Category Archives: Advertising

Compelled Speech & Viewpoint Discrimination

So “compelled speech.” The government telling you what you’ve got to say. It’s surprisingly common, and also often uncontroversial. Think nutrition labeling and warning signs.

Other times, not so much.

So what’s the test? Under what circumstances can the government tell us what we’ve got to say?

I’ll tell you what the test SHOULD be: it should be the same “intermediate scrutiny” test that applies to commercial speech restrictions. Meaning that if the state wants to make a business say something, that requirement must be both necessary and narrowly-tailored. Oh, and there’s gotta be some evidence of necessity.

But this area of commercial speech law is a mess.

It all starts with Zauderer v. Office of Disciplinary Counsel, a 1985 Supreme Court case dealing with attorney advertising. One of the key issues in the case – and the one it is best known for – was the legality of a disclaimer requirement for “no recovery, no legal fees” advertising.

The Zauderer court found that the disclaimer rule must only be “reasonably related” to the state’s interest in preventing consumer deception. That’s a much lower bar to clear than the intermediate scrutiny standard. Pretty much any argument the state can make without breaking into uncontrollable laughter will do.

Unfortunately, some nuance has gotten lost since Zauderer was decided. What it seems the court meant – though it was only specifically called out by Justice Brennan in his concurrence – is that the “reasonably related” test is only appropriate when the compelled speech is necessary to avoid consumer deception. Sadly, what this has been taken to mean by many lower courts is that ANY compelled speech need only be justified under the “reasonably related” test.

So this brings me to the Supreme Court’s decision Monday in Matel v. Tam, a case involving the trademark application for the band “The Slants.” It was an important decision, and a unanimous one, 1 finding that the government’s denying of “disparaging” trademarks was constitutionally impermissible content regulation. But in a four judge concurrence, Justice Kennedy went even further, delving into the importance of holding the government to a high standard when it dictates a viewpoint, even in the commercial speech context:

“Commercial speech is no exception,” the Court has
explained, to the principle that the First Amendment
“requires heightened scrutiny whenever the government
creates a regulation of speech because of disagreement
with the message it conveys.” Sorrell v. IMS Health Inc.,
564 U. S. 552, 566 (2011) (internal quotation marks omitted).
Unlike content based discrimination, discrimination
based on viewpoint, including a regulation that targets
speech for its offensiveness, remains of serious concern in
the commercial context. See Bolger v. Youngs Drug Products
Corp., 463 U. S. 60, 65, 71–72 (1983).

If the government picking and choosing which trademarks are appropriate is “viewpoint discrimination,” why is the same not true for compelled speech? Or, at least, speech that is compelled outside of those situations where disclosure is necessary to cure otherwise-deceptive marketing messages?

This isn’t an idle question. There are dozens of instances of speech compulsion contained within state lawyer advertising rules, and many – if not most- of them aren’t designed to cure otherwise-deceptive messages. In fact, many require that attorneys publish the state’s view on the efficacy or usefulness of lawyer advertising. 2

Speech that’s compelled outside of health, safety, or a need to cure deceptive marketing is an even starker example of viewpoint discrimination than the picking and choosing of acceptable trademarks. I’d love to see the Supreme Court close this “Zauderer exception” to the commercial speech doctrine sooner rather than later.

Notes:

  1. 8-0; Justice Gorsuch wasn’t on the bench when the case was heard.
  2. For example, New Jersey requires that any comparative advertising by lawyers state that “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.”

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.

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.

 

“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

New Jersey – Still Wrong on Lawyer “Accolade” Advertising

The New Jersey Supreme Court Committee on Attorney Advertising recently released a “Notice to the Bar” regarding attorney “accolade” advertising: the touting by attorneys of various awards they might have received (including, presumably, their Avvo Ratings).

The Notice goes on at some length regarding the appropriateness of publicizing such awards, and the disclaimer requirements the Committee imposes on any such advertising. What do these disclaimers look like? The Notice contains a helpful example:

For example, a reference to the Super Lawyers accolade should provide:

“Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection process detail.html. No
aspect of this advertisement has been approved by the Supreme Court of New Jersey.”

