September Notes: Fee-splitting, burner devices, and more judicial “friends.”

The Fight Over Judicial “Friends” Continues.  A Florida case highlighted in last month’s newsletter has been decided, with the outcome being that a Miami judge does not need to recuse herself merely because she is Facebook “friends” with counsel for one of the litigants. As the unanimous court of appeals decision notes, “the degree of intimacy among Facebook ‘friends’ varies greatly.” No kidding, right? As anyone who has used Facebook for more than a hot second knows, one’s “friends” can range from BFFs to people you haven’t seen or talked to in years. Absent further evidence of potential bias, a Facebook friendship between judges and counsel shouldn’t even be worthy of mention as grounds for recusal. Still, lawyers being lawyers, you can expect to keep hearing about this “issue” for quite some time.

Some States Look to Modernize Fee-Splitting Rules. Rule 5.4 of the ABA Model Rules prevents lawyers from splitting fees with non-lawyers. This rule is really a form of conflict prevention, designed – as the title of the rule itself notes – to preserve the professional independence of lawyers. But the Rule’s rigid language hasn’t aged well. Accepting credit cards for legal fees results in a technical violation of Rule 5.4 every time the credit card processor takes their 3% “split” of the fee. While this issue has been largely ignored, Bars are struggling with innovative new services and the growing adoption of performance-based marketing (in which advertisers pay per customer, rather than per-impression or per-click). But some states are starting to take action. North Carolina and Oregon are taking different approaches, but both have proposed amendments to their fee-splitting rules that should take effect before the end of 2017. These changes preserve the public-protective purpose of the rules while easing up on the rigid technical limitations.

Do Lawyers Need “Burner” Devices When Traveling Overseas? The ABA Journal profiles an interesting issue for jet-setting lawyers: protecting client files when returning from travel abroad. While foreign snooping and theft are the more obvious concerns, there’s also the fact that lawyers have no meaningful Fourth Amendment protection from search when re-entering the country. That’s enough to cause some law firms to require attorneys to use “burner” devices – laptops containing no client data – when traveling overseas. Is that something that all globe-trotting lawyers should emulate? After all, this is an edge case risk for the vast majority of lawyers. But taking some simple precautions when traveling – like putting all of your client data in the cloud – offers protection from both far-out risks like this one and the more likely hazard of device loss or compromise. For while tech never fails to create fascinating new issues to explore, paying attention to good old physical security remains a lawyer’s primary means of protecting client data.

Social Media News and Notes:

If you MUST travel overseas with client files, perhaps consider using an encrypted flash drive.

Nebraska becomes the 28th state to add “technological competence” to a lawyer’s ethical obligations.

Ohio Supreme Court justice takes to Facebook to blast Browns players for kneeling during national anthem.

No, the Facial Validity of Ad Rules Doesn’t Get Ethics Committees Off the Hook

As I’ve often noted, I take a dim view of ethics opinions that don’t consider the First Amendment implications when dealing with lawyer advertising. I mean, it’s a pretty important thing, the First Amendment, right? And as the First Amendment drives the boundaries of the rules, it . . . seems like a big miss to not pay attention to it.

In response to my making this point during a talk earlier this week, the objection was raised that the rules are just fine; they’ve been tested in court and found to be constitutional. Case closed; ethics committees needn’t worry about anything other than considering how far the rules might be stretched to prohibit various attorney conduct.

I didn’t have the opportunity to respond to this curious argument, but given the bona fides of the attorney who made it (an eminent and smart lawyer, who shall go nameless here), I suspect this argument may have more currency than I would have thought. So, a quick little First Amendment lesson:

IT DOESN’T MATTER if the Rules have already been found to be Constitutional.

Hell, if they hadn’t been so found, they would no longer be the Rules.

In First Amendment law there are “facial” and “as-applied” challenges to rules. The former argues that a law is unconstitutional on its face; it is not possibly amenable to a constitutional interpretation. The latter – which is far more common – argues that the law has been unconstitutionally applied in a particular case.

