All posts by Josh King

December 2016 Notes: Accepting the Realities of Social Media & Online Reviews

Is Social Media a Detriment to Your Career?  Proving that “trolling” can happen even in the staid world of the daily papers, Georgetown professor Cal Newport – who proudly proclaims that he has “never had a social media account” – has penned a piece in the New York Times arguing that professionals should quit social media because it can hurt their careers. That’s an awful lot like a teetotaler saying that drinking booze is dangerous: undeniably true, but also wholly lacking any perspective on the potentially positive aspects of the subject. For that, read the reaction to Newport’s piece from Kevin O’Keefe – who knows a thing or two about both the risks and the benefits of professional use of social media.

Law Firm Gets Bench-Slapped Over Review Suit.  As I am constantly telling attorneys, filing a lawsuit over a negative review is almost always the worst thing you can do. Even if you’re correct, and the reviewer has defamed you, it’s rarely worth it. Defendants can be hard to find, they’re likely to be judgment-proof even if you do find them, and the Streisand Effect dictates that the mere fact of your lawsuit will bring more attention to the negative review than it ever would have gotten on its own. So . . . suffice it to say that suing when you don’t have a legitimate claim, and doing so in a state like Texas, that provides robust anti-SLAPP protection for expression, is a uniquely moronic move. Just ask the Tuan A. Khuu law firm, which filed a suit like that, and now finds itself on the wrong side of a $27K judgment for the defendant’s legal fees – and a heap of bad publicity.

“Consumer Review Freedom Act” soon to be enacted. And speaking of negative reviews . . . one clever way that some businesses (and even attorneys) have tried to avoid such things is by adding a “gag order” into their terms of use or fee agreements. This provision purports to bar the client from writing anything negative online. Such terms sometimes carry liquidated damages, and sophisticated forms will prospectively transfer copyright in such reviews to the business owner, enabling the self-help recourse of a DMCA take-down notice. It should go without saying that such terms are, as Jackie Chiles would put it, “outrageous, egregious, preposterous.” And fortunately, Congress agrees. Both houses have now passed the Consumer Review Freedom Act. Once signed by the president, this law will prevent gag orders in consumer contracts nationwide, and lawyers can focus on providing great service rather than trying to censor their clients.

News and Notes:

South Carolina judge suspended for “improper facebooking.

Jody Arias lawyer disbarred for tell-all book

Pants-less in chambers? Judge sues for defamation over claim.

Worrying vs. Looking to Opportunity

The Georgetown Law Journal just published an article by Alberto Bernabe, a professor at John Marshall Law School in Chicago. Titled “Avvo Joins the Legal Market; Should Attorneys Be Concerned?,” the article goes through twenty-some pages to arrive at the answer that yes, attorneys should be concerned.

While I’m happy with Professor Bernabe’s choice of topic (and hey, he even cited to this blog), I don’t see this work adding much to the discussion.

Why? Because it’s easy to argue why attorneys could be concerned about any application of facts to the law. Hell, “being concerned” might as well be the job description of most attorneys; it’s what we’re built for.

The harder – but increasingly necessary – thing for attorneys to do is to try to think about how they can get past their concerns and look toward the opportunity to better serve the public. Bernabe closes his piece by arguing that “the rules must have meaning; their text must be observed.” I’m not sure what this means; outside of those black-and-white cases where something is clearly covered by the rules, we are always engaging in an effort to interpret the rules. And when it comes to the Rules of Professional Conduct, that interpretation must be guided by two related principles:

1) that the purpose of the RPCs is protecting clients, consumers, and the integrity of the judicial system; and

2) that Rules impacting the rights of consumers and attorneys to exchange information are constrained by the First Amendment.

From where I sit, this means that any “concern” we attorneys feel should be focused primarily on whether a practice helps or hurts consumers – not whether it might run afoul of some bloodless, mechanical interpretation of the law.

