Ethics Opinion Follies

Earlier this year, Avvo rolled out Avvo Legal Services, our fixed-price packages for consumers and small businesses, fulfilled by local attorneys. We put a lot of thought into this product, how it would meet consumer needs, and how it could comply with the Rules of Professional Conduct to which lawyers are bound.

Our guiding principle in building Avvo Legal Services? Making them as consumer-friendly as possible. Our thought was that by so doing, the RPC issues should take care of themselves. As the RPCs are all about consumer and client protection, they shouldn’t be implicated by practices that don’t harm those people – right?

Right.

But one obstacle to this approach is a pervasive mindset of “rigid” or “mechanical” compliance that persists with the RPCs. Many attorneys want “safe harbor” guidance from the Bars on what complies with the rules. To respond to this need, many state Bars provide ethics opinions upon request. Such opinions are typically non-binding, but can carry some weight in a subsequent disciplinary proceeding.

Little surprise, then, that such opinions typically take the most conservative viewpoint possible. In most cases, the bars will broadly apply the rules, with no regard whatsoever for the first amendment implications or whether their interpretation is materially advancing the interests of consumers.

Indeed, in some cases the regulators explicitly state that their opinion does not take into account any first amendment factors. See, e.g., the last line of South Carolina Ethics Opinion 09-10. 1

If the Bars are serious about expanding access to legal services and information, one change they could make right away is to get out of the ethics opinion business – at least with respect to lawyer advertising. By discouraging new legal service offerings and disseminating information about legal services, the Bars are gravely mistreating the public they are ostensibly charged with serving and protecting.

And it’s not just me railing about this. The Supreme Court addressed a very similar system – that used by the Federal Election Commission – in the landmark 2010 Citizens United case. 2  Remarkably, the words chosen by the Court in Citizens United to describe the FEC’s advisory opinion process could just as easily apply to the process used by many state attorney regulators:

“Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U.S. 51, 57-58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” [citations omitted]. Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 5885 S.Ct. 734.

Despite the approach of some Bars, there’s simply no way to interpret the rules regarding attorney speech without considering the first amendment.  Those bars that explicitly fail to do so are exacerbating the censor’s veto, hurting consumers, lawyers and the interests of free expression. There’s no question that such opinions cause many attorneys to simply abstain from providing information about the services they offer, preventing the consumers the Bar is supposed to serve from receiving information that may be vitally important to them.

Until and unless the Bars start doing away with the advisory opinion practice, attorneys who wish to really honor their commitment to serving the public should disregard these opinions. By understanding how the commercial speech doctrine works, such attorneys can confidently determine for themselves, independent of Bar input, where the rules apply and where they don’t.

Notes:

  1. And let’s keep picking on South Carolina, since they just issued an ethics opinion that seems to take aim at Avvo Legal Services: sometimes these opinions directly contradict one another. Compare the treatment of Rule 5.4 fee-sharing in South Carolina ethics opinion 11-05 vs. the new opinion 16-06
  2. Citizens United v. Federal Election Commission, 588 U.S. 310 (2010).

California Issues Broad Opinion on Lawyer Confidentiality

As someone who has been hiring lawyers for over 20 years, I love the idea of lawyerly confidentiality. I don’t want my lawyers talking about my cases unless they’ve got my permission to do so.

And from a lawyer’s perspective, getting it right when it comes to confidentiality isn’t hard: if it’s a close call, if it makes you think at all, then keep your yap shut. Period. That’s both good legal ethics and good business. Why? Because prospective clients aren’t going to give a rip about your nuanced arguments for why your embarrassing disclosures about former clients don’t violate the ethics rules. They just aren’t going to want to be the next one you blab about, which means you won’t be hired.

In issuing the latest opinion on lawyer confidentiality, California notes that a lawyer’s obligation of confidentiality extends beyond merely client secrets and confidences. Rather, it properly covers “all information relating to the representation, whatever its
source,” and may include information that is otherwise publicly available.

