More Thoughts on “The Practice of Law” (Part 2)

In Part 1, I looked at the recent 2nd Circuit decision that found that brainless document review activities, although done on legal matters, by licensed attorneys, were not “the practice of law.”

In this post, I’m going to look at another July 2015 decision – this time from the 11th Circuit – that also helps inform the contours of what, precisely, “the practice of law” actually is.

The case, handed down on July 28th, is Wollschlaeger v. Governor.  Wollschlaeger involves another form of professional speech – that of doctors – and deals with the question of whether the state can regulate doctors asking questions of patients regarding guns.

I’ll say at the outset: Wollschlaeger is a mess. It basically shoehorns constitutionality by finding an exception that swallows the rule, leaving in place a garbage piece of legislation obviously designed for no other purpose than to cow doctors away from even bringing up the subject of guns when talking with patients.

But let’s leave aside for now the question under what subjective state of mind a doctor moves from allowable to unallowable questions of patients regarding firearms ownership. My larger interest is the test the Circuit court used for acceptable state regulation of professional speech.

Yes, even professionals, acting in their professional capacity, have first amendment rights. And as Paul Sherman noted earlier this year, there’s precious little in the way of Supreme Court guidance on the uneasy intersection between the First Amendment and professional regulation. This is a question that should be of particular importance to lawyers, given that ours certainly consists of a higher percentage of speech-related activity than any other licensed profession.

In Wollschlaeger, the 11th Circuit took the question on headlong, finding that state regulation of professional speech – within the context of the professional’s relationship with a consumer – is subject to the same intermediate scrutiny analysis applicable to commercial speech. 1

The court noted that doctors have full first amendment rights to speak out with respect to guns, but that, when it comes to the doctor-patient relationship, the state’s interest in consumer protection means it can regulate speech subject to intermediate scrutiny.

Although I’m partial to Sherman’s argument that professional speech regulation should be subject to strict scrutiny, and while I completely disagree with the court’s conclusion that Florida’s law survives even intermediate scrutiny, the case is a good reminder that the state’s speech-regulatory authority – regardless of the standard applied – is limited to the professional-client relationship. It doesn’t apply more broadly to anything a professional might say.

For attorneys worried about answering anonymous questions online, or speaking out publicly about matters of interest, this should offer some comfort that regulation of “the practice of law” isn’t going to control their expression just because they happen to be lawyers.

Notes:

  1. Which is not to say that such communications ARE commercial speech.

More Thoughts on “The Practice of Law” (Part 1)

A recent federal case out of New York provides an interesting look at a subject I’ve written about a number of times: what, exactly, IS “the practice of law?”

It’s a deceptively simple question. For many lawyers, the answer is “anything I work on that’s related to the law.”

And even some federal judges: to whit, the 2014 district court decision in Lola v. Skadden, Arps et al, in which the judge concluded that a lawyer hired to do $25-per-hour document review was practicing law, and thus not eligible to be paid at the overtime rate.

In the district court decision, the court spends a fair bit of time parsing what “the practice of law” means, arriving at a broad definition that draws in a wide range of legal tasks, including many that involve “little to no legal judgment.”

As I’ve pointed out before, there’s a fair bit of tension between the First Amendment and expansive regulation of “the practice of law.” And although such expression-related concerns aren’t at play in a putative class action claim for document review lawyers to get paid overtime, this fundamental limitation on the state’s right to control expressive activity should inform how courts determine the contours of “the practice of law.”

What would those contours look like? My developing thought is that they should look considerably narrower than what most lawyers think of as the “practice of law.” The state’s legitimate interest in protecting consumers and preserving the unique lawyer-client relationship doesn’t need to cover nearly as much ground as the bar has claimed over the years.

So it was refreshing to see the 2nd Circuit reverse the district court decision in Lola v. Skadden, and find that the document review activities alleged in the plaintiff’s case were NOT “the practice of law.”

Why not? Although North Carolina (the state in which the issue arose) – like many states – provides a less-than-helpful definition of “the practice of law,” the Circuit court reviewed a number of decisions dealing with the issue, in North Carolina and beyond, to arrive at the conclusion that “the practice of law” requires the exercise of legal judgment on behalf of a client.  And in this case, the quintessential document review activity of “using criteria developed by others to simply sort documents into different categories” did not involve the exercise of legal judgment.

