On “Ambulance Chasing”

This article from former Georgia Bar President Ken Shigley is illustrative of how tough an issue client solicitation can be.  As Shigley notes, the days following the loss of a loved one, already grief-filled and exhausting, can get even worse when lawyers start insinuating themselves:

Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or days after a tragedy, by people who represent themselves as “counselors,” “investigators” and even clergy, who slip into conversation a question about whether they have a lawyer yet.

According to Shigley, the problem isn’t so much Georgia law – which already prohibits in-person and telephonic solicitation, as well as written solicitation within 30 days of an accident – but the lack of interest among the public and prosecutors in reporting and pursuing solicitation cases.

But is solicitation really a problem?

I can see where it looks that way to Shigley; he’s a long-time plaintiff’s personal injury attorney and a car accident attorney with a great track record and a sterling reputation. I’m sure it annoys him no end to see less scrupulous – and probably less competent – personal injury attorneys playing fast and loose with the law.  And there’s no question that many people, in the days following a tragedy, are in no shape to be making a choice of counsel.

And yet, as Shigley notes, claims adjusters and other insurance representatives don’t labor under similar restrictions. They are free to communicate with those who have suffered losses, and potentially to get these putative plaintiffs to give up valuable rights under circumstances where those who would otherwise represent them are barred from proactively communicating about these rights.

I don’t think this is a tenable state of affairs. And I doubt that Georgia’s law – which includes criminal sanctions – would survive constitutional scrutiny if the Supreme Court reviewed it.

It’s been 20 years since the Supreme Court heard an attorney solicitation case, and that decision – authored by probably the most ardent defender of attorney advertising regulation in the modern era, Sandra Day O’Connor – was split 5-4.

O’Connor, obviously, has long since left the bench. And today’s Supreme Court is far more respectful of the First Amendment than the court was in Florida Bar v. Went For It.  It’s hard to imagine a court that has decided in recent years that the government can’t censor independent campaign advocacy, punish citizens for pretending to be war heroes, or bar nutcases from protesting funerals, finding that the “disrepute to the bar” and general sleaziness of ambulance chasing is sufficient to overcome the first amendment interest in having full access to information about one’s legal rights.

This doesn’t mean that regulations couldn’t bar deceptive advertising, or even in-person or telephonic solicitation. But a 30-day ban on written solicitation? While such advertising may seem undignified and offensive, the precedent on which restricting it rests is increasingly shaky.

Competitive Keyword Advertising: Ethical, But Dumb

Santa Clara lawprof Eric Goldman is coming out with an academic paper on the ethics of competitive keyword advertising. If you wonder what “competitive keyword advertising” is, check out my post from last October.

Eric and I both believe that there is no legal ethics issue whatsoever with the practice. Many lawyers disagree, but I’ve yet to speak to one who really “gets” what competitive keyword advertising IS, and what it IS NOT.

It’s not deceptive. It’s not misleading. It’s simply pointing out to someone who is looking up a competitor’s name that they have other options.

As Eric stresses, having choices like that is a really good thing for consumers.

Unfortunately, many lawyers take a proprietary approach to their names. They bristle at the thought that another lawyer would try to nudge their own ads into searches done for the first lawyer’s name, despite being unable to articulate precisely why such a practice should be wrong. 1

But as Carolyn Elefant asks, even if competitive keyword advertising doesn’t violate the ethics rules, should attorneys do it? Carolyn doesn’t think so, calling it the  “gaining [of] an undeserved advantage on someone else’s coattails.”

I don’t agree with that reason; I’m pretty sold on Eric’s point that the practice is non-deceptive and potentially good for consumers and competition.

However, I still think most lawyers shouldn’t do it. Why? Because it’s most likely going to be completely ineffective; a distraction that delivers little to no value.

Fairly or not, it’s going to piss off your competitors. They might bring a frivolous lawsuit against you that you have to defend. They might file a pointless bar grievance you’ll have to deal with. They might engage in an e-shaming campaign over your behavior. Or they might just say snide things about you behind your back.

And what do you get for that?

Most law practices are intensely local businesses. The “name search volume” – the number of monthly Google searches for a law firm or lawyer’s name, against which your ad will be displayed – might well number in the single digits. If you are in a big market, or your competitor is well-known, they may number in the  low hundreds.

