California to Issue Ethics Opinion on Lawyer Blogging

**Updated 2/24/16: The Bar has issued its proposed opinion, which addresses most – but not all – of the concerns I’ve identified below.**

The California State Bar is seeking comment on a proposed ethics opinion on lawyer blogging – or more specifically, the conditions under which the California Bar would consider a lawyer’s blog subject to the attorney advertising rules.

As with its 2012 ethics opinion on social media postings, the California Bar uses specific examples of the practice in question.  The draft opinion also doesn’t completely ignore the important first amendment constraints on the Bar’s ability to regulate. Good on the Bar for doing that; too many state ethics regulators don’t bother with this.

The Bar offers four hypothetical examples of types of “blogs.” These include:

A.  A stand-alone “blog” that has no interactivity and serves as nothing more than a puff piece for the attorney’s case results.

B.  A law blog that lives on a page on a law firm’s website, and contains the analysis and discussion one would expect to see on a blog . . . but closes every post with the statement “for more information, contact so-and-so.”

C.  A law blog that lives on a standalone site, and contains the analysis and discussion one would expect to see on a blog . . . but closes some posts with the statement “if you have questions about your divorce, contact so-and-so.”

D.  A blog about jazz that links to the lawyer’s site.

The Bar’s Committee concludes that the first three types of blogging are subject to the advertising rules, but the last one is not.

The Committee is half-right. Example A is commercial speech, and example D is not.

But what about B & C? Unfortunately, after acknowledging the first amendment constraints on regulation, the Committee fails to adequately apply the test for mixed-content advertising and editorial speech.

In the case of a blog that occupies a page on the lawyer’s website, the Committee concludes that this factor alone (not even accounting for the consistent message to contact the author of the post) is sufficient to render the blog “advertising” subject to the advertising rules.  While this *might* be true in some cases, it’s too much to say that it applies across the board to all blogs that happen to reside on the same domain as a law firm website. Regulators would need to analyze, in each case, whether the combination of content, format, and motive is sufficient to render the communication commercial speech.

That said, it’s possible the Commission means that having a lawyer blog on a law firm website plus the inclusion of the consistent “contact me if you have further questions” message renders the blog advertising. But it would be nice if they said so – and I also don’t believe that message is necessarily a commercial one.

And as for blogs on stand-alone sites, in which the occasional post refers readers to contact the author about their individual cases, the Committee is really going too far to find that such a message bootstraps the entire blog into being advertising.  It may be the case that such a message – because it refers to a reader’s own case, and not questions about the editorial content – would render the post in which it appears commercial speech. However, the idea that a few isolated message such as this would “infect” the entire blog and all of its content is well beyond the Supreme Court’s test for determining whether mixed-content speech is treated as “commercial.” It’s even beyond the only-in-California Kasky test for mixed-content speech.

Why Should We Care?

Some would say, who gives a rip? Attorneys can just slap an “attorney advertising” disclaimer on their blogs and be done with it. But putting aside the efficacy of that, the perverse fetish lawyers seem to have for disclaimers, and the fact that attorneys should not have to worry about including some asinine disclaimer on everything they write, there is a bigger issue at play here:  the chilling effect that this type of over-regulation has on free expression. And that chilling effect not only impacts the attorneys who would otherwise freely express themselves, but also the extent to which consumers can obtain information about the quality and nature of legal services and providers.

Subjecting attorney blogs to advertising regulation opens up an entirely new avenue for collateral attack on attorney speech.  After all, under traditional speech analysis, bloggers can express themselves freely, without worrying overmuch about hyperbole and misstatement. And that’s a good thing; it’s part of the “more speech” solution we as Americans have chosen for our system of expression.

But if a blog is subject to bar regulation as “advertising,” lawyers suddenly need to worry about their expression being regulated under the lesser standard of intermediate scrutiny. Their competitors can file grievances with the bar over what would ordinarily be editorial content, and as “advertising” that writing will also be open to attack on publicity rights grounds. 1 Lawyers likely lose the protection of California’s anti-SLAPP law to defend their free speech rights, as well as most fair use defenses to copyright actions. In short, they’ll need to consider the fact that anything they write is putting their license at risk. Under such a regime, it’s a fair bet that many legal bloggers will censor themselves.

What the Opinion is Missing

The Commission’s opinion is also notable for not choosing as an example a far more common case: the law blog – whether a page on a law firm website or a standalone site – that doesn’t close any posts with an explicit invitation to contact the author, but prominently displays contact information for the lawyer or law firm.  Nearly every reputable legal blog I can think of is set up this way, offering some way – telephone, email, twitter, etc. – to contact the lawyer-blogger.

