Category Archives: Advertising

New York Issues Social Media Guidelines

The New York State Bar has issued a set of “Social Media Ethics Guidelines.”  As New York’s is not a mandatory bar, and these are mere guidelines, and not rules, one might pause and wonder why anyone cares. But as Kevin O’Keefe points out, because it’s New York, attorneys who (like me!) pay attention to the developing intersection between legal ethics and technology will imbue these guidelines with outsized importance.

So on we go.

What do I like about the Guidelines?  I like that they state that a lawyer’s duty of competence includes understanding how social media works. For many people today, social media is a far more important communication device than a telephone is.

Do you think you can competently represent clients – particularly consumer clients, in matters where communications between parties may be at issue – without knowing how a telephone works?

The same thing now goes for social media.

I like the fact that the Guidelines repeat the advice I often give: if you want  to avoid ethics problems when using social media, don’t post social media updates that take the form of advertising. You get a two-fer that way, since you don’t have to think about the rules, AND you’re less likely to come across as a spammy huckster.

Finally, I like that the guidelines provide solid, common-sense guidance on dealing with social media in litigation, from counseling clients to investigating opposing parties and jurors.

What don’t I like about the Guidelines?

I don’t like the fact that the Guidelines continue the silliness of deeming taboo the innocuous term “specialist.”

I don’t like the fact that the authors of the Guidelines are apparently unfamiliar with 47 USC 230(c)(1), and how it would preempt any attempt to find in the rules a requirement that attorneys be responsible for things that third parties independently post about them online.

I don’t like the fact that the Guidelines summarily conclude that specific legal advice can’t be given over social media. Of course it can; “social media” includes channels that are both distributed (public) and direct (private). It’s perfectly appropriate – although perhaps not advisable – to communicate with clients over private social media channels.

And what’s more, a lot of that stuff that lawyers think is “legal advice” when posted on social media? It’s not.

And finally, what I REALLY don’t like is the same thing that gets my goat on most efforts like this: the fact that, despite having dozens of authors, many of whom are no doubt fine attorneys, the Guidelines make little-to-no effort to reconcile the ethics rules with the First Amendment constraints in which they must operate.

Let’s remember: even in New York, attorneys have First Amendment rights.

 

Florida: Text Messages are Direct Solicitation

Oh, Florida.

Let me get this out of the way first: I don’t think lawyers soliciting clients via text message is very effective. It probably comes across as amateurish and cheesy. And if a law firm isn’t very, very careful, text solicitation risks running afoul of the well-intentioned-but-stinking-turd of a regulation that is the Telephone Consumer Protection Act.

Which is a very bad thing indeed.

But text messages are direct solicitation? The direct solicitation that can only constitutionally be prohibited if it rises to the level of intrusiveness and undue influence found in a personal interaction with a trained advocate?

That’s what the Florida Standing Committee on Advertising decided,  voting 6-1 to treat text messages as prohibited direct solicitation. In so doing, the Committee had a series of amusing exchanges about the relative use cases for text messages and mobile phones, but apparently did not consider – at all – the constitutional issues involved.

I mean, it’s not like the Supreme Court hasn’t weighed in on the acceptable contours of prohibiting attorney solicitation on four separate occasions, the last of which involved a Florida regulation.

I haven’t got any great interest in seeing solicitation-via-text. But is it too much to expect that bar regulators look to the constitutional limits on their authority, rather than acting like they regulate in a vacuum?

Update 9/10/15:

The board of bar governors in Florida has reversed the Ad Committee, clearing the way for attorneys to solicit via text messages . . . as long as Florida’s cumbersome attorney advertising rules are complied with.

Yay for a Bar paying attention to the first amendment!

But just because it’s allowed doesn’t mean it’s a good idea. And unless you’ve got a very clear bead on 1) your ROI and 2) how you’re going to navigate TCPA compliance, marketing via unsolicited text messages is a horrible idea.

On “Ambulance Chasing”

This article from former Georgia Bar President Ken Shigley is illustrative of how tough an issue client solicitation can be.  As Shigley notes, the days following the loss of a loved one, already grief-filled and exhausting, can get even worse when lawyers start insinuating themselves:

Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or days after a tragedy, by people who represent themselves as “counselors,” “investigators” and even clergy, who slip into conversation a question about whether they have a lawyer yet.