That seems, to me, to be a good thing. Not everything a lawyer does – even “lawyerly-seeming” stuff – is actually “the practice of law,” subject to state regulation and limitation.

This doesn’t mean, of course, that a lawyer is off the hook for client-impacting problems that arise out of activities that don’t fall under the definition of “the practice of law.” What it DOES mean is that there are appropriate limits on the extent to which the state can call an activity “the practice of law” and proceed to regulate it.

In the case of David Lola, that means time-and-a-half pay for extra hours of document review. For everyone else, it may eventually mean greater access to everyday legal help.

[In Part 2, a look at another recent decision that cuts the other way]

Not THIS Nonsense Again

Why is it bad when bars don’t pay attention to the first amendment limitations on their ability to regulate? Because it leads attorneys to extrapolate into wildly limiting restrictions on the rights of attorneys to communicate.

To whit, this three-part series in the ABA GP Solo eReport, “Attorney Rating Systems: Should You Play?” In the series (or at least the first two parts; the third part comes out in August), attorney Stacey Romberg concludes that “it is difficult to imagine” how Avvo could meet the standard for attorney use of the Avvo rating and profile under ethics opinions issued by Utah and Washington. 1

But it’s not that difficult.

First of all, the states don’t have unfettered discretion to regulate how attorneys communicate. It’s fine for them to say that they won’t allow attorneys to participate in pay-to-play or other forms of ratings advertising that deceives consumers. But it’s quite another to fret, as Romberg does, that vague terms like these cut against attorneys using ratings:

“the lawyer ensures that the methodology or process used to determine the rating is fully disclosed and explained using plain language and is conveniently available to the public” [Utah] or

“If Lawyer determines that the website’s numeric and/or descriptive ratings of lawyers are not based upon the lawyer’s performance or merit and the website does not disclose how the ratings are calculated, then the lawyer must not participate in the website.” [Washington]

As I rail on, repeatedly, guidance like this from state bars can’t be read expansively. It must be read narrowly; that’s required by the First Amendment, even for commercial speech.

So this language from the state bars? Read it as prohibiting communications that are actually deceptive – like ratings that are paid for or made up (or where there is no way for consumers to tell if the rating is paid for or fictional). But it doesn’t create any uncertainty, whatsoever, about legitimate ratings such as those published by Avvo (or Superlawyers, Martindale-Hubble, Best Lawyers, or Chambers for that matter).

To emphasize: despite the handwringing about whether any such sites, including Avvo, provide adequate information about how ratings are calculated, we all provide more than enough. Why? Because the only test of whether the information is “fully disclosed” or displayed “conveniently” enough is that of consumer deception. Is there something about the rating system that’s going to deceive consumers into thinking it’s something it’s not? No? Than stop worrying about it.

 

Notes:

  1. I wrote about the Washington ethics opinion earlier this year.

Washington Expands Protection for Anonymous Reviews

Just over a month ago, I wrote about the fight Avvo has found itself in over defending online anonymity.

The decision is now in, and we’ve prevailed – the Court of Appeals affirmed the trial court decision allowing Avvo to resist the subpoena seeking to unmask its anonymous commenter. And in so doing, the court articulated a test for unmasking anonymity in Washington state – a test that strikes the right balance between allowing discovery to proceed in legitimate cases of defamation and preserving anonymity.

For plaintiffs who have a legitimate case – and some evidence to back it up – the court’s new test doesn’t pose much of an obstacle. Show why you’ve got a case, and why you need to unmask the anonymous speakers, and discovery can move forward.

But for those people who file reflexively, who think “defamation” means “someone wrote something about me I don’t like,” who use baseless litigation as a means to expose and threaten those who speak against them? They can no longer rely the standard rules of expansive discovery to expose anonymous speakers.

From where I sit, that’s a very good thing.

N.B.: For more on the legal issues involved, check out this blog post from Public Citizen’s Paul Alan Levy (Paul represented the Doe defendant).