Oh, and I have some specific quibbles:

Fee-sharing: Bernabe underplays the fact that the fee-sharing prohibition in Rule 5.4 has been routinely interpreted to permit fee-sharing in situations where an attorney’s independent professional judgment is not at risk. In addition to not mentioning that this outcome is found in a majority of “deal of the day” ethics opinions, there is no recognition of the fact that regulators have no concern with the fee-sharing that happens when credit cards are used to pay for legal fees. This classic example of the Rules being interpreted to their purpose (an example very analogous to Avvo’s services) goes completely unmentioned by Bernabe – probably because it rather flies in the face of his “only the text matters” argument.

And let’s go a little further: anyone who argues that Avvo’s Services violate Rule 5.4 is trying to have it both ways – as a rule that prohibits both obvious fee-sharing AND anything else that feels like it is related to the fee a lawyer earns.

But all of a lawyer’s expenses are related to the fees he or she earns. Attorneys are business owners. They have to pay for things. Things like rent, and staff salaries, and advertising. And they are “sharing” the fees they earn whenever they pay for this stuff.

We could be concerned that Rule 5.4 creates problems when it comes to “sharing” our fees with City Light by paying our utility bill, but even lawyers have their limits. Rather, the rule can only be coherently read in one of two ways. It is either:

  • A rigid rule that prohibits the literal sharing of a client fee (this would be the “textualist” approach); or
  • A flexible rule that prohibits a wider range of fee-sharing, but only in circumstances where the arrangement risks compromising the lawyer’s independent professional judgment.

Bernabe thinks it can work both ways – applying technically (and without regard to the purpose of the rule) to anything that seems like it might have a linkage to the legal fee. Such a result finds support neither in the text nor the purpose of Rule 5.4.

Pay-Per-Action: Related to the above is Bernabe’s objection that the fact that Avvo’s marketing fee is predicated on a Service being actually delivered renders it an impermissible fee-share. At the risk of belaboring the point, this analysis can’t be done without looking at whether the arrangement threatens the lawyer’s professional independence. Which Avvo’s Services do not do.  For more, read my earlier post, “Pay-Per-Action, Legal Edition.”

Handling Client Money: It’s strange how persistent this issue is, unmoored as it is from any plausible consumer protection interest. These are people who are paying for legal services with credit cards. If they have any concerns about their money, they have protections via the card issuers that are far stronger than anything the bar regulators can impose.

What’s more, Bernabe significantly munges up how Avvo’s Legal Services work. In the vast majority of cases, Avvo is not charging a client’s credit card until after the legal fee has already been earned (most services are primarily in the form of brief paid consultations, and the client’s card is not charged until after a consultation occurs). And in cases where the fee may be earned over a longer period of time, attorneys can have the fees deposited directly into their trust accounts. 1

Bernabe also raises the question of how attorneys can meet their trust account obligations if Avvo holds the fees for some period of time before they are earned or deposited into the lawyer’s trust account. But this question is a red herring.

Yes, Avvo may hold unearned fees for a short period of time before they are earned. But so does any financial intermediary – a bank, a credit card processor, etc. The reason no one worries about the financial world’s “hold or transfer” periods – which may extend from several days to several weeks – is because these holds don’t put the client at risk of loss. Thus, it’s nothing more than a metaphysical exercise to worry about where the money resides during this interregnum.

The Commercial Speech Doctrine: 2 Bernebe takes me to task here:

Thus, Avvo is wrong about the types of speech to which the constitutional protection applies, as well as to which constitutional standard applies, and confuses the elements of the intermediate scrutiny standard with those of the strict scrutiny standard, which is one that clearly does not apply.

Dang! I’d say in my defense that I wasn’t writing a freaking law review article, and Bernabe has the advantage of much more ink (and time, and law clerks) with which to hone his argument.

Except I’m not the one who is wrong.

While I don’t really care that he creates a strawman about the types of speech protected by the commercial speech doctrine (I’ve never argued that false and misleading advertising is protected by the First Amendment), it’s a bit baffling that Bernabe so badly bungles the intermediate scrutiny standard. He smacks me for conflating the “intermediate” and “strict” scrutiny standards, arguing that “narrow tailoring” of regulation is not an element of the commercial speech doctrine.