The opinion does suggest, in its discussion of example “C” (law blogger on a stand-alone site) that the inclusion of a link from the blog to the attorney’s website is not enough, on its own, to render the blog attorney advertising. However, the opinion would be better if it expanded on this point, and had a more in-depth discussion of the types of “contact me” messages that could render otherwise non-advertising content commercial speech.

As discussed above, there is a fundamental difference between these two messages at the end of a blog post:

“For more information, contact Joe Smith.”

“For questions about your legal matter, contact Joe Smith.”

The latter is advertising; the former is not. But what of email addresses, chat boxes, hyperlinks and telephone numbers? Do such passive invitations to contact turn a blog post into advertising?

I’m fairly certain the answer is “NO,” at least as an across-the-board rule. While there certainly could be an accumulation of factors that would turn a blog into advertising, the availability of contact information alone would not meet the test.

And, frankly, even the explicit invitation to contact the attorney about one’s legal matter should not make the entire blog commercial speech. It’s easy enough to parse out the advertising message (“contact me”), apply the advertising rules to that and leave the rest of the blog alone.

This is an important point, and the Commission misses it entirely in its analysis. The test for mixed-content speech contains a secondary test for expression where the commercial message is “inextricably intertwined” with the editorial content. In such cases, the whole thing is treated as editorial speech. 2 The flip side of this test is this: if the messages can be separated, they are to be, with commercial speech analysis (and the potential for Bar regulation) applying to the commercial message, and the editorial expression subject only to any regulation that might survive strict scrutiny.

The “contact me with questions about your divorce case” message is certainly not inextricably intertwined with a blog post about divorce; it’s merely appended on to the end. As such, while the invitation to contact should be treated as an advertising message, the lesson of Riley is that it should not infect the entire post – or the entire blog – with its commercial character.

In any event, here’s the proposed opinion; comments are due by March 23, 2015. I’ve submitted comments along the lines of this post, and I’d encourage any readers to do the same.

And feel free to contact me if you have any questions. 3

Notes:

  1. And publicity rights actions are particularly toxic in California.
  2. See Riley v. National Federation for the Blind of NC, Inc., 487 U.S. 781 (1988).
  3. And no, this post is NOT lawyer advertising.

Time to Gut the Ad Rules

Avvo recently submitted its comments to the ABA’s “Future of Legal Services” Commission, and I wanted to highlight one of the specific suggestions we made:

Get rid of most attorney advertising regulation.

Or more specifically, eliminate everything other than restrictions on false advertising and real-time solicitation. Our suggested advertising rules would look like this:

Rule 7.1: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

Rule 7.2:  A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1)  is a lawyer; or

(2)  has a family, close personal, or prior professional relationship with the lawyer.

Everything else in the attorney advertising rules – prohibitions on specific forms of advertising, hard-and-fast disclaimer requirements, vague provisions about “lawyer referral services” and the like – is the crusty accretion of over-regulation. Many of these provisions pre-date Bates v. Arizona, and would be contrary to lawyers’ First Amendment right to advertise were it not for some begrudging exceptions language that’s been bolted on.

Other provisions found in the RPCs of many states, such as pre-review of advertising (by a committee that may include a law firm’s competitors) and limitations on many forms of legitimate advertising, are fundamentally anti-competitive and often highly arbitrary in application.

As anyone who pays close attention to this area knows, there is absolutely nothing in this dog’s breakfast of regulations that actually buys us any greater consumer protection. 1 Anything egregious and harmful in attorney communication can be enforced via the general prohibition on false and misleading advertising.

What’s more, this thicket of regulation is actively harmful. I’ve spoken with hundreds, if not thousands, of attorneys over the last seven years about this topic. There is a general level of concern and uncertainty over what attorneys are “permitted” to say to potential clients. And lawyers, being the risk adverse creatures they are, tend to clam up.

The Supreme Court has repeatedly noted in some two dozen advertising cases over the last 40 years that consumers have a very strong interest in minimally restrained commercial speech. As the court observed in Bates:

[T]he consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.

And yet, the Bar restrictions, with their often-byzantine level of detail and apparent reach into all manner of attorney speech, are preventing attorneys from providing consumers with the robustness of information necessary to make good purchasing decisions – or to get legal help at all. This is bad for consumers, and ultimately, bad for the Bar.

While there are other things that the profession can do to improve access to justice, one immediate and easy opportunity for improvement is to massively prune back attorney advertising regulation.

 

Notes:

  1. And consumers rarely complain about lawyer advertising violations; virtually all such complaints are filed by other lawyers.