According to Shigley, the problem isn’t so much Georgia law – which already prohibits in-person and telephonic solicitation, as well as written solicitation within 30 days of an accident – but the lack of interest among the public and prosecutors in reporting and pursuing solicitation cases.

But is solicitation really a problem?

I can see where it looks that way to Shigley; he’s a long-time plaintiff’s personal injury attorney with a great track record and a sterling reputation. I’m sure it annoys him no end to see less scrupulous – and probably less competent – personal injury attorneys playing fast and loose with the law.  And there’s no question that many people, in the days following a tragedy, are in no shape to be making a choice of counsel.

And yet, as Shigley notes, claims adjusters and other insurance representatives don’t labor under similar restrictions. They are free to communicate with those who have suffered losses, and potentially to get these putative plaintiffs to give up valuable rights under circumstances where those who would otherwise represent them are barred from proactively communicating about these rights.

I don’t think this is a tenable state of affairs. And I doubt that Georgia’s law – which includes criminal sanctions – would survive constitutional scrutiny if the Supreme Court reviewed it.

It’s been 20 years since the Supreme Court heard an attorney solicitation case, and that decision – authored by probably the most ardent defender of attorney advertising regulation in the modern era, Sandra Day O’Connor – was split 5-4.

O’Connor, obviously, has long since left the bench. And today’s Supreme Court is far more respectful of the First Amendment than the court was in Florida Bar v. Went For It.  It’s hard to imagine a court that has decided in recent years that the government can’t censor independent campaign advocacy, punish citizens for pretending to be war heroes, or bar nutcases from protesting funerals, finding that the “disrepute to the bar” and general sleaziness of ambulance chasing is sufficient to overcome the first amendment interest in having full access to information about one’s legal rights.

This doesn’t mean that regulations couldn’t bar deceptive advertising, or even in-person or telephonic solicitation. But a 30-day ban on written solicitation? While such advertising may seem undignified and offensive, the precedent on which restricting it rests is increasingly shaky.

 

Competitive Keyword Advertising: Ethical, But Dumb

Santa Clara lawprof Eric Goldman is coming out with an academic paper on the ethics of competitive keyword advertising. If you wonder what “competitive keyword advertising” is, check out my post from last October.

Eric and I both believe that there is no legal ethics issue whatsoever with the practice. Many lawyers disagree, but I’ve yet to speak to one who really “gets” what competitive keyword advertising IS, and what it IS NOT.

It’s not deceptive. It’s not misleading. It’s simply pointing out to someone who is looking up a competitor’s name that they have other options.

As Eric stresses, having choices like that is a really good thing for consumers.

Unfortunately, many lawyers take a proprietary approach to their names. They bristle at the thought that another lawyer would try to nudge their own ads into searches done for the first lawyer’s name, despite being unable to articulate precisely why such a practice should be wrong. 1

But as Carolyn Elefant asks, even if competitive keyword advertising doesn’t violate the ethics rules, should attorneys do it? Carolyn doesn’t think so, calling it the  “gaining [of] an undeserved advantage on someone else’s coattails.”

I don’t agree with that reason; I’m pretty sold on Eric’s point that the practice is non-deceptive and potentially good for consumers and competition.

However, I still think most lawyers shouldn’t do it. Why? Because it’s most likely going to be completely ineffective; a distraction that delivers little to no value.

Fairly or not, it’s going to piss off your competitors. They might bring a frivolous lawsuit against you that you have to defend. They might file a pointless bar grievance you’ll have to deal with. They might engage in an e-shaming campaign over your behavior. Or they might just say snide things about you behind your back.

And what do you get for that?

Most law practices are intensely local businesses. The “name search volume” – the number of monthly Google searches for a law firm or lawyer’s name, against which your ad will be displayed – might well number in the single digits. If you are in a big market, or your competitor is well-known, they may number in the  low hundreds.

For example, I checked the keyword volume for the firm of Habush Habush & Rottier, a prominent personal injury firm in Milwaukee, WI.  Habush brought a lawsuit against a competitor a couple of years ago for competitive keyword advertising, which, predictably, they lost.

How many searches are done in Milwaukee for the Habush firm? In March, there were 70. And that was the best month in the last year!

Habush search volume

It gets worse. The click-through rate for competitive keyword ads – the number of those searches for your competitor’s name that actually result in click-throughs to your website – is estimated at less than 2%. That means that even if there are 100 name searches for your competitor in a given month, you can expect all of 1-2 clicks on your ad.

