Author: Josh King

What the Bars Need

Josh King

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.

FTC Comment on North Carolina’s “LegalZoom Law”

Josh King

In June of 2016, the Federal Trade Commission and the Department of Justice sent a detailed letter in response to an inquiry from North Carolina Senator Bill Cook. The subject? The impending enactment of North Carolina House Bill 436, legislation that would exclude online interactive legal forms from the definition of “the practice of law.” Providers of such forms would be required to meet a number of regulatory requirements, including extensive disclaimer and disclosure terms.[ref]HB 436 shouldn’t be seen as a recognition by North Carolina that a narrower definition of the practice of law would be useful to attorneys and beneficial to consumers; rather, it was the product of the settlement of a lawsuit filed against the state by LegalZoom.[/ref]

These federal agencies have no small amount of consumer protection expertise. The FTC also has a long history of calling out state attorney regulators for employing overreaching advertising rules to hamper the free flow of information about legal services.

In the letter, the FTC and DOJ quickly emphasized their point:

The Agencies recommend that any consumer protections, such as requiring disclosures, be narrowly tailored to avoid unnecessarily inhibiting competition and new ways of delivering legal services that may benefit consumers.

The message here is clear: don’t create regulatory requirements just to create regulatory requirements. Or without carefully considering the costs and benefits of such requirements, and whether there might be less-intrusive alternatives.

Why is this lesson so hard to learn? Why do we continue to grapple with rigid, mechanically-applied regulation, rather than flexibly determining whether the desired outcome – consumer protection – could still be met while enabling new and innovative ways of delivering information and services?

Here’s the FTC and DOJ again:

The Agencies recognize the important role of state legislatures, courts, and bar associations in protecting consumers of legal services from harm. The Agencies have previously noted, however, that unnecessarily broad [regulatory interpretations] can impose significant competitive costs on consumers of legal services, restrict access to legal services, and inhibit the development of innovative ways to deliver legal services to consumers.

It’s time to stop just reading the rules and thinking that slavish obedience is the path to consumer protection. The current approach is both overbroad and underprotective: it discourages innovation, scares away the ethical, and provides safe harbor for those willing to cloak consumer deception in the cloth of technical compliance. Let’s move past it, as our brethren in the UK have, and start focusing on the outcomes we want to achieve rather than the sterile minutiae of our rules and regulations.

Pay-per-Action, Legal Edition

Josh King

Lawyers can advertise, and they can pay to do so. We’ve known that since Bates v. Arizona, in 1977; this principle is basically the driving force behind this blog. And this right exists notwithstanding the weaselly way it finds expression in the Rules of Professional Conduct:

Rule 7.2

(b): A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may:

(1) pay the reasonable costs of advertisements or communications permitted by this Rule.

But here’s the thing: advertising has come a long way from the good old days of insertion orders, where advertisers paid based on the size of the anticipated audience, hoping that some small percentage of that audience would buy what they were selling.  Nowadays, you can buy advertising based on intent. Rather than buying the whole basket of impressions seeing your ad, you can pay only for the audience that has actually expressed some interest. Two obvious examples are pay-per-click (most notably used by Google) and pay-per-lead (think online web forms).

It should go without saying, but I’ll say it anyway (as many lawyers are bad at math): advertisers will pay more – orders of magnitude more – for each “click” or “lead” than they would have for each “impression” in the old-school model. Some pay-per-click searches can involve payments in excess of $100 per click. But the reason for the popularity of those techniques is simple: by moving the payment-triggering-event closer to an actual purchase, the advertising expense becomes much more efficient; there’s less risk of waste.

So what about moving the marketing payment all the way over to where someone actually buys? Not just an indication of interest in purchasing – via a click, or a phone call, or filling out a web form – but an honest-to-god, signing-on-the-line-that-is-dotted purchase?