For example, I checked the keyword volume for the firm of Habush Habush & Rottier, a prominent personal injury firm in Milwaukee, WI.  Habush brought a lawsuit against a competitor a couple of years ago for competitive keyword advertising, which, predictably, they lost.

How many searches are done in Milwaukee for the Habush firm? In March, there were 70. And that was the best month in the last year!

Habush search volume

It gets worse. The click-through rate for competitive keyword ads – the number of those searches for your competitor’s name that actually result in click-throughs to your website – is estimated at less than 2%. That means that even if there are 100 name searches for your competitor in a given month, you can expect all of 1-2 clicks on your ad.

That’s “clicks” – not “calls,” and certainly not “clients.”

You’ve got to ask yourself whether results that meager can possibly be worth the aggravation. For the vast majority of lawyers, the answer should be a resounding “NO.” There are far better places to focus one’s marketing and business development resources.

Notes:

  1. And no, it’s not because of trademark. Trademark doesn’t let you exclude all other uses of your name; only those that create a likelihood of confusion. It certainly doesn’t offend trademark for a competitor to use your name in comparative advertising, or as a filtering signal for serving up their own ads.

Checking for Conflicts on the “Legal Hotline”

As a brand-spanking-new lawyer in San Mateo, CA back in the early ’90’s, I was super-anxious to learn anything and everything about the practice of law. I defended every deposition I could. I argued mundane motions. I attended a status conference that almost turned into a fistfight.

Yes, I thought litigation was awesome – until I discovered that litigators actually spent most of their time not in court, but in dealing with pissing matches over pointless bullshit.

Which is why I’m no longer a litigator.

But I digress. Back there in the day, working for a nine-lawyer general practice law firm in San Mateo, CA (the awesome Fox, Shjeflo, Hartley & Babu), I wanted to get as much experience as a lawyer, as quickly as I could. So a couple of days a month I would work for a few hours at the San Mateo County Bar’s law clinic. Sitting at a table at the library in Redwood City, I – a newbie lawyer with all of 3-4 months’ experience – I would deal with whatever legal issues walked in.

It was awesome.

Mind you, this was pre-internet. I couldn’t just hit up Google and figure out how to file a guardianship petition, or whatever. But it was a great way to test my legal knowledge, analysis, and on-the-fly research abilities. And it really helped develop my sense of “what does the client really want to achieve?” Because it doesn’t really matter what your cold legal rights are – what matters is what outcome you’re trying to achieve. There’s a world of difference between “exact maximum revenge” and “move on happily with my life.” Ultimately, desired outcomes are most important, and I learned very early, in that library meeting room, that my mission as a lawyer wasn’t so much to “valiantly vindicate the client’s legal rights” as it was to get them to the place they needed to be in their life.

But I digress.

One of the really interesting things about working in the library legal clinic was the sheer variety of matters you’d face. I mean, sometimes there would be a dozen or more people waiting to get legal advice. It seemed crazy to me then. But I realize now how hard it is for most people to get access to legal services.

Some years after my early days working the legal clinic, the ABA adopted Model Rule 6.5, which has since been adopted by most states. Rule 6.5 attempts to make it easier for “legal advice hotlines” and other forms of quick, legal-clinic-like guidance to flourish. The rule does two important things with respect to conflicts: it effectively removes the obligation of the clinic lawyer to run a conflict check prior to providing advice, and it keeps information possessed by one hotline attorney from being imputed to another (and thus potentially conflicting the hotline out entirely from providing advice in the matter).

As you’d expect, this beneficence is not without limit. Attorneys providing such advice can’t ignore conflicts they are actually aware of, and all of the rules around conflicts spring back into play should the limited-scope guidance of the hotline turn into full-scope legal representation.