From the perspective of a client, I like that: I don’t want my lawyers talking about stuff they’ve worked on for me, even if it IS public. Or worse, doing as one of Donald Trump’s lawyers recently did, using the fact of the former attorney-client relationship to add greater credibility to comments that I might find embarrassing.

And yet . . . should this concept of “public confidentiality” really exist on pain of sanctions? I’m all for calling such loose-lipped attorneys out as being bad for clients, for not exercising their obligation of loyalty to the fullest, etc., but should they be legally prohibited from talking about stuff that every other member of the public is free to discuss?

This is but one of many areas in which attorney regulation has a First Amendment problem.  One of the few court decisions to actually address the issue of attorneys being prohibited from communicating publicly-available information about their clients’ cases  (Hunter v. Virginia State Bar) concluded that the constitutional considerations trumped the regulatory reach of RPC 1.6:

State action that punishes the publication of truthful information can rarely survive constitutional scrutiny . . . To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.

That sounds right to me. Attorneys shouldn’t be subject to legal sanction for talking about truthful, public information, even if so doing embarrasses their clients.

Now, whether those clients (or any potential clients) should want to continue working with such loose-lipped lawyers is another matter entirely.

Becoming an LLLT – Part 2

As readers of this blog know, I’m very interested in lawyer regulation and figuring out ways to get consumers better access to the legal help they need. To that end – and to learn more, firsthand, about how Washington State’s innovative “Limited License Technician” (LLLT) program works – Avvo is supporting the application of my paralegal, Liz Stauber, to become a “Triple L T.” This is Liz’s second guest post documenting this process; you can read Part 1 here.

Guest Post by Liz Stauber (Avvo Senior Paralegal):

I can’t believe it’s been nearly 6 months since I wrote my first post. The process to become an LLLT is a long one, but I am moving along.  Here’s where I’m at so far:

1. I’ve provided the Bar with a certified copy of my undergraduate transcript.

2. I’ve submitted declarations from supervising attorneys ( my current and former employer) which totaled more than the 10 years of required supervised paralegal work within the past 15 years.

3. I’ve joined both NALA and NFPA (it’s a prerequisite that LLLT applicants join one of these organizations).

4. I’ve applied to take the Paralegal Advanced Certification Exam (PACE), which will occur in September 2016.

At the end of last week, I received my provisional acceptance into the LLLT program, pending a passing score on the PACE exam.

I am currently awaiting my packet from University of Washington to register for the three required Family Law Courses. Those courses begin at the end of this September, and run through June of 2017.

After completing and passing those courses, I will register to take my LLLT exam – it will be offered by the Bar in the fall of next year.

Seems like a lot, but I’m keeping my eyes on the goal. And in other good news, the Bar has suggested amendments to the LLLT program that would modestly expand the scope of the work LLLTs can do. It’s good to see that the state is actively looking to ensure that LLLTs don’t have their hands unduly tied as they try to help consumers who would otherwise be left to fend for themselves.

On Information Bubbles

I went to college, in the 1980’s, at the University of Oregon. The campus stood out, even among generally-left-wing institutions of higher learning, as a very, very liberal place. And unsurprisingly, I held a lot of very liberal ideas. Now, this wasn’t entirely due to the University. My background could work well as a parody “origin story” for a tie-dyed action hero: conceived during the Summer of Love by very young (and soon to split) parents living in the Haight-Ashbury. Grew up in the woods in rural Oregon, brought up on a lot of permissive and progressive ideas. You get the idea.

However, my mother had always raised me to have an open mind. And so, in the midst of my sophomore year at Oregon, I began reading The National Review and The Economist, in an attempt to gain some alternate perspective on the philosophy and political science classes I was taking.

