Category Archives: Regulation

“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?

Free Advice Gets Big Win

John Rosemond is North Carolina-licensed psychologist who publishes a parenting column that runs in many newspapers nationwide. In the best tradition of “Dear Abby,” he answers specific inquiries from readers, offering up psychological advice (often with a side of “get-your-shit-together-and-take-some-freaking-accountability,” which I appreciate).

Old Fayette County Courthouse, Lexington KY
Old Fayette County Courthouse, Lexington KY

One of the papers in which his column runs is the Lexington Herald-Ledger. Lexington is a fine town, in a particularly beautiful part of the country. But besides being the epicenter of horse-dom, college basketball, and sweet, sweet, bourbon, Lexington is also right down the road from Frankfort, home to the uptight regulators of the Bluegrass State.

Should you visit Frankfort, I’d recommend skipping the state capitol and heading straight for the “Hardhat Tour” of the Buffalo Trace distillery. You’ll have a far friendlier and productive afternoon.

Anyhow, as occupational regulators everywhere are wont to do, the Kentucky Board of Examiners of Psychology couldn’t let an opportunity to expand their regulatory mandate go to waste. So they had the Kentucky attorney general send Rosemond a letter informing him that he was violating Kentucky law by practicing psychology and holding himself out as a psychologist.

For giving advice in response to a specific inquiry, in a nationally-syndicated newspaper column, and for describing himself as a “psychologist.”

That’s a pretty nifty grab of the monopoly to provide psychological advice. But attorneys probably recognize it – it’s not that different than the approach many Bar regulators take when figuring out what the “practice of law” constitutes.

The good news is that a federal court in Kentucky has smacked the Board, finding that its expansive interpretation of “practicing psychology” violated Rosemond’s First Amendment rights (court order; pdf).

For many, this will seem an obvious outcome – how on earth can a nationally syndicated newspaper column be “the practice of psychology?” But when it comes to the tension between occupational regulation and the First Amendment, the amount of guidance is thin. And into that interpretative void, regulatory excesses will spill.

But now we have this decision, which promises to shed new light on the constitutional limits of Bar regulators’ ability to clear the field of unlicensed legal help and advice. 1

“Professional Speech”

At the core of attorney regulation is governing the actions – and in many cases, the speech – of those professionals licensed within a state. And the Rosemond case notes that state licensing authorities have broad power to establish standards and regulate practitioners to protect the public.

However, this power isn’t unlimited when it comes to speech regulation. Because Rosemond wasn’t licensed by the Kentucky authorities, there wasn’t a need for the court to explore this question in depth. However, as we saw earlier this year in the “Docs v. Glocks” case, the 11th Circuit determined that such regulation must meet the same “intermediate scrutiny” standard applicable to commercial speech.

Unregulated Advice?

But what happens when the regulators attempt to extend their sphere of control beyond those who they license? When regulations are extended to monopolize work for the licensees, or interfere with fundamental rights?  The Rosemond decision cites to Lowe v. S.E.C., in which the Supreme Court found that such activity is speech regulation, unlikely to survive the strict scrutiny to which it must be subjected:

Pursuant to this doctrine, the government is permitted to regulate speech in limited circumstances so as to protect the individual receiving advice— the client. As articulated by Justice White, without this professional-client relationship, the doctrine’s vices outweigh its virtues.

Thus, while professional speech – the conversation between a professional and his or her clients – may (to a point) be regulated, speech outside the confines of that relationship may only be regulated in those narrow circumstances where government speech regulation meets strict scrutiny.

Free to Opine and Help

One key implication of this case – and something I’ve long pounded on – is that  the definition of the “unlicensed practice of law” doesn’t have the broad scope some lawyers and bar regulators believe that it does. It can’t sweep in any-and-all advice and commentary that may be “legal” in nature. Unless there is an attorney-client relationship, the state doesn’t get to butt its head in and regulate.

Paid Legal Advice from Non-Lawyers?

One thing this decision doesn’t quite close out is the question of paid advice: those who, while not “holding out” as attorneys, provide paid services relating to legal proceedings. Think independent paralegals, the more aggressive offerings of online forms companies, and those folks who provide low-cost help with straightforward bureaucratic processes like name changes (and who are often prosecuted for the unlicensed practice of law).

