April 2017 Notes: It’s all About “Unmasking” This Month!

Twitter Crushes Unmasking Attempt. If you’ve been following the political news lately, there’s been LOTS of talk about leaks of information and the “unmasking” of the identity of U.S. citizens caught up in government surveillance of foreign spies. But the political unmasking tilt took yet another turn in early April, as the Department of Homeland Security tried to use an administrative summons to force Twitter to reveal the identity of the person behind an anonymous account. The account – @ALT_uscis – was one of many “ALT government” accounts set up after last November’s presidential election. And like many of the other accounts, @ALT_uscis regularly posts content critical of the Trump administration and the agency it spoofs – in this case, the Customs and Immigration Service. Twitter, to its credit, filed a federal lawsuit to quash the summons. After all, there is a strong first amendment protection for anonymous speech, and the use of administrative summons or subpoenas to reveal the identity of anonymous speakers – particularly when such tools are wielded by thin-skinned bureaucrats – is exceptionally threatening to full and robust public expression. Within a day the DHS withdrew the subpoena, showing that at least at some level grownups have asserted authority within the agency. But it shouldn’t have to take a lawsuit and public pressure for government agencies to respect the right of the public to criticize them.

Avvo Unmasking Follow-Up. Back in 2015, Avvo took a similar stance in response to a subpoena from an attorney seeking to unmask the identity of the anonymous author of a negative Avvo review, who the attorney believed was a non-client. That case, decided in favor of the reviewer, established the balancing standard in Washington State by which courts will determine whether to permit discovery under “unmasking subpoenas.” Now, the reviewer has come forward and identified herself, proving that she was a client of the lawyer in question, and noting that she “feels strongly about the need for a consumer to speak the truth about their experience” with an attorney.

It’s Hard to Hide Online. If any of my readers are wondering whether they can reliably stay anonymous online, here’s a fascinating cautionary tale. After FBI Director James Comey mentioned offhand that he had a “secret” Twitter account, Gizmodo reporter Ashley Feinberg took on the challenge of tracking it down. Through some quick detective work and cross-referencing of other accounts, Feinberg zeroed in on a particular twitter account: @ProjectExile7. And by tracking the accounts @ProjectExile7 followed, and the FBI-centric tweets occasionally sent out by the account, she concluded that it was “almost certainly” Comey’s (this conclusion was bolstered by the posting of this meme by @ProjectExile7 right after Feinberg’s story ran). The takeaway? If even the FBI Director can’t stay hidden from a motivated investigator, don’t count on having better luck yourself.

Social Media News and Notes:

Lawyers continue to wring hands about reconciling ethics rules and use of social media.

“Reverse astroturfing:” $34,500 judgment in case of false negative review left for competitor.

Some surprisingly good tips for lawyers experimenting with Facebook advertising.

Non-Lawyer Investment in Law Firms?

While the ABA has, in recent years, tentatively nosed around the idea of allowing some form of non-lawyer investment in law firms, it’s a concept that continues to be met largely with cries of “BURN THE WITCH” rather than any meaningful engagement.

Arguments against are of the “lawyer exceptionalism” variety, which I addressed in a piece that Vermont Bar Counsel Michael Kennedy reminded me I wrote 5 years ago:

The idea that the law is an exceptional case, that it is a profession that “often mandates conduct and practices that are not profit maximizing or optimizing” such that non-lawyer ownership cannot happen is hogwash. The same argument can be made for business writ large – Sarbanes-Oxley, charitable giving, employee benefits, community involvement and the accounting profession (kidding!) – are all examples of conduct and practices common in business that are not profit maximizing. Or on a more specific level, with medicine, where doctors make daily non-profit-maximizing decisions in the service of patients, despite non-MD ownership of most large medical groups.

What’s more, so many of the problems that our prized ethics rules are designed to prevent could be more effectively solved by letting people who know something about running a business be involved in law firms:

Ineffective marketing, lackadaisical client development, poor internal controls, shoddy accounting practices – all can lead to cash crunches, blown deadlines, drawing from client trust accounts and the litany of ills that end in attorney discipline and malpractice lawsuits.

The concept is back in the news this week, thanks to the spectacularly-poorly-lawyered efforts of Jacoby & Meyers in pressing for a First Amendment right of lawyers to non-lawyer investment. It’s not a great argument, but they surely could have done a better job with it.

