Category Archives: Other Social Media

Paying for Reviews

Can a lawyer offer a $50 bill credit for any client willing to write an online review on Avvo? In a surprising recent ethics opinion, the New York State Bar says “yes.”

The NYSBA’s nod is not without caveats. The credit cannot be contingent on the content of the review, and it can’t involve coercion or the attorney actually writing the content of the review.

But yet . . . something feels unseemly about this practice.

It’s one thing to get a receipt at Chipotle offering a $2 coupon if you fill out a survey, but quite another to get a $50 “coupon” for doing the same for one’s attorney. That amount of money carries a heavy suggestion that it is the quid offered for the pro quo of a positive review.

It’s also questionable how well-received this incentive actually would be. For many clients, the reason for leaving a review is driven by intrinsic motivation – a desire to pay something back to an attorney who has done a great job – than by any extrinsic motivation that is offered.  Offering a reward might well discourage and demotivate these people, by positioning their earnest motive as something callous and mercenary. At the same time, it would likely motivate those who are otherwise indifferent – and will leave middling feedback – but are happy to jump on the fifty bucks.

Ultimately, I don’t disagree with the NYSBA’s analysis. Offering an incentive for clients to leave a review shouldn’t technically violate any of the rules around attorney advertising. But I wouldn’t be surprised if attorneys employing this method find that the quality of their reviews goes down over time.

Answering Legal Questions Online

I get questions from lawyers all the time about the appropriateness of answering legal questions online. Which isn’t a shock, since Avvo operates an online forum where people can ask questions about legal issues and get free answers from lawyers.

As I’ve harped on mentioned before, attorneys tend to focus on risks, and the risks of answering questions online aren’t that hard to spot – inadvertently forming an attorney-client relationship, malpractice, out-of-state practice, etc. I spent quite some time on www.hastingsfirm.com reading recent posts and news about malpractice and the industry.

But are these REAL risks? Are you really putting your license (and potential clients) at danger? The short answer is no – because while all of these risks are out there, they exist in what I like to call “the margins:” that area where a risk may materialize if all of the ill-fated stars align to screw you over. Or if you’re blitheringly reckless or stupid.

And guess what? Getting out of bed every morning exposes you to risks in the margins. You could step out in front of a bus. You could give a client advice that’s 100% wrong because you’re feeling rushed and under-caffeinated.

Face it, lawyers – life offers no cure for recklessness, stupidity, or fate.

So relax and accept it. Because life – and practice – should be about growth and development. And growth and development aren’t going to be in the cards if you’re too busy fretting over minuscule risks and things that can’t be changed.

Lest you think I’m being unduly dismissive of your lawyerly concerns, let’s take a closer look at the risks of answering questions online.

Don’t Forget Your Free Speech Rights

I’m going to start with something fundamental that many lawyers overlook in their rush to fixate on risks. Here it is, and I will block-quote for emphasis:

Discussing legal issues and answering legal questions in a public forum IS NOT THE PRACTICE OF LAW.

Or to be more precise: it’s not “the practice of law” as regulated by the bars and restricted to those admitted to Bar membership. Everyone – lawyers and non-lawyers alike – has a First Amendment right to comment on legal matters.

Yes, you may regret this, as you survey your Twitter feed following any noteworthy Supreme Court decision.  But there’s nothing the attorney regulators can do to restrict anyone from writing or talking about legal matters.

Where this First Amendment right ends – and the ability of the state to start regulating expression and behavior begins – is when someone holds themselves out as a lawyer, or starts charging clients for doing work that is “legal” in nature.

I’ve written plenty lately about the issues around Bar regulation of non-lawyers.  But for lawyers, the red lights should start to go off when questions get closer to being “client-type” discussions. You know the type: private, personal, specific, and heading in the direction of actual representation. For while the “practice of law” is a vague and amorphous term, it is generally understood to be characterized as holding oneself out as a lawyer and taking on a client relationship of trust and reliance. 1

Forming an Attorney-Client Relationship

On a forum like Avvo’s, it is structurally impossible to form an attorney-client relationship. That’s not because the site very clearly points out to users that no such relationship is being established – although that, importantly, goes a very long way toward properly setting the expectations of those asking questions. Rather, it’s because all questions are asked anonymously and in an open forum.