Clearly, there’s got to be a public protection rationale for regulating any of these activities. And the bar’s answer so far – “it looks legal, so it’s got to be provided by a licensed lawyer” – isn’t likely to pass muster. However, more definition may be on the horizon, as courts bring greater definition to the acceptable bounds of professional licensing (besides this case & “Docs v. Glocks,” 2015 alone has also seen the North Carolina Dental Board case and the online vet case, which is being appealed to the Supreme Court).

Notes:

  1. There is also a “holding out” issue in the decision, but I’m not as interested in it, as the Bars seem to have little issue with attorneys from other jurisdiction describing themselves as attorneys – so long as they aren’t also soliciting business.

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.

Florida Cuts Out Lawyer Referral Services

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

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.

More Wins for Business Speech Rights

Look, I’m fine with straightforward health and safety labeling. I’m even OK with disclaimers that are necessary to keep advertising from being deceptive.

Likewise, I’ve got no problem with businesses being prohibited from lying about their products. That’s not OK; it doesn’t do anyone any good (well, except for the liars, but even then, it rarely works long term).

But these concepts are pernicious. One restriction or requirement begets another, and before you know it we’re in a thicket of disclaimer requirements and speech prohibitions. And quite apart from the offensiveness of the government mandating what a business can and cannot say, there’s this: as the government finds more and more things it wants to compel businesses to say (or not say), the less meaning the remaining speech has.

So I always love seeing overreaching speech restrictions getting smacked down by the courts. Here are two very recent examples:

Nat’l Assn. of Manufacturers v. SEC (D.C. Circuit, August 2015)

This opinion is an awesome read. If you follow this area, you’ll recall that the D.C. Circuit issued an absolutely loathsome en banc ruling last year, finding that government can basically compel speech on a whim. This particular case – involving the SEC’s controversial “conflicts minerals” disclosure requirement – was then re-heard as a result. In the opinion, the court goes to great length to point out how screwed up the 2014 en banc decision was, but that it must follow it, and then finds a way to STILL find the conflicts mineral rule unconstitutional. It’s almost like a circuit split within a single circuit!

Amarin Pharma v. FDA (So. Dist. NY, August 2015)

The FDA may be responsible for ensuring food and drug safety, and I’m sure there’s plenty of stuff it does a fine job with. But it’s also crazy, mercurial, and far more focused on process than results. It also has a funny thing for the truth: it has long prohibited drug companies and their employees from making truthful statements relating to off-label drug use. In effect, it’s a form of tightly controlled speech: these companies can only use FDA-approved language when referring to their products, at risk of criminal sanctions – even when what they are saying is 100% truthful. Three years ago, the 2nd Circuit started to unravel this issue in the Caronia case, and Amarin follows on that. The fact that the FDA chose to keep fighting this even in the face of Caronia shows how hard litigants must fight against the perniciousness of speech regulation.

 

Ohio Wins: Dumbest Ethics Opinion Ever!

It’s no secret that I’m not a fan of asking for permission before doing something. Why would I give someone else the power to tell me that I can’t do that thing? Unless that thing is clearly out-of-bounds,  I’d much rather just make the call myself, and then argue about it later if anyone has a problem with my decision.

Ohio Supreme Court, Columbus, Ohio
Ohio Supreme Court, Columbus, Ohio

Unfortunately, a lot of lawyers prefer the deliberate approach. This is why we have attorney advertising ethics committees and their opinions. And as I’ve pointed out before, these ethics opinions are often a problem: deaf to the First Amendment, conservative to a fault, they far too often hew to a line far beyond any responsible (or constitutional) regulation of attorney speech.

To whit, our latest entrant in the ethics opinion Hall of Shame: an opinion out of the Buckeye State which finds that attorneys giving seminars to the public cannot engage in dialogue with people who come up to them after the seminar asking legal questions. These poor muted devils are limited to “advis[ing] that person to contact the office to make an appointment or to seek legal counsel of his or her choice.”

That is, to put it charitably, absolutely bonkers. 