That’s “clicks” – not “calls,” and certainly not “clients.”

You’ve got to ask yourself whether results that meager can possibly be worth the aggravation. For the vast majority of lawyers, the answer should be a resounding “NO.” There are far better places to focus one’s marketing and business development resources.

Notes:

  1. And no, it’s not because of trademark. Trademark doesn’t let you exclude all other uses of your name; only those that create a likelihood of confusion. It certainly doesn’t offend trademark for a competitor to use your name in comparative advertising, or as a filtering signal for serving up their own ads.

Ethics of “Better Call Saul”

The character of Saul Goodman brought a new level of sleaze to the on-screen depictions of lawyers in Breaking Bad – along with memorable ads, an inflatable lady liberty and a mock lawyer website that fooled more than one gullible ethics lawyer.  The masterful spin-off, Better Call Saul, shows us Saul’s origins, and offers a more darkly-comic, less violent vision than the original show.

And it’s also got lots (lots!) of lawyer advertising and ethics issues. Heck, there’s even an explicit reference to Bates v. Arizona! For more on that, go read my friend Nicole Hyland’s musings on the numerous ethical mishaps that Saul has run into only partway through Season One.

Blog Trolls and Commercial Use

Keith Lee at Associate’s Mind has blogged over the last couple of days about the latest law blog ripoff outfit, something called “Lawblogs.net.” Lawblogs is yet another scraper, pulling down posts from other sites and posting them – apparently in their entirety – on its site. Business plan? Sell ads around all of that scraped content, because we know that law blogs are traffic magnets, amirite?

OK, so that’s scummy, sleazy and probably not a high ROI endeavor. It would be much better to scrape photos of kittens, or celebrities, or well, pretty much ANYTHING other than content that is a) lightly-read (to put it charitably) and b) written by people who sue people for a living.

But I digress.

One thing in Keith’s otherwise-excellent recap of finding this troll was this statement about Creative Commons licensing:

For example, Kevin Underhill, author of Lowering The Bar, uses an Attribution-NonCommercial-NoDerivatives 4.0 International Creative Commons license. Meaning that while you can re-publish posts from his blog, they cannot be used for commercial gain. Advertising is commercial gain. As such, displaying any of the content from Lowering The Bar within a website supported by advertising is in violation of the license.

A lot of people believe this about Creative Commons licensing, but here’s the thing: it’s not the case. The fact that a site is monetized by advertising does not mean that the content within the site is “commercial.”  I wrote about this a couple of years back:

The fact that a publisher has a commercial motive does not mean that everything published is likewise commercial.  “Commercial” means that the work itself is resold or incorporated into something that is for sale (although there are plenty of exceptions even then, starting with fair use).  This is a basic legal principle, and it’s been reinforced time and time again.  See, for example, the Dex Media v. City of Seattle case I wrote about earlier.  Or the Browne v. Avvo suit filed by an attorney upset over his rating right after Avvo launched in 2007.  Or the latest Lindsay Lohan lunacy, involving a suit (tossed yesterday) over a reference to the troubled actress in a Pitbull song (“locked up like Lindsay Lohan”).

Obviously, the copyright issues Keith identities would apply to a troll like Lawblogs.net aggregating entire blog posts onto its own site. But absent more specific designation within the CC licensing paradigm that “commercial” means more for CC than it does for traditional first amendment analysis, Creative Commons licensors will have an uphill battle trying to hang their hats on the “no commercial use” exception.

Just Because You Did It . . .

Just Because You Did It

So if I had to guess, this is probably exactly what the bar regulators had in mind back in the days before Bates v. Arizona, when they could still prohibit advertisements that “demean the profession” – and even disbar those who ran such ads.

But this is actually a GREAT ad. It definitely succeeds in mission #1 of outbound marketing, which is to catch the viewer’s attention. And while the marketing message is shocking, it sends a highly-effective message about attorney Larry Archie’s commitment to client advocacy.

There’s also nothing deceptive about this ad. Although it communicates that Archie will fight aggressively for his clients, regardless of whether they “did it,” the ad doesn’t promise or even imply a particular result.

Finally, as any first year law student knows, the statement is also a completely accurate representation of the law. People who “did it” escape being found guilty via excellent advocacy, poor work by the prosecution, exclusion of evidence, and a host of other reasons. They also sometimes escape a guilty verdict even when they’ve been found to have “done it,” on the basis of defenses such as insanity, necessity, or self-defense.