It’s also fair to ask how this rule should be squared with Rule 1.2(c), which allows for limited-scope representation but in many formulations requires procedural formalities (like written fee agreements) that are ill-suited to a brief telephonic or online advice session. One would hope that such rules would be interpreted in a way that provides maximum access to justice while preserving consumer safeguards. For example, a fee agreement (provided it isn’t larded down with regulated disclosure language) could be communicated and agreed to, verbally or electronically, at the outset of a call. 1

But Rule 6.5 also has this curiosity: it is limited to court-sponsored or nonprofit providers of legal advice hotlines. Neither the rule itself nor its included commentary offer any illumination on why this limitation is included. Rule 6.5 was added during the ABA’s “Ethics 2000” initiative, and the new rule engendered far less discussion than the other rule additions and changes. The Reporter’s Explanation of Changes offers this:

“The Commission believes that the proposed relaxation of the conflict rules does not pose a significant risk to clients when the lawyer is working in a program sponsored by a nonprofit organization or a court.”

The reasons for this belief will remain shrouded in mystery. One commentor – the Brennan Center for Justice – noted the unfairness of relaxing the ethical standards only for organizations serving the indigent, and suggested that one solution was to relax the conflict rules for all attorneys providing such services.

The minutes of the Commission’s meetings don’t reveal that these concerns were ever addressed. In my experience, that’s not unusual. My guess is that this limitation stems from nothing more than inertia: such legal advice hotlines have, historically, only been offered by court-sponsored and nonprofit organizations. The rule was drafted to apply only to such programs, and the Ethics 2000 Commission focused its attention on more contentious changes to the ethics rules.

But what if a law firm wanted to provide such a service? Or a group of enterprising solos, who pooled their marketing budgets and used it as a way to reach a broadly underserved market?

Or what if attorneys just did it themselves, powered by a technology and marketing platform that brought these limited-scope legal advice calls to them?

Ensuring that major or obvious conflicts don’t exist is a good idea, regardless of what the rules say. But being able to be more relaxed about it, to simply do a high-level, cursory pass before taking the call, would make it a lot easier for lawyers to get comfortable with providing legal-clinic-like advice to a whole bunch of consumers.

So here’s another thought for the expanding list of regulatory changes to enhance access to justice: take the Brennan Center’s suggestion and amend rule 6.5 so that it applies to ALL “legal hotline” programs – regardless of who is operating them.

Notes:

  1. Note that while I believe it is questionable whether the advice given on a legal hotline call is actually “the practice of law” in the first place, this doesn’t mean reasonable consumer protection regulations – like avoiding conflicts and requiring confidentiality – couldn’t apply to it.

Advice, and “the Practice of Law”

After posting about occupational licensing and the first amendment, and the Texas court decision regarding the dispensing of veterinary advice online, I’ve distilled a few thoughts on where I see the (uneasy) line between lawyer licensing and free speech rights:

  • Providing advice is a form of expression, protected by the First Amendment. The fact that someone charges to provide it does not change the analysis, or the government’s heavy burden to show that its attempts to regulate such expression can survive strict scrutiny.
  • The legal industry has drawn a very wide circle in defining “the practice of law.” It typically includes services, provided by non-lawyers, that offer advice to low-income consumers on how to fill out forms or otherwise engage with bureaucracy or the legal system.
  • Prohibitions on paid advice are typically rationalized as being necessary for consumer protection.  While this sounds good, it’s hard to see how such arguments could survive strict scrutiny. Besides the fact that the advice given in such situations is typically very straightforward, there are plenty of narrower means of regulating available, from disclosure to bonding to malpractice insurance requirements. And let’s be frank – there is at best no more than a tenuous of connection between the requirements of legal licensing and the ability to, say, advise a consumer about how to file for a name change.
  • The state can prohibit people or businesses from holding themselves out as lawyers to consumers. Any such holding out would be both deceptive and commercial, and thus easily barred under traditional commercial speech analysis.
  • The state can regulate non-expressive conduct. For example, regulations limiting to attorneys the signing of various documents would not offend the first amendment. However, given the uniquely speech-centered nature of legal practice, there is less non-expressive conduct to play with than is present with other licensed occupations such as doctors or dentists.
  • The state can regulate who is allowed to engage in traditional courtroom representation and advocacy. There are two grounds for this: the fact that courtrooms are considered non-public fora, and the fact that courtroom advocacy of the interests of others is the core function of being a lawyer, and has a long history of occupational regulation.