Many businesses pay a healthy percentage of revenue annually, year over year, on marketing alone. Think they’d like to have that payout only triggered by actual purchases? Of course they would. While such certainly would obviate the possibility of improving on those margins via better advertising efficiency (or, more likely, luck) it would also foreclose marketing disasters. Marketing spend would suddenly become predictable, and fully paid for by the resulting transactions.

Traditionally, connecting marketing spend to actual purchases was hard. Usually impossible. And it still is for many types of marketing. However, the internet has made it possible to track this connection, and the online advertising world even has a term for it: “pay-per-action.” Simply put, the advertiser’s cost is based directly on the action of a customer buying the advertiser’s product or service.

Pay-per-action forms the basis for all sorts of online marketing, including online  affiliate marketing. Take, for example, Amazon: the world’s largest online retailer has a robust affiliate program. Online publishers can link to Amazon products, and if someone buys via one of those links, the publisher is paid a small percentage of the transaction. That’s Amazon paying to market its products, one transaction at a time.

What About Attorneys?

When it comes to advertising, attorneys suffer from the hangover of regulations that existed long before Bates v. Arizona and the recognition that attorneys have a first amendment right to advertise. The profession is also hampered by a rigid prohibition on splitting legal fees with non-lawyers.

So, within the rules of most state bars, you have something like the following:

Rule 7.2(b): A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule;

along with:

Rule 5.4(a): A lawyer or law firm shall not share legal fees with a nonlawyer.

Graft these together and pay-per-action advertising looks like a rules violation. Having the advertising fee dependent on the earning of a fee feels like “fee sharing,” as well as the giving of something for recommending the lawyer’s services.

But is that right? I don’t think so.

Let’s take the “recommending” bit first. The concept of paying-for-recommending-a-lawyer has a sordid history. It goes back to the “runners” and “cappers” who would hang out in hospitals and courthouses, channeling unsuspecting clients to the grubby attorneys who would pay per sucker delivered. There’s a strong consumer protection element in regulating such person-to-person recommendations.

But general advertising online isn’t “recommending,” and it certainly isn’t person-to-person.  It’s just the giving of value for advertising. The fact that the value itself is determined based on a sale rather than an impression matters not.

Or, at least, it doesn’t matter to consumers. There’s no harm to consumers based on how the marketing fee is determined. And without evidence of consumer harm, competition law and the first amendment dictate that the state not regulate.

As for the “fee splitting” bit, that’s just elevating form over substance. No one would argue that attorneys can’t pay for advertising (or salaries, or rent, or letterhead, etc.) based on the fact that such payments are being “split” out of legal fees earned. So what difference does it make if the payment for marketing is closer – i.e., determined by the earning of a legal fee – or even deducted from the fee earned?

The answer is is that it doesn’t make any difference. From the perspective of consumer harm – again, the only lens through which the RPCs can be lawfully interpreted – having a marketing fee triggered by signing a client is no different than the fact that we allow lawyers to use earned legal fees to buy reams of stationary or new iPhones. It’s just that somehow it feels different because it is conditioned on the actual transaction.

A caveat: this feeling isn’t completely groundless. The reason for having a fee-splitting prohibition in the first place is that some such arrangements have the potential to cause interference with the lawyer’s independent professional judgment.

But we need to separate the mechanics of a fee split from the substance of fee splitting practices that might cause such interference. For example:

  • We permit fee splits with other lawyers, assuming (perhaps naively?) that our fellow lawyers would be above bring such pressures to bear.
  • We permit fee splits in circumstances such as credit card processing fees, where the split is incidental to the transaction, and we know that the credit card processor has no reason whatsoever to interfere with the lawyer’s handling of the case.
  • And, of course, we permit fee splits in the world writ large, where lawyers “split” their fees, in the aggregate, with every person and entity they buy goods and services from.

As mentioned above, it’s critically important, when dealing with these concepts, to always view these rules from the perspective of consumer protection. These rules aren’t supposed to be applied mechanically, but rather in a narrow and thoughtful way that maximizes public access to information.