This didn’t seem like a particularly important step at the time. I just felt – like many a “question authority” youngster – that I might not be getting the full picture from my lefty professors. And thinking back, my reading didn’t really change my mind on much. Sure, I wasn’t down with the socialism silliness that too many of my classmates went in for, but I was on board for a whole lot of progressive ideas. Because while the reading sometimes moderated my views – or even changed my mind – on many more occasions it exposed the shallowness of whatever counter-arguments existed to the material I was learning in class.

In the 30 years since, I’ve tried to retain this habit of mind. I continue to seek out a diversity of points of view, whether in terms of news and analysis or conversational partners. It feels natural, like the only way to really understand the world, and to feel solid in one’s views.

Maybe I’m approaching this too rationally, but how can you feel confident that your views are sound, if all you hear is the echo chamber?

To this point, Keith Lee recently wrote about “choice architecture:” how the choices we make about the information we consume deeply impacts the interpretations of events were are exposed to. Keith’s post calls to mind Scott Alexander’s “I Can Tolerate Anything Except the Outgroup,” which notes (among A LOT of other things) our culture’s descent into tribalism, and how we increasingly surround ourselves with tribes (and the tribal voices of social media) that speak only to our own, narrow, perspectives. We only consume information from news outlets tuned to our bias, to say nothing of perspective – opinion pieces – which also come exclusively from our tribe’s outlets.

This seems odd to me, as I’ve grown up with family members who hold a diversity of views, and I’ve internalized the habit of seeking out contrary opinion. And yet, there’s something to Alexander’s amazement that he cannot, in his circle of friends and acquaintances, find anyone who identifies with traditional conservative/religious notions:

According to Gallup polls, about 46% of Americans are creationists. Not just in the sense of believing God helped guide evolution. I mean they think evolution is a vile atheist lie and God created humans exactly as they exist right now. That’s half the country.

And I don’t have a single one of those people in my social circle. It’s not because I’m deliberately avoiding them; I’m pretty live-and-let-live politically, I wouldn’t ostracize someone just for some weird beliefs. And yet, even though I probably know about a hundred fifty people, I am pretty confident that not one of them is creationist. Odds of this happening by chance? 1/2^150 = 1/10^45 = approximately the chance of picking a particular atom if you are randomly selecting among all the atoms on Earth.

About forty percent of Americans want to ban gay marriage. I think if I really stretch it, maybe ten of my top hundred fifty friends might fall into this group. This is less astronomically unlikely; the odds are a mere one to one hundred quintillion against.

People like to talk about social bubbles, but that doesn’t even begin to cover one hundred quintillion. The only metaphor that seems really appropriate is the bizarre dark matter world.

I live in a Republican congressional district in a state with a Republican governor. The conservatives are definitely out there. They drive on the same roads as I do, live in the same neighborhoods. But they might as well be made of dark matter. I never meet them.

I feel like I inhabit less of a bubble than Alexander does, but only slightly less. Working in technology, in a western coastal city, it’s exceedingly rare to run across people who would hold themselves out as creationists, or inveigh against gay marriage (hell, many people in my circle probably consider me an outlier because I like guns, dislike regulation, and have friends who are Republicans). So even with a purposeful approach to information choice architecture, it’s really hard to avoid getting drawn into a form of limited-perspective monoculture just by virtue of work environment and lived geography.

Short of seeking out radically new activities or joining a church, I’m unlikely to add much viewpoint diversity to my circle. And there’s this as well: much as I like engaging with people who have heterodox views, the signal-to-noise ratio in seeking out such perspectives can be depressingly high. There’s far too much position-staking; not nearly enough willingness to engage with and consider evidence. That can make the investment in avoiding the bubble – particularly with respect to actual humans, as opposed to books and articles – seem hardly worth the return.

Which is a shame, because engaging with different views and defending our own is how we grow and improve. There’s also little question that the rigidity of our “bubbles” exacerbates political polarization. I’d like to think that if we all worked a little harder, and regularly challenged ourselves by drawing from a broader range of information sources, we’d be closer as a culture. Unfortunately, the proliferation of sources and customization online are, if anything, making our bubbles even more insular and permanent.