So if you’ve been named a “Super Lawyer,” and you want to let people know, the New Jersey bar regulators want you to include a lengthy disclaimer, including a little pursed-lips head-shake noting that Supreme Court does not approve, not one bit.

This is, to put it mildly, ludicrous. It’s also unconstitutional: there are limits to the state’s ability to compel speech in the form of mandatory disclaimers.  And although the way these limits apply is a little more complicated than a straightforward commercial speech analysis, as a general rule compelled disclosures must be necessary to:

  • Cure otherwise-misleading advertising, or
  • Protect consumers from unwitting harm, or
  • Advance some other significant government interest.

Such mandatory disclosure requirements must be, like all commercial speech regulations, narrowly tailored.

Does the New Jersey Supreme Court’s requirement meet any of these requirements? Of course not. There’s nothing misleading about an attorney stating truthfully that a third party has bestowed an award. To the extent anyone wishes to dig into the methodology behind that award, such data is typically available online in a few mouse clicks.  And there’s no significant government interest here; rather, it’s just the Committee’s distaste for accolades, and its attempt to make it too cumbersome to advertise such things.

And here’s the kicker: the Committee really should know better, because a federal court smacked it back on a very similar issue less than two years ago. In finding that the Committee’s disclosure requirements around advertising laudatory quotes from judicial opinions was unconstitutional, the Third Circuit noted:

Guideline 3 as applied to Dwyer’s accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring Dwyer to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception. To the extent the excerpts of these opinions could possibly mislead the public, that potential deception is not clarified by Guideline 3. In any event, what is required by the
Guideline overly burdens Dwyer’s right to advertise.” 1

And the rule here re disclaimers on accolade advertising? I’d say it ticks all three boxes: not reasonably related to preventing consumer deception, not directly advancing an important government interest, and overly burdening the right of lawyers to advertise.

It would be nice if the New Jersey Committee on Attorney Advertising learned from its past overreaching. And it would great if it could show some respect for the ability of the public to weigh and discern the meaning of legal accolades. But that kind of balanced thinking doesn’t seem to be in the cards.

h/t ABA Journal

“Tastefulness” Regulation by Proxy

Sometimes I feel like I pick on Florida, but the Sunshine State just continues to offer up an unending stream of lawyer advertising regulation problems. This week’s entrant? The Jacksonville firm of Johns & Von Roenn‘s ill-timed ad directed at the families of sailors lost on the El Faro, the freighter that went missing off Florida in Hurricane Joaquin (“ill-timed” because the ad apparently ran the same day the Coast Guard announced it was calling off the search for survivors).

The Bar wasted no time opening an investigation into whether the lawyers complied with Florida’s review-and-approval process for lawyer ads. And two former Bar presidents denounced the ad, stating:

Regardless of whether this ad violates the Advertising Rules of The Florida Bar, it is offensive to the public and to the overwhelming majority of lawyers. It is an embarrassment to our profession that a lawyer would attempt to profit from a tragedy such as this.

Look, it’s not hard to see the potential for offensiveness here. But the Bar can’t regulate attorney advertising for tastefulness – that battle was decisively lost nearly 40 years ago, in Bates v. Arizona. Yet they continue to fight it, with statements like this and tastefulness regulation-by-proxy through the advertising review commission.

I understand the impulse to want to protect the profession from the money-grubbing, mercenary image that our advertising too often projects. But it’s not just the fact that the law is crystal-clear here. There’s also the fact that, in our rush to burnish our professional image, we’re neglecting the real interests of potential clients.

Let’s dispense with the pearl-clutching and get to the truth:  most lawyers, like most doctors and dentists, profit off of human misery. We do so because we offer skills and services that, hopefully, help people navigate through all manner of darkness to a better outcome than they would have reached without our help.

