Florida Continues the Over-Regulatory Spiral

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

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.” 1

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

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”

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

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.)

Arizona Rolling Back Occupational Licensing

OK, the state of Arizona isn’t going to be confused with a bastion of big government, but it’s notable, still, that our sun-baked neighbors to the south have started to sour on occupational licensing. The state has a bill pending that would end licensing for a number of professions, including landscape architects and geologists.

Here’s the money quote:

“Believe it or not, the state of Arizona actually licenses talent agents. Let’s leave the job of finding new talent to (“The Voice” hosts) Adam Levine and Gwen Stefani, not state government.”

Makes some kind of sense – after all, is our world so much more complicated that we need 30% of people to be in licensed professions (compared with 5% in the 50’s)?

Predictably, the hoo-haw against this bill (raised, of course, by licensed professionals and their associations) is based on appeals to consumer protection.

That’s not necessarily wrong. There are professions where licensing helps protect the public. But there are plenty – hello, vegetable packers and hair braiders – where the connection between licensing and consumer protection is tenuous, at best.

And even in historically-licensed areas like the law, where legitimate consumer protection interests abound, the scope of licensing often far exceeds that necessary to protect the public. Besides the perils of over-regulation, this focuses attention on “creative compliance” and exclusion of even the hint of competition, rather than protecting the public. That serves no consumer well.

Here’s hoping that a newfound enthusiasm for questioning occupational licensing helps reinvigorate this fundamental purpose of the licensing regimes – rather than just playing lip service to it as a means to preserve a monopoly.

Update 4/5/16: Looks like North Carolina is getting in on this action as well.

1st vs. 2nd Amendment Showdown Looming

The  “Docs v. Glocks” case (Wollschlaeger v. Governorinvolves a lunatic Florida law (pardon the redundancy) designed to keep doctors from asking patients about firearms ownership. In an effort to avoid constitutional issues, the law has been watered down to the point where it is little more than a minor annoyance to doctors. That hasn’t been enough to fend off the lawsuits, and now, after several turns through the 11th Circuit, the case is going to be reviewed en banc.

Look, I’ve got no issue with strong 2nd Amendment rights, and all sorts of problems with overreaching and ineffective attempts at gun control. But the idea that content-based regulation of non-government speech survives strict scrutiny because [waves hands] doing so is necessary to preserve Second Amendment rights? That’s too crazy even for Florida.

It’s quite possible the 11th Circuit will conclude that professional speech regulation is OK as long as it passes an intermediate scrutiny standard similar to that of commercial speech. It may even do that while simultaneously striking down this law. 1 Or it may conclude that professional speech regulation must survive strict scrutiny.

Regardless – as long as the result differs from the nuttiness of the current decision – the outcome should also shed some light on the extent to which Bar regulators can control the occupational speech of attorneys.

Notes:

  1. After all, keeping doctors from asking about guns is about as effective at preserving Second Amendment rights as an assault weapons ban is at preventing gun violence.

California’s Proposed Ethics Opinion on Lawyer Blogging Is Out

Last year, I wrote about the draft California ethics opinion on lawyer blogging – and my many issues with it. Although California is one of the best mandatory bars when it comes to issuing thoughtful, complete opinions that take into account the first amendment concerns that limit advertising regulation, this proposed opinion was too far-reaching.

Fortunately, the revised draft – which takes the form of “FORMAL OPINION INTERIM NO. 12-0006” – has addressed many of my concerns, including:

  • The fact that a stand-alone blog refers to the attorney-author by name, includes contact information, and links to the attorney’s website, does not render the blog attorney advertising.
  • A “call me” advertising message on a stand-alone blog will make the post in which it appears attorney advertising, but it does not so convert the entire blog.

One thing the opinion continues to miss on, however, is its insistence that a lawyer’s blog on the same domain as the lawyer’s marketing website is attorney advertising.  As the opinion puts it:

As part of a larger communication (the professional website) which concerns the firm’s availability for professional employment, the blog will be subject to the same requirements and restrictions as the website.

I don’t believe this is right as a general rule; the case law on mixed-content speech would indicate the opposite result. A fact-specific inquiry would be needed to determine whether a given on-domain blog met the test for commercial speech.

That said, in my view legal blogs are more authoritative and have more opportunity to develop a “voice” when they live somewhere other than a staid old law firm website. 1 If lawyers need an ethics-based excuse to move to that structure, so much the better.

Notes:

  1. Even if SEO gurus debate which is better from a search perspective.

Big Win for Michigan Legal Blogger

A few weeks back, I wrote about the case of Michigan personal injury attorney and legal blogger Steve Gursten, who had a bar grievance filed against him by a doctor unhappy with a post Gursten had written that was critical of her.

Having been on the receiving end of my own share of complete-bullshit bar grievances, 1 my concern was that the Michigan Attorney Discipline Board would take this crap claim seriously, and put Gursten through his paces. That kind of stress and distraction has its own chilling effect on expression. Even if Gursten is willing and able to stand up to it – and he was, in spades – it can make other legal bloggers think twice about being critical of people like Dr. Rosalind Griffin.

So I was delighted to see that not only did the Discipline Board dispose of the matter summarily and briskly, it did so in a way that explicitly recognized that Gursten was well within his first amendment rights to criticize Dr. Griffin. Well done.

Notes:

  1. Prior to being admitted to the Washington State Bar in 2014, some lawyers, unhappy with Avvo rating them, would file grievances against me for practicing without a license. What they failed to understand was that the Washington Rules of Professional Conduct in effect at the time permitted me to practice in-house in Washington as long as my California license was active.

Narrowing “Publicity Rights”

I’ve written before about the burgeoning trade in “publicity rights,” which has become one of the sillier backwaters of the already-murky shoals of intellectual monopolization law. What started as a straightforward proposition – a commercial enterprise can’t co-opt a celebrity’s economic value or identity to sell a product – has morphed into all sorts of attempts to censor free expression, creativity, and reporting.

So I was happy to see yesterday that the Ninth Circuit finally decided the “Hurt Locker” case, in the process drawing a finer point on what is – and isn’t – a valid publicity rights claim.

What states a valid claim?

[S]peech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements.

What doesn’t?  Pretty much ANY action related to non-commercial speech:

In sum, The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays. If California’s right of publicity law applies in this case, it is simply a content-based speech restriction. As such, it is presumptively unconstitutional, and cannot stand unless [the plaintiff] can show a compelling state interest in preventing the defendants’ speech.

But wait, you say – “The Hurt Locker” was made for a commercial purpose; surely it is commercial speech?

No. Not at all.  While the 9th Circuit didn’t even see the need to address this point, I will address it again: just because something is sold for commercial gain, or produced by a commercial enterprise, does not make it commercial speech. 1 Commercial speech is adverting speech. It’s speech proposing a transaction. My primer on the commercial speech doctrine has more info, but in any event: kudos to the Ninth Circuit for repudiating yet another publicity rights-based effort to compromise free expression.

Notes:

  1. If you don’t believe me, there is a freaking huge stack of cases you can read, starting with New York Times v. Sullivan, 376 U.S. 254, 266 (1964).