So the fact that Bar advertising Rules may have survived previous constitutional challenges is only relevant to the extent one is interpreting similar applications of the rule. It is not remotely a clean bill of Constitutional health to all applications of the rule, and certainly not an excuse for ethics committees to turn a blind eye to First Amendment parameters when opining on speech-impacting rules.

I realize, too, that this makes the jobs of ethics committees more difficult. But given the costs to the public and the bar imposed by overreaching opinions in this area, they need to either do this work or get out of the business of issuing ethics opinions on lawyer advertising.

August Notes: All About the Judges

Judges: Social Media on Their Minds. As social media gets both more commonplace and mature, it’s natural that even judges will be using the stuff. I mean, it’s not like we’re going to require that newly-minted jurists relinquish all access to cat videos, dank memes, and food photos, right? However, as this discussion with several prolific judicial users of social media shows, the rules of the road for how judges should think about social media issues are still far from being sorted out. Some litigants will parse all corners of a judge’s social media trail, looking for indications of bias – even in areas as innocuous as the accounts a judge follows on twitter. For social media-savvy judges like the Texas Supreme Court’s Don Willett and Georgia Court of Appeals Chief Judge Stephen Dillard, engaging on social media requires a high level of attention: no commenting whatsoever on pending matters, and steering clear of political controversies.

But Even a Judge’s “Friends” Can be Problematic. Most of us know by now that a “friend” on Facebook is not the same as a “friend” in real life. Depending on the standards we choose to use, our Facebook “friends” may include casual acquaintances, business associates, and people we haven’t seen or spoken to in decades. But the unfortunate familiarity of Facebook’s chosen term has caused no end of consternation for judges, who seem to face regular recusal motions because they happen to be Facebook “friends” with counsel appearing before them (here’s the latest example). It’s all part of the continuing inability of the bar to get that social media is simply an extension of things we do in real life. If judges can banter and share canapes with counsel at Bench-and-Bar events, why can’t they be Facebook “friends?”

Blogging Not a Showstopper for Judicial Nominee. As with twitter and Facebook, it was only going to be a matter of time before some blogging lawyers would be up for judgeships. Case in point: Kentucky attorney John Bush, nominated for a seat on the 6th Circuit, who had posted hundreds of political and contentious posts pseudonymously on the blog “Elephants in the Bluegrass.” Among these were posts sympathetic to “birther” claims about Barack Obama and others deeply critical of abortion rights. However, by differentiating between the political nature of his speech as a private citizen and the obligations he would undertake as a federal judge, Bush was able to win over enough votes – he was narrowly confirmed by the Senate in late July.

Social Media News and Notes:

No, says the 9th Circuit, a judge tweeting a news item is NOT grounds for recusal.

Texas judge under fire for venting on Facebook about being “tortured” by counsel.

And litigants? Beware of judges watching YOUR social media activity.

More Ethics Opinions on Avvo Legal Services

I recently returned from lovely Asheville, North Carolina, where the North Carolina State Bar moved to adopt an ethics opinion favorable to Avvo Legal Services. The Bar also proposed changes to the fee-sharing and trust account rules to specify that mechanical-but-not-client-impacting payments to intermediaries (the bugaboo of too many regulators) are not prohibited under the Rules of Professional Conduct.

The North Carolina EO and Rule Changes – which are moving forward for final comments and, one hopes, adoption – are the culmination of what has been a model process. The Bar appointed a subcommittee to address the issue, and that group took its time. It held numerous meetings, and got input from all corners to understand the issues. The subcommittee also brought to bear a deep understanding of both the public-protection purpose of the Rules, and the constitutional constraints which govern them.

And then there’s the New York State Bar Association.

The NYSBA announced today that it has issued an ethics opinion finding that Avvo Legal Services violates New York’s rules of professional conduct – specifically, the prohibition against lawyers paying third parties to recommend them.

Unlike the North Carolina State Bar, the NYSBA is a voluntary, non-regulatory legal trade association. It opinions are purely advisory. But New York is a big and influential state, and lawyers are sure to have questions about this opinion. And while the NYSBA didn’t run a transparent and public process like North Carolina’s, it did – to its credit – actually take the time to understand how Avvo Legal Services works.

