All posts by Josh King

Sometimes, Occasionally, Regulation is OK

As frequent readers of Socially Awkward know, I often rail against regulation. Usually lawyer speech regulation, but there are parallels across the regulatory board.  It’s not that regulation is inherently evil; it’s just that so much regulation is ineffective and counterproductive.

So I’ll admit to having some mixed feelings when President Obama came down hard in favor of regulating the internet as a utility under the FCC’s Title II authority, in order to preserve net neutrality.  I mean, when the regulator-in-chief calls strongly for more regulation, it usually helps to check your wallet.

But here’s the thing: this is one of those instances where regulation is necessary.  I’d go into more detail on why (and having spent virtually my entire professional career working in telecom and internet companies, I have some perspective on the issue from both sides), but Mike Masnick at Techdirt wrote a fantastic post a few months back that really gets to the heart of it.

You should read the whole thing, but the short story is that access to the internet is a natural monopoly – there are only a handful of companies that can provide the infrastructure for the internet.  And natural monopolies are as much the enemy of innovation and consumer choice as overbearing government regulation can be (as any customer of Comcast can tell you!).

As those who have worked in telecom know, this infrastructure level, where connections are made, sites built, etc. has always been heavily regulated.  It needs to be, because the companies involved are often the only game in town, and overall, it’s worked.  Trouble arises when the regulation gets into rates, terms of service or preservation of regulated monopolies. And that’s precisely the sort of regulation that Obama is calling for the FCC to forbear from (i.e., not do) as part of reclassifying the internet as a Title II utility.

So – regulation of internet infrastructure, including guaranteeing there are none of the toll roads or fast lanes envisioned by the ISPs.  But non-regulation of consumer experience and services that ride over the internet, enabling the fantastic innovation that the internet has engendered to continue to thrive.

In the months to come, critics from many corners will characterize this as “regulating the internet.”  It’s a dog whistle message to many, because it would be bad indeed if the government tried to regulate content and services that flow over the internet.  But this is only regulation of the internet’s plumbing. And it’s necessary – as regulation sometimes is – to keep the handful of natural monopolists who control those pipes from slowing down the pace of online innovation and expression.

Email Awkwardness

If you’ve been practicing law for more than 20 years, you will recall the hand-wringing over the advent of email. Too informal, too insecure, couldn’t be trusted with client information, etc. But the voices of lawyerly caution never had much of a chance; email was simply too effective, too widely adopted. People and businesses far and wide plowed ahead with using it, and the concerns of the lawyers were shunted to the wayside.

Since that time, the vast majority of lawyers have become adept at using email. Sure, there are still too many disclaimers, and many lawyers have retained the practice of attaching letters to an email when the email itself would do just fine. But still – as a profession, we’re good with email as a tool.

But sometimes we still can’t figure out how to use it.

Case in point – the fawning email sent by Randall Rader – the Chief Judge of the Federal Circuit Court of Appeals – to Edward Reines, a patent lawyer at Weil Gotshal & Manges who often appeared before the court.
Rader Email to ReinesThe email, as you can see, lauds Reines’ abilities, and invites him to share the judge’s praise with others. Had Reines done the usual thing – smiled, sent the judge back a personal thank you, and filed away or deleted the email – there would be nothing to see here. Instead – because even white shoe Biglaw partners have to hustle for a buck – Reines forwarded the email to dozens of clients and potential clients, using it as a platform for selling his services.

As one might expect, this didn’t go well. When news of the email surfaced back in May, Rader quickly stepped down from his role as Chief Judge.  His message came at a particularly bad time for the Federal Circuit, which has been facing increasing criticism (not to mention Supreme Court reversals) for being far too cozy with the patent bar.

And now Reines has been reprimanded by the Federal Circuit, for violating Model Rule of Professional Conduct 8.4(e), which prohibits stating or implying the ability to influence a government official.

I think, as Reines unsuccessfully argued, that this is going too far. The email reveals that at least one Federal District court judge (and several others by implication) is very impressed with the quality of Reines’ work.  And as I have written about before, praise from judges is valuable as a marketing tool precisely because of its scarcity value.  Indeed, Rader’s encouraging Reines to broadcast the email acknowledges the rarity of this kind of praise.

The court, in applying the discipline, focused on Rader’s references to his friendship with Reines, and the fact that other parts of Reines’ marketing communications referred to his stature in the court and knowledge of the judges.  The court seized on these factors as somehow being distinct from advocacy skills (because being an effective advocate is completely separate from having credibility and knowing the judges well enough to know which sorts of arguments resonate with them?), and also somehow being indicative of a nefarious intent to unduly influence the judges.