What the Bars Need

No, not more liquor – though that might help, too.

I’ve been talking with quite a few state bar leaders recently, and there’s a lot of angst out there: concern about the growing inability of consumers and small business to afford what the legal industry is selling. Concern about the rapid pace of change in communications technology, and how legal services are marketed and sold. And concern about the future of the legal profession in general, and whether it can propel itself forward in the face of these changes, and others (like the lowering quality of new entrants to the Bar, as a rapidly shrinking applicant pool competes for a near-record number of law school slots).

So what’s a bar to do? I can’t promise to have all of the answers, but here’s one answer I know is wrong: sticking one’s head in the sand, applying the industry-protective rules as broadly as possible, and protecting the legal monopoly at all costs. To do so is to defend a bygone notion of the profession that doesn’t fit with the realities of our modern bureaucratic state, developing technology – or the law.

I will develop these points much more fully in later work, but at a very high level, here’s my prescription for what the Bars need to do:

  •  Narrow What’s Included in the Legal Monopoly

The definition of “the practice of law” – all the work that is swept in within the monopoly enjoyed by lawyers – is hopelessly vague and overbroad. It’s practically begging for a challenge on both First Amendment and antitrust grounds. Rather than fight and lose those battles, the Bars would be better served (as would the public they ostensibly exist to protect) if they proactively got back to the core of the practice. That’s trial and other advocacy work, for the most part, and it’s where the benefits of legal training and experience are most relevant. Attorneys could, of course, offer other services in competition with non-lawyer providers, and many consumers would choose them for their training and experience. But there’s no benefit to the public in casting such a wide net that non-lawyers (many with substantial subject matter expertise) are excluded from offering advisory services on “legal” matters.

  • Shorten and Simplify the Advertising Rules

The Association of Professional Responsibility Lawyers (who know a thing or two about lawyer regulation) have persuasively argued for a simplification of the attorney advertising rules. As they point out, the current rules are outdated, overly broad, and often at odds with the First Amendment rights of lawyers to express themselves and consumers to get access to information about legal services. There’s little that’s special about lawyer advertising (with the possible exception of in-person solicitation) to merit the extensive, detailed regulations that too many lawyers labor under. Replacing them with a simple prohibition on false and misleading advertising – of the sort every other industry seems to deal with just fine – would greatly enhance the flow of information and new services for consumers.

  • Permit Sharing of Fees with Non-Lawyers

So many in the Bars hate this idea, but the prohibition on fee sharing is significantly holding us back. It keeps our practices from being able to get the full benefit of non-lawyer professionals, and it forecloses all sorts of innovative services that lawyers could provide in concert with business enterprises far more versed in marketing, operations, and customer support. The prohibition also rests on two extremely dubious assumptions: that our fellow lawyers are intrinsically above influencing our independent professional judgment over matters as trivial as mere money; and that at the same time we as lawyers are incapable of resisting such influence when it comes from non-lawyers. There’s no reason it couldn’t be done away with, tomorrow, and replaced with flexible rules that permit sharing but censure any form of professional interference that might result.

There’s work to be done, to be sure, to make sure that regulatory changes such as I’m proposing don’t leave a consumer-harming vacuum in their wake. But we’ve enough experience with other industries to know that there are myriad ways to protect the public short of the byzantine, rigid accretion of rules we’ve allowed to build up over the last century or more. It’s time to take these changes seriously, rather than persisting – as we as a profession have done for far too long – with business as usual.

FTC Comment on North Carolina’s “LegalZoom Law”

In June of 2016, the Federal Trade Commission and the Department of Justice sent a detailed letter in response to an inquiry from North Carolina Senator Bill Cook. The subject? The impending enactment of North Carolina House Bill 436, legislation that would exclude online interactive legal forms from the definition of “the practice of law.” Providers of such forms would be required to meet a number of regulatory requirements, including extensive disclaimer and disclosure terms. 1

These federal agencies have no small amount of consumer protection expertise. The FTC also has a long history of calling out state attorney regulators for employing overreaching advertising rules to hamper the free flow of information about legal services.

