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April 2017 Notes: It’s all About “Unmasking” This Month!

Twitter Crushes Unmasking Attempt. If you’ve been following the political news lately, there’s been LOTS of talk about leaks of information and the “unmasking” of the identity of U.S. citizens caught up in government surveillance of foreign spies. But the political unmasking tilt took yet another turn in early April, as the Department of Homeland Security tried to use an administrative summons to force Twitter to reveal the identity of the person behind an anonymous account. The account – @ALT_uscis – was one of many “ALT government” accounts set up after last November’s presidential election. And like many of the other accounts, @ALT_uscis regularly posts content critical of the Trump administration and the agency it spoofs – in this case, the Customs and Immigration Service. Twitter, to its credit, filed a federal lawsuit to quash the summons. After all, there is a strong first amendment protection for anonymous speech, and the use of administrative summons or subpoenas to reveal the identity of anonymous speakers – particularly when such tools are wielded by thin-skinned bureaucrats – is exceptionally threatening to full and robust public expression. Within a day the DHS withdrew the subpoena, showing that at least at some level grownups have asserted authority within the agency. But it shouldn’t have to take a lawsuit and public pressure for government agencies to respect the right of the public to criticize them.

Avvo Unmasking Follow-Up. Back in 2015, Avvo took a similar stance in response to a subpoena from an attorney seeking to unmask the identity of the anonymous author of a negative Avvo review, who the attorney believed was a non-client. That case, decided in favor of the reviewer, established the balancing standard in Washington State by which courts will determine whether to permit discovery under “unmasking subpoenas.” Now, the reviewer has come forward and identified herself, proving that she was a client of the lawyer in question, and noting that she “feels strongly about the need for a consumer to speak the truth about their experience” with an attorney.

It’s Hard to Hide Online. If any of my readers are wondering whether they can reliably stay anonymous online, here’s a fascinating cautionary tale. After FBI Director James Comey mentioned offhand that he had a “secret” Twitter account, Gizmodo reporter Ashley Feinberg took on the challenge of tracking it down. Through some quick detective work and cross-referencing of other accounts, Feinberg zeroed in on a particular twitter account: @ProjectExile7. And by tracking the accounts @ProjectExile7 followed, and the FBI-centric tweets occasionally sent out by the account, she concluded that it was “almost certainly” Comey’s (this conclusion was bolstered by the posting of this meme by @ProjectExile7 right after Feinberg’s story ran). The takeaway? If even the FBI Director can’t stay hidden from a motivated investigator, don’t count on having better luck yourself.

Social Media News and Notes:

Lawyers continue to wring hands about reconciling ethics rules and use of social media.

“Reverse astroturfing:” $34,500 judgment in case of false negative review left for competitor.

Some surprisingly good tips for lawyers experimenting with Facebook advertising.

Credibility in Business and Government

[This post was inspired by an email discussion after my last CLE webinar, “Lawyers & Lies.”]

Prior to the 2016 Presidential election, it wasn’t exactly a secret that Donald Trump is a less-than-effective businessman. Those familiar with how businesses operate and grow know that building a business empire through real estate and one’s gilded name, on the back of inherited wealth, is no marker of an excellent business operator.

The signs were all there: the bankruptcies, the reliance on a small coterie of loyalists and family, the rumors of shady dealings, the repeated stories about screwing over counterparties (often tradespeople and small-scale vendors), and the lack of any business vision other than the simple logic of commercial real estate: leveraging other people’s money and hoping that rents rise and assets inflate fast enough to outpace debt service.

So I doubt that any serious business person voted for Trump on the commonly-held assumption that he would wield his “business acumen” to bring the problems of unruly government to heel. 1 But plenty of people less familiar with business surely bought in to this pipe dream, assuming that Trump’s gold-festooned lifestyle was a proxy for serious mastery of all things business.

It should now be obvious – to  all but the willfully blind – that the assumption of Trump’s business skills has been put soundly and firmly to bed. The failures of operational discipline were apparent from the start, from the disorganized transition to the complete goat rodeo that represented Trump’s first travel ban rollout – an egregious bit of policy that nonetheless could have easily been landed successfully had a defter hand been at the helm. But beyond this lack of operating chops, we are now seeing the impact of another, even more critical form of business currency that Trump seems devoid of: credibility.