Or as the Federal Trade Commission recently put it, when commenting on yet another overreaching attorney advertising proposal:

“FTC staff believes consumers receive the greatest benefit when reasonable restrictions on advertising are specifically and narrowly tailored to prevent unfair or deceptive claims while
preserving competition and ensuring consumer access to truthful and non-misleading information. Rules that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services.”

Exactly. So enough with the reflexive and overbroad interpretations: let’s free legal services up for pay-per-client advertising.

 

Embrace Mediocrity

Josh King

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.

 

“Getting” Commercial Speech

Josh King

The Floyd Abrams Institute for Freedom of Expression is a program at Yale law; yesterday it put on a symposium in New York City on “Commercial Speech and the First Amendment.” It was a surprisingly well-attended event, sold out with a waiting list; probably a couple hundred folks there.

And, of course, squarely in the sweet spot for this blog and my legal interests. I was speaking on a panel, but I found the whole program fascinating. Not only because it’s rare to be in a room with lawyers who have even heard about the commercial speech doctrine – let alone a bunch who know way more about it than I do – but also because the state of the art in understanding commercial speech law is so, so far removed from what attorney regulators do when dealing with commercial speech.

How’s that? Well, the panel before mine featured Floyd Abrams himself, along with a bunch of law professors debating the extent to which the commercial speech doctrine is getting subsumed into the strict scrutiny analysis applicable to most other forms of content-based speech regulation. No one on the panel doubted that the bar for regulating commercial speech was being raised, at least in some ways; the debate was over whether this development is a good thing.

Lawyer regulators? It’s a rare day that you even see an acknowledgement that their ability to regulate is constrained in any meaningful way by the First Amendment.

My co-panelists, Denise Esposito and Rebecca Tushnet, discussed the regulatory challenges facing the FDA and Trademark Office, respectively. In both cases, it’s a matter of generally thoughtful, restrained regulation running into a broader trend of freeing up speech in the margins.

Lawyer regulators? New York’s rules of lawyer advertising run longer than 4,000 words; they know little, if any, restraint (other than what gets forced on them by federal courts).

Judge Alex Kozinski was there, too, cracking wise and noting that the idea that free speech is just for the preservation of self-governance is “bull-pucky.” And Mary Engle from the FTC walked us through how a thoughtful, mature regulator deals with advertising regulation – something that closely approximated the polar opposite of the mechanical approach taken by state advertising regulation. In a statement that would surely shock many state regulators, she noted that many ads don’t need to be labeled “advertisement,” as it is obvious what they are. Gasp!

My only regret is that more folks from the Bars couldn’t be there. Because there is a place for attorney advertising regulation – it just needs to be approached in a manner that respects both the First Amendment rights of those speaking, and the reality that flexible approaches are often preferable to rigid rules.

Florida Continues the Over-Regulatory Spiral

Josh King

Last week, I wrote about the decision of the New Jersey Committee on Attorney Advertising doubling down on compelled speech (around attorney “accolade” advertising), despite a recent Third Circuit decision noting that such regulation must be carefully and narrowly crafted in order to not offend the First Amendment.

This week brings news of a similar sort of decision out of Florida. Last year, a federal district court ruled that Florida’s prohibition on attorneys using terms such as “specialist” and “expert” to describe their practices – unless certified as such by the Florida Bar or an ABA-certified entity – violated the First Amendment. I’ve long railed on this issue; such restrictions are either lazy or overly-broad interpretations of the Supreme Court’s Peel decision (which simply noted that states can restrict attorneys from falsely stating that they’ve been certified as specialists).

So did the Florida Bar respond by getting rid of its unconstitutional restriction? Pshaw! Of course not.

Rather, the Bar’s Board of Governors has approved a slight change to its rules, adding a new section (D) to Florida’s Rule of Professional Conduct 4-7.14(a)(4):

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Translation: if you want to say that you “specialize” or have “expertise” in a particular area, be prepared to demonstrate that you’ve got the goods sufficient to be certified by the Bar  . . . assuming the Bar chose to have a certification in your area. How you’d demonstrate that is anyone’s guess.