But they still came to the wrong conclusion.

As in most states, the New York Rules of Professional Conduct prohibits lawyers from paying for “recommendations.” The NYSBA opinion finds that attorneys participating in Avvo Legal Services are making “improper payment for a recommendation in violation of Rule 7.2(a).” Yet in reaching this conclusion, the NYSBA stretches the term “recommendation” far beyond its permissible bounds.

As I am constantly going on about, there are First Amendment limitations on the Rules of Professional Conduct. Attorneys have a right to express themselves, and the public has a right to access information about legal services. What this means in practice is that the Rules can’t mean whatever the regulators want them to mean. It means that the Rules can’t be interpreted to broadly gather in anything that might arguably sound like it could “fit” under the rules.

More specifically, attorney advertising restrictions must:

  • Materially advance important state interests, and
  • Do so in a narrow fashion.

That’s not my opinion; it’s the law.

The NYSBA opinion doesn’t grapple with these obvious Constitutional guardrails. Instead, it basically says:

“Hey, if you squint hard enough, and add together Avvo’s objective system of lawyer ratings plus some marketing statements Avvo uses to refer to lawyers in general, that looks kinda like a “recommendation” of every participating lawyer.”

That’s far, far too broad. To survive First Amendment scrutiny, a prohibition on recommendations must be narrowly limited to those recommendations that actually mislead the public. And the NYSBA opinion acknowledges this in passing, noting its earlier Opinion 799, which found that the “recommendation” line is crossed when the referrer “purports to recommend a particular lawyer or lawyers based on an analysis of the potential client’s problem.”

This is getting at the issue, because such a recommendation – particularly in the absence of transparency and consumer choice – can lead the consumer to believe they are being sent to the best possible attorney for their legal problem, when in fact they are being sent to the one paying the most money.

But instead, the opinion treats “recommendation” as a broad-ranging term into which anything bearing a passing resemblance can fit. That’s not a stand that will survive its first encounter with judicial review.

And this is yet more evidence of a far too common pattern: applying the prophylactic, overly-cautious ethics opinion approach to rules where the Constitution dictates a much lighter hand. It’s a continuation of a decades-long habit of chilling lawyer speech, to the detriment of consumers and lawyers alike.

Why New Jersey Gets it Wrong on Avvo Legal Services

OK, so one of the last things I read work-wise, before going off the grid to chase after Amelia Earhart in Kiribati for three weeks, was this joint opinion by three committees of the New Jersey Supreme Court taking issue with Avvo Legal Services. 1

I’ve long lambasted the issuance of regulatory ethics opinions on matters related to attorney speech. The principle behind prophylactic ethics opinions – “err on the side of caution when interpreting the ethics rules” – fits very poorly with the First Amendment principles protecting access to information about legal services. Unless regulators engage with these principles, they are doing the bar and the public a disservice whenever issuing advisory opinions in this area.

That said, this New Jersey opinion is better than some on this front, as it addresses the fee-splitting bogeyman head-on. And in so doing, the Committees conclude that Avvo Legal Services “does not insert itself into the legal consultation in a manner that would interfere with the lawyer’s independent professional judgment.” We agree. And this is an important point, as the animating principle behind Rule 5.4 – which prohibits the splitting of fees – is the protection of the attorney’s independent professional judgment.

However, there are three big ways in which New Jersey arrived at the wrong conclusion:

Incoherence on Fee-Splitting

There are two ways of thinking about fee-splitting: let’s call the first the “mechanistic” formulation, and the second the “principled” formulation.

In the former, any agreement to split a legal fee violates the rule. You don’t need to look beyond the terms of the transaction; if the fee is getting split, the rule is violated.

In the latter, the focus is not on the mechanics of the transaction, but on the reality of the arrangement. If the deal with a non-lawyer third party puts the lawyer’s independent professional responsibility at risk, the rule is violated.

So in the “principled” formulation, regulators will look past some technical fee splits (e.g., credit card processing fees) because they do not risk conflicts. And in the “mechanistic” formulation, regulators will look past some conflict-laden business deals (e.g., cross-referral arrangements) because they do not technically involve the splitting of a legal fee.

