Avvo Launches Legal Services

Last week, Avvo launched “Avvo Legal Services” – a suite of fixed-price legal services, fulfilled by local attorneys. It’s the boldest effort yet to address the “access to justice” gap between do-it-yourself and full-scope, custom legal services.

You can read more about the launch, and how we’ve navigated through the ethics rules governing attorneys, on the lawyernomics blog. Fundamentally, it comes down to a recognition that the Rules of Professional Conduct are rules protecting consumers and clients, and we’ve built Avvo Legal Services with that purpose front and center.

And if you REALLY want to get into the nitty-gritty on this, check out my white paper: Avvo Legal Services and the RPC.

Doctor Files Grievance Against Attorney Over Blog Post

Sure, writing a blog post has the potential to get an attorney in trouble with the disciplinary authorities. But it’s usually going to be because you’ve had the bad judgment to reveal client confidences or engage in unabashed advertising.

However, we shouldn’t underestimate the power of butthurt doctors. After all, the medical profession has produced a spate of lawsuits over Yelp reviews, attempts to contract away free speech rights, and even reflexive suing of legal bloggers. So I guess it should come as no surprise that a doctor – who also happens to be a member of the Michigan Attorney Discipline Board – would file a grievance seeking bar discipline for a lawyer over a post he wrote that was critical of her.

I know, it’s a lengthy post that gets into the arcana of independent medical exams in personal injury cases. But Dr. Rosalind’s Griffin’s complaint is light on specifically what it is about attorney Steve Gursten’s blog that she finds defamatory (and as Ken White at Popehat is so fond of reminding us, lack of specificity in defamation complaints is a hallmark of censorious thuggery). To the extent Dr. Griffin complains about specific phrases, they are things like “notorious IME doctor in Michigan” and that her work consists of “hatchet jobs.”

I’ve said it before, and I’ll say it again: the definition of defamation is NOT “something that someone wrote about me on the internet that I don’t like.” Rather, to be actionable, defamation requires false statements of fact that cause damages. Statements of opinion – like the ones above – are not (absent circumstances not present here) actionable as defamation.

Which could be why Dr. Griffin hasn’t filed a lawsuit within Michigan’s one-year statute of limitations for defamation claims, preferring instead to file a bar grievance that may be heard by a body upon which she has some influence.

Finally, there’s Dr. Griffin’s preferred remedy – that Mr. Gursten be ordered to delete his blog post and remove the link to Google results for Goodwin’s name. That, more than anything else, should tell you this most likely just another thin-skinned attack on speech that the subject doesn’t like.

In a better world, the Michigan disciplinary authorities would have summarily disposed of this claim rather than requiring Gursten to respond. Merely taking claims like this seriously exacts a toll on the exercise of free speech. If Dr. Griffin believes she has an actionable claim, she could have pursued it in court, and, had she won, then sought sanctions against Gursten. 1

Given Dr. Griffin’s membership on the Michigan Attorney Discipline Board, it bears watching how hard Mr. Gursten gets pushed.

Fortunately, it appears he is up to the fight.

Notes:

  1. The RPCs that Dr. Griffin complains about – Rule 8.4 – is as subject to the First Amendment as any other attempt to regulate attorney speech. Any attack on the content of that speech would need to meet strict scrutiny, which in this case would require a finding that the speech was actually defamatory.

More Protection for Commercial Speech

It’s been nearly 5 years since the Supreme Court’s last big commercial speech case, Sorrell v. IMS Health. Sorrell is interesting because it’s one of the only commercial speech cases to address something other than out-and-out advertising.  But it’s interesting in another way, too: it may stand for the proposition that some commercial speech regulation is entitled to even more protection.

How’s that? A recent case out of the Ninth Circuit does a great job of laying out the groundwork. Starting on page 15 of the slip opinion, the decision in Retail Digital Network v. Appelsmith sets out a case for holding that Sorrell dictates that content- or speaker-based restrictions on commercial speech are subject to “heightened scrutiny” somewhat beyond that required under the commercial speech doctrine.

We don’t know how far beyond; simply that the state is held to a higher standard than intermediate scrutiny and a lower standard than strict scrutiny (the latter of which is nearly impossible to meet). But let’s pause and note how unequivocally the court puts it:

Sorrell modified the Central Hudson analysis by requiring heightened judicial scrutiny of content-based restrictions on non-misleading advertising of legal goods or services.