An attorney cannot represent a client whose identity is unknown to them. I won’t belabor the reasons for this, but central among them is this: an attorney cannot deliver any of the fundamental professional obligations owed a client if they don’t know the client’s identity.

On other sites – say, Facebook or Twitter – this may be of slightly more concern, as those asking the questions are often not anonymous. However, to the extent that questions are asked publicly – as opposed to a direct message via a social media platform – the lack of confidentiality strongly weighs against the possibility that any reasonable person would think an attorney-client relationship had been formed. 2

However, and more fundamentally, this is where it’s important to remember the first rule of professional use of social media: treat it like a real-life encounter with a real person.

If someone asked you a legal question at a social event, would you provide them some general guidance, and invite them to contact you directly and privately if they wanted to get into more detail? Great! Do the same thing online. You may find, however, that it’s useful – particularly if the person asking the question is someone you don’t know – to take pains to point out at the beginning that you aren’t their attorney and can only provide general information.

One overarching point: I wish I didn’t have to recommend that attorneys clearly call out at the beginning that their answers are general and they aren’t representing the person asking the question. However, I’ve seen a number of well-intentioned lawyers run into people – typically blog commenters with questions – who get confused about this and think that the attorney has agreed to represent them going forward.

It’s best to just keep things clear, even if you know that the public nature of the forum and the general tenor of your guidance isn’t going to risk the creation of an attorney-client relationship. Be direct and upfront; it’s far better than trying to point to fine-print disclaimers on your blog or social media profile. Our experience at Avvo is instructive on this point – we’ve had millions of answers to millions of legal questions, and I’ve yet to encounter a situation where a consumer thought they had formed an attorney-client relationship via our forum.

Legal Malpractice

Legal malpractice isn’t a risk where there’s no attorney-client relationship. Avoid that, and you’ve got a two-fer.

But let’s say you DO form an attorney-client relationship with someone asking a question online. What about that?

My answer would simply be this – there’s nothing special about interacting online. If you’re actually offering legal services online (which can be done, although I’d recommend getting paid to do it, and not doing it through a public social media forum), you should do so with the same level of competency that you bring to bear whenever you provide legal services.

And if you’re worried about that  . . . you should probably pursue an occupation other than the law.

Multi-Jurisdictional Practice

What of people who ask questions from other jurisdictions? Could you be engaging in the unlicensed practice of law?

The lawyerly answer is that the rules of professional conduct speak to where the lawyer is located, not the client. 3  ABA Model Rule 5.5(b) proscribes holding oneself out as a lawyer in a state where the lawyer is not licensed, or “establish[ing] an office or other systematic and continuous presence” in such a state. Such concerns are clearly not implicated by simply answering the question of someone online who claims to be from another state. 4

However, one caution: I am talking about simply answering general legal questions online, without compensation or the confidentiality that marks the provision of legal services. These nuances of the multi-jurisdictional practice rules would be thin reeds indeed to rely on if you were selling online legal services without regard for state boundaries.

________

Remember: just because you’re a lawyer doesn’t mean you’ve checked all of your First Amendment rights at the door. You’ve got every right to sound off on the law. You’re also perfectly entitled to give people general legal guidance, and it doesn’t matter whether that interaction takes place online or off.

In many ways, this is how legal business development has always occurred. General questions move to specifics, and a lawyer is hired to help resolve a problem, start a business, or handle a lawsuit. And just as it has always been, it’s important to keep your lawyer-senses attuned for when these discussions need to move behind closed office doors – or end.

Notes:

  1. Washington, D.C. has the best definition I’ve seen:  “’Practice of Law’” means the provision of professional legal advice or services where there is a client relationship of trust or reliance.” D.C. Rule 49(b)(2).
  2. And see comment [2] to the Comments on ABA Model Rule 1.18 for more detail on the conditions that must be met before an actual attorney consultation will have occurred.
  3. See ABA Model Rule 5.5.
  4. There’s also the “on the internet no one knows you’re a dog” issue – how do you know that an asker – particularly an anonymous asker – is actually from the state they claim to be in?