So are we, out of narcissistic self-interest, going to regulate away the right of those people, those potential clients, to get information about their legal rights? Attorney Chris Johns, who ran the offending ad, puts it well:

I can guarantee you that TOTE [the company that owned El Faro] and their executives and their team of attorneys met prior to giving their one-sided, unilateral news conferences.  I certainly believe the family members of the crew should have the same benefit of legal counsel and the same benefit of experience as TOTE has.

Well, yeah. They should. And while mass advertising may not be the highest-and-best way to choose counsel, it remains the primary way that the public begins the process of getting informed about their legal rights.

It’s fine for attorneys to take Johns & Von Roenns to task; shame and opprobrium from fellow members of the bar is probably the most effective (and the only legally-sound) way to regulate tastefulness in advertising. The Bar sure as hell shouldn’t be doing it, either directly or through the technicality of the advertising review board (which is itself an institution long-overdue to be consigned to the dustbin of history).

But even then, if you’re a lawyer who finds this kind of advertising offensive, ask the question: is our professional image more important than the interests of the public that needs our services?

Federal Judge Frees Up Two More Words for Lawyer Marketing

FINALLY – a federal court has ruled on a particular bugaboo of mine: the completely-asinine restriction that many states have on lawyers using the verboten terms “expertise” and “specialty.”

In finding that’s Florida’s rule violates the First Amendment, Federal District Court Robert Hinkle noted:

It should be noted, too, that the Bar’s approach is unlikely to solve the problem it posits. The Bar readily allows a lawyer to assert that the lawyer handles only cases of a specific kind. So a lawyer can say personal-injury cases are all the lawyer handles, or that personal-injury cases are the lawyer’s business. The Bar apparently believes that a potential client will attribute a different meaning to these assertions than to the assertion that a lawyer specializes or has expertise in personal-injury cases. But the Bar has offered no empirical or even anecdotal support for the supposition. When First Amendment rights are at stake, such an unsupported (and indeed unintuitive) supposition will not do.

Bravo. And big kudos to the attorneys at Searcy Denney Scarola Barnhart & Shipley for taking this one on. While it’s understandable that not every attorney wants to be the test case for the constitutionality of their state’s ad rules, it’s great to see a law firm stand up for the rights of lawyers and the public alike.

Climate Change Denial and Commercial Speech

So there’s this: U.S. Senator Sheldon Whitehouse, along with a bunch of concerned climate scientists, wants to pursue RICO charges against “corporations and other organizations that have knowingly deceived the American people about the risks of climate change.”

As Walter Olson explains, policy debates move forward through a process of forceful advocacy, and having the government put its thumb on the scales via threat of criminal sanctions for advocacy is a horribly misguided idea:

If it is potentially criminal to take an unreasonable point of view, or not have all of your facts straight, or commission a badly lopsided poll or badly lopsided piece of scientific research, then there are going to be a lot of targets for the law.

Besides being a really bad idea, it would seem that such a move would clearly violate free speech rights. As we’ve seen in the Alvarez and Dreihaus cases, the First Amendment provides wide latitude to lie. 1

But we also know that the First Amendment doesn’t protect lies in commercial speech. The RICO-agitating climate scientists aren’t targeting individuals, but rather corporate and organizational interests. Could the commercial speech doctrine provide a path forward?

Ordinarily, I would say “not a chance.” The test for commercial speech in a setting that is not obviously advertising isn’t met here – advocacy and lobbying are not advertising formats, and “climate change denialism” is a far cry from referencing a specific product.

So it would be ridiculous to claim that advocacy and lobbying should be subsumed within commercial speech, right?

Right?

Maybe these folks should look at filing something in California . . .

Notes:

  1. Or, more accurately, it protects the right to not face the risk, uncertainty, and cost of legal proceedings to establish that you’re not lying.

Florida Cuts Out Lawyer Referral Services

The Florida Bar has once again been stymied in an effort to (slightly) liberalize its advertising rules.

By the reports made by the Pace Law Firm, four years ago, it was the Florida Supreme Court redlining the Bar’s lawyer website rules, resulting in what I like to call the “Florida Law Firm Website Developer Full Employment Act” – an enactment which is still being litigated.  And now the court has rejected the Bar’s approach to lawyer referral services, holding that lawyers in the Sunshine State simply flat-out can’t work with lawyer referral services that aren’t owned by lawyers.