As Avvo Legal Services does not involve the splitting of a fee – the entire fee is paid to the attorney, and the attorney pays Avvo a separate marketing fee – it shouldn’t run afoul of New Jersey’s rule unless the state follows the “principled” formulation and finds that our program conflicts with the professional independence of lawyer participants.

New Jersey didn’t do that; in fact, it explicitly found that Avvo Legal Services does not create such interference. Yet the opinion still finds that Avvo Legal Services constitutes prohibited fee-splitting. Why?

It’s possible that the New Jersey Committees didn’t fully understand how Avvo Legal Services works. They may have assumed – incorrectly – that Avvo deducts its marketing fee from the legal fee prior to passing it through to the attorney.

However, the rest of the opinion leads me to believe that the Committees are grasping at something more amorphous: a free-floating finding of fee-sharing in the absence of either a technical fee-split OR an indication of risk to a lawyer’s independent professional judgment.

Such a principle would be incoherent and dangerous. It risks subjecting ANY expenditure of money by an attorney to the whims of the regulators. Because ALL legal fees are “shared” at some point. They get shared with landlords, office supply vendors, secretaries, plant waterers, brass polishers, and software programmers. And they get shared in rough proportion to their size because with more legal fees there are more goods and services for lawyers to buy.

New Jersey seems to want to have the leeway to apply Rule 5.4 to any transaction it sees fit. But regulation doesn’t work that way: Rule 5.4 is either violated via the letter of the rule (“no sharing of a legal fee”), or via the spirit of the rule (“no third party deals that put attorney independence at risk”). So how can Avvo Legal Services be a problem when it involves neither of these?

What’s a “Lawyer Referral Service?”

New Jersey prohibits attorneys from participating in for-profit lawyer referral services, and the opinion finds that Avvo Legal Services constitutes just such an “impermissible attorney referral service.” Why? Because the marketing fee charged by Avvo Legal Services is based on the legal services provided to the client who Avvo has connected with the attorney.

There’s no analysis of why such a structure is bad for clients, or even how such “cost per action” payment for marketing makes Avvo Legal Services a “lawyer referral service.” As I’ve long pointed out – but as the New Jersey Committees only tacitly acknowledge in the opinion – the key definition of a “lawyer referral service” is the existence of consumer deception inherent in “steering” a potential client to a particular lawyer. And there are actually some ethics opinions that lay this out pretty clearly, including this one:

“Opinion 13 set forth three factors for distinguishing between impermissible referral services and advertising. The first factor is whether the marketer limits access to information or whether, like a “Yellow Pages” directory, the entire list of participating attorneys is available to the consumer. The second factor is whether the marketer, explicitly or implicitly, guides consumers to a specific attorney. In contrast to directories such as “Yellow Pages,” a referral service “is a directing intermediary, not just an encounter between the consumer and the passive information made available by the attorney.” The third factor is whether the marketer serves a public purpose (providing information about attorneys or putting people in touch with attorneys) or primarily a commercial purpose.”

The state issuing that guidance? New Jersey. 2

Avvo Legal Services has no such opacity or guidance of consumers to a particular attorney; consumers are free to choose from any participating attorney. And New Jersey doesn’t conclude differently. Its opinion simply declares that the cost-per-action nature of Avvo’s marketing fee renders the program a disqualified lawyer referral service. As shown below, that’s not how this whole “lawfully interpreting the rules” business works.

Blowing Off the First Amendment

The opinion includes this gem:

“The First Amendment does not protect lawyers who seek to participate in prohibited attorney referral programs or engage in impermissible fee sharing.”

That’s glaringly wrong. It’s not a question of “protecting” lawyers; it’s a question of how the Constitution dictates that speech-impacting Rules of Professional Conduct be interpreted.

Prohibiting attorneys from participating in lawyer referral services is a form of commercial speech regulation. This means such a prohibition must meet the Central Hudson requirements of necessity and narrowness.