“He Who Shall Not Be Named”

If you follow local and statewide policy-making, you’ll find no shortage of nuttiness. The bar for holding many positions of public trust is quite low, and there’s no particular guarantee that those holding elected positions at this level are familiar with the fundamentals. 1

Case in point: Frederick County (MD) Councilman Kirby Delauter, who has threatened a local reporter with legal action for using his name without permission.

Kirby Delauter Facebook ThreatThe result is predictable. Thanks to the Streisand Effect, Kirby Delauter’s name is being used orders of magnitude more times, in ways he presumably does not like, and would not give his permission to – if he only had that right.

The mocking is particularly brutal in some quarters:

Popehat Kirby Delauter

Delauter’s position is obviously ridiculous. The First Amendment gives anyone, reporters or otherwise, the right to comment and write about other people. And this right is particularly critical when it comes to government officials.

However, the sobering thing is that if Kirby Delauter decides to double down on stupid, he may well find a lawyer dumb enough to take his case.  I talk to attorneys all the time who think – or at least argue – that some bastardization of the publicity rights doctrine permits people to control when and how their name is mentioned.

Notes:

  1. This charge can also be leveled at many members of the U.S. Congress, but the traps that must be run to be elected at the federal level eliminate most of the real loons – or at least discipline them enough to stay “on message.”

Birth of a Solo Practice

I really hope Leo Mulvihill goes on to have a phenomenally successful career, because the kickoff of his solo practice would make an awesome origin tale for a future lion-of-the-Philadelphia-bar Leo to relate to wide-eyed baby lawyers. As Leo puts it:

So there I was, a secretary performing law clerk work while running my part-time practice at night out of an office I got for free.

Probably not how any of us would have drawn it up when choosing to go to law school.

Leo’s whole story is well worth the read, particularly for the instructive example he’s set using hustle and networking to build his practice. He also offers his thoughts on social media and blogging, which are pretty much right on point with what I’m always telling lawyers who are thinking of starting a blog:

Don’t start some stupid sham blog where you pay some marketing company to do it for you. Either write for yourself because you want to, or because you have something interesting to say. No one cares if you simply repost news articles.

Indeed.

“Past Results” Ban in Florida Tossed

Really interesting decision in the case of Rubenstein v. The Florida Bar, in which federal district judge Beth Bloom granted attorney Robert Rubenstein’s motion for summary judgment against the bar AND enjoined the Bar from further enforcing its rules banning the use of references to past results in many forms of attorney advertising.

Law Practice Advisor has the details, but in reading the decision I was struck by how completely unimpressed Judge Bloom was with the Florida Bar’s position. She absolutely eviscerated the Bar for its utter lack of empirical evidence to support its ban, as well as its failure to consider any more narrowly-tailored remedies.

And for First Amendment law junkies, there’s this: while Rubenstein positioned his case as an “as applied” challenge – which is much easier to win, but has the disadvantage of not extending beyond the particulars of the plaintiff’s case – Judge Bloom took it upon herself to style it as a facial challenge. She then went on to show how the Bar’s rules were fundamentally unconstitutional, no matter how they were applied.  BAM!!

This isn’t necessarily the end of these rules, as the state could theoretically rebuild them with proper evidentiary support and deference to their obligation to regulate in a narrowly-tailored way.

Or they could appeal, but that’s a long shot – the good Judge issued a a very complete and well-thought-out ruling.

This decision is a great step toward a simple yet elusive concept: that Bar regulators should only limit speech where it is necessary to do so, and only to the extent of that necessity.

And ultimately, what’s most damning to the Florida Bar’s position is this: the data shows, unsurprisingly and overwhelmingly, that consumers really want to know what kind of results attorneys get. The Bar should take this message, get out of the way, and let that happen.

Ethics & Competitive Keyword Advertising

It sounds unethical:

  1. “Buy” the name of your competitor from Google.
  2. When potential clients search Google for that competitor, your ad appears.
  3. Profit!!

Lawyers seem to think so, too.  There was the Milwaukee PI firm of Habush Habush & Rottier, which sued a competitor for doing this. The North Carolina State Bar issued an ethics opinion putting a kibosh on the practice. And now “The Hammer” – the Texas Firm of Jim Adler & Associates – has weighed in, asking that Texas also find competitive keyword advertising unethical.

Of course, they’re all wrong.

Habush found this out, after spending several hundred thousand dollars losing their lawsuit.

North Carolina should have found out, after watching even ad-restrictive Florida reverse course and withdraw a proposed opinion barring the practice.

And Adler et al will find out as well, as I expect the Texas Bar will leave them hanging.

