October 2016 Notes: Is There a Ray of Light in the Attorney Regulation Darkness?

Florida Institutionalizes “Access to Justice” Efforts.  In recent years, many states have implemented commissions to try and find solutions to the “access to justice” crisis. In Florida, after several years of work, the state Supreme Court has decided to make that state’s Commission permanent. That’s a good thing; the growth in pro se representation makes it incumbent upon courts to find ways to make it easier for people to grapple with the wheels of justice. This is not a problem so easily solved in a handful of years. But let’s also hope that the Commission – with the guidance of the Florida Supreme Court – will turn its attention to the archaic regulations that make it difficult for attorneys to offer innovative services to a public desperate for legal information and guidance. Because the Florida Bar seems to be trying to make things even worse.

Virginia Looks to Streamline Attorney Advertising Rules. On a more encouraging note, Virginia is leading the charge to update the attorney advertising rules. This effort stems from the Association of Professional Responsibility Lawyers, which analyzed the rules and concluded that many of them are unnecessary, unconstitutional, and unduly burdensome. The issues with the existing rules go beyond the mere pedantic. The rules keep good attorneys from speaking out about the legal services they provide, while distracting enforcement authorities with banalities like lawyer referral service regulation or determining the “reasonable cost of advertising.” APRL’s proposal – which Virginia is looking to adopt – would eliminate much of this “cruft” within the rules, while retaining and sharpening the focus on preventing false and misleading advertising. This would be a great outcome for consumers and attorneys alike, and the Virginia State Bar deserves a lot of credit for pushing forward with such meaningful change.

Court Finds Review Sites Immune From Suit. 47 USC § 230(c)(1) is a curious law. Only 26 words long, “CDA 230” stands for a counter-intuitive (to lawyers, at least) principle: that responsibility for online content rests only with its creator. It doesn’t matter whether someone else has provided a forum for the content, promoted it, or disseminated it. Only the “content creator” can be liable. I call CDA 230 “the law that makes the internet go,” because it allows sites like Facebook, Twitter, and YouTube (and Avvo!) to create robust online communities without being liable for all of the stuff that gets published within those communities. There are exceptions to this rule – think IP and federal crimes – but for the most part CDA 230 is a powerful factor in the growth of the web. All this background to get here: the 9th Circuit just found that CDA 230 immunizes Yelp from defamation liability for user reviews. While the outcome was abjectly unsurprising, it’s nice to see the rule applied directly to online reviews.

Social Media News and Notes:

RT ≠ endorsement: court authorizes service of process via twitter.

Amazon bans incentivized user reviews.

More evidence that “reputation management” companies may be defrauding courts.

 

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