I suspect that a first amendment challenge to the occupational licensing of attorneys – if reviewed by a court objective enough to set aside their own lawyerly biases – would result in a sharp drawing-in of what we think of as “the practice of law” reserved for those with professional licenses.  We could well end up with a system such as that which prevails in the United Kingdom, where “the practice of law” is limited to six “reserved” areas of legal work that only lawyers can perform. You’ll notice that “legal advice” is not one of the six:

  1. Rights of Audience (appearing as an advocate in court)
  2. Conduct of Litigation  (managing a case through court processes)
  3. Reserved Instrument Activities (specific types of real estate and property transfers)
  4. Probate Activities (handling probate matters)
  5. Notarial Activities (acting as a Notary 1)
  6. Administration of Oaths (taking oaths, swearing affidavits, etc.)

My belief is that this would be an unequivocally good thing for both consumers and free speech. But would it necessarily be bad for lawyers? Outside of those areas where lawyers currently use their monopoly status to overcharge consumers for work that doesn’t require a lawyer, I don’t think so.

Much of traditional legal work would still require a lawyer. And even beyond that, clients would still want to use lawyers for a lot of work even if non-lawyer alternatives were available. That seems to be how things are working out in the UK, where plenty of London solicitors continue to make a fine living providing legal counseling and advice.

Notes:

  1. Notaries in the UK must be lawyers.

NY Ethics Opinion Whiffs on LinkedIn

I wish more authors of ethics opinions would pay attention to the Constitution. But NOOOOO – here’s yet another ethics opinion, this time from the New York County Lawyers’ Association, that completely ignores the fact that the first amendment governs how state attorney advertising rules are to be interpreted.

Instead, NYCLA takes the tack that it can just read the ethics rules and come up with commonsense interpretations of what they mean. That’s cool and all, but it’s also completely meaningless – and not just because NYCLA is a voluntary bar association, and its word on matters of legal ethics is about as authoritative as a Duane Reade shopping bag.

Here’s a tip: if your interpretation of advertising regulations doesn’t account for the Central Hudson factors, this would be a fair criticism of your position:

Oh, and naturally, without the application of First Amendment limits on regulatory overreach, NYCLA ended up at a pretty dumb place: that LinkedIn profiles require disclaimers, that attorneys need to monitor their profiles for accuracy in content added by others, 1, and that attorneys cannot be categorized by others as “specialists.”

That’s pretty much entirely wrong. Disclaimer requirements are a form of compelled speech, enforceable only to the extent necessary to prevent deception. Federal law explicitly holds that users of websites can’t be held responsible for independent postings by third parties. And prohibitions on the use of words like “specialist” only come into play when such words are accompanied by other words stating that some third party has certified the lawyer as a specialist.

So nice opinion there, NYCLA – but you’re not exactly advancing the profession’s understanding of speech regulation.

Notes:

  1. Which they SHOULD do, but not due to any regulatory obligation.

Vet Sanctioned For Providing Online Advice

Since last week’s post regarding the the First Amendment and lawyer licensing, there’s been a development on the occupational licensing front. On Friday, the Fifth Circuit issued its decision in Hines v. Alldredge, denying a First Amendment objection to a Texas law regulating the practice of veterinary medicine.

There are some significant differences between that case and the practice of law. The most important difference is the fact that the veterinary regulation in question arguably relates only to conduct, not speech.  It requires that a vet physically inspect the animal in question, or the premises in which it lives, prior to providing veterinary care.

It’s also the case that the Texas definition of “the practice of veterinary medicine” is far more specific than the vague, amorphous concepts larded into most definitions of “the practice of law.” In Texas, the practice of veterinary medicine is defined as “the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique.” It also includes holding oneself out as a vet, or being compensated for practicing veterinary medicine.

Ronald Hines, who was disciplined in the Texas case, is an experienced vet who provided veterinary advice to pet owners, over the phone or via email, for a flat fee of $58.00. He would evaluate records and consult on conflicting diagnoses and medications, but he did not prescribe any medications – and he did not physically inspect any of these pets.

The case turned on this lack of physical inspection, which is required (by occupational regulation) in order to have a veterinary-client-patient relationship; such a relationship is in turn required in order to engage in “the practice of veterinary medicine.” The court found that this was a form of conduct regulation, and any burden on speech was incidental: Hines couldn’t lawfully provide the advice (speech) because he hadn’t carried out the prerequisite physical inspection (conduct).