The putative target of the court’s ire is outfits like “Ask Gary,” a lawyer-and-doctor referral service that has been no stranger to controversy and allegations of fraud. And as the court points out, there may be some problems with these services, which channel callers to participating medical and legal providers:

[S]ome referral services have used advertising to disguise direct
solicitations; some patients, in filling out purported medical care paperwork, have unknowingly signed undisclosed and unexplained law firm retainers; and some patients, unhappy with their medical treatment at a referral clinic, have gone to their referral-designated lawyer for help, only to be told—even in situations where the lawyer was already seeking [personal injury protection] benefits for them from an insurance company—that the lawyer could not help them because the lawyer represents the clinic.

OK, so that’s not good.

The Florida Bar Special Committee on Lawyer Referral Services proposed a number of regulatory changes, including limitations on accepting and making cross-referrals with doctors for the same accident. The Bar didn’t accept these proposals, instead proposing a lighter set of regulations.

The Supreme Court was not impressed. It responded by backhanding the Bar, saying that Florida lawyers simply can’t work with lawyer referral services that aren’t owned by Florida lawyers. Period.

That’s pretty big smackdown.

Now, it certainly wouldn’t be outlandish to ask whether the Florida Supreme Court got so churlish that it exceeded its power to limit lawyer speech. Likewise, it might be fair to inquire about what’s so special about lawyer-owned referral services (other than the Bar’s regulatory leverage over their owners) that keeps them from having the same problems the court identifies with the “Ask Gary”s of the world.

But whatever – I have a more parochial concern: the fact that some hand-wringing lawyers will invariably perceive this decision as suddenly preventing Florida attorneys from working with Avvo.

So if you’re wondering the same thing, here’s the simple answer: It doesn’t.

Why? Because Avvo isn’t a lawyer referral service.

I’ve written about this before, but I will summarize it again here: a “lawyer referral service” vets a potential client’s concern and refers that person to a specific attorney. The problem is in the “vetting:” many such services market themselves as “matching” clients with the right lawyer. Many potential clients no doubt think that means that their unique needs are being lined up with the best possible participating attorney . . . rather than being sent to whichever lawyer has “bought” that lead.

It’s easy for that kind of marketing approach to cross into consumer deception, and that’s why some level of regulation may be appropriate.

Now, someone might go read Florida Rule of Professional Conduct 4-7.22(c), which defines “lawyer referral services,” and say, “that’s a pretty broad definition – why shouldn’t that include Avvo?” 1

You’d have to squint pretty hard to get that to apply to any of the products and services Avvo provides. And remember: advertising regulations can’t be read broadly. The state has the burden of showing that its regulation is both necessary and no more extensive than necessary – which means these regulations must be read narrowly. And I have to imagine that the members of the Florida Supreme Court are smart enough, and well-versed enough in constitutional law, to know that they can’t promulgate a rule that would purport to obviate any-and-all lawyer participation in non-lawyer owned advertising programs.

Because that would be crazy – and contrary to 38 years of well-established First Amendment law.

I’ll further note: Florida’s rules distinguish between “lawyer referral services” and “lawyer directories,” which are defined in Rule 4-7.23(a) as:

A lawyer directory is any . . . entity that receives any consideration . . .  for publishing a listing of lawyers together in one place . . . in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers.”

Now, I won’t comment at this point about the overreach of this particular rule, but the fact that it (along with the rest of Florida’s extensive advertising regulation) exists show that the Florida Bar considers referral services to be a distinct subset of lawyer advertising.

So I don’t think the Florida Bar will get confused about this, but some lawyers might, so I wanted to lay this all out here.

However, if the Bar wants to use this opportunity to tighten up its definition of a “lawyer referral service,” that wouldn’t be such a bad thing . . .

Notes:

  1. (c) Definition of Lawyer Referral Service. A “lawyer referral service” is:
    (1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or
    (2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program.