Except that it is. Had he looked beyond the Zauderer case (a curious choice to cite to, given that it’s a relatively forgettable, middle-of-road case in the Supreme Court’s voluminous commercial speech jurisprudence) he might have found:

Central Hudson (only the seminal case establishing the commercial speech doctrine):

“For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

or SUNY v. Fox:

“What our decisions require is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends, a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but, as we have put it in the other contexts discussed above, a means narrowly tailored to achieve the desired objective.” [citations removed]

Oh, or even Zauderer, several pages later:

“the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means.”

This may seem a technical point, but if you’re going to argue for 20+ pages that attorneys should be concerned about Rules that must be interpreted via a constitutional doctrine, you ought to get that doctrine right.

And it’s actually more than technical. The “narrow tailoring” requirement is a key element of my view that attorneys don’t need to worry about these rules as applied to Avvo’s Services, as any interpretation that would find that our Services violate the RPCs would neither advance an important government interest nor be narrowly tailored to that end.

Summing Up . . .

Yes, we can worry about anything. Lawyers are very, very good at worrying about things. But if we are going to expand access to legal services, if we’re going to grow the market of people willing to hire lawyers, we’re going to need to adopt some more innovative ways of thinking. Instead of looking under the rugs for things to worry about, how about thinking creatively about how we can avoid worry? The public needs us to find better, more flexible ways to help them address their legal needs. Let’s not let our inherent reservoirs of worry keep us from delivering on that.

Notes:

  1. And in fact, Avvo encourages attorneys to set their accounts up so that ALL fees earned from Avvo Services are deposited into their trust accounts. Avoiding co-mingling requires both that the attorney not mix client funds with the attorney’s operating funds, but also that the attorney not mix earned fees with unearned client funds. We believe that the best practice is to deposit all fees into the trust account, and regularly review and sweep to the operating account those fees that have been earned.
  2. Trigger warning: this section is long on law-geekery.

Ethics Opinions: A Modest Proposal

A few months back, I ranted about the inanity of Bar ethics opinions – those things that purport to help conscientious attorneys ensure they are fully in compliance with the Rules of Professional Conduct. I’d like to add some nuance to that, and also propose a new approach for bars when it comes to ethics opinions.

Here’s the thing: the extra-careful, bend-over-backward approach of ethics opinions is actually a good thing when it comes to a lot of the ethics rules. As I tell attorneys, if you feel like you’re splitting hairs or facing a close call when it comes to client confidences or protecting your client’s assets, you’re already lost. You should ALWAYS err on the side of caution in those matters. And ethics opinions do a great job of helping attorneys err on the side of caution.

The problem comes when ethics opinions apply this same belt-and-suspenders approach to attorney marketing.

Here’s why: the rules dealing with attorney-as-fiduciary (whether money or confidences) only ratchet one way. There’s no detriment to clients if attorneys are overly-protective; what client WOULDN’T want their attorney to be super-cautious when it came to their money or secrets?  But that’s not the case for attorney marketing. Applying the same level of caution to marketing is actually BAD for consumers, as it deprives them of important information about legal services.

How’s that? Because a major way consumers find information about legal services is via communications from lawyers. And a lot of those are marketing communications. If the conscientious lawyers – the kind who ask for, read, and pay attention to ethics opinions – are pulling back their communications because a Bar ethics opinion took an uber-conservative interpretation of the attorney advertising rules, then consumers have access to less information and fewer innovative service offerings. That’s a bad thing for consumers and lawyers alike.

And it’s not just good policy that a fundamentally different level of caution should pertain to interpreting the RPCs as applied to marketing rules than to the other professional obligations of attorneys. You see, the First Amendment dictates that a wholly separate level of scrutiny apply to regulation in this area. While the state has wide latitude to regulate most matters related to attorney regulation, it has a much higher burden to meet when it comes to interpreting  rules that impact legal marketing (for more on this, see my in-depth discussion of the commercial speech doctrine).

Yet Bar ethics opinions almost never acknowledge this, and persist in taking the same cautious approach regardless of the rule in question. This is no good: it shows a lack of respect for important First Amendment principles, and it is actively harmful to both the profession and the public it serves.

So here’s my modest proposal: Bars should simply stop issuing ethics opinions on questions impacting legal marketing.  To preempt such requests, they could feature a statement like this on their “ethics opinions” pages:

The First Amendment protects the commercial speech of attorneys.  This is not just for the benefit of attorneys. As the US Supreme Court noted in Bates v. Arizona:

“[T}he consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day.  And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system.  In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking.” 433 U.S. 350, 364 (1977) (internal citations removed.)