Dignified? Hell no.

Effective? You bet.

Legal? Absolutely.

 

WSBA Ethics Opinion on . . . Avvo

I missed this when writing about the Washington State Bar’s new ethics opinion regarding online lead generation, but the bar has also issued an opinion on attorneys participating in an unnamed service that sounds an awful lot like Avvo:

1. May Lawyer claim the profile and provide personal and professional information, knowing that the website will generate a publicly viewable numeric and descriptive rating
that is, at least in part, influenced by the amount of information that Lawyer provides?

2. May Lawyer claim the profile and participate in the website if other users attach to Lawyer’s profile publicly viewable (1) client ratings or (2) peer endorsements about Lawyer’s services?

3. May Lawyer endorse another lawyer in exchange for a reciprocal endorsement?

The WSBA’s conclusions are, unsurprisingly, Yes, Yes, & No.

Despite once again failing to acknowledge the first amendment boundaries on the bar’s ability to regulate in this area, the WSBA concludes that lawyers can indeed use this mysterious service, provided the communications involved are not materially misleading. A few nuggets from, and thoughts on, the opinion:

  • Lawyers are to take “reasonable steps” to ascertain how the service will make representations about the lawyer, and should not participate (other than to ensure information is accurate) if the service does not disclose how ratings are calculated.
  • In case you’re wondering, you can read about how the Avvo Rating is calculated here and here.
  • Attorneys who claim a profile have an obligation to ensure the information in the profile remains accurate and up-to-date. That’s straightforward enough, and – regardless of what you might think of this as a regulatory mandate – is a critical practice for online reputation management.
  • Client reviews and endorsements must be “accurate.” I don’t think that word means what the bar thinks it means – reviews and endorsements are typically statements of opinion, and as such are not amenable to determinations of “accuracy.” In any event, to the extent an endorsement refers to factual inaccuracies, an attorney can delete it from their Avvo profile. However, for reasons that should be obvious, Avvo does not allow attorneys to delete client reviews.
  • I rather suspect that the Bar’s reading of an obligation upon attorneys to monitor-and-attempt-to-remove “inaccurate” client reviews and endorsements is preempted by 47 U.S.C. 230(c)(1).
  • The Bar says that lawyers can’t “logroll” endorsements – provide an endorsement simply because the other lawyer agrees to post a reciprocal endorsement. I don’t agree with the opinion’s conclusion that reciprocal endorsements violate the rule against “providing something of value for recommending a lawyer’s services.” That rule has been swallowed by its exceptions – including, notably, the right to pay for advertising – and is long overdue to be eliminated.  However, we at Avvo have always advocated against logrolling endorsements. Posting – or accepting – endorsements in the absence of familiarity with the other lawyer’s work looks deceptive, shoddy, and cheap. Endorsements are best, for the lawyer and potential clients, if they provide a specific, detailed view of what makes that lawyer stand out.

Defining “Commercial Speech”

At last week’s annual meeting of the ABA Forum on Communications Law (in Scottsdale, which is an oh-so-lovely trade for Seattle in early February), there was a fascinating plenary session on something near and dear to my heart: how to define “commercial speech.”

Of course, straightforward advertising is commercial speech. And nearly every case that has addressed commercial speech – including all of the Supreme Court advertising cases – has involved material that was unmistakably advertising. But the Supreme Court has never clearly resolved the core question: what, exactly, is commercial speech?

The answer matters, of course, because regulation of commercial speech is subject to a less exacting standard of review than other forms of content-based regulation. And with that label of “commercial” speech comes a host of other ills – complete loss of first amendment protection for anything that is wrong or misleading, openness to publicity rights claims, loss of anti-SLAPP protection, etc.

Steven Brody, who – along with my lawyer, Bruce Johnson – literally wrote the book on commercial speech law, pointed out that the Supreme Court has really adopted two different definitions of commercial speech. The first, from back when the commercial speech doctrine was still coalescing, is this:

That which does no more than propose a commercial transaction.

That’s from the Virginia Pharmacy case. But much as many of us would like that straightforward, bright-line test to be the rule, the Supreme Court also said, several years later, that commercial speech is present if some 2 or 3 of the following factors are met:

1) the message is in an advertising format;

2) the communication refers to a specific product; and

3) an economic motive drives the speaker’s expression. 1

That’s from the Bolger case, in 1983.  The Supreme Court later pointed out that bolting political speech onto an advertisement won’t make the latter non-commercial speech, but also that expression in which political and commercial speech are “inextricably intertwined” must be subjected to strict scrutiny.