In the letter, the FTC and DOJ quickly emphasized their point:

The Agencies recommend that any consumer protections, such as requiring disclosures, be narrowly tailored to avoid unnecessarily inhibiting competition and new ways of delivering legal services that may benefit consumers.

The message here is clear: don’t create regulatory requirements just to create regulatory requirements. Or without carefully considering the costs and benefits of such requirements, and whether there might be less-intrusive alternatives.

Why is this lesson so hard to learn? Why do we continue to grapple with rigid, mechanically-applied regulation, rather than flexibly determining whether the desired outcome – consumer protection – could still be met while enabling new and innovative ways of delivering information and services?

Here’s the FTC and DOJ again:

The Agencies recognize the important role of state legislatures, courts, and bar associations in protecting consumers of legal services from harm. The Agencies have previously noted, however, that unnecessarily broad [regulatory interpretations] can impose significant competitive costs on consumers of legal services, restrict access to legal services, and inhibit the development of innovative ways to deliver legal services to consumers.

It’s time to stop just reading the rules and thinking that slavish obedience is the path to consumer protection. The current approach is both overbroad and underprotective: it discourages innovation, scares away the ethical, and provides safe harbor for those willing to cloak consumer deception in the cloth of technical compliance. Let’s move past it, as our brethren in the UK have, and start focusing on the outcomes we want to achieve rather than the sterile minutiae of our rules and regulations.

Notes:

  1. HB 436 shouldn’t be seen as a recognition by North Carolina that a narrower definition of the practice of law would be useful to attorneys and beneficial to consumers; rather, it was the product of the settlement of a lawsuit filed against the state by LegalZoom.

Pay-per-Action, Legal Edition

Lawyers can advertise, and they can pay to do so. We’ve known that since Bates v. Arizona, in 1977; this principle is basically the driving force behind this blog. And this right exists notwithstanding the weaselly way it finds expression in the Rules of Professional Conduct:

Rule 7.2

(b): A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may:

(1) pay the reasonable costs of advertisements or communications permitted by this Rule.

But here’s the thing: advertising has come a long way from the good old days of insertion orders, where advertisers paid based on the size of the anticipated audience, hoping that some small percentage of that audience would buy what they were selling.  Nowadays, you can buy advertising based on intent. Rather than buying the whole basket of impressions seeing your ad, you can pay only for the audience that has actually expressed some interest. Two obvious examples are pay-per-click (most notably used by Google) and pay-per-lead (think online web forms).

It should go without saying, but I’ll say it anyway (as many lawyers are bad at math): advertisers will pay more – orders of magnitude more – for each “click” or “lead” than they would have for each “impression” in the old-school model. Some pay-per-click searches can involve payments in excess of $100 per click. But the reason for the popularity of those techniques is simple: by moving the payment-triggering-event closer to an actual purchase, the advertising expense becomes much more efficient; there’s less risk of waste.

So what about moving the marketing payment all the way over to where someone actually buys? Not just an indication of interest in purchasing – via a click, or a phone call, or filling out a web form – but an honest-to-god, signing-on-the-line-that-is-dotted purchase?

Many businesses pay a healthy percentage of revenue annually, year over year, on marketing alone. Think they’d like to have that payout only triggered by actual purchases? Of course they would. While such certainly would obviate the possibility of improving on those margins via better advertising efficiency (or, more likely, luck) it would also foreclose marketing disasters. Marketing spend would suddenly become predictable, and fully paid for by the resulting transactions.