Another Call to Gut the Ad Rules

The Association of Professional Responsibility Lawyers is a reputable, some might even say conservative, bunch, made up of law professors, bar counsel, law firm GCs, and attorneys who represent those facing disciplinary proceedings. It’s not an organization that’s going to run off half-crocked and propose radical changes in the rules governing the practice of law.

However, it has done just that – but without the “half-crocked” part.

APRL created a “Regulation of Lawyer Advertising Committee,” and that Committee has just issued its report, which was adopted by APRL’s Board. In the report, the committee concludes:

The practical and constitutional problems with current state regulation of lawyer advertising far exceed any perceived benefits associated with protecting the public or maintaining the integrity of the legal profession.

The report goes on to recommend that the current rules (ABA Model Rules 7.1 – 7.5, with the exception of 7.3 – solicitation – which the Committee deferred on) be replaced with a single rule prohibiting false and misleading advertising. This is a surprisingly bold and sweeping recommendation, and it tracks closely with proposals I have made in the past, as well as Avvo’s recommendations to the ABA’s “Future of Legal Services” commission. 1

If adopted, the APRL recommendations would eliminate all of the nuttiness in the current rules, which chafe so badly against both modern commercial speech doctrine and modern means of communication and advertising. It would help bar counsel focus on those violations that really hurt potential clients, rather than technical violations that offend no on other than competitors looking for an edge. Hell, it would even give leeway for using the term “specialize;” the comments note that attorneys can use this term-that-shall-not-be-named as long as it’s not deceptive to do.

So bravo, APRL. But the real question is – will the ABA and state bars listen to this all-too-sane-and-sensible recommendation?

 

 

Notes:

  1. I am a member of APRL, but did not serve on the Lawyer Advertising Committee.

New York Issues Social Media Guidelines

The New York State Bar has issued a set of “Social Media Ethics Guidelines.”  As New York’s is not a mandatory bar, and these are mere guidelines, and not rules, one might pause and wonder why anyone cares. But as Kevin O’Keefe points out, because it’s New York, attorneys who (like me!) pay attention to the developing intersection between legal ethics and technology will imbue these guidelines with outsized importance.

So on we go.

What do I like about the Guidelines?  I like that they state that a lawyer’s duty of competence includes understanding how social media works. For many people today, social media is a far more important communication device than a telephone is.

Do you think you can competently represent clients – particularly consumer clients, in matters where communications between parties may be at issue – without knowing how a telephone works?

The same thing now goes for social media.

I like the fact that the Guidelines repeat the advice I often give: if you want  to avoid ethics problems when using social media, don’t post social media updates that take the form of advertising. You get a two-fer that way, since you don’t have to think about the rules, AND you’re less likely to come across as a spammy huckster.

Finally, I like that the guidelines provide solid, common-sense guidance on dealing with social media in litigation, from counseling clients to investigating opposing parties and jurors.

What don’t I like about the Guidelines?

I don’t like the fact that the Guidelines continue the silliness of deeming taboo the innocuous term “specialist.”

I don’t like the fact that the authors of the Guidelines are apparently unfamiliar with 47 USC 230(c)(1), and how it would preempt any attempt to find in the rules a requirement that attorneys be responsible for things that third parties independently post about them online.

I don’t like the fact that the Guidelines summarily conclude that specific legal advice can’t be given over social media. Of course it can; “social media” includes channels that are both distributed (public) and direct (private). It’s perfectly appropriate – although perhaps not advisable – to communicate with clients over private social media channels.

And what’s more, a lot of that stuff that lawyers think is “legal advice” when posted on social media? It’s not.

And finally, what I REALLY don’t like is the same thing that gets my goat on most efforts like this: the fact that, despite having dozens of authors, many of whom are no doubt fine attorneys, the Guidelines make little-to-no effort to reconcile the ethics rules with the First Amendment constraints in which they must operate.

Let’s remember: even in New York, attorneys have First Amendment rights.

 

Protecting Anonymity in Client Reviews

The ABA Journal and several newspapers have picked up the news that we’ve got a legal issue brewing here in Washington over anonymous online reviews, so I thought I’d provide a little context.

I’m going to skip the background (which you can read in the ABA Journal article) and just cut right to the issues.