Central Hudson already held the state to the burden of meeting intermediate scrutiny; now any such regulation must meet an even-higher bar.

In the regulatory world that this blog is concerned about, this should mean that attorney advertising regulators become entirely focused on the consumer protection nature of their mission. After all, Sorrell puts to bed any idea that attorney advertising rules can be applied mechanically.

Will that happen overnight? We’ll see. Many of the attorney regulators I’ve talked to have long dealt with their advertising rules in a very consumer-centric way anyway, choosing their fights carefully and only going after bad actors – and then going after them HARD. But others have employed their rules rigidly, seemingly unburdened of the knowledge that their regulatory interpretations must be mindful of free speech guarantees.

For this latter group – more grocery clerks than consumer protection watchdogs – it’s safe to say that there will soon be an awakening of awareness, one way or another.

Must You Be Licensed to Call Yourself a “Lawyer?”

Apparently not, at least if we are to follow the recent Fifth Circuit decision in Serafine v. Branaman, in which a political candidate was allowed to refer to herself as a “psychologist” despite lacking a license – or the technical qualifications – to practice that profession.

But let’s not get too hasty. The Serafine case doesn’t represent a license-to-be-unlicensed, as it were. Rather, it simply offers a good illustration of the limits of professional speech regulation.

The key point in the case is that Serafine wasn’t engaging in commercial speech. She wasn’t trying to attract clients by claiming to be a psychologist when she wasn’t licensed. Rather, she was making a statement as part of a political campaign.

There is little question that the state has an enforceable interest in keeping unlicensed professionals from “holding out” as being licensed; doing so is flatly deceptive and bad for consumers. But get outside of this commercial context and the state’s got to make it past strict scrutiny if it wants to regulate the content of speech. And that? That’s next-to-impossible, as we’ve seen from recent, failed attempts to regulate away lying in political campaigns and when referring to military honors.

What’s more, while Serafine wasn’t licensed in Texas, and didn’t hold a doctorate from a program that would qualify her for such a license, it wasn’t like she was just making things up from whole cloth. She had completed a four-year post-doctoral fellowship in psychology at Yale. Her Ph.D in education was focused on psychology. She was a professor in the psychology departments at Yale and Vassar. She taught seminars and provided one-on-one counseling sessions on personal growth and relationships. And so on. So it doesn’t seem unreasonable that she would characterize herself as a psychologist when speaking broadly (and non-commercially) about her background.

The Serafine case doesn’t nearly begin to answer all of the questions that swirl around professional speech regulation. But it does nicely point out that there is a fundamental difference between commercial and non-commercial professional speech. 1 While the professional regulators will often have an interest in regulating the former, they should have little-to-no influence over the latter.

h/t The Volokh Conspiracy

Notes:

  1. Or perhaps more accurately, “professional speech” and “non-commercial speech by professionals.”

OMG, an Ethics Opinion that Actually Gets the Law Right on Advertising and Online Profiles!

Thanks, New York City Bar Association, for this comprehensive opinion concluding that most attorney uses of LinkedIn are not “attorney advertising” and thus not subject to the attorney advertising rules.

How so? Because, as the opinion notes:

An attorney’s individual LinkedIn profile or other content constitutes attorney advertising only if it meets all five of the following criteria: (a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.

These parameters are drawn from the definition of “advertisement” in New York RPC 1.0(a). That rule is in turn surely informed by the Supreme Court’s commercial speech doctrine, which only permits regulation such as that found in the attorney advertising rules when applied to communications that are narrowly commercial in nature.

And of course, as the opinion notes, a LinkedIn profile doesn’t meet the definition above:

Given the numerous ways that lawyers use LinkedIn, it should not be presumed that the primary purpose an attorney’s LinkedIn content is to attract new clients for pecuniary gain, unless it contains express language or other equally compelling evidence to support that conclusion.

The line between commercial and non-commercial speech isn’t always clear, but I’ve long argued that the concept draws in a lot less communication than many lawyers believe. It’s great to see a bar association agree with this approach.

