March 2017 Notes: Social Media Lockout?

On “Giving Freely” in Social Media. Kevin O’Keefe recently wrote a great blog post on the importance of lawyers being willing to “give” – without expectation of return – when using social media. You should read the whole thing, but the central point is key to prosperity in all relationships, whether on social media or in the real world (or in the increasingly prevalent intersection of the two): it all starts with sharing and real engagement. This can be hard for lawyers; we are skeptical, cautious, risk-adverse. We can have a hard time wrapping our heads around the concept of opening our arms and freely giving advice, information, encouragement, or guidance. But Kevin’s post is echoed in another recent take, from the brilliant Farnham Street blog, on the differences between “rich” and “poor” mindsets: while the latter always seeks the easy way out, the former knows that all success comes from enriching the lives of other people and going the extra mile. Getting hyped up on traffic numbers or constantly selling yourself is just a distraction from the work that drives real value – giving of yourself.

Is Using Facebook a Fundamental Right? In a sign of the pervasiveness of social media, the Supreme Court is poised to decide whether the state (in this case, under the ambit of restrictions on sex offenders) may prohibit access to social media platforms. The case raises broad questions about access to information and news, particularly in an environment where so much news dissemination comes via social media. With both the press and political leaders regularly taking to Twitter to spread news and express opinions, is it proper for government to limit access to such media? Look for the court’s answer later this summer. However, even if the Supreme Court finds such a right, don’t expect it to extend to the courtroom. Judges have wide discretion to control their spaces. As one commenter noted, constitutional rights are “at their nadir” in the courtroom. Or, as one witness recently learned the hard way, if a judge doesn’t want you to broadcast your buddy’s murder trial using Facebook Live, he probably means it.

Settlement in “Fake Defendant” Libel Lawsuit. I’ve written here a number of times before about what seems to be a growing practice of fraud on the courts designed to remove negative online reviews: file a defamation lawsuit, show up with the “defendant,” stipulated judgment in hand, and then take the judgment to Google and have the offending review “de-indexed” so it will never show in search results. Paul Alan Levy of Public Citizen has been leading the charge against this practice, and he’s obtained first blood: a settlement, along with the referral of the case to law enforcement. For lawyers who outsource their marketing, this case is yet another call for expanded due diligence, as the defendant here was a “reputation management” company. There are no doubt other such companies also doing this. And while it would be bad for any business to be found to have used a third party to try and defraud the courts, just imagine how career-impacting it would be for an attorney to be caught up in such matters.

Briefly:

Who says blogging doesn’t pay? Prolific tax law blogger named dean of Pepperdine law school.

Groupon’s legal team has created a scorecard – with client reviews – for outside law firms.

The Nevada Supreme Court will have to decide a fight between the State Bar and AG’s office over attorney licensing.

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.

High Past Time to Amend the Attorney Ad Rules

Faithful readers of this blog will know that I have long lamented the scabrous attorney advertising rules. Larded down with a centuries-old accretion of quaint prohibitions, the rules are doing nobody any favors.

However, there may be some light at the end of the tunnel. The ABA is actively considering a proposal to streamline its Model Rules relating to attorney advertising. This process gathered momentum on the back of some very fine work by the Association of Professional Responsibility Lawyers, and is happening in an environment that seems ripe for change: states from Oregon to Virginia are actively considering changes – good changes – to improve their ad rules.

Avvo has filed comments in support of the ABA’s initiative; you can read them here. Some other folks also filed comments; almost all of them are also supportive.

Here’s the tl;dr version of Avvo’s comments:

The current rules are both unnecessary and actively harmful. Unnecessary, in that the detailed regulations don’t offer consumers any meaningful protections beyond what a general prohibition on false and misleading advertising would provide. And actively harmful, as they cost the public legal information and innovation through the chilling of lawyer speech.

Here’s hoping the ABA sees this one through, and makes this necessary and long-overdue change.