Had he to do it over, I’m sure Reines would have chosen a different approach.  But there shouldn’t be a professional discipline penalty for crowing that the head judge of the court where you do most of your work thinks you’re the cat’s pajamas.  Reines should have a first amendment right to let people – including potential clients – know how well-regarded he is by the court.  Those potential clients can then choose for themselves whether it feels like too much of “look how special I am!”

Ethical Marketing Techniques

I’m speaking this Wednesday night at the Beverly Hills Bar Association; the topic is “Ethical Marketing Techniques for Solos and Small Firms.”

If you can’t make it (and I’d love to see any Socially Awkward readers there!), here are the basic points I’m going to cover:

  • Staying on the right side of the Rules of Professional Conduct when communicating online is actually pretty easy – as long as you treat social media as more analogous to a cocktail party than, say, a billboard ad.
  • Any attorney remotely concerned about generating business – whether online or offline, consumer or business – is failing massively if they haven’t created at least three separate places online where potential clients can find information about them and their approach to the practice of law.
  • Reputation management is becoming more and more important as “word of mouth” moves online.  Whether you like it or not, legal services can and will be reviewed, just as toasters and hotel stays are.  Understanding how to respond to negative online feedback in a productive way is critical.

It bears mentioning that it remains harder than it should be for lawyers to “stay ethical” when it comes to advertising. I’ve written about some of the reasons why, but I will likely pen a longer post in the near future on the problems created by our lawyerly bias toward regulation.

7 Years at Avvo

I just realized that today, October 29, is my 7-year anniversary at Avvo.  It’s also fully a third of my career so far, and represents the longest time I’ve spent with a single employer.

You’d think a lot would change over that period of time, and you wouldn’t be wrong.  Avvo has gone from a concept (a concept facing a company-threatening class action at the time I was hired) to the market leader in consumer legal information and guidance.  We’ve also:

  • Grown from 20 to over 200 employees
  • Gone from an attorney rating to a force that drives hundreds of thousands of consumer contacts to lawyers every month
  • Moved from nominal revenue to profitability

But some things don’t change.  The job remains great fun; it’s challenging and offers something new every day.  And I work with terrific colleagues. 1  And then there are all of you attorneys.  I love you all! 2  Not only do you make my job possible, but you enrich it with all of the questions, comments and feedback.  Even all of the legal theories about how we’re doing something wrong.  Thanks for everything – especially keeping me on my toes!

Notes:

  1. Seriously – join our team; we’re hiring!
  2. OK, most of you.

Publicity Rights & Commercial Speech

Yes, I’m about to write about a case involving NFL Films, which has approximately nothing to do with lawyer advertising.  But it’s a nice example of the relatively narrow parameters of the commercial speech doctrine.

And repeat along with me, lawyers: only your commercial speech can be regulated by the state bar advertising rules.  If you’re staying non-commercial, you don’t have to worry about whether the ad rules apply to your tweeting or Facebook updates.

In our NFL Films example, three former players sued, claiming that NFL Film compilations of old game highlights violated their rights of publicity.  What’s important about the Federal District Court’s dismissal of the case on summary judgment is its detailed discussion of these two principles:

1) Publicity rights claims (which, you might have gathered, I loathe) can only survive if the underlying communication is commercial speech; and

2) Commercial speech, while continuing to evade a bright-line definition, must contain some meaningful combination of economic motive, advertising format and reference to a specific product.

The decision reiterates that economic motive alone is NEVER sufficient to render speech “commercial.”  It also notes that the fact that the films are all about the NFL and its players does not make them a form of “image advertising,” but rather expressive products in their own right.

All in all, a good case to remind us of the limited scope of commercial speech, and the fact that free expression needn’t face the publicity rights tollbooth just because it features people whose images have commercial value.

Why Care About Attorney Advertising Rights?

I am occasionally asked why I spend so much time focused on the tension between lawyer advertising regulation and the free speech rights of attorneys.  The perhaps-too-obvious answer is that my employer, Avvo, is built upon attorney advertising, and I’ve got a vested interest in seeing that attorneys continue to be able to advertise.

And it’s certainly true that working at Avvo has colored how I think about attorney advertising – but perhaps not in the way one might think.  For while I certainly do have a vested interest in seeing that attorneys continue to be able to advertise, that particular fight has long been over.  Attorneys can advertise, attorneys will continue to be able to advertise, and attorneys will pay good money to advertise for the foreseeable future.

For that, Avvo (and I) thank them.

But what I’ve discovered in 7+ years at Avvo is that the state Rules of Professional Conduct governing lawyer advertising are a sloppy mess, doing a disservice to lawyers and consumers alike.