Traditionally, connecting marketing spend to actual purchases was hard. Usually impossible. And it still is for many types of marketing. However, the internet has made it possible to track this connection, and the online advertising world even has a term for it: “pay-per-action.” Simply put, the advertiser’s cost is based directly on the action of a customer buying the advertiser’s product or service.

Pay-per-action forms the basis for all sorts of online marketing, including online  affiliate marketing. Take, for example, Amazon: the world’s largest online retailer has a robust affiliate program. Online publishers can link to Amazon products, and if someone buys via one of those links, the publisher is paid a small percentage of the transaction. That’s Amazon paying to market its products, one transaction at a time.

What About Attorneys?

When it comes to advertising, attorneys suffer from the hangover of regulations that existed long before Bates v. Arizona and the recognition that attorneys have a first amendment right to advertise. The profession is also hampered by a rigid prohibition on splitting legal fees with non-lawyers.

So, within the rules of most state bars, you have something like the following:

Rule 7.2(b): A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule;

along with:

Rule 5.4(a): A lawyer or law firm shall not share legal fees with a nonlawyer.

Graft these together and pay-per-action advertising looks like a rules violation. Having the advertising fee dependent on the earning of a fee feels like “fee sharing,” as well as the giving of something for recommending the lawyer’s services.

But is that right? I don’t think so.

Let’s take the “recommending” bit first. The concept of paying-for-recommending-a-lawyer has a sordid history. It goes back to the “runners” and “cappers” who would hang out in hospitals and courthouses, channeling unsuspecting clients to the grubby attorneys who would pay per sucker delivered. There’s a strong consumer protection element in regulating such person-to-person recommendations.

But general advertising online isn’t “recommending,” and it certainly isn’t person-to-person.  It’s just the giving of value for advertising. The fact that the value itself is determined based on a sale rather than an impression matters not.

Or, at least, it doesn’t matter to consumers. There’s no harm to consumers based on how the marketing fee is determined. And without evidence of consumer harm, competition law and the first amendment dictate that the state not regulate.

As for the “fee splitting” bit, that’s just elevating form over substance. No one would argue that attorneys can’t pay for advertising (or salaries, or rent, or letterhead, etc.) based on the fact that such payments are being “split” out of legal fees earned. So what difference does it make if the payment for marketing is closer – i.e., determined by the earning of a legal fee – or even deducted from the fee earned?

The answer is is that it doesn’t make any difference. From the perspective of consumer harm – again, the only lens through which the RPCs can be lawfully interpreted – having a marketing fee triggered by signing a client is no different than the fact that we allow lawyers to use earned legal fees to buy reams of stationary or new iPhones. It’s just that somehow it feels different because it is conditioned on the actual transaction.

A caveat: this feeling isn’t completely groundless. The reason for having a fee-splitting prohibition in the first place is that some such arrangements have the potential to cause interference with the lawyer’s independent professional judgment.

But we need to separate the mechanics of a fee split from the substance of fee splitting practices that might cause such interference. For example:

  • We permit fee splits with other lawyers, assuming (perhaps naively?) that our fellow lawyers would be above bring such pressures to bear.
  • We permit fee splits in circumstances such as credit card processing fees, where the split is incidental to the transaction, and we know that the credit card processor has no reason whatsoever to interfere with the lawyer’s handling of the case.
  • And, of course, we permit fee splits in the world writ large, where lawyers “split” their fees, in the aggregate, with every person and entity they buy goods and services from.

As mentioned above, it’s critically important, when dealing with these concepts, to always view these rules from the perspective of consumer protection. These rules aren’t supposed to be applied mechanically, but rather in a narrow and thoughtful way that maximizes public access to information.

Or as the Federal Trade Commission recently put it, when commenting on yet another overreaching attorney advertising proposal:

“FTC staff believes consumers receive the greatest benefit when reasonable restrictions on advertising are specifically and narrowly tailored to prevent unfair or deceptive claims while
preserving competition and ensuring consumer access to truthful and non-misleading information. Rules that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services.”