Presidents and politicians, even more than business leaders, are notorious for spin, overstatement, and failed predictions. But this doesn’t mean they don’t retain – and rely on – some reservoir of core credibility. That much of what they say, particularly when making statements of fact and important or personal commitments, can be fundamentally trusted.

Trump is something else entirely. In the New York Times yesterday, David Leonhardt offered a good overview of the President’s many, many confabulations. Yet while the man is clearly a liar (in the sense that so many of his untruthful utterances, unlike the spin or failed predictions of other politicians, are clearly intentional), he is also something more: a bullshitter. The bullshitter will lie, certainly. But more fundamentally, the bullshitter doesn’t care about the truth. Whatever he says is whatever he says – it’s just a means to end. He says whatever he needs to say to get to where he wants to be.

And the thing is, being a bullshitter probably worked pretty well in Trump’s sad, shoddy, little business empire. You can shine on lenders, as long as they get paid or you’ve got an escape hatch via bankruptcy. You can stiff your “little guy” vendors, because what are they going to do, sue? And you can take advantage of the star-struck and gullible, because suckers abound when celebrity (even of the tarnished, C-list variety) is around.

But lacking credibility doesn’t work in real business, or – as Trump is learning – in government. First of all is the transparency: people start checking things out. They follow up to see if you did what you said you were going to do. And they call you on your bullshit when you lie or fail to follow through.

Even worse for the bullshitter who finds himself out of his depth is the fact that the loss of credibility makes it really hard to get things done. While our society has lots of contracts, laws, and verification procedures, there are myriad points where we invest – time, money, effort – based on our trust of another person. Imagine if you didn’t trust a counterparty to not retrade or willfully breach an agreement. Would you invest the time to negotiate a deal with them anyway? Of course not. The same goes for government – the bullshitter’s got no ability to cajole, persuade, or incentive. His bullshit has cost him any room to negotiate, because his counterparties don’t believe what he’s saying, and don’t trust that he will meet any commitments he makes. He’s stuck with nothing but punitive measures.

The punitive-and-petulant approach may have worked passably well in the gaudy corridors of Trump Tower. But as our 45th President is discovering, it’s not remotely enough to meet the challenge of running the country. Credibility must come first.

Notes:

  1. Although surely plenty voted for him on the assumption that he would adopt business-friendly policies, either hoping that collateral damage (to democratic institutions, national security, minority rights, etc.) would be minimized or out of a willingness to ignore such concerns. The first part of that seems to be working out so far.

February 2017 Notes: Keeping Your Cool

Airport Lawyers. If early results are any indication, the Trump administration will be keeping lots of lawyers busy. Besides the usual change-of-administration drama, the early days of this go-round saw the middle east travel ban, a poorly-executed executive order that was almost immediately derailed in court. Out of that fiasco – which took effect with no warning – came the inspiring stories of the legions of lawyers who took to the airports to help those who became ensnared by the ban in the midst of their travels. And despite the fact that the travel ban is currently stymied in court, immigration issues – and the need for counsel, often on short notice – are certainly going to continue to loom large. Technology is there to help. Several apps and websites, including “Airport Lawyer” and “Immigration Justice,” have been put together to ensure that travelers caught up in these issues can get matched with resources and volunteer legal counsel.

“Reputation Management” via Court Fraud. I’ve written about this a couple of times already, but developments continue to churn along, and I suspect we have only seen the tip of the iceberg so far. The scheme is simple: file a lawsuit, line up a fake defendant, and get a “settlement” or “judgment” finding that an online review is defamatory. Then use that court-sanctioned result to have the review removed or de-indexed. Except that no one involved had anything to do with writing the review. The latest exposure of this tactic comes from federal district court in Rhode Island, where a judge found fraud on the court in obtaining a phony consent judgment, and ordered the matter submitted to the US Attorney for investigation. I can’t emphasize this enough: if you have hired a reputation management firm to help with your online identity – and especially if you have done so in response to negative online reviews – ask that firm pointedly about the specific tactics they are employing. Because if there’s one thing no lawyer wants to be party to, even inadvertently, it’s fraud on the court.