There is an inevitable tension between the cautionary approach of ethics opinions and the public interest in access to a robust amount of information about legal services. Accordingly, the Bar does not offer advisory ethics opinions on the Rules of Professional Conduct relating to attorney advertising.

This should not be interpreted as a lack of concern for compliance with the Rules in this area. The Bar actively pursues disciplinary action against those attorneys who engage in false, misleading, or otherwise deceptive marketing practices.

Hyperbole and Confirmation Bias

So the other day I saw this tweet from Melinda Gates:

melinda-gates-tweet

This struck me as an extraordinary claim. Not because I don’t believe that gender-blind applications might make a difference in tech job callback rates, but because of the claim that it makes a one thousand percent difference.

Some context: the first entities to experiment in a large way with gender-blind application screening were symphony orchestras (applicants would literally sit for their auditions behind a screen). This was at a time – the 1970’s and 1980’s – when the musical directors running symphonies were openly dismissive of female musicians.

The results? Blind screening increased the probability a woman would move past the initial interview by about 50%.

A  fifty percent increase in interview success is a massive change. It unambiguously shows the value of the change in screening procedure. And by extension, it reveals the biases that were previously holding talented female musicians back. It’s why such screenings are now the industry norm.

So what would a study that produced a result twenty times higher tell us? Keeping in mind that the symphony study covered a time period where there was far less equality? When symphony directors would proudly and openly express sentiments about the inferiority of women? And the 20x-higher study was presumably done in 2016, where companies compete in an ever-more-desperate race for tech talent?

I’ll tell you what it would tell us: that the tech industry, for all its veneer of respectability and progressiveness, is in fact led by a pack of misogynistic sociopaths, driven by the single-minded goal of preventing women from being hired.

That would be an extraordinary claim – and extraordinary claims require extraordinary evidence. However, all that seems to be available here is the barest of summaries:

  • The study was done by a recruiting agency known as Speak with a Geek (“SWAG;” cute).
  •  SWAG says it presented a group of employers with 5,000 candidates, first with full identifying details and later in a gender-blinded fashion.
  • SWAG says that in the first instance, only 5% of those selected for interviews were women. Once gender-blinded, that number went up to 54%.

So that’s actually close to an eleven hundred percent increase. Boo, evil male tech leaders!

I strongly suspect, however, that one of three things is actually going on here:

  • The SWAG study was very poorly designed and/or implemented.
  • The summary of the SWAG study misinterprets the data. 1
  • The study is fabricated – either entirely, or by stitching together a few semi-coherent data points and anecdotes into an amalgamation that doesn’t make any sense.

I don’t know which; SWAG never responded to my request for more info on the study.

But why do I care about this?

First, as a male who has worked in tech for 20+ years – including a stint running HR and recruiting – I find the implication appalling that my cohorts and I comprise some sort of cabal working fiendishly to keep women out of our playground.

Second, seeing statistics batted around in a non-critical way really gets under my skin. We’ve all got our cognitive biases, and many of us have a tendency to embrace “data” that supports our positions without doing adequate diligence on whether that data is, in fact, remotely accurate. It’s a bummer to see Melinda Gates, who should know better, fall into this same trap.

Finally, there’s this: those of us working in tech know that the industry has gender issues. The number of women pursuing CS degrees has plummeted over the last generation (although there are signs this is turning around). The culture in some tech companies can feel less-than-welcoming for a lot of women. And there are surely biases against women, implicit or overt, that male hiring managers bring to the table.

But promoting hyperbolic garbage is wholly counterproductive. Tech is a data-driven business, with a lot of smart people working in it. It betrays a certain unseriousness to promote wild-ass claims with no substance to back them up. It keeps people from engaging. And it makes them not trust anything you say – even when it’s true. After all, if proponents of a particular point of view are cool with just making shit up, why should someone take them seriously?

So let’s be critical and always ask to see the data before accepting the conclusion – particularly when the claim is extreme.

Notes:

  1. For example it would be far more plausible that gender-blinding improved the interview rate of an small cohort of female tech candidates by 54%. That could still be a very significant finding.