Since Bates v. Arizona was decided nearly 40 years ago, it’s been settled law that the RPCs can’t stop lawyer advertising, or even limit those ads deemed to be beneath the dignity of the profession. Some might argue that this is a bad thing.  But that’s like trying to stop the tide. In the years since Bates, the Supreme Court has greatly solidified the commercial speech doctrine, with the First Amendment clearly protecting the right of businesses to engage in non-deceptive advertising.  Absent an abrupt, 180-degree reevaluation of how the First Amendment relates to commercial speech, this is not going to change.

Unfortunately, rather than regroup in the aftermath of Bates and devise more streamlined, meaningful rules, the bars simply kept their existing frameworks and bolted on begrudging exceptions for attorney advertising.

The result? Now attorneys have to parse the rules to understand whether they are participating in a “referral program,” or doing something that might be considered “solicitation,” or having the temerity to suggest they might “specialize” in an area of law. There are any number of ordinary means of communicating with other human beings that might technically run afoul of the bar’s advertising rules – particularly as means of communication proliferate.

Thanks to Bates, we’ve now got ever-more-ridiculous attorney television and billboard ads.  Yet at the same time, attorneys ponder whether they can respond to inquiries posted on Twitter, or highlight on their websites feedback from clients.  Where straightforward advertising is clearly allowed, other, more direct forms of communication – which are often far more valuable – exist in a legal gray area.  In this way, the uncertainty of the rules acts as a tax on lawyer communications, making it much harder than it should be for consumers to get information about legal services.

Some lawyers might think that’s a feature, not a bug.  After all, less direct communication means less opportunity for lawyers to deceive clients.  But that condescending viewpoint hardly gives clients – or lawyers, for that matter – the credit they deserve.  In most things speech-related, America has chosen the “more speech solution” as the preferred approach.  Rather than censoring speech, we’ve determined that it’s preferable to let competing voices hash things out in the marketplace of ideas.

Unfortunately, in the marketplace of ideas around legal services, we’ve got the screeching of the Law Hawk and the “life’s short” lady – and a whole lot of attorneys who are going around not communicating with potential clients out of fear of ending up on the wrong side of the Bar.

That’s messed up.  And that’s why I care about restoring attorney free speech rights, and scaling back the reach of the advertising regulations so that they are properly focused only on false and misleading advertising – and not on a clutch of outdated, picayune concerns.

Um, yeah . . . that’s not how you do it

So let’s say you’re a legal blogger. One day, when writing about developments at your local court, you get a little carried away. You suggest that the judges might be venal, corrupt, unscrupulous. You don’t mince words.

So the Bar comes calling. Because while attorneys can certainly exercise their first amendment rights in criticizing judges, there are limits (limits roughly congruent with the counters of public figure defamation) to so doing.

Faced with disciplinary proceedings in such circumstances, you would have choices. You could choose to be remorseful, and plead a temporary overload of emotion. You could choose to stand on your rights, and argue that your statements are protected by the first amendment and that the judges should grow a thicker skin.

Or, you could choose to sue the disciplinary authorities for copyright infringement for including portions of your blog in the disciplinary filings.

If you wonder how door #3 would work out, well, it’s about what you would expect.

Attorney Licensing and Restraint of Trade

Tomorrow, the Supreme Court hears oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission.  It’s a case of not-inconsiderable interest to state attorney regulators, as the central issue is the extent to which state licensing boards can clear the field of non-licensed competition.

The primary point is based in antitrust law, and whether the “state action doctrine” (which immunizes state agencies from most antitrust law) applies to entities – like licensing boards – which have been granted regulatory authority by the state, but which are made up largely of market participants rather than neutral regulators.

You can see why this would be a problem.  Grant competitors the right to regulate the field, provide minimal-to-no objective oversight, and you’ve set the stage for all manner of anti-competitive behavior.

In North Carolina, this predictably enough resulted in the Board of Dental Examiners (an entity largely composed of practicing dentists) ordering non-dentists to stop providing teeth whitening services.

The parallels to law aren’t hard to see.  Most states have very loosey-goosey definitions of “the practice of law,” which are often used to exclude non-attorney businesses that do something that remotely smells of “legal.”  Real estate brokers, document preparers, accountants, etc. – all have at one point or another been the legal industry equivalent of mall kiosk teeth whiteners.

While not every state is regulated in this way, many have boards and commissions that carry out regulatory functions with little to no state oversight.  Advertising review commissions come immediately to mind.  Attorneys practicing in less benighted jurisdictions may not be aware that in places like Florida, most advertising must pass a gauntlet of review by a board of one’s competitors.  And, to add insult to injury, attorneys have to pay for this little exercise.  It’s a practice rife with problems and obvious antitrust concerns.