In any event, the advent of non-lawyer investment in firms will happen – if it ever does happen – through the wisdom of lawyers rather than judgments from tribunals. I’m hopeful that one day enough attorneys will realize that our profession CAN bring in professionals from other disciplines, allow them to be invested in our work, and improve the quality of the services we offer across the board.

But it might also take a little shaming:

 

March 2017 Notes: Social Media Lockout?

On “Giving Freely” in Social Media. Kevin O’Keefe recently wrote a great blog post on the importance of lawyers being willing to “give” – without expectation of return – when using social media. You should read the whole thing, but the central point is key to prosperity in all relationships, whether on social media or in the real world (or in the increasingly prevalent intersection of the two): it all starts with sharing and real engagement. This can be hard for lawyers; we are skeptical, cautious, risk-adverse. We can have a hard time wrapping our heads around the concept of opening our arms and freely giving advice, information, encouragement, or guidance. But Kevin’s post is echoed in another recent take, from the brilliant Farnham Street blog, on the differences between “rich” and “poor” mindsets: while the latter always seeks the easy way out, the former knows that all success comes from enriching the lives of other people and going the extra mile. Getting hyped up on traffic numbers or constantly selling yourself is just a distraction from the work that drives real value – giving of yourself.

Is Using Facebook a Fundamental Right? In a sign of the pervasiveness of social media, the Supreme Court is poised to decide whether the state (in this case, under the ambit of restrictions on sex offenders) may prohibit access to social media platforms. The case raises broad questions about access to information and news, particularly in an environment where so much news dissemination comes via social media. With both the press and political leaders regularly taking to Twitter to spread news and express opinions, is it proper for government to limit access to such media? Look for the court’s answer later this summer. However, even if the Supreme Court finds such a right, don’t expect it to extend to the courtroom. Judges have wide discretion to control their spaces. As one commenter noted, constitutional rights are “at their nadir” in the courtroom. Or, as one witness recently learned the hard way, if a judge doesn’t want you to broadcast your buddy’s murder trial using Facebook Live, he probably means it.

Settlement in “Fake Defendant” Libel Lawsuit. I’ve written here a number of times before about what seems to be a growing practice of fraud on the courts designed to remove negative online reviews: file a defamation lawsuit, show up with the “defendant,” stipulated judgment in hand, and then take the judgment to Google and have the offending review “de-indexed” so it will never show in search results. Paul Alan Levy of Public Citizen has been leading the charge against this practice, and he’s obtained first blood: a settlement, along with the referral of the case to law enforcement. For lawyers who outsource their marketing, this case is yet another call for expanded due diligence, as the defendant here was a “reputation management” company. There are no doubt other such companies also doing this. And while it would be bad for any business to be found to have used a third party to try and defraud the courts, just imagine how career-impacting it would be for an attorney to be caught up in such matters.

Briefly:

Who says blogging doesn’t pay? Prolific tax law blogger named dean of Pepperdine law school.

Groupon’s legal team has created a scorecard – with client reviews – for outside law firms.

The Nevada Supreme Court will have to decide a fight between the State Bar and AG’s office over attorney licensing.

Credibility in Business and Government

[This post was inspired by an email discussion after my last CLE webinar, “Lawyers & Lies.”]

Prior to the 2016 Presidential election, it wasn’t exactly a secret that Donald Trump is a less-than-effective businessman. Those familiar with how businesses operate and grow know that building a business empire through real estate and one’s gilded name, on the back of inherited wealth, is no marker of an excellent business operator.

The signs were all there: the bankruptcies, the reliance on a small coterie of loyalists and family, the rumors of shady dealings, the repeated stories about screwing over counterparties (often tradespeople and small-scale vendors), and the lack of any business vision other than the simple logic of commercial real estate: leveraging other people’s money and hoping that rents rise and assets inflate fast enough to outpace debt service.

So I doubt that any serious business person voted for Trump on the commonly-held assumption that he would wield his “business acumen” to bring the problems of unruly government to heel. 1 But plenty of people less familiar with business surely bought in to this pipe dream, assuming that Trump’s gold-festooned lifestyle was a proxy for serious mastery of all things business.

It should now be obvious – to  all but the willfully blind – that the assumption of Trump’s business skills has been put soundly and firmly to bed. The failures of operational discipline were apparent from the start, from the disorganized transition to the complete goat rodeo that represented Trump’s first travel ban rollout – an egregious bit of policy that nonetheless could have easily been landed successfully had a defter hand been at the helm. But beyond this lack of operating chops, we are now seeing the impact of another, even more critical form of business currency that Trump seems devoid of: credibility.