On Moderating Online Content

One of the wonders of the web is the sheer amount of information, on virtually any imaginable topic, available at one’s fingertips.

And one of the horrors of the web is the same thing. Anyone with a keyboard can spew whatever awfulness they feel compelled to share.

Companies that provide forums for user-generated online content have to strike a balance between these two sides of the internet, a task the difficulty of which is vastly underestimated.

Take Avvo, for example. Our site is narrowly focused on American lawyers and legal issues. We can moderate out all sorts of things simply on the basis of relevancy. Political screeds in the form of a question in our Q&A forum? Out. Marketing drivel as a legal guide? It’s gone. Off topic rants about someone else’s attorney in our review system? Those won’t even see the light of day.

And yet, even with Avvo’s narrow focus and relatively modest size, the effort necessary to moderate content on our site is a massive job. It involves a number of people working on this task full-time, and regular escalation of issues to all levels and departments of the company. And we’re still not ever going to make everyone happy.

So imagine what the content moderation job is like for Facebook, operating globally, with billions of users, in an environment where ALL topics are relevant to someone.  This Guardian article detailing some of Facebook’s struggles to strike the right balance mocks the company for using this form language when reversing content moderation decisions:

“The post was removed in error and restored as soon as we were able to investigate. Our team processes millions of reports each week, and we sometimes get things wrong. We’re very sorry about this mistake.”

Well, of course Facebook uses the same word-for-word apology. They are likely making hundreds – if not thousands – of the same “errors” every week. Content moderation is hard, and given Facebook’s scale it’s surely not difficult to find the sorts of ridiculous examples highlighted in the Guardian piece.

The potential for such errors can be self-inflicted as well. As this earlier piece from the Wall Street Journal notes, Facebook has had to deal with internal pressure to remove some of Donald Trump’s messages as “hate speech.” A global company like Facebook must navigate the norms its own employees bring to the table, particularly those in countries that don’t share America’s appetite for free speech. Although Facebook has resolved to consider the newsworthiness of items facing removal complaints, both Facebook and Twitter have faced complaints about putting a thumb on the scale in favor of progressive messaging and causes.

That’s always going to be a risk where humans are involved. We’re going to bring our biases and preconceptions to the table when trying to decide what is and is not worthy of being published. All the forum sites can do is try to be as balanced and fair as possible. But before getting all apoplectic about every example of content moderation gone bad, consider first the sheer scale and difficulty of the problem.

October 2016 Notes: Is There a Ray of Light in the Attorney Regulation Darkness?

Florida Institutionalizes “Access to Justice” Efforts.  In recent years, many states have implemented commissions to try and find solutions to the “access to justice” crisis. In Florida, after several years of work, the state Supreme Court has decided to make that state’s Commission permanent. That’s a good thing; the growth in pro se representation makes it incumbent upon courts to find ways to make it easier for people to grapple with the wheels of justice. This is not a problem so easily solved in a handful of years. But let’s also hope that the Commission – with the guidance of the Florida Supreme Court – will turn its attention to the archaic regulations that make it difficult for attorneys to offer innovative services to a public desperate for legal information and guidance. Because the Florida Bar seems to be trying to make things even worse.

Virginia Looks to Streamline Attorney Advertising Rules. On a more encouraging note, Virginia is leading the charge to update the attorney advertising rules. This effort stems from the Association of Professional Responsibility Lawyers, which analyzed the rules and concluded that many of them are unnecessary, unconstitutional, and unduly burdensome. The issues with the existing rules go beyond the mere pedantic. The rules keep good attorneys from speaking out about the legal services they provide, while distracting enforcement authorities with banalities like lawyer referral service regulation or determining the “reasonable cost of advertising.” APRL’s proposal – which Virginia is looking to adopt – would eliminate much of this “cruft” within the rules, while retaining and sharpening the focus on preventing false and misleading advertising. This would be a great outcome for consumers and attorneys alike, and the Virginia State Bar deserves a lot of credit for pushing forward with such meaningful change.