So the New Jersey Bar can’t simply say that lawyers can’t participate in lawyer referral services, and it can’t define “lawyer referral service” so broadly that the term captures ANY new form of marketing that the Bar isn’t entirely comfortable with. The Bar must show a significant government interest driving its rule, and it also must show that its regulation advances that interest in a minimally-speech-restrictive fashion.

The rationale for a special restriction on lawyer referral services has been – as New Jersey’s earlier Opinion 43 and other such opinions note – that such services present a special risk to the public, characterized as they are by a lack of transparency and directive conduct.

That’s fine, but the rule always must be interpreted in light of the limited box in which it sits (i.e., constraining a specifically problematic set of deceptive marketing practices). So if New Jersey is going to find that Avvo Legal Services is a lawyer referral service prohibited to New Jersey attorneys, it’s got to make an empirical finding that something about our program fits within this rationale. Similarly, if New Jersey is going to find that a form of advertising is off-limits because of the method of payment, that conclusion must also be supported by evidence that the practice is harmful to the public.

The New Jersey Committees don’t remotely do that. Rather, their opinion simply concludes that the First Amendment doesn’t apply here.

Such a position ignores the copious volume of cases laying out how the First Amendment limits attorney advertising regulation. And integral to those limits is the recognition of the importance of consumer access to justice and information about legal services. Opinions like this one – which flout these Constitutional limits in seeking to impose broader restrictions – run contrary to both the law and the purpose of the rules.

Notes:

  1. This trio included the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law.
  2. See N.J. CAA Opinion 43 (June 2011).

Welcome Back From the Jungle

My father is an archaeologist; he’s spent years working in the Pacific, and I spent a summer as a child trolling around places like Saipan, Chuuk, and Pohnpei. When I was in college, my dad took on a project to try and solve the mystery of Amelia Earhart’s disappearance. He’s been at it since then, and I’ve long heard of the Nikumaroro hypothesis and my father’s work toward testing it. This year, I finally had the chance to accompany him on a trip to Niku, and we set out on June 21 (you can read more about the expedition here).

Nikumaroro is a very hard place to get it – it’s one of the most remote places on the planet. Getting there involves flying to Fiji and then taking a 5-day boat ride. So I’ve been off the grid for the last few weeks, between getting to and from the island and spending a week digging in the coral and fighting through the jungle brush.

And speaking of pointless, invasive jungle brush (scaviola, if you must know), one of the last things that crossed the transom before I went incommunicado was a New Jersey ethics opinion taking issue with Avvo Legal Services.

While I must commend the authors of the opinion for getting one thing right (finding that Avvo Legal Services doesn’t interfere with the independent professional judgment of participating attorneys), I’ve got a dim view of the rest of it. Like similar opinions before it, it forms a scaviola-like thicket, blocking innovation and consumer access to legal services.

I’ll have more to say about the opinion in an upcoming post – now that I’ve returned to civilization and things other than lost aviators and coconut crabs.

June 2017 Notes: Big Changes for Lawyer Ad Rules?

Are the Bar Ad Rules Finally Changing? One of the little-understood impediments to consumer access to legal services is the way lawyers are regulated. From our monopoly on “the practice of law,” to our antiquated jurisdictional limits and advertising rules, lawyers labor under a regulatory burden with few equals. And while there are some good reasons for “lawyer exceptionalism” – the protection of clients chief among them – too often our over-regulatory impulses get the better of us. But there are signs of hope. The ABA has gotten serious about looking at streamlining the Model Rules on attorney advertising. And, not content to wait, the Virginia State Bar recently adopted changes very similar to those under consideration at the ABA. That’s a very good thing. The legacy ad regs make it harder than it should be for lawyers to inform the public. Here’s hoping that these signs of thaw turn into a torrent of changes to every state’s rules.