On “Defamation”

As lawyers who represent consumers know, the wave of public opinion spilling online via client reviews can be a bit, well, upsetting. Legal services are the fruit of the brow, and often tied up closely in a lawyer’s self-identity. Having someone post an online tirade hits very close to home.

Of course, there’s no reason that legal practices should be held to a different standard than other sorts of businesses, most of which have adapted to – and even improved themselves by virtue of – the world of online user reviews.

And as I tell lawyers, it’s really important to get an objective read on a negative review before flipping out and filing a defamation lawsuit. This isn’t just because there are some unique risks to filing defamation suits not found in most other causes of action. Rather, it’s that lawyers aggrieved by negative client reviews aren’t usually the best judges of whether they actually have an actionable claim.

For example, let’s say a client writes this about you:

She is the most unethical, incompetent lawyer you’ll ever come across. I wouldn’t even call her a lawyer, she’s a FRAUD.

Being on the receiving end of that would feel bad, right? But it’s not defamatory; it’s simply a hyperbolic statement of opinion. Contrary to seemingly widespread belief, “defamation” isn’t “something that someone wrote about me online that I don’t like.” It must be based on a materially false statement of fact.

Of course, since I’m writing about this, you know what happened: the attorney who received the review above – Texas immigration lawyer Sherin Thawer – sued the reviewer.

What makes this noteworthy isn’t just that a thin-skinned attorney filed a baseless defamation claim. It’s not even that she did so in Texas, where the presence of one of the nation’s strongest anti-SLAPP laws means that she’s most likely going to be paying the defendant’s attorney’s fees.

No, the irony here is that the reviewer may have, if anything, gone light on Thawer. Because according to this report, she lied to her client, allowing him to be ruled against in absentia and subjected to a deportation order. Now the Texas disciplinary authorities are going after her for additional sanctions (she is already suspended from the practice of law in Texas).

I don’t know about you, but that would rate a scathing review in my book.

Ethical Marketing Techniques

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

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

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

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

NY Refuses to Reveal Identity of Anonymous Reviewer

Despite the fact that I almost always post things online using my real name, and despite the fact that attorneys can get themselves into trouble when commenting anonymously, I’m a big believer in the value of online anonymity.

Why would I feel this way?  After all, anonymity can provide a shield to all sorts of vile nonsense, hyperbole, and worse.  And the internet exacerbates this problem by making anonymous commenting much easier, farther in reach and (seemingly) free of accountability.

But then there’s this: some voices just aren’t going to be heard unless they can speak anonymously.  That’s one of the main reasons the U.S. Supreme Court has long recognized a first amendment right to speak anonymously.  As an adherent of the “more speech” solution to offensive comments, that’s good enough for me. 1

So I was please to see that a New York court denied a motion to “unmask” the identity of an anonymous commenter (court order here), in this case the author of a piece on Seeking Alpha that was viciously critical of a company called NanoViricides.

New York follows the coalescing approach to such unmasking motions, requiring that the plaintiff show a prima facie case for defamation in order to prevail.  In this case, despite some very inflammatory statements, 2 the court found that there was no cause of action for defamation.

Besides offering a good discussion of the difference between statements of opinion and fact, the court’s order also offers this closing nugget:

Courts should protect against the use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs via court order to silence their online critics, which threatens to stifle the free exchange of ideas.

I would caution would-be anonymous commenters that this statement should not be read as a license to defame or otherwise abuse review forums.  But it supports the proposition that anonymous speech is important, and that such speech should only be unmasked where the situation clearly calls for it.

Notes:

  1. But there’s more – there is also the fact that readers are more than capable of making credibility judgments based on whether the writer has put their name and reputation behind their statements.
  2. Read the order or the post itself for the full list. Somewhat surprisingly, the company apparently did not complain about the post’s equating of the company’s name with a terrible Keanu Reeve movie.