Work on that Poker Face. Look, no one said that being a lawyer would be easy. It’s one of the only job where even as you are learning and building your competence, there’s someone constantly looking to take advantage of your missteps. One thing we learn as lawyers – besides being assiduous about details, to avoid those missteps – is to maintain our composure, no matter what’s going on. Because let’s face it: getting baited into overreacting is really bad for your clients and your career. And it can easily lead to sanctions or fines, as two attorneys recently found out. Skeptical about the testimony a witness is delivering on the stand? Better to work on some effective cross-examination questions, rather than making exaggerated “gagging noises” in response. And hey, who hasn’t had a combative deposition? But you know, even if things are getting really heated, it’s probably a good idea to stop short of throwing coffee on your opposing counsel.

Briefly:

Why it’s important to make your law blog as “niche” as possible.

At least 26 states have now decreed that lawyers have a duty of technological competence.

GE creates internal “Yelp for Lawyers” to help in-house counsel evaluate outside law firms.

Publishing Article = Not Commercial Speech

Another 11th Circuit case, also involving doctors. Rebecca Tushnet has the details, but it’s another of those relatively-rare cases dealing with the question of whether something that isn’t a straightforward advertisement can be commercial speech. The answer here – applying the slippery 2-or-3 part test (advertising format, promoting a specific product, with economic motive) – was NOPE.

Helpfully, the court also disposes of the oft-raised (but asinine) argument that advertising revenue converts otherwise-editorial content into commercial speech:

Even if Dr. Novella receives some profit for his quasi- journalistic endeavors as a scientific skeptic, the articles themselves, which never propose a commercial transaction, are not commercial speech simply because extraneous advertisements and links for memberships may generate revenue.

UPDATED: Somehow I missed that the lawyer representing the defendant here was none other than my friend, counsel, and First Amendment badass Marc Randazza. Congrats on another great Florida win, Marco (especially the part about getting California anti-SLAPP law applied in a Florida court)!

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

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

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

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

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

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

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

 

Notes:

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

On Information Bubbles

I went to college, in the 1980’s, at the University of Oregon. The campus stood out, even among generally-left-wing institutions of higher learning, as a very, very liberal place. And unsurprisingly, I held a lot of very liberal ideas. Now, this wasn’t entirely due to the University. My background could work well as a parody “origin story” for a tie-dyed action hero: conceived during the Summer of Love by very young (and soon to split) parents living in the Haight-Ashbury. Grew up in the woods in rural Oregon, brought up on a lot of permissive and progressive ideas. You get the idea.

However, my mother had always raised me to have an open mind. And so, in the midst of my sophomore year at Oregon, I began reading The National Review and The Economist, in an attempt to gain some alternate perspective on the philosophy and political science classes I was taking.

This didn’t seem like a particularly important step at the time. I just felt – like many a “question authority” youngster – that I might not be getting the full picture from my lefty professors. And thinking back, my reading didn’t really change my mind on much. Sure, I wasn’t down with the socialism silliness that too many of my classmates went in for, but I was on board for a whole lot of progressive ideas. Because while the reading sometimes moderated my views – or even changed my mind – on many more occasions it exposed the shallowness of whatever counter-arguments existed to the material I was learning in class.

In the 30 years since, I’ve tried to retain this habit of mind. I continue to seek out a diversity of points of view, whether in terms of news and analysis or conversational partners. It feels natural, like the only way to really understand the world, and to feel solid in one’s views.

Maybe I’m approaching this too rationally, but how can you feel confident that your views are sound, if all you hear is the echo chamber?

To this point, Keith Lee recently wrote about “choice architecture:” how the choices we make about the information we consume deeply impacts the interpretations of events were are exposed to. Keith’s post calls to mind Scott Alexander’s “I Can Tolerate Anything Except the Outgroup,” which notes (among A LOT of other things) our culture’s descent into tribalism, and how we increasingly surround ourselves with tribes (and the tribal voices of social media) that speak only to our own, narrow, perspectives. We only consume information from news outlets tuned to our bias, to say nothing of perspective – opinion pieces – which also come exclusively from our tribe’s outlets.

This seems odd to me, as I’ve grown up with family members who hold a diversity of views, and I’ve internalized the habit of seeking out contrary opinion. And yet, there’s something to Alexander’s amazement that he cannot, in his circle of friends and acquaintances, find anyone who identifies with traditional conservative/religious notions:

According to Gallup polls, about 46% of Americans are creationists. Not just in the sense of believing God helped guide evolution. I mean they think evolution is a vile atheist lie and God created humans exactly as they exist right now. That’s half the country.