It certainly wouldn’t be a bad thing if state licensing boards had their wings clipped. There’s little to recommend the granting of state monopoly power to a group of market participants and then letting them exclude competition with impunity.  The practice is bad for consumers, protects entrenched interests, and acts as a drag on innovation. Pulling the state action doctrine back wouldn’t prevent the Bars from regulating, but it would be a step toward them – and all licensing boards – doing so in a more measured and appropriate way.

An Insult to Glaciers

I’ve been speaking and writing about the intersection of social media and the attorney advertising rules for over seven years now.  I often speak in California, and years ago I seized upon something happening in California to illustrate one of my themes. It goes something like this:

I tell attorneys that they need to understand the constitutional limits of the RPCs when it comes to attorney speech regulation, because they can’t very well look to the RPCs for specific guidance .  Communications media are just evolving far too quickly.  I would then point to an effort ongoing in California to align that state’s RPCs more closely to the ABA Model Rules, and note that the process had started a decade earlier, before anyone had even thought of Facebook, Twitter, etc.  You can’t possibly expect the output of such a deliberative process to speak specifically to any particular communication platform, I would say. 1

It then became a 11-year process.  Then 12 years.  Then 13, and finally 14 years.

And now it’s over, with nothing to show for the effort but an order of the California Supreme Court kicking the whole thing back for a re-do.  As in “back to square one.”

One the one hand, I like that this keeps my rhetorical method alive.  If anything, the state’s indecisiveness just reinforces the fact that attorneys can’t possibly hope for the RPCs, which change at a glacial pace, to speak specifically to new forms of communication.

But on the other hand, I feel bad for all of the leaders in the California ethics bar who worked so hard over the years on these changes.  Sheesh.  At this rate their grandkids are going to be leading the charge to get the California rules squared away. 2

Notes:

  1. Ironically, however, California HAS issued the most useful – and specifically detailed – ethics opinion relating to when attorney use of Facebook and Twitter crosses the line into regulated attorney advertising.
  2. And while I can’t speak for the substance of most of the proposed rule changes, I would love to see California get rid of the plainly-unconstitutional communications “standards” found in RPC 1-400.

Naughty Words Attorneys Can’t Use

Attorney ethics rules offer some great examples of the problems inherent in the mechanistic application of the law.  Sometimes, it’s a matter of a well-founded rules being applied to circumstances where technology has gutted the purpose of the rule . 1  But other times, it’s a case of the expansive regulator: the deacons at the bar stretching the breadth of the rule far beyond its logical (or constitutional) limits.

Back in 1990, the Supreme Court held, in Peel v. ARDC, that a bar can’t prohibit an attorney from truthfully advertising that they had been certified as a specialist by a bona fide organization.  The Court also expressed skepticism about the state’s position that the word “specialist” has a unique, narrow meaning apart from its generally understood meaning of “a person who has special knowledge and skill relating to a particular job.” 2  Nonetheless, many states (including Florida and New York) continue to prohibit attorneys from using terms like “specialist,” “specialize,” “expert,” and “expertise” except in conjunction with a bona fide certification.

What these states are missing is that it’s the certification that’s doing the work.  It’s false and misleading if attorneys hold themselves out as being “certified” specialists or experts when no legitimate certifying agency has conferred the honor. But the use of general terms like “specialist” or “expertise” on a standalone basis, with no claim of third party certification?  There is virtually no question that prohibiting such use is unconstitutional.

The wonderfully-named New Orleans attorney Kearney Soniat du Fossat Loughlin thought so too.  He had been disciplined by the Louisiana disciplinary board for stating on his website: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.”  Loughlin wasn’t content to take this slap on the wrist, so he appealed the discipline to the Louisiana Supreme Court, challenging the constitutionality of Louisiana’s prohibition on the use of the word “specializing.”

Loughlin won.  Unfortunately, he won because the court found that a) he hadn’t intended to break the rule and 2) the public wasn’t harmed.  It didn’t address his constitutional argument.

It’s great the Loughlin was willing to take on the bar.  I wish more attorneys would do so in cases like this.  There are real problems with false advertising that the bars can go after, but policing the use of  harmless, ordinary words isn’t one of them.

Notes:

  1. For example, prohibitions on fee-splitting being applied to purchases via Groupon, where there is no danger whatsoever of the fee split interfering with the lawyer’s independent professional judgment.
  2. Thanks, Mirriam-Webster!