What Do Lawyers Need to Know About NY’s Social Media Ethics Guidelines?

That they shouldn’t be reading hand-wringing fluff like this recent piece in the National Law Review.

Look, I realize not every attorney wants to be the test case for the constitutionality of their state’s attorney speech restrictions.  But it would be nice if at least a few more attorneys stood up and advocated for their own First Amendment rights, rather than accepting at face value all of the restrictions the regulators try to foist on them.

Read on for a more critical look at New York’s Social Media Ethics Guidelines.

NC Attorney Goes 0-4 on Ad Claims

In a classic example of Eric Turkewitz’ famous aphorism, “outsource your marketing, outsource your ethics,” a North Carolina attorney has just been disciplined for a number of sloppily-worded claims on her website.   The Grievance Committee of the North Carolina bar did not take kindly to attorney Stephanie Villaver’s “dog ate my homework” defense blaming her website designer.  The fact that she may have tried to cover up her own inattention to the matter surely didn’t help things, either.

However, my interest is in the advertising claims that formed the basis of her discipline.  On her website, Villaver stated that:

  1. She is “Jacksonville’s best auto injury attorney.”
  2. She is the “Jacksonville, North Carolina’s personal injury specialist.”
  3. Her team “specializes in traffic ticket matters.”
  4. She can get a person “the settlement you deserve.”

The grievance committee found that each of these statements violated the Rules of Professional Conduct, to wit and in order:

  1. A claim that cannot be factually substantiated.
  2. Implication that an attorney is a certified specialist.
  3. Ditto.
  4. Guaranteeing results.

Again, it’s likely the case that the attorney’s evasive and non-responsive handling of this matter was the primary reason the Bar lowered the boom on her.  Had she immediately corrected the website, there’s almost no chance she would have been disciplined.

But the phrases in question – should they really form the basis of discipline?  The first and the fourth are not “claims that can be factually substantiated” or “promises of results;” they are nothing more than the same vacuous puffery that every business that has given up employing any creativity in marketing uses in a half-hearted attempt to reach new customers.  These are anything but effective advertising messages.  But that’s also why they shouldn’t be regulated by the bar: they aren’t going to cause any consumer confusion.  Every consumer knows how empty of meaning these terms are.

As for the use of the dread “specialist” term, North Carolina has fallen for the trap of expanding its regulatory reach beyond its constitutional limitations.  For although NC’s rule in this area (7.4) prohibits attorneys from indicating they have been certified as specialists in a given area unless they have such certification (a restriction the Supreme Court found lawful in the Peel case), the comments to the rules expand it to make ALL uses of the term “specialize” verboten – even when there is no implication that a third party has certified the attorney in that area. 1

I don’t feel that badly for an attorney who didn’t pay attention to her marketing and then failed to quickly address the problem.  But I do wish the states would devote their enforcement resources to those engaging in real, consumer impacting abuses – and not those who simply resort to hackneyed marketing cliches.

Notes:

  1. Yes, the comment to the rule states that “the use of the word “specialize” in any of its variant forms connotes to the public a particular expertise often subject to recognition by the state;” that, I daresay, is larding far too much significance onto a term synonymous only with focus and concentration in a particular subject.

Forget the “Right to be Forgotten”

Earlier today, The EU Court of Justice ruled that Google must remove “excessive” and “irrelevant” links to otherwise-public and truthful information about individuals.  Sounds great, right?  After all, who needs a bunch of digital flotsam following them around for all time?

A lot of attention is going to be paid to the putative privacy rights at issue, and the additional cost and complexity that complying with this directive is going to lard onto Google and other search engines.   But focusing on such things is missing the larger point: how relatively well-intentioned laws like this burden free expression.

To be sure, there’s little value in a lot of historic crapola floating around online.  And most of us have at least something that could be dredged out of the cyber-ooze that we would prefer to see remain buried.  But we’ve long concluded – in this country, at least – that the “more speech” solution is better than trying to ban certain pieces of expression.  And that’s particularly true when it comes to truthful statements.