Court Finds Review Sites Immune From Suit. 47 USC § 230(c)(1) is a curious law. Only 26 words long, “CDA 230” stands for a counter-intuitive (to lawyers, at least) principle: that responsibility for online content rests only with its creator. It doesn’t matter whether someone else has provided a forum for the content, promoted it, or disseminated it. Only the “content creator” can be liable. I call CDA 230 “the law that makes the internet go,” because it allows sites like Facebook, Twitter, and YouTube (and Avvo!) to create robust online communities without being liable for all of the stuff that gets published within those communities. There are exceptions to this rule – think IP and federal crimes – but for the most part CDA 230 is a powerful factor in the growth of the web. All this background to get here: the 9th Circuit just found that CDA 230 immunizes Yelp from defamation liability for user reviews. While the outcome was abjectly unsurprising, it’s nice to see the rule applied directly to online reviews.

Social Media News and Notes:

RT ≠ endorsement: court authorizes service of process via twitter.

Amazon bans incentivized user reviews.

More evidence that “reputation management” companies may be defrauding courts.

 

Intermediate Scrutiny for Professional Speech Regulation?

To what extent should the government be able to regulate what doctors and lawyers say? Sure, the focus of this blog is commercial speech, and that question is relatively settled (at least as far as the speech in question is straightforward advertising). But what about other forms of expression? How far can the state go in controlling what professionals say in that capacity, or when they are working with clients or patients?

It’s a messy issue, and one that is surprisingly bereft of easy answers or judicial guidance.

How messy? Well, Florida thinks it needs to protect the second amendment rights of its citizens by restricting how doctors can talk to patients about guns.  And California thinks it needs to use pregnancy-related clinics (including religious ones) to help advance the marketing of its state-funded family planning and pregnancy services, including abortion.

Where does the line get drawn? As I’ve argued before, I believe there are significant First Amendment problems with including “legal advice” within the legal monopoly. I also believe that getting a license to practice law should not deprive an attorney of full free speech rights – at least when those rights are exercised outside of a client’s matter.

But what about speech that’s engaged in within the attorney-client or doctor-patient relationship? While it seems clear that the government shouldn’t have free rein over what is clearly expressive activity, it also seems that the state’s interest in licensing – which is, broadly speaking, to protect the public – would dictate that it gets some leeway here.

But what should the standard be? It’s surprising that this issue hasn’t been more fully-fleshed out by the courts. Outside of speech at the core of professional licensure, 1 it’s a marshy swampland.

While we’re probably not going to get any answers until the Supreme Court directly addresses professional speech regulation, the Ninth Circuit did helpfully wade into the swamp in ruling on the California “abortion marketing” law described above. In its October 14, 2016 decision in NIFLA v. Harris, the Ninth Circuit found that regulation of “middle ground” professional speech – that is, speech that is less than a “public dialogue” yet more than the speech-as-conduct at the core of a professional’s practice – is subject to intermediate scrutiny review (the same as commercial speech).

That sounds right to me, 2 and it provides a good way of thinking about the extent of acceptable lawyer speech regulation in areas that don’t involve advertising or advocacy.

But again, this is an area that could really use an assist from the Supreme Court.

 

Notes:

  1. For example, psychological counseling or advocating for a client before a court, either of which would likely be considered by a court to be conduct rather than speech for the purposes of regulation. See, e.g., Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013).
  2. Although the Ninth Circuit really rushed through – in an unconvincing way – the intermediate scrutiny analysis to find that California could compel pregnancy clinics to market the state’s services.

The First Amendment in the Courtroom

In there a tension between the First Amendment and a judge’s right to control the courtroom? Nah. The right of a judge to control the courtroom pretty much slices through any such tension. Courtrooms – despite being government spaces – are the quintessential non-public fora. It’s not without reason that it’s been said that first amendment rights are “at their nadir” in the courtroom.

And control they do. Judges can be notoriously tetchy about stuff.  In just this last week, I’ve seen stories about judges getting butthurt over derogatory references to AOL email addresses, a big law firm sending a first-year associate to a hearing on an important case, and a lawyer refusing to remove a “Black Lives Matter” pin.

Of course these positions are stupid: taking offense over a perhaps-derogatory reference to an email address is mind-numbingly petty; many junior lawyers are better prepared than their senior partners for questions from the bench; and getting bent out of shape over a pin says more about a judge’s political beliefs than anything else.