Oh, and the New York City Bar’s conclusion with respect to LinkedIn? Same would go for Avvo profiles.

h/t Above The Law

Rent-Seeking Dentists, and “the Practice of Law”

Really interesting article in the Seattle Times this morning about how our state’s dentists have successfully (so far) blocked Washington residents from having access to dental therapists.

These therapists (who are licensed in the states that allow them) are akin to physician assistants; they can perform a wide range of basic dental care procedures. And as with PA’s, dental therapists offer the promise of wider, cheaper access.

And of course, some – but not all – dentists are afraid of having to compete with these folks. So they lobby the state to preserve their monopoly. It’s akin to – but in some ways worse – the efforts of North Carolina dentists to foreclose tooth-whitening services as the unlicensed practice of dentistry.

I mean, it’s one thing to try and make it harder and more expensive for suburban moms to get blindingly white chompers at a mall kiosk; it’s another to force the poor to resort to do-it-yourself dentistry in order to get relief from tooth pain.

It’s a classic case of legitimate public interest – and there IS a public policy reason for maintaining professional licensing standards for dentists, just as there is for lawyers – being stretched to preserve the professional monopoly. 1

But just as with lawyers, there’s a point at which “protecting the public” becomes counter-productive. The monopoly extends too far, and big chunks of the public simply go without the services of the licensed professionals. It’s hard to see how that’s better, particularly when there’s an option that still preserves licensing AND expands access.

(I would also imagine that more strategic dental institutions would see the benefits of dental therapists; they could easily allow for greatly expanding a dentist’s reach and referral possibilities.)

Two thoughts on how this relates to lawyers:

First, as I’ve long harped on, the market for legal services is fundamentally broken due to a rigid-and-expansive definition of “the practice of law.” As with dentists sweeping all tooth-stuff into “the practice of dentistry” – and thus excluding lower-cost, more widely available offerings – the bars sweep all law-stuff into “the practice of law,” with the same effect on the public. 2

Secondly, the Washington State Bar shouldn’t get a pass here because they’ve allowed for “Limited License Legal Technicians.” These state-licensed professionals are a very tentative step in the right direction, but there’s a reason the first word in the title is “Limited:” there’s not much they can do, and they’ve got to jump through a whole lot of hoops to do even that.

There’s certainly a place for consumer protection. But just as dentists are spewing nonsense when they argue that therapists threaten public health (despite all evidence being to the contrary), the bars are doing the same when they argue that only lawyers can help consumers with anything related to the law.

Notes:

  1. This kind of rent-seeking is common to licensed professionals, and it’s not hard to see why: cry “consumer protection” or “customer safety,” set up licensing rules and other barriers to entry, and then enjoy the higher prices that come along with your state-sanctioned monopoly.
  2. And this problem is exacerbated in legal due to the inability of non-lawyers to even invest in the provision of legal services.

“Docs and Glocks” Case Gets Messier

I’ve written before about Wollschlaeger v. Governor, the case dealing with Florida’s law preventing doctors from making certain inquiries of patients regarding firearms ownership. As I said at the last go-round, the 11th Circuit decision is a mess, finding the law constitutional – despite the obvious limitation on professional speech – under an intermediate scrutiny standard.

Well, now they’ve gone and made it messier. Reconsidering the decision on the court’s own motion, an 11th Circuit panel has now issued a decision that passes on determining what standard should apply by breezily concluding that Florida’s law survives even strict scrutiny.

That’s pretty crazy. Strict scrutiny is a really high bar to clear; content-based speech regulations almost never get there. And they don’t get there in this nutty of a way, with the court’s leading argument being that the law preserves the Second Amendment rights of Floridians from infringement by doctors.

Doctors aren’t state actors, and they’ve got no authority (outside of super-edge-case commitment scenarios) to do the first thing about anyone’s guns. So this “protect the Second Amendment” business is just baffling as a justification for regulation.

The case does include a nice, thorough discussion of occupational speech regulation and why it is so unsettled from a constitutional perspective. It’s almost as if the court was about ready to follow that with renewed adoption of the intermediate scrutiny standard for occupational speech regulation, but wimped out in the end.

There is a silver lining: this is one more reason for the Supreme Court to take up the issue of occupational speech regulation, and put to bed once and for all what the proper test for such restrictions should be.