One of the great benefits of the American approach to free expression is the “breathing room” it affords for speech.  Once you start ruling certain types of speech out-of-bounds – even “excessive” or “irrelevant” speech – you’ve opened the doors to all sorts of expression being called into question.  The uncertainty and ambiguity around publishing something becomes far more than a matter of cost or complexity.  It makes speakers second-guess whether they are going to speak at all.  And it greatly empowers the censor’s veto over speech they don’t like, particularly when the speaker has deep pockets.  It’s a pattern seen time and time again in the UK, and one that will surely accelerate in Europe if this “right to be forgotten” picks up traction.

Although of little comfort to Google and other sites that operate internationally, these developments shouldn’t impact US-based speakers and online businesses.  As a limitation on truthful speech, there’s no chance that a “right to be forgotten” could comply with the First Amendment.  And even if someone obtained a foreign judgment for failure to comply with such a right, the federal SPEECH Act would render that judgment unenforceable in the US.

And lest you think I’m not sensitive to the privacy rights of those pushing for this right, well . . . OK, I’m not.  There are no privacy rights in public facts.  And no one should go out of their way to find such rights at the expense of free expression.

Here’s a better idea: instead of trying to erase the collective memory of the internet, privacy advocates should devote their energies toward creating a reputation – online or otherwise – that they can be proud of.  Even if it’s got a few bumps and rough edges.

 

 

 

Critiquing New York’s Social Media Ethics Guidelines

Last week, the New York State Bar Association came out with a comprehensive set of “social media ethics guidelines.”   The creators take pains to point out that what they’ve created is more like the Pirate’s Code than something having the force of law.

 

Which is fair, considering the NYSBA isn’t a mandatory bar association and it has no licensing or disciplinary power over attorneys.

Nonetheless, given the prominence of the organization and the depth into which social media has been delved, these Guidelines are sure to get much attention, and even deference.  So let’s look at how good a job the NYSBA did on the portions of the Guidelines relating to social media and the advertising rules.

 Guideline No. 1.A Applicability of Advertising Rules

The NYSBA says that for social media profiles used for “hybrid” purposes – both personal and business – it would be “prudent” to assume the attorney advertising rules apply.   That’s fair, if a bit conservative.  Social media profiles that have a mixed purpose (as properly used ones would) aren’t commercial speech; there wouldn’t be a need to put an advertising disclaimer on a twitter bio, for instance.  The question would really turn – as the California Bar noted – on the substance of individual social media updates.

As putting advertising messages in social media updates is spectacularly clumsy and ineffective, there’s a very simple way to avoid the question of the ethics rules entirely:

Don’t include advertising messages in your social media updates.

Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media

The NYSBA says that lawyers can’t include any information under a heading that reads “Specialist” (and, presumably, the derivative “specialties”).  Some social media platforms may have default headings like this, and the NYSBA view is consistent with New York’s advertising rules (and those of many other states) that prohibit the use of terms like “specialist,” “specialty,” “expert,” and “expertise.”

That doesn’t make it right.  None of these “forbidden words” regulations are likely to survive constitutional scrutiny.  The problem is statements that mislead consumers into thinking some legitimate organization has certified an attorney as a specialist.  Without reference to third-party certification, these statements simply indicate the attorney’s area of focus and attention.  And there’s no legitimate state interest in preventing an attorney from innocuously stating, for example, that they “specialize” in elder law, or have “expertise” in federal energy regulation.

Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content

This one starts out OK, noting that attorneys aren’t responsible for social media postings made by others – say, reviews on Avvo or comments on a lawyer’s blog.  It’s nice of the NYSBA to recognize this, since the law – 47 U.S.C. 230(c)(1), to be precise – explicitly states that people aren’t responsible for third-party postings.

But then the Guidelines get into more troubling territory.  First comes the assertion that attorneys are responsible for such comments when the attorney “prompts such person to
post the information or otherwise uses such person to circumvent the ethics rules concerning advertising.”