Presidents and politicians, even more than business leaders, are notorious for spin, overstatement, and failed predictions. But this doesn’t mean they don’t retain – and rely on – some reservoir of core credibility. That much of what they say, particularly when making statements of fact and important or personal commitments, can be fundamentally trusted.

Trump is something else entirely. In the New York Times yesterday, David Leonhardt offered a good overview of the President’s many, many confabulations. Yet while the man is clearly a liar (in the sense that so many of his untruthful utterances, unlike the spin or failed predictions of other politicians, are clearly intentional), he is also something more: a bullshitter. The bullshitter will lie, certainly. But more fundamentally, the bullshitter doesn’t care about the truth. Whatever he says is whatever he says – it’s just a means to end. He says whatever he needs to say to get to where he wants to be.

And the thing is, being a bullshitter probably worked pretty well in Trump’s sad, shoddy, little business empire. You can shine on lenders, as long as they get paid or you’ve got an escape hatch via bankruptcy. You can stiff your “little guy” vendors, because what are they going to do, sue? And you can take advantage of the star-struck and gullible, because suckers abound when celebrity (even of the tarnished, C-list variety) is around.

But lacking credibility doesn’t work in real business, or – as Trump is learning – in government. First of all is the transparency: people start checking things out. They follow up to see if you did what you said you were going to do. And they call you on your bullshit when you lie or fail to follow through.

Even worse for the bullshitter who finds himself out of his depth is the fact that the loss of credibility makes it really hard to get things done. While our society has lots of contracts, laws, and verification procedures, there are myriad points where we invest – time, money, effort – based on our trust of another person. Imagine if you didn’t trust a counterparty to not retrade or willfully breach an agreement. Would you invest the time to negotiate a deal with them anyway? Of course not. The same goes for government – the bullshitter’s got no ability to cajole, persuade, or incentive. His bullshit has cost him any room to negotiate, because his counterparties don’t believe what he’s saying, and don’t trust that he will meet any commitments he makes. He’s stuck with nothing but punitive measures.

The punitive-and-petulant approach may have worked passably well in the gaudy corridors of Trump Tower. But as our 45th President is discovering, it’s not remotely enough to meet the challenge of running the country. Credibility must come first.

Notes:

  1. Although surely plenty voted for him on the assumption that he would adopt business-friendly policies, either hoping that collateral damage (to democratic institutions, national security, minority rights, etc.) would be minimized or out of a willingness to ignore such concerns. The first part of that seems to be working out so far.

High Past Time to Amend the Attorney Ad Rules

Faithful readers of this blog will know that I have long lamented the scabrous attorney advertising rules. Larded down with a centuries-old accretion of quaint prohibitions, the rules are doing nobody any favors.

However, there may be some light at the end of the tunnel. The ABA is actively considering a proposal to streamline its Model Rules relating to attorney advertising. This process gathered momentum on the back of some very fine work by the Association of Professional Responsibility Lawyers, and is happening in an environment that seems ripe for change: states from Oregon to Virginia are actively considering changes – good changes – to improve their ad rules.

Avvo has filed comments in support of the ABA’s initiative; you can read them here. Some other folks also filed comments; almost all of them are also supportive.

Here’s the tl;dr version of Avvo’s comments:

The current rules are both unnecessary and actively harmful. Unnecessary, in that the detailed regulations don’t offer consumers any meaningful protections beyond what a general prohibition on false and misleading advertising would provide. And actively harmful, as they cost the public legal information and innovation through the chilling of lawyer speech.

Here’s hoping the ABA sees this one through, and makes this necessary and long-overdue change.

Disbar Conway for Lying?

It’s not too early into the Trump administration to call it: this is a group that’s got very little regard for the truth. And that’s even by the low standards of political spin – we’ve got plenty of examples, already, of out-and-out gaslighting. Chief among the lying liars in the administration has been White House “Senior Counselor” Kellyanne Conway, who done everything from puff the (anemic) size of Trump’s inauguration crowds to shill for his daughter’s clothing line.

In response, a group of law professors has filed a grievance against Conway seeking professional discipline against her in Washington, D.C., where she is licensed as a lawyer. The complaint relies upon the famously broad language in Rule 8.4(c), which proscribes “conduct involving dishonesty, fraud, deceit or misrepresentation.”

Loathsome as I find Conway’s approach, I am similarly appalled at this grievance. I mean, I could see some wingnut lawyer filing a grievance against Conway, but over a dozen law professors? Who should know better?