And I don’t have a single one of those people in my social circle. It’s not because I’m deliberately avoiding them; I’m pretty live-and-let-live politically, I wouldn’t ostracize someone just for some weird beliefs. And yet, even though I probably know about a hundred fifty people, I am pretty confident that not one of them is creationist. Odds of this happening by chance? 1/2^150 = 1/10^45 = approximately the chance of picking a particular atom if you are randomly selecting among all the atoms on Earth.

About forty percent of Americans want to ban gay marriage. I think if I really stretch it, maybe ten of my top hundred fifty friends might fall into this group. This is less astronomically unlikely; the odds are a mere one to one hundred quintillion against.

People like to talk about social bubbles, but that doesn’t even begin to cover one hundred quintillion. The only metaphor that seems really appropriate is the bizarre dark matter world.

I live in a Republican congressional district in a state with a Republican governor. The conservatives are definitely out there. They drive on the same roads as I do, live in the same neighborhoods. But they might as well be made of dark matter. I never meet them.

I feel like I inhabit less of a bubble than Alexander does, but only slightly less. Working in technology, in a western coastal city, it’s exceedingly rare to run across people who would hold themselves out as creationists, or inveigh against gay marriage (hell, many people in my circle probably consider me an outlier because I like guns, dislike regulation, and have friends who are Republicans). So even with a purposeful approach to information choice architecture, it’s really hard to avoid getting drawn into a form of limited-perspective monoculture just by virtue of work environment and lived geography.

Short of seeking out radically new activities or joining a church, I’m unlikely to add much viewpoint diversity to my circle. And there’s this as well: much as I like engaging with people who have heterodox views, the signal-to-noise ratio in seeking out such perspectives can be depressingly high. There’s far too much position-staking; not nearly enough willingness to engage with and consider evidence. That can make the investment in avoiding the bubble – particularly with respect to actual humans, as opposed to books and articles – seem hardly worth the return.

Which is a shame, because engaging with different views and defending our own is how we grow and improve. There’s also little question that the rigidity of our “bubbles” exacerbates political polarization. I’d like to think that if we all worked a little harder, and regularly challenged ourselves by drawing from a broader range of information sources, we’d be closer as a culture. Unfortunately, the proliferation of sources and customization online are, if anything, making our bubbles even more insular and permanent.

What the Bars Need

No, not more liquor – though that might help, too.

I’ve been talking with quite a few state bar leaders recently, and there’s a lot of angst out there: concern about the growing inability of consumers and small business to afford what the legal industry is selling. Concern about the rapid pace of change in communications technology, and how legal services are marketed and sold. And concern about the future of the legal profession in general, and whether it can propel itself forward in the face of these changes, and others (like the lowering quality of new entrants to the Bar, as a rapidly shrinking applicant pool competes for a near-record number of law school slots).

So what’s a bar to do? I can’t promise to have all of the answers, but here’s one answer I know is wrong: sticking one’s head in the sand, applying the industry-protective rules as broadly as possible, and protecting the legal monopoly at all costs. To do so is to defend a bygone notion of the profession that doesn’t fit with the realities of our modern bureaucratic state, developing technology – or the law.

I will develop these points much more fully in later work, but at a very high level, here’s my prescription for what the Bars need to do:

  •  Narrow What’s Included in the Legal Monopoly

The definition of “the practice of law” – all the work that is swept in within the monopoly enjoyed by lawyers – is hopelessly vague and overbroad. It’s practically begging for a challenge on both First Amendment and antitrust grounds. Rather than fight and lose those battles, the Bars would be better served (as would the public they ostensibly exist to protect) if they proactively got back to the core of the practice. That’s trial and other advocacy work, for the most part, and it’s where the benefits of legal training and experience are most relevant. Attorneys could, of course, offer other services in competition with non-lawyer providers, and many consumers would choose them for their training and experience. But there’s no benefit to the public in casting such a wide net that non-lawyers (many with substantial subject matter expertise) are excluded from offering advisory services on “legal” matters.

  • Shorten and Simplify the Advertising Rules

The Association of Professional Responsibility Lawyers (who know a thing or two about lawyer regulation) have persuasively argued for a simplification of the attorney advertising rules. As they point out, the current rules are outdated, overly broad, and often at odds with the First Amendment rights of lawyers to express themselves and consumers to get access to information about legal services. There’s little that’s special about lawyer advertising (with the possible exception of in-person solicitation) to merit the extensive, detailed regulations that too many lawyers labor under. Replacing them with a simple prohibition on false and misleading advertising – of the sort every other industry seems to deal with just fine – would greatly enhance the flow of information and new services for consumers.