Exactly. So enough with the reflexive and overbroad interpretations: let’s free legal services up for pay-per-client advertising.

 

Embrace Mediocrity

Why are lawyers stuck when it comes to thinking about expanding the legal marketplace? It’s not as if there’s no opportunity here; it’s widely accepted that most people don’t avail themselves of legal help, and that there is a massive “access to justice” problem.  So what gives? I can think of two obstacles:

  1. Lawyers have a tendency toward “perfection thinking.” There are few issues that we can’t offer gold-plated solutions for, even in cases where a more modest solution would be equally (or nearly) as good.
  2. Our practices lead to a form of survivorship bias. We have a tendency to think only in terms of customized legal services because the only people who end up buying these services are customers who have a) complex legal needs, and b) money.

The result? Most lawyers are only thinking in terms of customized, gold-plated legal solutions for consumers with complicated legal problems. What they aren’t thinking about is the vast market of people who aren’t buying legal services: people who either a) have relatively straightforward legal problems, or b) have more complex problems but who are willing to trade price for quality.

Lawyers who want to unlock this untapped market need to be comfortable embracing mediocrity.

This sounds lame. Who wants to be mediocre?

But lots of great companies are “mediocre” when compared to their fully-custom competitors. McDonald’s is mediocre. Target is mediocre. Hell, even most of the clothes at Nordstrom are mediocre, when compared to custom tailoring.  But this doesn’t mean these companies don’t offer a valuable product to their users. People need to eat and be clothed, and everyone understands the tradeoffs involved when choosing between the prix fixe meal at Le Cordon Bleu and the drive-thru window at Mickey Dee’s.

Lawyers willing to embrace this level of mediocrity would offer off-the-rack solutions for people who either don’t need or can’t afford bespoke services. And they wouldn’t do so as a poor alternative or pressured upsell for custom services. Instead, they would take a page from companies that offer products to consumers at scale and emphasize things like price, speed, and predictability.

For example: imagine a law firm that offered same-day turn around on basic services. That guaranteed its clients would always have someone to talk to about where things stood. That offered an online portal continuously updated with documents and status changes. That sent out automatic email or text notices whenever developments occurred. That offered warm handoffs to other attorneys when more advanced services were needed.

There are countless possibilities, but they all exist in the space that exists when you move beyond “attorney competence” and focus on “client service.”

What kind of legal services lend themselves to this “embrace of mediocrity?” I would challenge every attorney to think of something within their practice area that could be packaged into a clear and price-transparent bundle for new clients with simple legal needs. Something that could be handled, most of the way, by non-lawyer staff members.

  • Family law – how about a prenup or uncontested divorce?
  • Estate planning – who doesn’t need a basic will and living will?
  • Business – what about a compliance check-up, or business formation?
  • Litigation – wouldn’t pro se coaching sessions be popular?

You get the idea. The trick is to not instantly devolve into lawyerly “issue spotting mode” – where you gravitate to the “well, what if the person has x, y, and z legal issues?” way of thinking – and consider the kind of help you could give the vast numbers of people who don’t, in fact, actually have all of those legal problems you’re agonizing over. People who just need a little assistance and reassurance that they are on the right track.  With the right process, and clear descriptions of what’s in (and not in) each service package, lawyers can offer useful legal services that work for a much wider audience than traditional full-scope representation.

 

“Getting” Commercial Speech

The Floyd Abrams Institute for Freedom of Expression is a program at Yale law; yesterday it put on a symposium in New York City on “Commercial Speech and the First Amendment.” It was a surprisingly well-attended event, sold out with a waiting list; probably a couple hundred folks there.

And, of course, squarely in the sweet spot for this blog and my legal interests. I was speaking on a panel, but I found the whole program fascinating. Not only because it’s rare to be in a room with lawyers who have even heard about the commercial speech doctrine – let alone a bunch who know way more about it than I do – but also because the state of the art in understanding commercial speech law is so, so far removed from what attorney regulators do when dealing with commercial speech.