While there are many issues with this grievance, I just want to focus on two macro-points, one legal and one practical.

The Legal Objection

Like many of the Rules of Professional Conduct, Rule 8.4(c) appears to be written by people with little understanding of the First Amendment. First there’s the bit about “conduct,” which sort of dodges the question about whether this is dealing with matters purely of speech or only “speech as conduct,” a famously messy area that was dealt with just last week by the 11th Circuit in striking down Florida’s limitation on doctors asking patients about firearms ownership.

More objectionable is the failure to tie this broad prohibition on lying to the actual practice of law.  While the outer bounds of the state’s ability to limit speech in the professional realm is uncertain, here are two propositions that clearly lie on opposite sides of that boundary:

  1. Well within the power of the state to regulate: Requiring that attorneys not lie in the course of representing clients.
  2. Well outside the power of the state to regulate: Requiring that attorneys not lie, ever.

There is a first amendment right to lie, and we attorneys don’t forfeit it just because we get licensed. This is a straightforward legal principle, and the law profs’ grievance fails on this front right out of the gate.

The Practical Objection

I was going to say “like it or hate it, we all have a right to lie.” But really, if you hate the fact that we have the right to lie, you haven’t given it enough thought. Having the right to lie doesn’t mean we have the license to do so, or that lying should be socially acceptable. It means simply this:

We are not going to let the government be the arbiter of truth.

Many of the law profs who brought the grievance would likely object “but Conway is in an important position of power and influence; she may be working as a lawyer (i.e., an active “representation”), and because of how Big of a Deal this is we need to push it forward.”

But it is for precisely this reason that we shouldn’t push edge cases. We don’t want the government calling balls and strikes in matters of public discussion. That’s a straight path to censorship. The first amendment and freedom of discourse needs a lot of breathing room, as even the implication of regulatory action will cause many to clam up.

No, not Kellyanne Conway, of course (although the social virtues of lie-shaming seem to have set in, as the cable news outlets have tired of her act). But how about everyone else? My practical objection to this grievance is that if it gets any traction, what does that mean for any other lawyer who wants to speak out on matters of public import? Or, closer to home, what if someone wants to start policing the many words – again, outside of any representation – that these law professors no doubt spill publicly on any number of subjects?

Hopefully, the D.C. Bar will do the right thing and dismiss this grievance quickly and decisively.

February 2017 Notes: Keeping Your Cool

Airport Lawyers. If early results are any indication, the Trump administration will be keeping lots of lawyers busy. Besides the usual change-of-administration drama, the early days of this go-round saw the middle east travel ban, a poorly-executed executive order that was almost immediately derailed in court. Out of that fiasco – which took effect with no warning – came the inspiring stories of the legions of lawyers who took to the airports to help those who became ensnared by the ban in the midst of their travels. And despite the fact that the travel ban is currently stymied in court, immigration issues – and the need for counsel, often on short notice – are certainly going to continue to loom large. Technology is there to help. Several apps and websites, including “Airport Lawyer” and “Immigration Justice,” have been put together to ensure that travelers caught up in these issues can get matched with resources and volunteer legal counsel.

“Reputation Management” via Court Fraud. I’ve written about this a couple of times already, but developments continue to churn along, and I suspect we have only seen the tip of the iceberg so far. The scheme is simple: file a lawsuit, line up a fake defendant, and get a “settlement” or “judgment” finding that an online review is defamatory. Then use that court-sanctioned result to have the review removed or de-indexed. Except that no one involved had anything to do with writing the review. The latest exposure of this tactic comes from federal district court in Rhode Island, where a judge found fraud on the court in obtaining a phony consent judgment, and ordered the matter submitted to the US Attorney for investigation. I can’t emphasize this enough: if you have hired a reputation management firm to help with your online identity – and especially if you have done so in response to negative online reviews – ask that firm pointedly about the specific tactics they are employing. Because if there’s one thing no lawyer wants to be party to, even inadvertently, it’s fraud on the court.

Work on that Poker Face. Look, no one said that being a lawyer would be easy. It’s one of the only job where even as you are learning and building your competence, there’s someone constantly looking to take advantage of your missteps. One thing we learn as lawyers – besides being assiduous about details, to avoid those missteps – is to maintain our composure, no matter what’s going on. Because let’s face it: getting baited into overreacting is really bad for your clients and your career. And it can easily lead to sanctions or fines, as two attorneys recently found out. Skeptical about the testimony a witness is delivering on the stand? Better to work on some effective cross-examination questions, rather than making exaggerated “gagging noises” in response. And hey, who hasn’t had a combative deposition? But you know, even if things are getting really heated, it’s probably a good idea to stop short of throwing coffee on your opposing counsel.