Updated 3/2/16: The 11th Circuit has agreed to rehear the case en banc, so this decision has been vacated.

What Speech Regulation Tells Us About Gun Regulation

This blog has always been about the uneasy intersection between the First Amendment and lawyer speech regulation. I write and speak about First Amendment stuff all the time; it’s integral to my work. So I find it easy to look askance at those who try and trample on First Amendment rights.  But it’s weird to me that people who would do the same – fight hard for the First Amendment – have such a hard time treating the right to bear arms in the same way.

1A 2A Venn Diagram

It shouldn’t be this way: the Supreme Court has held that the Second Amendment encapsulates an individual right, just as surely as the First Amendment does. And while any individual might treasure one right more so than another, that’s not how the law operates. So perhaps some direct analogies from how speech regulation works will help in the understanding of how gun regulation can work – and how it can’t.

Let’s start here: free speech and gun rights aren’t absolute. You can’t say whatever you want, wherever you want, however you want. And you can’t carry or use any weapon you want, wherever you want, however you want. 1

Exceptions

There are a handful of categorical exceptions to the First Amendment – think defamation, child pornography, true threats, etc. When thinking about the Second Amendment, these exceptions can be analogized to the one big categorical exception to the Second Amendment: the right of the state to prohibit “dangerous and unusual” weapons. 2

So let’s say the First Amendment-excepted category of obscenity is analogous to dangerous and unusual weapons. Both concepts – “obscenity” and “dangerous and unusual” – are a little vague, but at least they allow for fencing in the grounds for debate. This is useful, when talking about the Second Amendment, due to the sheer amount of misinformation and emotion-based arguing that goes on. It disciplines the discussion. Instead of bemoaning “weapons designed specifically to kill people with brutal speed and efficiency” (as the New York Times does in its front-page editorial calling for gun control), we have to ask the more specific and pointed question of whether a particular category of weapon is sufficiently “dangerous and unusual” to qualify for a ban. Not doing so – adopting the rhetorical stance of the NYT – is, to go back to my analogy, the equivalent of arguing that some form of erotica should be banned as obscene because it offends Aunt Gertrude’s bluenose sensibilities. So doing is subjective and sloppy.

We’ve also got to do something the NYT leaves out in its emotion-based argument: acknowledge that self-defense is a legitimate and long-standing right underpinning the Second Amendment. And if you want a weapon for self-defense, you want one that is “designed specifically to kill people with brutal speed and efficiency.”

It’s easy for the NYT – and a lot of its readers who live comfortable existences and who are unfamiliar with/afraid of guns – to pooh-pooh the importance or usefulness of the right of self-defense. But back to my First Amendment analogy: the NYT would be the first to defend the idea that the First Amendment protects all sorts of expression that the vast majority of people would find little value in. And just as it’s not a winning First Amendment argument to contend that the vile behavior of the Westboro Baptist Church should be banned because it’s ugly and harmful, it’s not a winning Second Amendment argument to contend that guns are ineffective or unnecessary for self-defense. 3

There’s still plenty of room for debate about what types of weapons should qualify as “dangerous and unusual.” The quality – and usefulness – of the gun control debate would improve markedly if it moved there.

Restrictions

Besides the small number of categories of expression that are excepted from First Amendment protection, there are a number of other categories where expression can be regulated. The primary ones include:

  • Content-based regulations – technically, the state can regulate the content of speech, but such regulations have to survive strict scrutiny. As a practical matter, this means that such regulations almost always fail unless the content of the speech falls into one of the limited categories of exception to the first amendment.
  • Non-Public Forums – the government has far more leeway to regulate speech in non-public forums, like government offices and courtrooms.
  • Occupational speech – a somewhat ill-defined area that I have written about at some length. The government can, to a degree still undetermined by the courts, regulate certain types of speech by licensed professionals.
  • “Time, place, and manner” restrictions – These regulations don’t favor a particular type of content, but restrict all expression in a particular way. Such regulations need only meet intermediate scrutiny – which still means the government has the burden to show that a regulation serves an important government goal, is narrowly tailored to achieve that goal, and preserves ample other means of communication. Lots of regulation falls into this category: sign size restrictions, noise ordinances, etc.
  • Commercial Speech – my favorite topic! Advertisements can be regulated, subject to the same intermediate scrutiny standard used for time, place and manner restrictions.