But there’s a reason everyone laughs at a judge’s jokes. As an advocate, you’re in court represent a client. And as Megan Zavieh notes, your sole job in the courtroom is to advance the interests of your client. So laugh you do, and be sure to be prepared for a hearing, and don’t make jokes at the tech-enfeebled judge’s expense.

And you sure as hell don’t argue with the judge when he orders you to remove your politically-sloganeering button.  It beggars belief that a lawyer wouldn’t understand this; that she would let herself be shackled and taken from the courtroom – leaving her client unrepresented – in service of “standing up for her beliefs.”

While there are arguments about whether this judge’s order was appropriate, that’s beside the point when it comes to the attorney’s decision. Her beliefs? They could live to be vindicated another day. If she thinks the judge is a retrograde dinosaur, should could have fully exercised her First Amendment right to say so – at a time when the price for doing so would have been paid by her alone.

Minnesota’s No Good, Very Bad UPL Decision

Brian Faughnan has the details, but here’s the quick overview: A Colorado attorney agrees to help out his in-laws, who are dealing with a debt collector in their home state of Minnesota. Like a good son-in-law, he does it for free. He engages in a series of emails with the attorney for the creditor, who eventually (because shaking people down for small-time debts isn’t enough to satisfy his “I’ve gotta be an asshole” jones) files a bar grievance against the Colorado lawyer. Colorado lawyer ends up being disciplined by the Minnesota Bar authorities for the unlicensed practice of law, a decision which is subsequently upheld by the Minnesota Supreme Court.

(Read the decision: In Re Charges of Unprofessional Conduct.)

Where to begin? Brian and other ethics mavens have already focused on the troubling retrograde nature of this decision, applying antiquated notions of the practice of law to modern communications norms. But I want to focus on three other fundamental problems with this decision:

Defining “The Practice of Law:”  As I’ve noted before, lawyer regulation has some fundamental First Amendment problems.  This is particularly true with respect to “legal advice.” The prohibition on non-lawyers providing legal advice is a content-based speech restriction, and those almost never survive a constitutional challenge.

In this case, Minnesota had the multi-jurisdictional practice statute to rely on; that rule explicitly limits out-of-state lawyers, and thus provides a thin facade to conceal an otherwise-suspect rationale. But what if the son-in-law hadn’t been a lawyer?  More on that in a moment.

“Holding Out:”  Much is made, too, of the argument that the Colorado attorney was “holding out” as the lawyer on a Minnesota legal matter. But this doesn’t survive scrutiny. The “holding out” indictment is based solely on the fact that the Colorado lawyer stated that he “represented” his in-laws. Yet restrictions on “holding out” as a lawyer are intended to apply to a specific set of practices that are harmful to consumers (i.e., pretending to be licensed as an attorney when you are not, in an effort to solicit business) – not to whatever this was. 1

And again, what if the Colorado lawyer hadn’t been an attorney? Would the disciplinary authorities have been able to argue that his statement of representation evidenced “holding old?” As with the definition of the “practice of law,” the only thread holding this together is the fact that the son-in-law was a lawyer.  Had he NOT been a lawyer, the state would have been left with a difficult argument: that people can’t help each other out with informal legal advice and advocacy unless they are in-state-licensed attorneys.

Which, come to think of it, is actually what most attorneys believe anyway. But I’m pretty confident that proposition would lose if challenged on First Amendment grounds.

Antitrust:  The discipline in this case was imposed by a 6-member panel of the Minnesota Lawyers Professional Responsibility Board. The Board is  comprised primarily of Minnesota lawyers. The discipline was then affirmed by the Minnesota Supreme Court, using a “clearly erroneous” standard.

This is a problem for the Board. Imposing discipline on non-market participants to maintain a government-sanctioned monopoly is the definition of anti-competitive behavior. And while quasi-government boards made up of market participants used to receive antitrust immunity, they don’t anymore (thanks to the North Carolina Dental Board case) unless they are “actively supervised” by the state. Judicial review – especially judicial review based on a highly deferential standard like that used here – is not within shouting distance of “active supervision.” While this issue wasn’t brought up in this case, it’s something Minnesota should think about if it plans to keep having other attorneys handle disciplinary decisions – and particularly when those decisions involve excluding competition from the market for legal services.