How’s that? Well, the panel before mine featured Floyd Abrams himself, along with a bunch of law professors debating the extent to which the commercial speech doctrine is getting subsumed into the strict scrutiny analysis applicable to most other forms of content-based speech regulation. No one on the panel doubted that the bar for regulating commercial speech was being raised, at least in some ways; the debate was over whether this development is a good thing.

Lawyer regulators? It’s a rare day that you even see an acknowledgement that their ability to regulate is constrained in any meaningful way by the First Amendment.

My co-panelists, Denise Esposito and Rebecca Tushnet, discussed the regulatory challenges facing the FDA and Trademark Office, respectively. In both cases, it’s a matter of generally thoughtful, restrained regulation running into a broader trend of freeing up speech in the margins.

Lawyer regulators? New York’s rules of lawyer advertising run longer than 4,000 words; they know little, if any, restraint (other than what gets forced on them by federal courts).

Judge Alex Kozinski was there, too, cracking wise and noting that the idea that free speech is just for the preservation of self-governance is “bull-pucky.” And Mary Engle from the FTC walked us through how a thoughtful, mature regulator deals with advertising regulation – something that closely approximated the polar opposite of the mechanical approach taken by state advertising regulation. In a statement that would surely shock many state regulators, she noted that many ads don’t need to be labeled “advertisement,” as it is obvious what they are. Gasp!

My only regret is that more folks from the Bars couldn’t be there. Because there is a place for attorney advertising regulation – it just needs to be approached in a manner that respects both the First Amendment rights of those speaking, and the reality that flexible approaches are often preferable to rigid rules.

Florida Continues the Over-Regulatory Spiral

Last week, I wrote about the decision of the New Jersey Committee on Attorney Advertising doubling down on compelled speech (around attorney “accolade” advertising), despite a recent Third Circuit decision noting that such regulation must be carefully and narrowly crafted in order to not offend the First Amendment.

This week brings news of a similar sort of decision out of Florida. Last year, a federal district court ruled that Florida’s prohibition on attorneys using terms such as “specialist” and “expert” to describe their practices – unless certified as such by the Florida Bar or an ABA-certified entity – violated the First Amendment. I’ve long railed on this issue; such restrictions are either lazy or overly-broad interpretations of the Supreme Court’s Peel decision (which simply noted that states can restrict attorneys from falsely stating that they’ve been certified as specialists).

So did the Florida Bar respond by getting rid of its unconstitutional restriction? Pshaw! Of course not.

Rather, the Bar’s Board of Governors has approved a slight change to its rules, adding a new section (D) to Florida’s Rule of Professional Conduct 4-7.14(a)(4):

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Translation: if you want to say that you “specialize” or have “expertise” in a particular area, be prepared to demonstrate that you’ve got the goods sufficient to be certified by the Bar  . . . assuming the Bar chose to have a certification in your area. How you’d demonstrate that is anyone’s guess.

And if you want to use one of these words to describe your abilities with respect to an area the Bar DOES certify (which includes such broad areas as “civil trial,” “real estate,” “business litigation,” and “criminal trial”), you’re compelled to include a self-abnegating disclaimer.

Why the Bar didn’t take the Court’s strong direction and just get rid of its rule is anyone’s guess. Nothing would have prevented it from so doing while still aggressively going after any attorney who either a) falsely claimed expertise or b) falsely claimed to be certified as a specialist. Either is a form of misleading advertising, easily sanctioned under even the most basic of attorney advertising rules (ABA Model Rule 7.1, which is, honestly, all the attorney advertising regulation we really need).

Will this new rule survive First Amendment scrutiny? The answer is almost certainly no, for the same reasons the court showed the Bar the back of its hand on the last go-round. But until that happens, Florida lawyers will have to think about regulation even when making commonplace expressions of competence.

h/t Joseph Corsmeier

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