Although the decision doesn’t touch on this, the fact that the defendant was a veterinarian probably played a big role – that is, the court likely thought that if Hines was going to hold himself out as a vet, he needed to meet the requirements of being a vet. It’s possible that a different result would have been reached if the case had involved a non-veterinarian – say, an experienced horse trainer – providing paid online equine health advice sessions.

Finally, the decision cites to the “broad power” states have to establish licensing standard and regulate the practice of professions. But as Paul Sherman noted, this historical precedent and deference doesn’t give states a free pass – or even a thumb on the scale – when it comes to speech regulation, except in those limited cases where there is long history of that particular type of speech being unprotected.

The conduct/speech distinction here is facially appealing; it makes sense that certain types of veterinary care cannot properly be provided in the absence of an examination. Yet it is troubling when applied broadly, as it was here. It presupposes that the state can meet the lesser burden associated with conduct regulation to foreclose whole categories of speech, the direct regulation of which would need to survive strict scrutiny.

I’m sure this case will be appealed to the Supreme Court; hopefully the court will take it, and provide some clarity to the acceptable contours of occupational licensing. I will probably post again later this week with further thoughts on what this decision means, if anything, to the viability of expansive regulation of the practice of law.

Does Licensing Lawyers Violate the First Amendment?

First Amendment

Like Chief Justice John Roberts, I don’t put a lot of stock in law review articles. But every now and then, one comes along – usually written by an honest-to-god practicing lawyer, and not a full-time academic – that’s worthy of notice. Case in point? Paul Sherman’s March 15 Commentary in the Harvard Law Review, “Occupational Speech and the First Amendment.”

I’m still digesting the argument, but at first blush it powerfully extends the case, on First Amendment grounds, for a substantial drawing-in of state regulatory power over the practice of law.

How so? Consider:

  • The core functions of the practice of law involve speech, much of it in the form of advocacy and advice.
  • Requiring an occupational license to carry out these functions is a content-based speech restriction.
  • Content-based speech restrictions must survive strict scrutiny in order to be found constitutional. 1
  • Outside of certain truly client-protective measures and limits on speech in government-created forums, the broad speech restrictions inherent in legal licensing would not survive strict scrutiny.

The result? “The practice of law” would be cut back largely to courtroom representation and advocacy.

It’s a really interesting point. As I’ve long maintained, nobody is “practicing law” when they opine generally on the law or public policy, and the bars have no business trying to regulate them for doing so.

However, I’ve always rather uncritically accepted the notion that there is something fundamentally different about offering advice to a client for a fee. That doing so means you’ve crossed a line where regulation is appropriate.

But I think I’ve been wrong about that.

Why? Because Sherman notes something that is critically important to all media legal specialists. Something I tell lawyers when they get pissed off about Avvo’s publishing profiles of them:

The fact that otherwise-protected speech is “sold” doesn’t make it any less worthy of constitutional protection.

This is the principle that keeps the government from censoring the media, despite the fact that people used to actually pay for newspapers. It’s why rights of publicity can’t stop “unauthorized biographies.” It’s the very clear, often-repeated-by-the-Supreme-Court mantra that economic interest alone is not sufficient to convert free speech into commercial speech (to say nothing of speech wholly devoid of First Amendment protection).

So how can the states prevent – oftentimes on pain of criminal sanctions – nonlawyers from offering paid advice on things like filling out forms, complying with laws, negotiating agreements, and interacting with the government?

The answer seems to be that they can’t.

Notes:

  1. That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc).

Ethics of “Better Call Saul”

The character of Saul Goodman brought a new level of sleaze to the on-screen depictions of lawyers in Breaking Bad – along with memorable ads, an inflatable lady liberty and a mock lawyer website that fooled more than one gullible ethics lawyer.  The masterful spin-off, Better Call Saul, shows us Saul’s origins, and offers a more darkly-comic, less violent vision than the original show.

And it’s also got lots (lots!) of lawyer advertising and ethics issues. Heck, there’s even an explicit reference to Bates v. Arizona! For more on that, go read my friend Nicole Hyland’s musings on the numerous ethical mishaps that Saul has run into only partway through Season One.