The latter part is fine; as New York attorney Eric Turkewitz famously noted, “outsourcing marketing = outsourcing ethics.”  There’s no question an attorney would be responsible for content created at the lawyer’s behest by a third party.

But “prompted?”  That’s far too overreaching.  Attorneys SHOULD be prompting their clients to leave online feedback for them.  And unless the attorneys are putting words in their client’s mouths, they are not responsible – under the attorney advertising rules or otherwise – for what those clients write. 1

Doubling down, the NYSBA then goes on to state that attorneys have an obligation to monitor third party information posted to their social media profiles, and take down anything that may run afoul of the advertising rules.  If the attorney can’t remove it, they’re supposed to ask the person who posted it to remove it.  And failing that, they should consider whether a “curative post” needs to be made.

While there’s no question that moderation is a good idea, there’s also no question that attorneys shouldn’t have the force of law hanging over the diligence of that moderation.   I’d rather see a state for once recognize that this regulatory interpretation is completely preempted by federal law rather than chilling attorney use of social media.

2. FURNISHING OF LEGAL ADVICE THROUGH SOCIAL MEDIA

Guideline No. 2.A: Provision of General Information

The Guidelines note that it’s OK to provide general information over social media, but not to provide specific legal advice, given concerns about creating an attorney-client relationship and disclosing privileged information.

That’s sound advice, for the most part.  However, it’s not a concern in places – like Avvo Answers or Quora – where the person asking the question is anonymous.  It’s also important to recognize that social media in many ways is simply facilitating the types of general legal discussions that attorneys have always had with friends, colleagues and acquaintance offline.  General information to orient the asker is given first, with more specifics – if necessary – provided in a more formal setting.  There’s nothing unique about social media in this respect.

Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications

I liked this part of the Guidelines, as it bolsters the idea that only “live” communications – whether in-person, telephonic, or electronic – are subject to limitation as solicitation. Soliciting business through social media may be ugly and counter-productive, but it shouldn’t lead to an ethics violation.

The remaining Guidelines relate to how to handle social media questions that come up while representing clients and in litigation.  They seem complete, thoughtful and well-balanced.  And while it’s beyond the scope of this post, I’ll make this observation: for lawyers who represent consumers – particularly in litigation – facility with social media is rapidly becoming a job requirement.

Notes:

  1. Again, thanks to 47 U.S.C. 230(c)(1).

Text Messages and the TCPA

Once again – I don’t like text messaging as a marketing tool.  I think it’s sleazy and ineffective.  But as I pointed out before, Ohio – in issuing an ethics opinion saying solicitation by text is OK – was simply following Supreme Court precedent that written solicitation cannot be prohibited.

A number of commenters on Twitter have pointed out that the TCPA – the Telecommunications Consumer Protection Act – restricts text solicitation, suggesting that the Ohio attorney regulators could do the same.  But the TCPA doesn’t prohibit text solicitations. It is a content- and speaker-neutral regulation, and its application to text messages is limited to texts made using autodialers.  It doesn’t restrict a particular class of speaker, or even a particular type of message.  It simply prohibits a spammy method of distributing messages far and wide.

The sort of regulation that would prohibit a class of speakers (attorneys) from using a medium to communicate a certain type of message (a solicitation) – is entirely different.  It’s not a neutral “time, place and manner” regulation like the TCPA.  It would be a content-based restriction that would foreclose the avenue entirely, and thus would be presumptively invalid.

Now, the state could overcome that presumptive invalidity, and it would do so under the intermediate scrutiny standard applicable to commercial speech regulation.

But that brings me back to my original point: Ohio surely considered that.  And what they found was that an outright prohibition of a form of written solicitation doesn’t fly under the First Amendment. 1

Could there be something different about text messages?  More problematic than other forms of written communication?  Maybe, but I don’t see it.  And given how fast technology changes, and how people communicate (the TCPA itself being woefully long in the tooth), it’s best that Bars show restraint when considering the outright prohibition of forms of speech.

Notes:

  1. As the Supreme Court has ruled, twice, in In re Primus and Shapero v. Kentucky Bar.