And if you want to use one of these words to describe your abilities with respect to an area the Bar DOES certify (which includes such broad areas as “civil trial,” “real estate,” “business litigation,” and “criminal trial”), you’re compelled to include a self-abnegating disclaimer.

Why the Bar didn’t take the Court’s strong direction and just get rid of its rule is anyone’s guess. Nothing would have prevented it from so doing while still aggressively going after any attorney who either a) falsely claimed expertise or b) falsely claimed to be certified as a specialist. Either is a form of misleading advertising, easily sanctioned under even the most basic of attorney advertising rules (ABA Model Rule 7.1, which is, honestly, all the attorney advertising regulation we really need).

Will this new rule survive First Amendment scrutiny? The answer is almost certainly no, for the same reasons the court showed the Bar the back of its hand on the last go-round. But until that happens, Florida lawyers will have to think about regulation even when making commonplace expressions of competence.

h/t Joseph Corsmeier

New Jersey – Still Wrong on Lawyer “Accolade” Advertising

Josh King

The New Jersey Supreme Court Committee on Attorney Advertising recently released a “Notice to the Bar” regarding attorney “accolade” advertising: the touting by attorneys of various awards they might have received (including, presumably, their Avvo Ratings).

The Notice goes on at some length regarding the appropriateness of publicizing such awards, and the disclaimer requirements the Committee imposes on any such advertising. What do these disclaimers look like? The Notice contains a helpful example:

For example, a reference to the Super Lawyers accolade should provide:

“Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection process detail.html. No
aspect of this advertisement has been approved by the Supreme Court of New Jersey.”

So if you’ve been named a “Super Lawyer,” and you want to let people know, the New Jersey bar regulators want you to include a lengthy disclaimer, including a little pursed-lips head-shake noting that Supreme Court does not approve, not one bit.

This is, to put it mildly, ludicrous. It’s also unconstitutional: there are limits to the state’s ability to compel speech in the form of mandatory disclaimers.  And although the way these limits apply is a little more complicated than a straightforward commercial speech analysis, as a general rule compelled disclosures must be necessary to:

  • Cure otherwise-misleading advertising, or
  • Protect consumers from unwitting harm, or
  • Advance some other significant government interest.

Such mandatory disclosure requirements must be, like all commercial speech regulations, narrowly tailored.

Does the New Jersey Supreme Court’s requirement meet any of these requirements? Of course not. There’s nothing misleading about an attorney stating truthfully that a third party has bestowed an award. To the extent anyone wishes to dig into the methodology behind that award, such data is typically available online in a few mouse clicks.  And there’s no significant government interest here; rather, it’s just the Committee’s distaste for accolades, and its attempt to make it too cumbersome to advertise such things.

And here’s the kicker: the Committee really should know better, because a federal court smacked it back on a very similar issue less than two years ago. In finding that the Committee’s disclosure requirements around advertising laudatory quotes from judicial opinions was unconstitutional, the Third Circuit noted:

“Guideline 3 as applied to Dwyer’s accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring Dwyer to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception. To the extent the excerpts of these opinions could possibly mislead the public, that potential deception is not clarified by Guideline 3. In any event, what is required by the
Guideline overly burdens Dwyer’s right to advertise.”[ref]Dwyer v. Cappell, 762 F.3d 275, 284 (3rd Cir. 2014).[/ref]

And the rule here re disclaimers on accolade advertising? I’d say it ticks all three boxes: not reasonably related to preventing consumer deception, not directly advancing an important government interest, and overly burdening the right of lawyers to advertise.

