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).

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