First of all, anonymous speech: Avvo allows reviews to be left anonymously. Attorneys can argue about whether such feedback is useful, but here’s my take:

  • The US has a long history – including, notably, the Federalist Papers – of anonymous speech.
  • The Supreme Court has repeatedly found that such speech is valuable and constitutionally protected.
  • In my nearly 8 years at Avvo, I have had numerous conversations that expose the reason for this value and constitutional protection: reviewers who fear retaliation from attorneys for speaking, and attorneys bent on exacting such retaliation.
  • Readers can decide for themselves how to weigh feedback. Anonymity is another factor, just like coherence, detail, and reasonableness, that potential clients can take into account when reading a review.

So while we do a lot to try to ensure review quality – including human moderation prior to posting – you shouldn’t expect anonymous reviews on Avvo to go away any time soon.

The issue in this case is what happens when an attorney believes they’ve been defamed by a review.  That’s what the plaintiff believed here; she thought that the review was left by a non-client, and that the facts alleged in the review were false. So she brought a John Doe complaint for defamation and subpoenaed Avvo for records that might “unmask” the anonymous reviewer.

In such cases, I notify the reviewer to let them know that records that might reveal their identity have been subpoenaed. This way, they have the opportunity to fight the unmasking.  What’s more, if they can prove to my satisfaction that they were a client, and they have a good faith argument that their review isn’t defamatory,  Avvo will actually fight the subpoena on their behalf. That feels like something we need to stand up for if we’re going to have a credible, consumer-focused forum for client feedback.

That’s what happened in this case. The reviewer made such a showing, the plaintiff refused to withdraw her subpoena, and Avvo refused to turn over the identity of the reviewer. The plaintiff brought a motion to compel production. We opposed it, and won. The plaintiff appealed, which brings us to last week’s hearing. 1

At stake is how Washington will answer a developing question: under what circumstances can a defamation plaintiff unmask an anonymous defendant?  The coalescing standard – known as the Dendrite standard for the New Jersey case in which the issue was decided –  requires both that the plaintiff make a prima facie showing that they have a case, with evidence, and that the court balance the need for unmasking and the strength of the prima facie case against the first amendment right to speak anonymously.

We’re hopeful that the Washington Court of Appeals will affirm Avvo’s lower court win and help establish a clear rule that protects the right to speak anonymously – while preserving the ability of defamation plaintiffs to move forward with discovery on meritorious cases.

Here’s one additional takeaway for attorneys: subpoenaing the identity of anonymous commenters is different. You can’t expect to get wide-and-unfettered third party discovery the same way you might when subpoenaing say, gas station bathroom cleaning logs.

Notes:

  1. In the interim, Paul Alan Levy of Public Citizen agreed to represent the Doe defendant pro bono; both Paul and Avvo’s attorneys at Davis Wright Tremaine appeared at the appellate argument.

Florida: Text Messages are Direct Solicitation

Oh, Florida.

Let me get this out of the way first: I don’t think lawyers soliciting clients via text message is very effective. It probably comes across as amateurish and cheesy. And if a law firm isn’t very, very careful, text solicitation risks running afoul of the well-intentioned-but-stinking-turd of a regulation that is the Telephone Consumer Protection Act.

Which is a very bad thing indeed.

But text messages are direct solicitation? The direct solicitation that can only constitutionally be prohibited if it rises to the level of intrusiveness and undue influence found in a personal interaction with a trained advocate?

That’s what the Florida Standing Committee on Advertising decided,  voting 6-1 to treat text messages as prohibited direct solicitation. In so doing, the Committee had a series of amusing exchanges about the relative use cases for text messages and mobile phones, but apparently did not consider – at all – the constitutional issues involved.

I mean, it’s not like the Supreme Court hasn’t weighed in on the acceptable contours of prohibiting attorney solicitation on four separate occasions, the last of which involved a Florida regulation.

I haven’t got any great interest in seeing solicitation-via-text. But is it too much to expect that bar regulators look to the constitutional limits on their authority, rather than acting like they regulate in a vacuum?

Update 9/10/15:

The board of bar governors in Florida has reversed the Ad Committee, clearing the way for attorneys to solicit via text messages . . . as long as Florida’s cumbersome attorney advertising rules are complied with.

Yay for a Bar paying attention to the first amendment!