Notes:

  1. Let’s call it pedantry: “The out-of-state lawyer stated that he represented an in-state party. In-state parties can only be represented by in-state attorneys. Ergo, he is “holding out” as an in-state attorney.”

Florida’s Misguided Attempt to Modify its Lawyer Referral Service Rules

Last Friday, Avvo submitted comments to the Florida Supreme Court in response to the Florida Bar’s proposed changes to the state’s Lawyer Referral Service Rules. You can read our submission here, but here’s the backstory and highlights:

  • This isn’t the first attempt to change the LRS Rules. After the last go-round, the Florida Supreme Court instructed the Bar to go back to the drawing board and create rules that prohibited LRS entities owned by non-lawyers. The court was apparently concerned with the proliferation of such services in Florida, and in particular those that operated with cross-referrals to chiropractors and other medical professionals. 1
  • The Florida Bar apparently concluded that it couldn’t legally limit LRS to those owned only by lawyers. That’s probably right – it’s hard to see how such a limitation would survive first amendment (and antitrust) scrutiny.
  • Instead of going back to the court, the Bar decided to amend the rules. The amendments are not, remotely, what the court asked for. They are also notable for lacking any focus on either consumer harm or benefit. Rather than considering how the rules could enable Floridians to get better access to both legal services and information about legal services, the Bar simply futzed around with its rules.
  • In its futzing, the Bar managed to arrive at a particularly perverse result. The existing LRS rule – designed to protect against a particular type of marketing that is inherently deceptive – has been largely watered down. And, to make matters far worse, it’s now going to apply to virtually every company that lawyers use for marketing.

That means Florida lawyers will need to start gathering diligence materials for marketing providers. Those providers will have to submit annual lists of their Florida participants to the state bar. The ads that such providers run will need to comply with Florida’s picayune advertising rules (and, perhaps, even require pre-approval by Florida’s advertising review committee). This drives several results, none of them good:

  • The Bar is signing itself up for a massive new compliance program. Monitoring “qualifying providers” for compliance and processing all of those annual lists is going to cost the Bar a ton of money and time. Or, more likely, the Bar will simply enforce the rules in a highly haphazard and inconsistent fashion – making it unclear to lawyers and providers alike whether their marketing activities are in compliance with the Bar’s interpretation of its rules.
  • Diligent members of the Florida Bar will be even more reticent to provide consumers with information about legal services, concerned that their marketing providers – many of whom will be national or global companies serving many industries – are not technically in compliance with Florida’s rules.
  • In a similar fashion, the new rules – which attempt, via the comments, to make things like fee-splitting and pay-for-performance marketing per se against the rules (despite, naturally, any evidence that such practices are inherently bad for consumers) – will make it harder for Florida attorneys to get comfortable with innovative attempts to expand access to justice (like Avvo Legal Services).

And of course, the added irony: Florida – like all states – is suffering from an acute crisis where consumers can’t get help with their legal problems. As the Florida Bar itself notes, over 70% of civil court defendants are representing themselves. Help with even routine legal problems is out of reach of the vast majority of consumers. The system is hobbled from both ends. First, by a hidebound profession that can’t see beyond full-scope, gold-plated representation 2 And second, by a regulator so focused on the minutiae of its rules that it can’t see how its meddling is hampering the availability of information and the market for innovative legal services.

It’s not like this issue has been lost on the Florida Supreme Court. Less than two years ago, Chief Justice Jorge Labarga kicked off the Florida Commission on Access to Civil Justice.  Here’s hoping the Court is able to see, where the Bar seemingly cannot, how badly these Rules are dis-serving the needs of Floridians.

 

Notes:

  1. Note that Avvo is *not* a lawyer referral service. Such services are entities that operate in an environment lacking in consumer choice: users are typically sent to whichever attorney has paid the most, bought geographic exclusivity, or is next in the rotation. That’s why many states choose to have more extensive regulation of lawyer referral services than they do of other forms of legal marketing.
  2. And, for many, a burning desire to protect its monopoly at all cost.