To the extent states can prohibit direct solicitation of clients, that regulatory authority is limited to in-person (or the technological equivalent of in-person) solicitation. This rule – first articulated in a case involving an ambulance-chasing attorney from, yes, Ohio – has parameters well-defined by no less than four Supreme Court cases (OhralikPrimus, Shapero, Went For It).

It should hardly bear mentioning that any permissible limitations on lawyers soliciting business are limited to solicitation itself. If the potential client starts the conversation – whether by calling your office or asking a question after a seminar you’ve just given – it’s  not solicitation. End of story.

Unless you sit on the Supreme Court of Ohio Board of Professional Conduct, and issue an asinine, blatantly unconstitutional ethics opinion that muzzles attorneys and denies consumers access to legal information even when they are affirmatively asking for it.

This is madness – and a reminder of the ever-present perils of asking for permission.

h/t Brian Faughnan

Follow The NC Dental Board Fun

Maybe you remember the North Carolina Dental Board case, decided by the Supreme Court earlier this year? Sure, it’s no Hobby Lobby, or Citizens United, or Obergefell –  it’s not likely to cause teeth-gnashing or dancing in the streets, depending on one’s perspective. But the case may end up being even more important to lawyers than it is to dentists, who lost a skirmish with mall-kiosk tooth-whiteners when the Supreme Court ruled against them.

At its most basic, the Dental Board case calls into question the ongoing viability of anti-competitive, unsupervised lawyer regulatory committees – such as the advertising review committees that persist, strangely, in places like Florida. But it may end up meaning more, as the percolating tension between occupational licensing and the first amendment continues to develop.

The ABA, at least, seems to be paying some attention: they’ve created this page tracking developments in case law and commentary following the North Carolina Dental Board decision. If this topic interests you as much as it does me, you’ll want to follow along.

“Get Rid of UPL?”

The ABA Journal reports that Mark Britton – Avvo’s CEO, and my boss – told the ABA House of Delegates that bar regulators need to “get rid of UPL” and embrace innovation.

If you read the comments on the piece, you’ll note that Mark’s sentiment was not warmly or widely embraced.

That’s to be expected of the defensive members of my conservative and sometimes hidebound profession. Change is scary and unsettling.

But something’s got to give. There continues to be a massive disconnect between lawyers and the potential clients out there who could use their services – if only the bars could get out of the way and seriously consider:

  • Allowing non-lawyer ownership of law firms, so that talented non-lawyers could import from other industries the innovations, merchandising, and customer service orientation so lacking in the practice of law.
  • Significantly carving back the definition of “the practice of law” so that non-lawyers could provide a much wider range of straightforward legal-related services.
  • Removing artificial geographic constraints, so that attorneys could more freely find and serve their clients, regardless of physical location.

This is not to say that there aren’t questions and concerns that arise with any of these suggestions. The professional independence of lawyers must be protected, deception and shoddy services must be rooted out, and competency to practice within a jurisdiction’s courts must be maintained.

But it starts with having a real discussion about whether the current structure of overreaching UPL restrictions serves any of these ends well.

Are we really protecting consumers and the integrity of the legal system, or are we just trying to maintain a monopoly? As lawyers, we’re really good at pointing at the problems and potential risks in taking action. But the problems stemming from inaction are just as real. And we’re feeling them in spades as the legal services market becomes increasingly inaccessible – and irrelevant – to the vast majority of the public.

 

More Thoughts on “The Practice of Law” (Part 2)

In Part 1, I looked at the recent 2nd Circuit decision that found that brainless document review activities, although done on legal matters, by licensed attorneys, were not “the practice of law.”

In this post, I’m going to look at another July 2015 decision – this time from the 11th Circuit – that also helps inform the contours of what, precisely, “the practice of law” actually is.

The case, handed down on July 28th, is Wollschlaeger v. Governor.  Wollschlaeger involves another form of professional speech – that of doctors – and deals with the question of whether the state can regulate doctors asking questions of patients regarding guns.

I’ll say at the outset: Wollschlaeger is a mess. It basically shoehorns constitutionality by finding an exception that swallows the rule, leaving in place a garbage piece of legislation obviously designed for no other purpose than to cow doctors away from even bringing up the subject of guns when talking with patients.