  • Permit Sharing of Fees with Non-Lawyers

So many in the Bars hate this idea, but the prohibition on fee sharing is significantly holding us back. It keeps our practices from being able to get the full benefit of non-lawyer professionals, and it forecloses all sorts of innovative services that lawyers could provide in concert with business enterprises far more versed in marketing, operations, and customer support. The prohibition also rests on two extremely dubious assumptions: that our fellow lawyers are intrinsically above influencing our independent professional judgment over matters as trivial as mere money; and that at the same time we as lawyers are incapable of resisting such influence when it comes from non-lawyers. There’s no reason it couldn’t be done away with, tomorrow, and replaced with flexible rules that permit sharing but censure any form of professional interference that might result.

There’s work to be done, to be sure, to make sure that regulatory changes such as I’m proposing don’t leave a consumer-harming vacuum in their wake. But we’ve enough experience with other industries to know that there are myriad ways to protect the public short of the byzantine, rigid accretion of rules we’ve allowed to build up over the last century or more. It’s time to take these changes seriously, rather than persisting – as we as a profession have done for far too long – with business as usual.

Embrace Mediocrity

Why are lawyers stuck when it comes to thinking about expanding the legal marketplace? It’s not as if there’s no opportunity here; it’s widely accepted that most people don’t avail themselves of legal help, and that there is a massive “access to justice” problem.  So what gives? I can think of two obstacles:

  1. Lawyers have a tendency toward “perfection thinking.” There are few issues that we can’t offer gold-plated solutions for, even in cases where a more modest solution would be equally (or nearly) as good.
  2. Our practices lead to a form of survivorship bias. We have a tendency to think only in terms of customized legal services because the only people who end up buying these services are customers who have a) complex legal needs, and b) money.

The result? Most lawyers are only thinking in terms of customized, gold-plated legal solutions for consumers with complicated legal problems. What they aren’t thinking about is the vast market of people who aren’t buying legal services: people who either a) have relatively straightforward legal problems, or b) have more complex problems but who are willing to trade price for quality.

Lawyers who want to unlock this untapped market need to be comfortable embracing mediocrity.

This sounds lame. Who wants to be mediocre?

But lots of great companies are “mediocre” when compared to their fully-custom competitors. McDonald’s is mediocre. Target is mediocre. Hell, even most of the clothes at Nordstrom are mediocre, when compared to custom tailoring.  But this doesn’t mean these companies don’t offer a valuable product to their users. People need to eat and be clothed, and everyone understands the tradeoffs involved when choosing between the prix fixe meal at Le Cordon Bleu and the drive-thru window at Mickey Dee’s.

Lawyers willing to embrace this level of mediocrity would offer off-the-rack solutions for people who either don’t need or can’t afford bespoke services. And they wouldn’t do so as a poor alternative or pressured upsell for custom services. Instead, they would take a page from companies that offer products to consumers at scale and emphasize things like price, speed, and predictability.

For example: imagine a law firm that offered same-day turn around on basic services. That guaranteed its clients would always have someone to talk to about where things stood. That offered an online portal continuously updated with documents and status changes. That sent out automatic email or text notices whenever developments occurred. That offered warm handoffs to other attorneys when more advanced services were needed.

There are countless possibilities, but they all exist in the space that exists when you move beyond “attorney competence” and focus on “client service.”

What kind of legal services lend themselves to this “embrace of mediocrity?” I would challenge every attorney to think of something within their practice area that could be packaged into a clear and price-transparent bundle for new clients with simple legal needs. Something that could be handled, most of the way, by non-lawyer staff members.

  • Family law – how about a prenup or uncontested divorce?
  • Estate planning – who doesn’t need a basic will and living will?
  • Business – what about a compliance check-up, or business formation?
  • Litigation – wouldn’t pro se coaching sessions be popular?

You get the idea. The trick is to not instantly devolve into lawyerly “issue spotting mode” – where you gravitate to the “well, what if the person has x, y, and z legal issues?” way of thinking – and consider the kind of help you could give the vast numbers of people who don’t, in fact, actually have all of those legal problems you’re agonizing over. People who just need a little assistance and reassurance that they are on the right track.  With the right process, and clear descriptions of what’s in (and not in) each service package, lawyers can offer useful legal services that work for a much wider audience than traditional full-scope representation.