 Don’t Sue Over Opinions. There are many sayings about opinions, few of them flattering. We all have opinions, and most of us – if we’re being honest – would admit that we don’t like hearing opinions that we consider wrong. And this can really drive us off the deep end when those opinions are expressed online. Case in point: this real estate lawyer vexed that Zillow’s “zestimate” has made it difficult to sell her home. But what this lawyer (and too many others like her) fails to grasp is that there’s no legal duty to publish “right” opinions. In fact, it’s fine (legally, at least) to publish opinions that are completely, utterly unfounded. This principle offers important protection of the “breathing room” necessary for the fulsome expression of ideas. Keep that in mind the next time someone talks about suing over a hyperbolic online review.

 Blogging Makes You a Better Speaker.  I’ve been blogging for something like 13 years now, but it’s always something I’ve done for myself. I find it makes me more thoughtful – and a better lawyer – when I have to articulate and defend my ideas in written form. Now Kevin O’Keefe points out another benefit of blogging: the positive impact on public speaking performance. This resonated with me, because I’ve certainly experienced it. By having written so much about professional ethics and the First Amendment, I have a huge number of topics I can explore. And even more importantly, the breadth and depth of my writing allows me to improvise and answer questions on these topics quite fluidly. If you’re looking to step up your speaking game, blogging regularly may be just the ticket.

Social Media News and Notes:

More shade thrown at live-tweeting: judges in Bill Cosby case will have none of it.

Hey, someone went and built free plugins to publish your Avvo rating and reviews right on your WordPress website!

Interesting new “Pagefreezer” product captures court-admissible versions of social media evidence.

9th Circuit Reverses on Expanded Protection for Commercial Speech

Early last year, the 9th Circuit made an intriguing ruling: that commercial speech regulation required an even higher showing of necessity than that long-recognized by the “intermediate scrutiny” standard.  Unfortunately, in an en banc opinion this week, the court reversed its decision in RDN v. Appelsmith. 

That’s a shame, because there’s been a lot of noise that the commercial speech doctrine could use some freshening up and additional protection from overreaching regulation. And while the appellants here have vowed to take this case to the Supreme Court, the odds of getting that kind of review are always very long.

Unless SCOTUS wants to use this case to deal with the increasingly-large pit of vagueness in the commercial speech doctrine that is compelled speech. Is compelled speech subject only to rational basis review? Something more? Or are all speech requirements – compulsions and restrictions alike – subject to the same test of constitutional validity? A test perhaps more demanding than that laid out by Central Hudson?

Here’s hoping the Supreme Court decides to give us an answer.

May 2017 Notes: Live-tweeting trials and client communications via Facebook

Live-Tweeting Trials Not “Broadcast.” In early May, at the ABA Litigation Section Annual Meeting, I spoke on a panel relating to social media use in trial. Two of my co-panelists were Judge William Alsup – who has presided over several high-profile technology cases in the Northern District of California – and Sarah Jeong, a lawyer/journalist who has pithily live-tweeted several of these cases. I was really struck by Alsup’s commitment to openness in the proceedings, and his sense that Jeong’s live-tweeting added something substantive to public understanding of his cases. This is certainly not the case everywhere, as many courts don’t even permit mobile devices in the courtroom, and others prohibit video or audio coverage. But in a sign of at least some movement on the transparency front, the Indiana Judicial Ethics Commission recently concluded that live-tweeting does not run afoul of that state’s prohibition on “broadcasting” court proceedings.

Failure to Communicate, Facebook Edition. A Nebraska lawyer was just suspended for failing to adequately respond to a client’s Facebook Messenger inquiries. But as Vermont Ethics Counsel Michael Kennedy notes, there’s nothing special to see here – this is simply a failure to communicate with a client; the medium used just happened to be “social.” And that’s the thing: as clients increasingly use social media to communicate – and anyone with teenage children knows that the idea of using a phone to actually TALK will be met with blank stares – attorneys have to respond and adapt to these changing habits. Social media may feel informal or frivolous, but a client’s concerns are no less real simply because they were communicated via instant message. And the attorney here still could have responded with a call, a letter, or an email – rather than just tapping back “Relax.”