Briefly:

Why it’s important to make your law blog as “niche” as possible.

At least 26 states have now decreed that lawyers have a duty of technological competence.

GE creates internal “Yelp for Lawyers” to help in-house counsel evaluate outside law firms.

Publishing Article = Not Commercial Speech

Another 11th Circuit case, also involving doctors. Rebecca Tushnet has the details, but it’s another of those relatively-rare cases dealing with the question of whether something that isn’t a straightforward advertisement can be commercial speech. The answer here – applying the slippery 2-or-3 part test (advertising format, promoting a specific product, with economic motive) – was NOPE.

Helpfully, the court also disposes of the oft-raised (but asinine) argument that advertising revenue converts otherwise-editorial content into commercial speech:

Even if Dr. Novella receives some profit for his quasi- journalistic endeavors as a scientific skeptic, the articles themselves, which never propose a commercial transaction, are not commercial speech simply because extraneous advertisements and links for memberships may generate revenue.

UPDATED: Somehow I missed that the lawyer representing the defendant here was none other than my friend, counsel, and First Amendment badass Marc Randazza. Congrats on another great Florida win, Marco (especially the part about getting California anti-SLAPP law applied in a Florida court)!

Good Reversal in “Docs v. Glocks” Case

The 11th Circuit in Florida has just issued its en banc ruling in the infamous “Docs v. Glocks” case. This is something like the third or fourth decision in this case, which addresses the question of whether and to what extent doctors can ask their patients about firearms in the home.

As I’ve written about before, my interest in the case is what it tells us about state regulation of professional speech. Such regulation is an open area, and obviously important to lawyers and the legal profession. After all, most of what we do professionally consists of “speech.”

Today’s decision – which reverses the prior panel, thus striking down the speech-offending portions of the law – spends a fair bit of time parsing the meager state of occupational speech regulation law (much of which consists of Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C.). In so doing, it affirmatively rejects the appropriateness of “rational basis” review of occupational speech-limiting regulation, while leaving the ultimate question (which is it, intermediate or strict scrutiny?) hanging:

Because these provisions fail to satisfy heightened scrutiny under Sorrell, they obviously would not withstand strict scrutiny. We therefore need not decide whether strict scrutiny should apply.

Darn it. Still, it’s good to see a decision solidly finding that professional speech is entitled to First Amendment protection – even if it can’t quite tell us how limited the state’s power to regulate might be.

Fake News, Hate Speech, and the First Amendment

I launched this blog as a place to keep all of my notes and thoughts on the professional regulation of attorney speech, a topic largely (but not entirely) informed by the commercial speech doctrine. The doctrine – which permits the government to limit or compel speech under a laxer set of standards than would apply to “core” expression – labors under an unfortunate name. Too many people, including far too many lawyers, think that the doctrine applies to ALL speech by businesses.

This is, of course, demonstrably wrong. The vast majority of media outlets in the U.S. are “commercial,” insofar as they are owned by for-profit entities. In fact, many of these entities are the corporations that people (many of whom surely know better) inveigh against when gnashing their teeth over the Supreme Court’s Citizens United decision. As the Supreme Court has held, time and again, the fact that something is published for commercial reasons (i.e., to make money) does not make it commercial speech. Because if it did, we couldn’t have an independent media. 1

And it seems to me that right about now is when we really, really should see the benefits of an independent media. We’ve got a new administration that has explicitly called out the media as the “opposition party,” that traffics in falsehoods, lies, and gaslighting, and which seeks to punish those outlets that aren’t deemed sufficiently obsequious to its agenda.

This is why it’s particularly galling that people on the left continue to be some of the loudest voices for chipping away at media independence – or free expression rights in general. We’ve seen in recent days an MSNBC journalist suggesting that the federal government should regulate to prevent “fake news,” and even my neighborhood college campus is now up in arms over “hate speech.”

While I could fall back on my lofty exhortations about the value of a robust First Amendment, I would ask all of these would-be censors a simpler and more pragmatic question:

Is this the government you want to let decide what you can and cannot say?

 

 

Notes:

  1. For additional context and background on this, check out Avvo’s 2016 federal court win, which turned on this very question.

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