But let’s leave aside for now the question under what subjective state of mind a doctor moves from allowable to unallowable questions of patients regarding firearms ownership. My larger interest is the test the Circuit court used for acceptable state regulation of professional speech.

Yes, even professionals, acting in their professional capacity, have first amendment rights. And as Paul Sherman noted earlier this year, there’s precious little in the way of Supreme Court guidance on the uneasy intersection between the First Amendment and professional regulation. This is a question that should be of particular importance to lawyers, given that ours certainly consists of a higher percentage of speech-related activity than any other licensed profession.

In Wollschlaeger, the 11th Circuit took the question on headlong, finding that state regulation of professional speech – within the context of the professional’s relationship with a consumer – is subject to the same intermediate scrutiny analysis applicable to commercial speech. 1

The court noted that doctors have full first amendment rights to speak out with respect to guns, but that, when it comes to the doctor-patient relationship, the state’s interest in consumer protection means it can regulate speech subject to intermediate scrutiny.

Although I’m partial to Sherman’s argument that professional speech regulation should be subject to strict scrutiny, and while I completely disagree with the court’s conclusion that Florida’s law survives even intermediate scrutiny, the case is a good reminder that the state’s speech-regulatory authority – regardless of the standard applied – is limited to the professional-client relationship. It doesn’t apply more broadly to anything a professional might say.

For attorneys worried about answering anonymous questions online, or speaking out publicly about matters of interest, this should offer some comfort that regulation of “the practice of law” isn’t going to control their expression just because they happen to be lawyers.

Notes:

  1. Which is not to say that such communications ARE commercial speech.

More Thoughts on “The Practice of Law” (Part 1)

A recent federal case out of New York provides an interesting look at a subject I’ve written about a number of times: what, exactly, IS “the practice of law?”

It’s a deceptively simple question. For many lawyers, the answer is “anything I work on that’s related to the law.”

And even some federal judges: to whit, the 2014 district court decision in Lola v. Skadden, Arps et al, in which the judge concluded that a lawyer hired to do $25-per-hour document review was practicing law, and thus not eligible to be paid at the overtime rate.

In the district court decision, the court spends a fair bit of time parsing what “the practice of law” means, arriving at a broad definition that draws in a wide range of legal tasks, including many that involve “little to no legal judgment.”

As I’ve pointed out before, there’s a fair bit of tension between the First Amendment and expansive regulation of “the practice of law.” And although such expression-related concerns aren’t at play in a putative class action claim for document review lawyers to get paid overtime, this fundamental limitation on the state’s right to control expressive activity should inform how courts determine the contours of “the practice of law.”

What would those contours look like? My developing thought is that they should look considerably narrower than what most lawyers think of as the “practice of law.” The state’s legitimate interest in protecting consumers and preserving the unique lawyer-client relationship doesn’t need to cover nearly as much ground as the bar has claimed over the years.

So it was refreshing to see the 2nd Circuit reverse the district court decision in Lola v. Skadden, and find that the document review activities alleged in the plaintiff’s case were NOT “the practice of law.”

Why not? Although North Carolina (the state in which the issue arose) – like many states – provides a less-than-helpful definition of “the practice of law,” the Circuit court reviewed a number of decisions dealing with the issue, in North Carolina and beyond, to arrive at the conclusion that “the practice of law” requires the exercise of legal judgment on behalf of a client.  And in this case, the quintessential document review activity of “using criteria developed by others to simply sort documents into different categories” did not involve the exercise of legal judgment.

That seems, to me, to be a good thing. Not everything a lawyer does – even “lawyerly-seeming” stuff – is actually “the practice of law,” subject to state regulation and limitation.

This doesn’t mean, of course, that a lawyer is off the hook for client-impacting problems that arise out of activities that don’t fall under the definition of “the practice of law.” What it DOES mean is that there are appropriate limits on the extent to which the state can call an activity “the practice of law” and proceed to regulate it.

In the case of David Lola, that means time-and-a-half pay for extra hours of document review. For everyone else, it may eventually mean greater access to everyday legal help.

[In Part 2, a look at another recent decision that cuts the other way]