“Bagaak”

There Are No CryptoLawyers, Just Lawyers.

There are no CryptoLawyers. Someone is either a lawyer or they’re not. They went to law school, not crypto school.[1] In the U.S., they took an oath to protect and defend the constitution, not Satoshi Nakamoto.

Still, if you spend any time in blockchain/cryptocurrency/tech circles, you will hear the term. It’s meant as a compliment or shorthand by people in the industry to describe practicing lawyers who “get” something important about the tech. But when used by lawyers the terms takes on a different and confusing role.

This is partly (but not entirely) a professional ethics issue. American lawyers are generally licensed on the state level (with some exceptions — the patent bar, for example). Each state has its own set of professional ethics rules. These rules govern how a lawyer communicates their practice area. While there are some important differences, some things remain the same. Above all, a lawyer has to be honest when describing what it is that they do, and cannot misrepresent their practice area. I am not saying “CryptoLawyer” violates ethics rules in all 50 states in the U.S., or is being used for dishonest purposes. However, the term doesn’t sit right with me.

First, it doesn’t describe an actual area of legal practice.[2] Some people will say that it’s a mix between a securities lawyer and a corporate lawyer. That’s a narrow understanding of how a lawyer might become involved with a software business. To take an extreme example, if your token sale goes badly you may need someone who can defend a class action lawsuit or (if it goes really badly) criminal charges. If you get sued for defamation because your blockchain thing-o has published an immutably defamatory statement, you will need a lawyer who understands how to defend a defamation case. You get the idea.

Second, and related to this, “CryptoLawyer” signifies an affinity, not a practice area. A “CryptoLawyer” is a fellow traveller, simpatico to the project and “the Community”. Look, you may want your lawyer to support your industry. That’s understandable. But what you really want is objective advice. Will a “CryptoLawyer” be so worried about their perceived support for “the cause” that they will be blinded to legal realities, and pushed to do things that may not actually make a lot sense? The term “employment lawyer”, “corporate lawyer”, “trial lawyer”, “securities lawyer” don’t include the same signaling.

Third, and finally, it may be quite helpful (if not a requirement) that a lawyer advising a cryptocurrency or blockchain business understands the tech. But it’s their legal knowledge and training that makes them valuable. Lawyers rely on their clients to explain a domain. Ultimately, the laws that apply aren’t CryptoLaws — they are law-laws.

It may upset some people to read this. (I received some not very pleasant feedback when I wrote about this on Twitter). Look — if you want to call yourself a CryptoLawyer and it’s OK in your state, it’s your choice. But I think that someone who calls themself a CryptoLawyer gives short shrift to the responsibility that the term “lawyer” signifies and the skills that clients need. The neologism is confusing, and may misstate the lawyer’s role. If I were hiring a lawyer, I’d look at their skills first, crypto knowledge (if needed) next. And I think I might just rule out anyone with the word crypto in their name.

In short, a lawyer can be savvy about code, crypto, encryption and all of that. But either they’re a lawyer or they’re not.

There are no CryptoLawyers.

** These are my opinions alone, and do not represent the opinions of clients, employers or partners, past, present or future. None of this is legal advice, for heavens’ sake — it’s a blog post. I may change my mind. “A foolish consistency is the hobgoblin of” etc… Draw your own conclusions. Oh, and this was originally published on LinkedIn. **

[1] “Crypto” when used as a prefix to lawyer probably is intended to mean something like “a lawyer who groks code, crypto-currenncy” or (maybe) “cryptography.” The word crypto comes from the Greek work “kruptos”, or hidden (so the internets says).

[2] This might be an issue in a state that has implemented Rule 7.1 of the Model Rules of Professional Conduct, which states in relevant part: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” Is it “false or miseleading” to communicate that you practice in a practice area that doesn’t really exist? Some will say that *CryptoLaw* is a thing, and it’s just a new thing. Maybe. But I’m not sure it’s a defined enough area to actually mean anything. It’s more like an affinity that a practice area. You could say “I focus my practice on securities law issues, with a particular focus on issues faced by those in the crypto-currency industry.” I know that’s a mouthful *but* it has the benefit of actually meaning something.

[3]. Rules of professional conduct govern how a lawyer communicates the area in which they practice. See, e.g., Rule 7.4 of the Model Rules of Professional Conduct. There are some state law implementation nuances, but all share the principle that the way you communicate your practice area has to be accurate (See Rule 7.1, above). As Rule 7.4 shows, saying or implying that you are a specialist or expert in a particular area may be heavily circumscribed.

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Itinerant slant rhymer. Lawyer. “I contain multitudes”.

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Stephen Palley

Stephen Palley

Itinerant slant rhymer. Lawyer. “I contain multitudes”.

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