain further. Like I said, I'm going down the Board Specialization list of names one by one and sending pretty much the same email. First come, first served.Thanks, and all best,MatthewAttorney At Law

Fidelity, an investment company has a "preferred attorneys" list. Lawyers must have at least five years' (including at least three "stupid years") experience to get on the list. Fidelity did not always have this five-year requirement; this suggest that the requirement is material to them. We don't know why Fidelity doesn't want second-year lawyers like Matthew handling cases for its clients, but if I had to guess, I would say that Fidelity didn't want kid lawyers practicing on its clients. In any case, it's not for us to decide whether Fidelity's rules are right or wrong. They are Fidelity's rules. Referrals are important, and the referrer gets to decide who he wants to refer clients to. Nobody is entitled to Fidelity's referrals in violation of its rules, even if they have a cooler on the inside.

So, lawyers. Let's imagine what happens if you sign on as Matthew's nominee, the strawman to whom Fidelity will refer cases, which will then be funneled to Matthew with no involvement from you.

It looks a lot like you're participating in a fraud against Fidelity. Maybe Matthew's "Fidelity contact" can explain this in some way that makes it non-fraudulent. Maybe it is fraudulent and Fidelity never finds out. Maybe Fidelity doesn't care. But suppose that "your" clients start complaining to Fidelity about "your" service. How long do you think it's going to take them to figure out what your arrangement with Matthew was?

When Fidelity realizes what's going on, do you think they are going to be kindly inclined toward you for helping him defeat their rules, or do you think they're going to go running to the State Bar and your local DA? You've helped Matthew deprive Fidelity of something of value to both it and him (its referrals) on false pretenses. Do you get indicted? Do you get disbarred? Maybe not.

That's a pretty damn expensive "maybe." What do you get in return?

I'm willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list.

"A share of the clientele" is vague, but sounds negotiable. If you were a board-certified estate planning lawyer and the share of the clientele were 100%, the deal might be both safe (because you would actually be doing the work that Fidelity was referring to you) and worthwhile. The potential liability for letting a lawyer with less than two years' experience, ((According to the SBOT, "I have 2 years experience" is a lie.)) take a single case in your name without your direct supervision is spectacular. He's paying you to use your name to evade Fidelity's rules? I've seen federal fraud indictments alleging more-benign activity.

The offered alternative of upping your malpractice insurance is worthless: if you don't have a two-million-dollar policy now, it's because you don't need one now. You will certainly need one if a lawyer with a year and a half of experience (who claims two) starts taking cases in your name without supervision.

But if you take that option, it had better be an "occurrence" policy, which has the insurance company on the hook if the malpractice occurs while the policy is in force, no matter when the claim is made, ((I'll bet that a two-million-dollar "occurrence" policy for a second-year lawyer doing estate planning, if you can find one, is more than $3,600 per year.)) because otherwise when Matthew gets tired of paying for the policy you are facing liability for whatever he might have screwed up before that. Also, you'd better explain to the insurance company why Matthew is covered under your policy.

What else? Now Matthew has a phone number and email address associated with your name. Fidelity only refers you estate-planning clients, but those clients refer other business to Matthew, whom they think works for you. Guess who gets grieved when Matthew decides to take a criminal case (because it looks easy) and screws it up. Guess who gets sued when Matthew takes that billion-dollar PI case (because he knows everything) and blows the statute of limitations.

Here's a protip: when someone says "There is absolutely ZERO liability or accountability or responsibility on your part" there's a reason he's being that emphatic, and the reason is not that the statement is clearly true. Here, it happens to be false. If you allow Matthew to use your name you are potentially liable, accountable, and responsible (all of which mean the same thing) in civil court, in criminal court, and before the State Bar for whatever Matthew does in your name. As a lawyer, your name-the public face of your reputation-is your most valuable asset. It should be treasured, and not rented out to a young pup who wants a quick buck.

I am going to attribute Matthew's "absolutely ZERO liability" statement to stupidity, but only because he gets the benefit of Hanlon's Razor.

Intentionally or not, Matthew's email reads like a Nigerian fraud scheme. Nigerian fraud schemes read like Nigerian fraud schemes because Nigerian fraudsters need an easy way to distinguish the potential victims (those naive enough to fall for the scam) from non-victims.

If you think it's a good idea, I have $15 million in gold that I need to repatriate, beloved.

[Update: Mr. Matthew claims that I took his email out of context. What I published is his solicitation email; since he wants me to contextualize it, here's the email chain between him and me after his solicitation email but before my blog post. I don't see how it changes the story, but here you go:

MB to Matthew 11/12/15 0842

Not no, but hell no. Is there any chance I can, old dog to young pup, persuade you to stop now and not pursue this fraudulent course of action? Please let me know before noon. Thanks,MB

Matthew to MB 11/12/15 0930

No fraud. The client will KNOW that I only have 2 yrs experience. And I'm 42, so hardly a young pup;) Perhaps my email wasn't clear.MatthewAttorney At Law

MB to Matthew 11/12/15 0937

I think your email was perfectly clear. And legally, you're still on the teat. ?You need to step back and look at this objectively. What you are doing is looking for a straw "preferred attorney" to trick Fidelity into referring you clients.What did you do before law school? Maybe that'll help me explain.This is dangerous for you, and dangerous for the lawyer who helps you with it. In the event that you find someone foolish enough to join your scheme, in the best-case scenario you get away with it and nothing goes wrong. In the worst-case scenario, though, you and he get disbarred.Don't bet your meal ticket on Fidelity being cool with the arrangement.

Matthew to MB 11/12/15 0949:

Still don't understand. If the client KNOWS it is me, not the "preferred attorney" doing the work, where's the fraud? The atty is merely referring the client to me, and with no endorsements or false claims whatsoever. The client will KNOW everything; thus no fraud. I was a teacher before and a small biz owner before that.I truly appreciate your concern, but I still see no fraud if no one's being defrauded. ??

Matthew to MB 11/12/15 0951:

Thank you for your input. I will contact the Bar and find out first-hand which "teat" I'm on.

MB to Matthew 11/12/15 1106:

The teat reference was to your contention that you aren't a young pup.I can explain it to you, but I can't understand it for you. Lay out the scheme for the State Bar just as you've laid it out for me, and nobody halfway competent will sign off on it.

Matthew to MB 11/12/15 1111:

Thanks for your arrogance. Best wishes.

MB to Matthew 11/12/15 1126:

Ha. Teachers have been calling me "arrogant" since I was 13. Like the rest, you commit the classic blunder of mistaking confidence in competence for arrogance.I've been doing this stuff for 20 years. I've been grieved unsuccessfully, I've successfully defended grievances, and I've taught ethics.I took my valuable time to reach out to you and try to share the benefit of that with you, but your greed has blinded you to what should be obvious.I guess you should have done some homework before emailing me, because I've also written extensively on ethics at my blog, DefendingPeople.com, where you are about to be Exhibit A.There is nothing I want or need from you. You needn't respond.Best of luck,MB

Matthew to MB 11/12/15 1130:

Nope. Just arrogant. Now piss off.

After I sent him a copy of this post, Matthew responded; I have already written about that.

I'll keep you posted, beloved.