Disbar Conway for Lying?

It’s not too early into the Trump administration to call it: this is a group that’s got very little regard for the truth. And that’s even by the low standards of political spin – we’ve got plenty of examples, already, of out-and-out gaslighting. Chief among the lying liars in the administration has been White House “Senior Counselor” Kellyanne Conway, who done everything from puff the (anemic) size of Trump’s inauguration crowds to shill for his daughter’s clothing line.

In response, a group of law professors has filed a grievance against Conway seeking professional discipline against her in Washington, D.C., where she is licensed as a lawyer. The complaint relies upon the famously broad language in Rule 8.4(c), which proscribes “conduct involving dishonesty, fraud, deceit or misrepresentation.”

Loathsome as I find Conway’s approach, I am similarly appalled at this grievance. I mean, I could see some wingnut lawyer filing a grievance against Conway, but over a dozen law professors? Who should know better?

While there are many issues with this grievance, I just want to focus on two macro-points, one legal and one practical.

The Legal Objection

Like many of the Rules of Professional Conduct, Rule 8.4(c) appears to be written by people with little understanding of the First Amendment. First there’s the bit about “conduct,” which sort of dodges the question about whether this is dealing with matters purely of speech or only “speech as conduct,” a famously messy area that was dealt with just last week by the 11th Circuit in striking down Florida’s limitation on doctors asking patients about firearms ownership.

More objectionable is the failure to tie this broad prohibition on lying to the actual practice of law.  While the outer bounds of the state’s ability to limit speech in the professional realm is uncertain, here are two propositions that clearly lie on opposite sides of that boundary:

  1. Well within the power of the state to regulate: Requiring that attorneys not lie in the course of representing clients.
  2. Well outside the power of the state to regulate: Requiring that attorneys not lie, ever.

There is a first amendment right to lie, and we attorneys don’t forfeit it just because we get licensed. This is a straightforward legal principle, and the law profs’ grievance fails on this front right out of the gate.

The Practical Objection

I was going to say “like it or hate it, we all have a right to lie.” But really, if you hate the fact that we have the right to lie, you haven’t given it enough thought. Having the right to lie doesn’t mean we have the license to do so, or that lying should be socially acceptable. It means simply this:

We are not going to let the government be the arbiter of truth.

Many of the law profs who brought the grievance would likely object “but Conway is in an important position of power and influence; she may be working as a lawyer (i.e., an active “representation”), and because of how Big of a Deal this is we need to push it forward.”

But it is for precisely this reason that we shouldn’t push edge cases. We don’t want the government calling balls and strikes in matters of public discussion. That’s a straight path to censorship. The first amendment and freedom of discourse needs a lot of breathing room, as even the implication of regulatory action will cause many to clam up.

No, not Kellyanne Conway, of course (although the social virtues of lie-shaming seem to have set in, as the cable news outlets have tired of her act). But how about everyone else? My practical objection to this grievance is that if it gets any traction, what does that mean for any other lawyer who wants to speak out on matters of public import? Or, closer to home, what if someone wants to start policing the many words – again, outside of any representation – that these law professors no doubt spill publicly on any number of subjects?

Hopefully, the D.C. Bar will do the right thing and dismiss this grievance quickly and decisively.

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)!

Good Reversal in “Docs v. Glocks” Case

The 11th Circuit in Florida has just issued its en banc ruling in the infamous “Docs v. Glocks” case. This is something like the third or fourth decision in this case, which addresses the question of whether and to what extent doctors can ask their patients about firearms in the home.

As I’ve written about before, my interest in the case is what it tells us about state regulation of professional speech. Such regulation is an open area, and obviously important to lawyers and the legal profession. After all, most of what we do professionally consists of “speech.”