But just because it’s allowed doesn’t mean it’s a good idea. And unless you’ve got a very clear bead on 1) your ROI and 2) how you’re going to navigate TCPA compliance, marketing via unsolicited text messages is a horrible idea.

How Much Does Your Profile Photo Matter?

I’m back from Las Vegas, where Avvo hosted it’s biggest and best “Lawyernomics” conference ever last week. Between catching up with our customers and partners and listening to some terrific presentations (and giving one of my own, on “Lawyers Behaving Badly,” naturally) it was a whirlwind.

I always come back from this conference with a fresh set of new ideas and resources, and one this year had to do with profile photos. I’ve always known that profile photos are important – visitors to Avvo click on profiles with photos at orders-of-magnitude greater rates, and our VP of Marketing, Leigh McMillan, spent time in one presentation parsing the data on the value of profile photos (and the importance of “the squinch“). But how much difference can the choice of profile photo make?

In a session on new technologies, I learned that there is a photo comparison service that strives to answer this question: “PhotoFeeler.” It’s a web service that allows you to upload profile photos – in categories of “business,” “social,” and “dating” (think “LinkedIn,” “Facebook,” and “Tinder”) – and get feedback on the effectiveness of each photo. Users vote on a stream of photos to gain virtual currency to use for their own photo comparison analysis, thus creating (hopefully) a flywheel of photo comparisons and input.

Votes in the “business” section are on a 0-3 scale of whether the photo communicates a sense that the subject is “competent,” “likable,” and “influential.” Although those are obviously highly subjective measures, there’s little question that they are traits that business leaders are looking to communicate via their photos. The idea of PhotoFeeler is to build up enough crowd wisdom to determine whether a photo is effective at that purpose.

As I’ve been using the same old photo on LinkedIn for the last 4-5 years, I thought I’d give PhotoFeeler a try. To get a better test, I paid a few bucks to get a fairly complete comparison – 40 votes on each photo – of my existing LinkedIn photo and my new photo that graces the Avvo “Leadership” page. Here’s what the PhotoFeeler community had to say about my current LinkedIn photo:

PhotoFeeler - Old LinkedIn

Ouch! Less than 20% for “competent?” That’s not exactly getting it done. At least nearly half the people surveyed think I look likable . . .

Suitably chastened, and fearing that maybe it’s just me, incapable of coming across as anything other than an incompetent, churlish brute, I tried my newer, professional photo:

PhotoFeeler - New LinkedIn

OK, so THAT’s a relief. But the takeaway for me is this: while I’ve always known that photos make a difference, helping form immediate impressions of qualities such as influence and competence, I hadn’t grasped how BIG of a difference this might be.

Anyone who is relying on profiles to connect with others would be wise to check PhotoFeeler out (and maybe get some professional – or at least thought-out – headshots taken).

Oh, and my LinkedIn profile? I’ve already updated that photo.

 

Paying for Reviews

Can a lawyer offer a $50 bill credit for any client willing to write an online review on Avvo? In a surprising recent ethics opinion, the New York State Bar says “yes.”

The NYSBA’s nod is not without caveats. The credit cannot be contingent on the content of the review, and it can’t involve coercion or the attorney actually writing the content of the review.

But yet . . . something feels unseemly about this practice.

It’s one thing to get a receipt at Chipotle offering a $2 coupon if you fill out a survey, but quite another to get a $50 “coupon” for doing the same for one’s attorney. That amount of money carries a heavy suggestion that it is the quid offered for the pro quo of a positive review.

It’s also questionable how well-received this incentive actually would be. For many clients, the reason for leaving a review is driven by intrinsic motivation – a desire to pay something back to an attorney who has done a great job – than by any extrinsic motivation that is offered.  Offering a reward might well discourage and demotivate these people, by positioning their earnest motive as something callous and mercenary. At the same time, it would likely motivate those who are otherwise indifferent – and will leave middling feedback – but are happy to jump on the fifty bucks.

Ultimately, I don’t disagree with the NYSBA’s analysis. Offering an incentive for clients to leave a review shouldn’t technically violate any of the rules around attorney advertising. But I wouldn’t be surprised if attorneys employing this method find that the quality of their reviews goes down over time.