 

The Clarifying Power of “No”

One thing that new in-house attorneys have drilled into their heads is the importance of the legal department not being seen as a roadblock. This brings with it the avoidance of saying “no” –  and that’s not necessarily a bad thing. Too many lawyers ARE roadblocks, preferring to mitigate every possible risk rather than focus on the business opportunities lying on the flip side of those risks.

However, this Seth Godin post from the other day reminded me that – despite my 20+ years of in-house work – I’m still a big believer in the power of “no.”

I love “no.” I use “no” all the time.

However, “no” has to be used right. “No” isn’t an excuse to do less work, or (worse still) to stifle a massive opportunity.  It shouldn’t be a shortcut or a default setting.

It’s also something I probably use more in negotiating than in dealing with internal clients. But there, too. Because where “no” gets its power is in clarifing the issues.

If you know the answer is going to be “no,” why not get there quickly and move on?

Too many times, we feel like it’s more polite, or more preserving of feelings, or less adversarial, to hem, haw and equivocate. But all that aimless discussion does is featherbed the ultimate answer, wasting time in the process. It can extend discussions far beyond what should be their natural courses.

But “no” can be delivered politely. It can be done with empathy, and even, in many cases, with alternatives. And it can, in a moment, get you to the root of the thing, without going through a set piece of conversation to wheedle out of having to be direct. It can be an enormous time-saver.

Even today, I know I could be better, more consistant, about embracing the clarifying power of “no.” But if this is something you struggle with, consider Godin’s message: “no” is a boundary-setting device, and, more often than not, a feature rather than a bug.  

Legal Forms & Legal Advice

I was speaking at an Evolve Law event in Los Angeles last week, and had a conversation with Derek Distenfield, who operates a business called NextGenJustice. I hadn’t heard of it, but that’s because Derek had changed the name from “Legal Docs By Me.”

THAT I had heard of. Kind of a brick-and-mortar version of LegalZoom, Legal Docs By Me was a place people could go to get basic legal forms to accomplish things like uncontested divorces, name changes, and small business formations. I’d run across the company when I read that the New York Attorney General’s office had cracked down on it for the unauthorized practice of law.

Apparently the company entered into a consent decree with the NYAG and changed its name. Unfortunately, this hasn’t spelled the end of the company’s issues, as the NYAG is now going after NextGenJustice for violating the terms of the consent decree. 1

NextGenJustice is also expanding to Florida, where, predictably, it is also facing questions about UPL.

There shouldn’t be any question that selling forms isn’t the unauthorized practice of law. But what about providing advice to those who walk into his locations looking to buy a form? I asked Distenfield how his business handles the questions that are going to naturally come up from buyers – “how do I fill this out,” “what goes in box 12a,” etc.  He says the store employees don’t address these, instead referring customers to local attorneys.

Which is great, I suppose, but why shouldn’t his folks – who aren’t lawyers and don’t claim to be lawyers – be able to answer straightforward questions?

Tom Gordon has an op-ed on this topic in USA Today, and it gets to the heart of the problem: the definition of “the practice of law” has been stretched so far that people and businesses are being prosecuted for doing anything that remotely hints at being “legal.”

This isn’t the only thing that’s keeping people from getting help for their legal needs, but it’s a big factor – along with the rules prohibiting fee-splitting with non-lawyers – that is keeping a lid on innovation and forcing people to choose between services that are either fully-custom or do-it-yourself.

It’s also, as I’ve pointed out before, problematic from a free speech perspective. Answering questions and giving advice is expressive activity, and the fact that bar regulators and police authorities punish it under the banner of professional regulation sounds like content-based speech regulation to me.

There is, unfortunately, little appetite among the lawyer regulators to move to a narrower definition of “the practice of law” that recognizes both the constitutional issues and the traditional functions of being an attorney. But the overreach we’ve seen here may result in change from an unlikely source: the courts. The Supreme Court has never directly addressed the tension between occupational speech regulation and the first amendment; a number of cases winding through the federal courts right now may provide that opportunity – and spell big changes for the Bars.

Notes:

  1. The court documents aren’t readily available online, so I can’t tell to what extent the NYAG’s complaints have to do with UPL versus deceptive advertising, but according to the AG’s press release, both seem to be at play.