Today’s decision – which reverses the prior panel, thus striking down the speech-offending portions of the law – spends a fair bit of time parsing the meager state of occupational speech regulation law (much of which consists of Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C.). In so doing, it affirmatively rejects the appropriateness of “rational basis” review of occupational speech-limiting regulation, while leaving the ultimate question (which is it, intermediate or strict scrutiny?) hanging:

Because these provisions fail to satisfy heightened scrutiny under Sorrell, they obviously would not withstand strict scrutiny. We therefore need not decide whether strict scrutiny should apply.

Darn it. Still, it’s good to see a decision solidly finding that professional speech is entitled to First Amendment protection – even if it can’t quite tell us how limited the state’s power to regulate might be.

Fake News, Hate Speech, and the First Amendment

I launched this blog as a place to keep all of my notes and thoughts on the professional regulation of attorney speech, a topic largely (but not entirely) informed by the commercial speech doctrine. The doctrine – which permits the government to limit or compel speech under a laxer set of standards than would apply to “core” expression – labors under an unfortunate name. Too many people, including far too many lawyers, think that the doctrine applies to ALL speech by businesses.

This is, of course, demonstrably wrong. The vast majority of media outlets in the U.S. are “commercial,” insofar as they are owned by for-profit entities. In fact, many of these entities are the corporations that people (many of whom surely know better) inveigh against when gnashing their teeth over the Supreme Court’s Citizens United decision. As the Supreme Court has held, time and again, the fact that something is published for commercial reasons (i.e., to make money) does not make it commercial speech. Because if it did, we couldn’t have an independent media. 1

And it seems to me that right about now is when we really, really should see the benefits of an independent media. We’ve got a new administration that has explicitly called out the media as the “opposition party,” that traffics in falsehoods, lies, and gaslighting, and which seeks to punish those outlets that aren’t deemed sufficiently obsequious to its agenda.

This is why it’s particularly galling that people on the left continue to be some of the loudest voices for chipping away at media independence – or free expression rights in general. We’ve seen in recent days an MSNBC journalist suggesting that the federal government should regulate to prevent “fake news,” and even my neighborhood college campus is now up in arms over “hate speech.”

While I could fall back on my lofty exhortations about the value of a robust First Amendment, I would ask all of these would-be censors a simpler and more pragmatic question:

Is this the government you want to let decide what you can and cannot say?

 

 

Notes:

  1. For additional context and background on this, check out Avvo’s 2016 federal court win, which turned on this very question.

January 2017 Notes: More Reasons to Not Sue for Defamation

Suing over reviews a “horrible” idea:Yes, getting a negative online client review is no fun. But no, responding by filing a lawsuit is almost never the answer. You’re probably not going to get justice, and you’re certainly going to bring more attention to the claims that you’re so perturbed about. And if you haven’t asked someone who knows a thing or two about defamation to evaluate whether you have a case, you’re also going to look like a thin-skinned jerk for your trouble. Our latest entrant? New York lawyer Donald J. Tobias, who is trying to sue a reviewer who said this about their experience with him: “It was horrible.” Those words may sting, but they aren’t defamatory. And all Tobias is going to get for his trouble is greatly enhanced awareness of the fact that someone called working with him “horrible”: The Wall Street Journal, the Washington Post, and many legal blogs have all highlighted his sensitivity and lack of awareness of defamation law.

Google suspends defamation removals Despite what I’ve written above, there ARE cases where bringing a defamation action over an online review is appropriate. In such cases, a prevailing plaintiff can often take the judgment to the review site, which will respond by removing the review. What’s more, even if the site won’t remove the review, Google will typically “de-index” a review that’s been found by a court to be defamatory, meaning it won’t show up in search results. However, Google has now apparently suspended this practice . It’s unclear why, but it may well have to do with something I’ve written about previously: the filing of defamation cases against bogus defendants — who quickly “settle” — in order to get judgments that can be taken to forum sites and Google. As Google’s action shows, this sort of abuse makes it harder for those with legitimate judgments to get relief.