So what’s our analogy the Second Amendment? How would we evaluate proposed gun control measures that fall short of an outright ban on a class of weapons?

I think – and I realize this area is still being developed, as lower federal courts have taken a wide variety of approaches to the standard of review for gun restrictions – that such laws would be analogous to content-based regulation or commercial speech, depending on the severity of regulation.

Regulations that act as de facto bans, or otherwise substantially interfere with the exercise of Second Amendment rights, would be subject to strict scrutiny. Other, less intrusive regulations, would be subject to intermediate scrutiny.

A lower standard of review is justified for commercial speech based on the hardiness and objectivity of advertising compared with other forms of speech. A similar type of argument could be made that the lesser forms of gun regulation fall into a category where the government should have a little more room to regulate given the inherent dangerousness of firearms.

Thus, advertising regulation = gun regulation (short of bans on a whole category of weapons).

If the government wants to regulate advertising, it’s got the burden of showing that the regulation meets a three-prong test: an important government interest, regulation that directly advances that interest, and regulation that is no more expansive than necessary to advance that interest. Would-be advertising regulators rarely have a problem with the first prong – there are lots of important government interests. Yet they fail this test all the time, typically in one of two ways:

  • They pass laws without any empirical evidence that the law will actually do anything (failing the “direct advancement” prong), or
  • They pass laws that are wildly overbroad – “solving” the problem by infringing on all sorts of protected expression (thus failing the “no more expansive than necessary” prong).

Applying this test to gun regulation nicely frames the debate, by making us consider the efficacy and scope of any proposed regulation, rather than arguing based on emotion or magical thinking.Thus, applying the commercial speech analogy, the questions “why should anyone be allowed to have an assault rifle” or “why should magazines holding more than 10 rounds be allowed?” must be reframed as “could we directly advance an important government interest in a narrow way by restricting assault rifles or large magazines?” We could then look at the data and determine whether such regulations would be effective and not too broad. 4

There are probably lots of “commonsense gun restrictions” that could meet this test. I have to believe that the interests of gun control advocates would be better met by engaging the argument at this level – the level of sober constitutional scrutiny – rather than continuing the hysterics exemplified by the New York Times editorial. But for that to happen, people have to recognize that Second Amendment rights are important, too – we don’t get to pick and choose the rights we want to support.

Notes:

  1. Important point: this principle is not, as a matter of law, remotely controversial. If you disagree with it, if you think that the law has no legitimate limitations on the rights of free speech or firearms whatsoever, you might as well stop reading now. Also: when talking about free speech and weapons rights, the first thing to remember is this: government action. The first and second amendments protect our rights with respect to the government. They have no bearing on whether Starbucks can prohibit patrons from open-carrying guns, or eject the over-caffeinated patron who launches into a polemic while waiting their next triple soy latte.
  2. There are other categorical exceptions to the Second Amendment – possession by felons, concealed carry, etc. – that aren’t important here.
  3. That argument is also empirically wrong – ask anyone who lives in a dangerous neighborhood, way out in the sticks, or who had to manage in New Orleans in the days after Hurricane Katrina – but my point is that the right of self-defense-by-firearm is settled law, so it’s meaningless to argue over it.
  4. And for what it’s worth, back in October the Second Circuit did just that, finding that New York and Connecticut’s bans on large magazines and certain types of assault rifles meet intermediate scrutiny and are constitutional.

Legal Forms & Legal Advice

I was speaking at an Evolve Law event in Los Angeles last week, and had a conversation with Derek Distenfield, who operates a business called NextGenJustice. I hadn’t heard of it, but that’s because Derek had changed the name from “Legal Docs By Me.”

THAT I had heard of. Kind of a brick-and-mortar version of LegalZoom, Legal Docs By Me was a place people could go to get basic legal forms to accomplish things like uncontested divorces, name changes, and small business formations. I’d run across the company when I read that the New York Attorney General’s office had cracked down on it for the unauthorized practice of law.

Apparently the company entered into a consent decree with the NYAG and changed its name. Unfortunately, this hasn’t spelled the end of the company’s issues, as the NYAG is now going after NextGenJustice for violating the terms of the consent decree. 1

NextGenJustice is also expanding to Florida, where, predictably, it is also facing questions about UPL.