Habush competitive keyword ad 2

Here’s why: look at this competitive ad for the search term “Habush.” There’s absolutely nothing deceptive or misleading about the ad. There’s no “likelihood of confusion” and no trademark infringement. In fact, the search engines have ad rules that affirmatively prevent advertisers from using the competitor’s name in the ad. So all that happens is that a consumer searching for a firm by name also sees an ad for a competitor. Fundamentally, that’s no different than traditional “proximity advertising” – buying a billboard across the street from your competitor, or a yellow pages ad on the opposite page.

And that’s a GOOD THING – because we should favor giving consumers more information when choosing a lawyer, rather than giving lawyers a competition-free channel for online name searches.

Another Blogger Disciplined

I’m always quick to encourage blogging to those lawyers who love to write; I strongly believe it makes you a better lawyer – and one who is more professionally fulfilled to boot. It may even help generate business, but that is a long game.

But it’s not without risk to the unwary. Your blog may be overly promotional. It may reveal client confidences – even if you try to conceal them.

Or you may, as Illinois attorney Joanne Denison did, go on a rip against the local judiciary, and have sanctions recommended for abusing the judges a bit too harshly.

It’s true that attorneys have fairly wide latitude under the First Amendment to criticize judges (see my “Criticism of Judges” page for more details). But when that criticism totters over the line into defamation, the attorney making the criticism is fair game for bar action.

The facts in the Denison case are complicated, and it’s difficult to tell whether the attorney’s complaints about judicial corruption really meet the test for “public figure” defamation (meaning they must be made maliciously or with reckless disregard for the truth). But the takeaway here, as with most cases of judicial criticism, is that care and diligence are in order when taking judges to task.

Also, because I am regularly railing on attorney regulators for disregarding the free speech rights of attorneys, I must note this: the Illinois Attorney Registration and Disciplinary Commission did an exemplary job of parsing the First Amendment issues in rendering their decision. I can’t say for sure that the facts support their conclusion, but at least the IARDC fully considered the constitutional dimensions.

h/t Kevin O’Keefe

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.

On “Lawyer Referral Services”

One limitation on lawyer advertising, found in ABA Model Rule 7.2(b)(2) and the rules of nearly every state bar, is the prohibition on anything but bar-sanctioned “lawyer referral services.”

What’s a “lawyer referral service?”  It’s a service that refers consumers to lawyers.  Duh.

But why would that be a problem?  Attorneys have a right to advertise, after all.  How does a “lawyer referral service” differ from say, buying Google AdWords or banner advertising on a local news website?

To understand the basis of this disconnect – and that of many other problems with attorney advertising regulation – we have to go back to the Bars’ grudging acceptance of Bates v. Arizona, the 1977 decision in which the Supreme Court first found that attorneys have a right to advertise. Instead of scrapping the prohibition on unsanctioned “lawyer referral services” along with the rest of the advertising prohibitions that the Supreme Court found unconstitutional in Bates, the Bars just kept all of the prohibitions in place – but appended a little sotto voce exception allowing advertising.  So now, nearly 40 years on, attorneys have to parse the distinction between permitted advertising and prohibited “lawyer referral services.”

Unsurprisingly, this creates confusion.

Some attorneys and bar regulators consider a “lawyer referral service” to be any form of advertising in which the attorney pays for advertising on a per-lead or per-client basis.  If the attorney is paying the referring party for each client or potential client that is sent their way, it’s a referral program.  Which is prohibited, unless it’s non-profit and approved by the Bar.

This kind of rationale is one attorneys are well-known for: the exaltation of form over substance.  Sure, you can say the attorney is paying for each referral.  And sure, the bar rules still prohibit unsanctioned “lawyer referral services.”  So there’s that.

But go back to Bates, and there’s also this: attorneys have a first amendment right to advertise.  Paying for advertising on a per-lead or per-client basis is just a more efficient way of buying marketing.  How do we square that with prohibitions on lawyers participating in “lawyer referral services?”

A “lawyer referral service” can’t simply be whatever the bar says it is. The commercial speech doctrine tells us that restrictions on advertising must be narrowly-tailored to mitigate against real, non-speculative harms. What harm is being addressed by the prohibition on lawyer referral services?  Surely not the efficient deployment of legal marketing budgets.

Rather, as Kentucky Bar Ethics Opinion E-429 does a particularly good job of pointing out, the prohibition against lawyer referral services is intended to guard against consumer deception. Shady lawyer referral services operate by making the consumer believe that their legal issue is being vetted, and that they are being sent to the appropriate attorney for their needs – when in fact they are simply being sent to whichever attorney is next in the rotation, or has purchased the exclusive rights to all leads in their area. 1

Modern performance-based advertising programs may superficially look like referral programs (in that lawyers are paying per-referral or per-client), but they are missing, crucially, that which made the shady old lawyer referral programs a problem: consumer deception. Consumers who click on a Google AdWords ad or get connected to the first available attorney through Avvo Advisor aren’t being conned into thinking their cases are being screened and they are getting an attorney hand-picked for their specific needs. Rather, these consumers are simply responding to a form of attorney advertising that has tied the marketing fee much closer to actual performance.