But the court has never come out and given us a bright-line test for distinguishing commercial from non-commercial speech.

Further complicating matters? The Kasky test for commercial speech, which is currently the law in California. And as I learned at the ABA Conference, the FTC has its own test for commercial speech: the “RJ Reynolds” test, which involves a 4 part analysis, ultimately similar to that called for in Bolger.

So that makes four different tests for whether a communication is commercial or non-commercial speech.

And adding to the confusion? It’s not as if forms of communication are getting any clearer. Rather, “native advertising” or “sponsored content” is rapidly blurring the lines between editorial and advertising messages. While there is a good case to be made that much of this type of content should not be regulated as commercial speech, it’s unclear whether much of it would pass even the test from Bolger.

A decade ago, the Supreme Court missed an opportunity to review Kasky and clarify the rule for commercial speech. It passed on the chance again, 3 years ago, in Sorrell v. IMS HealthI suspect, however, that the growth in native advertising is going to force the Court’s hand before too much more time has passed.

WSBA Ethics Opinion re Online Lead Generation

The Washington State Bar (of which I am a member) has issued an ethics opinion finding that attorneys can, generally speaking, participate in online lead generation services.

While it’s good to see the WSBA take this step, it isn’t breaking new ground. The centerpiece of the opinion reflects the comments (paragraph 5) the ABA added to Model Rule 7.2 last year.

Unsurprisingly, I also have a few beefs with the opinion.

Too Many Rules

First of all, I wish we could simply dispense with all of this nonsense. Attorneys can advertise – in any of a million ways, as long as such advertising isn’t false or deceptive. We’re burning far too many brain cells, and depriving consumers of far too much information, worrying about all of these irrelevant details. We should simply eliminate most attorney advertising regulation as the counter-productive surplussage it is.

What First  Amendment?

It would have been nice if the Bar had given a nod to the First Amendment, and the substantial constraints it places on regulation of commercial speech.  Too few bars do this in their ethics opinions, and fewer still actually interpret their rules (at least when giving ethics guidance) as if they are subject to the First Amendment. In this case, the Bar stuck exclusively to citing chapter and verse from its own Rules of Professional Conduct.

Forms of Payment for Advertising

While acknowledging that attorneys can participate in online lead generation, the opinion does not come flat out and say that attorneys can pay for such advertising on a per-lead or per-client basis. They imply as much, via a footnote, but the opinion would be clearer and more useful if they just came out and said it.

Words Attorneys Can’t Say

The foolishness around “specialists” and “experts” continues. Again, this IS what the Bar’s rules seem to call for. But the Bar would be wise to clarify that restrictions on the use of such language by attorneys are only constitutional to the extent such terms are accompanied by a statement or implication that a third party has certified such specialization or expertise.  For example: as long as I’m not saying or implying that someone has conferred the honorific upon me, I’m confident the Bar can’t prohibit me from stating that I have expertise in attorney advertising regulation and communications law.

And Yet More Over-Regulation

The Bar properly notes the issue with “lawyer referral services,” insofar as they suggest they are “matching” a client to the best possible lawyer but instead sending them to the attorney who has paid for promotion.  That’s no good; it deceives consumers and would violate even a sensible and limited set of ad rules.

However, the Bar goes too far in stating that it is likely “that prospective clients will infer that the lead generation service is making subjective matching decisions.”

Says who? Does the Bar have any empirical evidence showing that consumers make these kinds of assumptions?

There is a long list of federal court decisions over the last ten years dismantling attorney advertising regulation precisely for making these sort of evidence-free conclusions. Attorney regulators carry the burden of showing that their attempts to limit speech are both necessary and no more extensive than required.

Instead of making such a case, the Bar plows ahead to solve this “problem” by requiring that lead generation services “clearly disclose, in plain and conspicuous language, that the match was made solely based on specified objective information (e.g., geographic information, years of practice, or practice areas as described by the lawyer).” Such a “solution” is not only unsupported by any evidence that it is necessary, but is also overbroad in not acknowledging that there are many ways a company could market to consumers without implying that it was “matching” them to the right attorney based on subjective factors.

It comes full circle to my first point: by continuing to rely on such picayune, detailed advertising rules, the Bar makes it harder than it should be consumers to get information about, and access to, legal services.