There shouldn’t be any question that selling forms isn’t the unauthorized practice of law. But what about providing advice to those who walk into his locations looking to buy a form? I asked Distenfield how his business handles the questions that are going to naturally come up from buyers – “how do I fill this out,” “what goes in box 12a,” etc.  He says the store employees don’t address these, instead referring customers to local attorneys.

Which is great, I suppose, but why shouldn’t his folks – who aren’t lawyers and don’t claim to be lawyers – be able to answer straightforward questions?

Tom Gordon has an op-ed on this topic in USA Today, and it gets to the heart of the problem: the definition of “the practice of law” has been stretched so far that people and businesses are being prosecuted for doing anything that remotely hints at being “legal.”

This isn’t the only thing that’s keeping people from getting help for their legal needs, but it’s a big factor – along with the rules prohibiting fee-splitting with non-lawyers – that is keeping a lid on innovation and forcing people to choose between services that are either fully-custom or do-it-yourself.

It’s also, as I’ve pointed out before, problematic from a free speech perspective. Answering questions and giving advice is expressive activity, and the fact that bar regulators and police authorities punish it under the banner of professional regulation sounds like content-based speech regulation to me.

There is, unfortunately, little appetite among the lawyer regulators to move to a narrower definition of “the practice of law” that recognizes both the constitutional issues and the traditional functions of being an attorney. But the overreach we’ve seen here may result in change from an unlikely source: the courts. The Supreme Court has never directly addressed the tension between occupational speech regulation and the first amendment; a number of cases winding through the federal courts right now may provide that opportunity – and spell big changes for the Bars.

Notes:

  1. The court documents aren’t readily available online, so I can’t tell to what extent the NYAG’s complaints have to do with UPL versus deceptive advertising, but according to the AG’s press release, both seem to be at play.

How Not to Do “Reputation Management”

In many of the talks I give to groups of lawyers, I stress the importance of having a strong online reputation. The reason is simple: even if your practice relies exclusively on personal referrals, those people who are given your name are going to enter it into Google. They’re going to be likelier to contact you if they see a rich variety of substantive content about you, your practice, and your approach to the law.

Unfortunately, too many lawyers have an online identity consisting of nothing, or a maybe a wafer-thin bio page. Many of these lawyers claim they’re too busy to take the time to build information about themselves online.

That’s crap, of course: it doesn’t take that much time to fill out Avvo and LinkedIn profiles, make sure you’ve got a good web page, and occasionally write a cogent blog post or whitepaper. But this whole exercise is one of marketing/business development, and for a certain segment of attorneys, there’s a belief that law is the one industry that’s excluded from having to dirty its hands with labor of that kind. “Do good work, and the clients will come” (or some self-deluding nonsense like that).

However, there’s a step worse than the inaction that consigns so many attorneys to being non-entities online: outsourcing your reputation.

Yep, it’s a thing: “Reputation Management.” It’s a service that’s problematic out of the gate, as one’s reputation is built by, well, oneself. A sterling reputation comes through traditional inbound marketing techniques like writing, speaking, connecting, and generally showing (not telling) people what a great attorney you are. It’s just kind of weird to outsource that the way you would a TV or newspaper advertising campaign.

There’s also the fact that these outfits engage in a variety of tactics – like writing content pretending to be the business, or its customers – that violate deceptive advertising rules. No business, particularly a legal practice, should aspire to the reputation of being an astroturfer.

Reputation managers may also engage in bluster, and even threats, in an effort to remove unflattering material from the internet. And at its worst, it can look like this: a clueless “ORM” guy, working for a lawyer, calling up other lawyers – lawyers who regularly blog on free speech issues – to make bumptious threats to sue them for writing about his client.

The Streisand Effect will tell you all you need to know about how that tactic worked out.

As New York attorney Eric Turkewitz once memorably put it, “outsourcing marketing = outsourcing ethics.” Attorneys have to carefully watch what the marketers they’ve hired are doing, because the attorney is ultimately responsible to the bar authorities and the public for actions taken on the attorney’s behalf.

Sounds like that goes EXTRA for reputation management people.