It would be nice if the New Jersey Committee on Attorney Advertising learned from its past overreaching. And it would great if it could show some respect for the ability of the public to weigh and discern the meaning of legal accolades. But that kind of balanced thinking doesn’t seem to be in the cards.

h/t ABA Journal

Oregon Bar Walks Back Bogus Ethics Charges Over Bundy Lawyers

Josh King

I love Oregon. I grew up in Bend, went to college in Eugene, and go back to spend time in and on Oregon’s mountains, beaches, and forests every chance I get. It is – in my perhaps-biased-but-well-traveled opinion, the loveliest of our lovely United States of America.

But the state isn’t immune to a case of the crazies, as witnessed most recently by the anti-government wacko takeover of federal buildings in the Malheur National Wildlife Refuge. One side note of that story was a bit of craziness of interest to this blog: the inexplicable decision of the Oregon State Bar to investigate the lawyers for anti-government nutbag Ammon Bundy for attorney advertising violations.

The “ethics crime” complained of? That the lawyers, in advance of being hired, hand-delivered a letter to him offering to meet with Bundy and potentially represent him on a pro bono basis – and that doing so violated RPC 7.3, which limits certain forms of direct solicitation.

My beef with this isn’t that people shouldn’t complain. Any wingnut can file a bar complaint, and the disciplinary authorities should maintain an attitude of openness to receiving these complaints. However, the flip side of that openness is that the Bar should be quick to shut down meritless complaints. This one was dead on arrival – there’s no question that attorneys are well within their rights to solicit business in writing – yet the Bar apparently took it seriously, putting the lawyers through their paces before deciding, months later, that yeah, there’s no violation here.

Gee, thanks,  guys. Pursuing investigations, making the targets have to lawyer up and take the time to explain to the Bar why there has obviously not been a violation, is a horrible waste of everybody’s time and resources (including that of the disciplinary authorities, who could be going after stuff that actually matters).

Even worse, it makes attorneys second-guess whether they can communicate with the public about their services. Many a lawyer doesn’t remotely want to have to deal with responding to a bar complaint, no matter how off-base it is.  Every case of Bar overreach like this – where instead of sending the lawyer a cc letter dismissing the complaint the Bar sends an accusatory screed demanding explanations for alleged wrongdoing – makes it that much harder for the public to get access to information about legal services.

How is that serving the Oregon State Bar’s mission?

The Clarifying Power of “No”

Josh King1 Comment

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.  

Sanctions for Badmouthing Judges Overturned

Josh King

When it comes to attorneys speaking out about judges, there are several truths:

  • Attorneys have a first amendment right to criticize the judiciary, theoretically subject only to a New York Times v. Sullivan-like standard of maliciousness should that criticism cross the line into defamation (see the page on “Criticism of Judges“);
  • Except if the criticism involves an active case the attorney is involved with, and such criticism creates a material risk of interfering with the proceedings;
  • But judges are people, too, and some of them are remarkable thin-skinned. They may put you through your paces regardless of the two provisos above.

Which brings us to the case of William Goode. Goode – a peripherally-involved player in a criminal case involving an attorney friend of his – was suspended from federal court practice in the  Western District of Louisiana for 6 months. His crime? Publicly criticizing the government’s case after his friend, the criminal defendant, had shot and killed himself.

Goode successfully appealed this discipline, winning because the federal court rule in question was laughably overbroad, operating as a complete bar on any speech related to the trial, the parties, or the issues in the trial.

But it’s hard to muster too much happiness for Goode. He lost a friend, in one of the most painful ways imaginable. And when he publicly expressed his anguish and frustration, he was backhanded by the court for having the temerity to do so. He had to deal with the stressful, expensive process of vindicating himself.

Goode’s case is the living embodiment of the last truth about criticizing judges: your mileage may vary, and you may well be put through the wringer if you choose to exercise your rights.

(The case also illustrates how expansive the “interference with the adjudicatory process” limitation can be. The rule in Louisiana essentially operated as a gag order on anyone “associated” with a matter. Despite not being counsel of record, the 5th Circuit deemed that Goode was “associated” given that he admitted helping his friend’s counsel with trial prep.)