Florida LRS Rule Changes Rejected. Florida is home to the nation’s most restrictive and extensive set of lawyer advertising regulations. For the last several years, the Florida Bar has been attempting to update those rules – specifically the rules relating to lawyer referral services – to deal with problems stemming from services cross-referring clients for unnecessary medical care. Unfortunately, the approach the Bar came up with didn’t address this problem at all. Instead, it attempted to water down the LRS rules and have them apply to all forms of legal marketing – including Avvo. So I went to Tallahassee last month to let the Florida Supreme Court know why we think this proposal is bad for Florida consumers and lawyers (I’m up at the 23:00 mark). I’m happy to report that the Court agreed that the Bar is on the wrong track, and sent it back to the drawing board. This doesn’t mean Florida won’t ultimately change its rules, but hopefully it will do so in a way that thoughtfully considers both the issues and the opportunities raised by developments in legal marketing and services.

Social Media News and Notes:

The “internet of things” lets manufacturers retaliate directly against negative reviews (note: NOT a good idea).

Lawyer’s defamation lawsuit over “worst ever” review is tossed by court.

Texas judge is reprimanded after letting his inner racist fly on Facebook.

Florida Supreme Court Rejects LRS Rule Changes

Last month, I did something I hadn’t done in 21 years. I put on a suit, grabbed my notes, and argued a case in court.

And not any old court: this hearing was in front of the Florida Supreme Court. The Court was hearing a petition by the Florida Bar to change its lawyer referral service rules.

In our view, the Bar’s changes were  bad for on many levels. They didn’t address the problem at hand (alleged cross-referral of legal clients for unneeded medical services). They created a cumbersome new set of compliance obligations. They watered down protections currently applicable to Florida lawyer referral services. And, by bringing virtually all forms of legal marketing within the ambit of the rule, they threatened to chill the availability of legal information and the willingness of Florida lawyers to offer innovative new services to the public.

So Avvo filed comments opposing the Bar’s rule change. We weren’t the only ones; it seemed that no one liked what the Bar was proposing. When it came down to it, Avvo was one of four parties arguing against the rules, and I was allotted all of 6 minutes with which to do so.

Appellate arguments call for a tricky balance. You’ve got to be ready to make your argument, for the allotted time, without facing a single question. But you’ve also got to be ready to abandon your prepared work and face down questions from the bench for as long as the Justices desire.

I’ve always preferred the latter, and as it turned out, the Court had lots of questions for me. The video is available here; my bit starts at 23:00. As you’ll see, the Court was far more interested in hearing about Avvo and online legal marketing than it was about my nuanced First Amendment arguments.

It was gratifying – and fun – to argue in court again after so many years. And the Florida Supreme Court’s Greek Revival courtroom in Tallahassee was an inspiring venue in which to do so.

The capper came last week when the Court rejected the Bar’s proposed rules. While I’d like to claim that result on the force of my advocacy, it was the only reasonable outcome possible. The Bar had been asked to address a specific issue, and had used that opportunity to attempt wholesales changes to the rules.

It’s a favorable outcome, and I’m happy to see it. But at the same time, the process demonstrated how far from effective Bar regulation can be. In any other agency, regulatory changes would go though an administrative law process – with workshops, open hearings, and comments – to vet issues before adopting new rules. Florida, like many states, devolves that process to the Bar. The final arbiter is then the Supreme Court, which deals with the matter in much the same way it would treat any other adversary proceeding.

It’s not that such a system is doomed to failure. It could work, given enough structure, direction, and discipline by those involved. But the odds are long. Market participants drive the process, and these lawyers often have parochial interests. They also rarely have experience with administrative rulemaking. And the Florida Supreme Court sits at a remove, only dealing with the process near its conclusion.

For the Supreme Court to actively supervise this work – work that impacts the availability of legal services to the public – it’s got to get more involved. It must oversee and direct the Bar throughout the rulemaking process. This could include hiring out neutral professionals to run rulemaking. Or having a subcommittee of Justices deeply involved throughout (and there’s some indication in the Court’s order that it plans to do something along these lines).

This problem isn’t unique to Florida. Most lawyer regulators do their rulemaking in a similar way. But in a state with a bar as large and fractious as Florida’s, the weaknesses of the process are particularly evident.

Social Media + The Law of Legal Marketing