Ultimately, the restriction on lawyer referral services could be safely stricken from the Rules of Professional Conduct, as the general prohibition on false and misleading advertising would cover any such practices that deceive consumers.  As it stands, this is a rule that simply acts as a drag on attorneys participating fully in performance-based marketing – which ultimately comes at a cost to the consumers that the advertising rules are intended to protect.

Notes:

  1. Which begs the question of why the bar’s own referral programs should pass muster, but that’s a question for another day.

Regulate or Permit?

As someone who has worked in tech for nearly my entire career, it’s natural for me to think a lot about innovation. Innovation – or at least the aspiration to innovate – runs in the veins of any successful technology company. It’s what leads to breakthrough growth, opens up new markets, provides new answers to old problems, and makes the leading companies wildly successful.

But here’s the thing: we lawyers aren’t the most comfortable around innovation.  We’re trained to respect precedent.  It’s a principle that’s great for stability, but it doesn’t lend to our being drivers of rapid change.  And that’s OK to a point – the role of the lawyers is, in many cases, to be the voice of caution in the room, the one highlighting the potential risks and problems that shiny innovations can leave in their wake.

Unfortunately, our profession is also possessed of another tendency that’s actively harmful to innovation – our regulatory bias.  Because we are trained in drafting and interpreting rules, we lawyers have a tendency toward addressing problems and uncertainties by creating rules. 1

This regulatory bias, in combination with our backward-looking emphasis on risks, acts as a very real brake on innovation.  This manifests itself in the widespread favoring by lawyers of what’s known as the “precautionary principle:” the idea that the best way to handle changes and new developments is carefully and cautiously, with rules and regulations governing the acceptable parameters of such changes.

The trouble with the regulatory bias is that it offers only the illusion of control.  Prophylactic regulation of new technology almost always prevents the benefits of such technology from being fully realized.  It slows things down.  Sometimes that’s OK.  It can be a useful brake on concepts that are getting ahead of themselves.  But such regulation frequently leads to unforeseen, negative consequences – consequences which are sometimes far more significant than the theoretical harm the regulation was intended to prevent. 2

But as Adam Thierer argues persuasively in his book Permissionless Innovation, there’s an alternate model to the lawyerly reflex to regulate new technology. Under Thierer’s model, the default is instead to be hands-off, letting things develop with a minimum of regulation – at least until (and unless) such regulation proves to be necessary. This model requires that lawyers do something that may feel a bit unnatural, which is step back from their role as rule-makers and wait for firm evidence that rules are needed before restricting new technology.

Permissionless innovation requires acknowledging the hard truth behind regulation: no matter how noble its ends, it is often wholly ineffective – and it often produces unanticipated consequences to boot. 3 Yes, sometimes it succeeds. And sometimes we are willing to accept a fair dose of imperfection and high cost because the choice of not regulating is even worse.

However, this is rarely the case with new innovations. Are there risks to holding off and letting innovation flourish, free of regulation?  Of course.  But it defies the history of regulation to assume that regulators can deftly avoid those risks, optimize the benefits of innovation, and also keep any unanticipated consequences from popping up.

And to bring this full circle to the subject of this blog – permissionless innovation is a mindset that can be applied to many areas even outside of technology. As I’ve argued many times before, the sprawling pages of lawyer advertising regulation do far more harm than good. In attempting to address any number of potential marketing techniques and theoretical harms, the rules only succeed in keeping consumers uninformed about legal services. The vast majority of actual consumer harm from lawyer advertising could be addressed through a simple rule prohibiting false and deceptive advertising.

My railing against precautionary regulation isn’t a political point, or an objection on principle to ALL government regulation, which is often necessary and sometimes effective. It’s simply a reminder that we as lawyers, instead of rushing in to propose new rules, should regularly pause and reflect whether the better course isn’t to simply let things play out.

Because a great deal of the time, it’s going to be.

Notes:

  1. If you’ve even been in a fantasy football league run by lawyers, you’ll know what I mean.
  2. There are many, many examples, but this article from the Freakonomics guys is a good place to start.
  3. These realities are documented exhaustively and persuasively by Yale law professor Peter Schuck in his recent book, Why Government Fails So Often: And How It Can Do Better.

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