Law as Sorcery?:  Looking for something different in their legal marketing than the oh-so-tired gavels, stacks of law books, or steely-eyed eagles, a Florida traffic ticket law firm decided to go with the name “Ticket Wizards,” and the tagline “Results So Good, You’ll Think It’s Magic!” Unfortunately, the Florida Bar decided that this was — if not quite a guarantee of supernatural intervention — at least an impermissible prediction of success . Fortunately, the Bar let the firm keep its name and use of magical imagery in advertising, so the Ticket Wizards can keep trying to cast their enchantments on behalf of Florida’s wayward drivers.

Briefly:

Lawyers, you’re failing to reach your potential clients among Millennials.
LexBlog now offering free blogging service for law students and profs.

 

Lawyer indicted for pretending to be judge; is elected to the bench.

The McDonalds of Law?

Late last year, I offered to a room full of attorneys that they should consider emulating McDonalds when it comes to delivering consumer legal services.

Yes, the response was underwhelming. But hear me out:

Think of restaurant dining and legal services as solutions to problems. Dining solves the problem of hunger and nutrition; legal services whatever our legal problem (or, perhaps, opportunity) might be.

When it comes to dining out, one option is McDonalds. It’s quick, predictable, calorie-dense, and cheap. And while the “quality” of the McDonalds dining experience from the subjective perspective of taste might be low, the “quality” from the objective perspective of food safety is on par with other restaurants (and probably higher than average).

Now, if you want a dining experience that is higher in a subjective quality like taste, novelty, or ambiance, you will choose something other than McDonalds. That experience will almost certainly cost more – perhaps orders of magnitude more – but you will make that choice knowingly and openly. And, critically, the restaurant you choose won’t be any different from McDonalds on the objective quality measure of food safety.

Now, on to legal services.

If you’re a consumer in need of legal services, you face a legal marketplace where 95+% of the providers are offering only Chez Panisse-levels of services. Fancy, full-scope, custom services. And let’s put aside for a moment how well they are delivering on that quality promise [too often, not well], and ask the harder question: do consumers of legal services really WANT only the option of dining at Chez Panisse? Or would many of them just rather have some of that fast-predictable-cheap McDonalds action?

We know the answer to this question already. In every other category of goods and services, consumers are used to trading off price for quality. And, predictably, most of them will choose the lower-cost / lower-quality option.

It’s not just McDonalds vs. Chez Panisse. Think staying at the Motel 6 vs. The Ritz. Flying Frontier vs. any other airline. Buying clothes at Old Navy vs. Nordstrom. The subjective quality differences scale all over the place.

And here’s the thing: it’s completely rational for consumers to make these choices based on their own needs and economic condition, as long as the most important measures of objective quality are reasonably similar. Which they are; a mix of marketplace dynamics and consumer protection regulations ensure that minimum levels of objective quality are met.

So knowing that consumers in every other category want the option of a quick, predictable, affordable experience, why don’t more lawyers offer it? One common reason I hear repeatedly is that every legal problem is different, and that lawyers need to provide a sterling level of diligence in order to meet their ethical obligations and avoid malpractice.

This is a bogus objection. McDonalds doesn’t offer a high degree of food safety because they custom-make and inspect every burger and order of fries; they do it because they’ve consciously built up the processes necessary to provide this quality at scale. And lawyers could also offer cheap-and-predictable legal services, at high objective quality, but in order to do so they would need to re-tool their processes to support it. But rather than so doing, too many lawyers continue to rely on handwork, hoping to entice the small “fine dining” segment of the legal market.

So a lot of what’s blocking the opening up of a much bigger segment of the legal services market is mix of inertia, aversion to change, and a lack of facility in business process design. I am far from having all of the answers to this, but if you’re planning on attending Lawyernomics 2017 this April in Las Vegas, my talk will be focused on exploring this opportunity in more detail. I hope to see you there.

Social Media + The Law of Legal Marketing