Lawyer Commoditization

Check out these posts from earlier today:

Ron Friedmann –  “Big Law, Fast Food, and Lawyer Exceptionalism.”

Mark Herrmann – “Be Afraid. Be Very Afraid.”

Friedmann is speaking to Big Law, and Herrmann to in-house lawyers, but the message is the same: commoditization is coming, and there’s nothing special about the law that’s going to keep the forces of automation and progress from sweeping up a whole lot of the legal work that lawyers are beavering away on these days.

And while that’s bad for those who get run over by this trend, it is potentially great for consumers of legal services, who still face an industry that overwhelmingly offers nothing but bespoke options – with prices to match.

Foodies may look down their snoots at the super-sized sameness of McDonalds, but for a whole lot of people, the combination of price, quality, consistency, and quick service makes it a compelling choice. Think consumers wouldn’t flock to the equivalent in law?

There’s even a silver lining for attorneys in areas ripe for commoditization: instead of ignoring this trend, embrace it head-on. Create packaged, price-transparent offers for frequently-used services. Build the systems and processes to handle a higher volume of clients a whole lot more efficiently. Start giving the market what it can’t get today, but desperately wants.

Even in commoditized industries, lots of businesses can grow and thrive. But it takes recognizing and adapting to the changes that are occurring around them.

NY Crushes Anti-Negative-Review Agreements

So there’s this outfit called “Medical Justice.”  They purport to help doctors and dentists stave off malpractice lawsuits and reputational damage.

One of the products Medical Justice used to offer, except for lawsuit settlement, was something called a “Consent and Mutual Agreement to Maintain Privacy.” It was a nasty bit of work, really: slipped into the pile of papers patients signed on intake, the early versions of the form basically said that the doctor agreed to honor the privacy obligations of HIPAA if the patient agreed to not write any negative reviews of the doctor.

It didn’t take too long for Medical Justice to realize that this agreement might have a few flaws. As the Department of Health & Human Services noted in slapping a doctor for using the Medical Justice form,

A covered entity’s obligation to comply with all requirements of the [HIPAA] Privacy Rule cannot be conditioned on the patient’s silence.

So Medical Justice changed the form. Instead of this quid pro quo of “don’t write bad stuff about us online and we won’t give your private medical records out,” the new agreement took an even more devious tack: it assigned copyright, prospectively, from the patient to the doctor for any reviews that the patient might write in the future. This would allow the doctor to use the notice-and-takedown provisions of the Digital Millennium Copyright Act to have such content removed from review websites.

How would that make a difference? You see, ordinarily, a review website isn’t going to pay much attention to your typical cease-and-desist-you’re-defaming-me demand letters. Reviews are user-generated-content, and review sites have solid immunity from defamation liability for such content, thanks to CDA 230. But claims based on copyright aren’t subject to that statute’s sweet protection. As a result, many sites will automatically take content down in response to DMCA takedown notices in order to take advantage of the DMCA “safe harbor” from liability that such a takedown affords.

I would have loved to have tested that out if I’d gotten such a takedown demand; as you might gather, I find these attempts to silence patients completely vile. But before Medical Justice could get these agreements into the hands of too many doctors, they stopped, grudgingly recanting their efforts (the Doctored Reviews undertaking can probably take some credit for that).

However, it was too late for at least one dentist.

Stacy Makhnevich used this form, and when a patient submitted a negative review on Yelp, she invoiced him $100/day for as long as the review was up. The story is amusing – Makhnevich got her desserts in spades – but the news here is what happened in the class action lawsuit that was filed against her: a federal district court judge entered a default judgment against her, finding that:

  • Even if copyright was assigned by the agreement, any use in a review would be protected by fair use;
  • Obtaining the agreement was a breach of the dentist’s fiduciary duty and a violation of dental ethics;
  • The agreement constitutes “copyright misuse;”
  • The agreement is unconscionable; and
  • The agreement is a deceptive act in violation of New York General Business Law section 349(a).

The court basically eviscerated the idea that these sorts of agreements are remotely acceptable. That’s a good thing; hopefully more professionals will get the idea that the best way to maintain a good reputation is to do good work, be responsive to patient/client concerns  . . . and not try to muzzle your customers and abuse the legal system at the same time.