Advertising – Page 4 – Socially Awkward

“Past Results” Ban in Florida Tossed

December 19, 2014December 18, 2014 Josh King

Really interesting decision in the case of Rubenstein v. The Florida Bar, in which federal district judge Beth Bloom granted attorney Robert Rubenstein’s motion for summary judgment against the bar AND enjoined the Bar from further enforcing its rules banning the use of references to past results in many forms of attorney advertising.

Law Practice Advisor has the details, but in reading the decision I was struck by how completely unimpressed Judge Bloom was with the Florida Bar’s position. She absolutely eviscerated the Bar for its utter lack of empirical evidence to support its ban, as well as its failure to consider any more narrowly-tailored remedies.

And for First Amendment law junkies, there’s this: while Rubenstein positioned his case as an “as applied” challenge – which is much easier to win, but has the disadvantage of not extending beyond the particulars of the plaintiff’s case – Judge Bloom took it upon herself to style it as a facial challenge. She then went on to show how the Bar’s rules were fundamentally unconstitutional, no matter how they were applied. BAM!!

This isn’t necessarily the end of these rules, as the state could theoretically rebuild them with proper evidentiary support and deference to their obligation to regulate in a narrowly-tailored way.

Or they could appeal, but that’s a long shot – the good Judge issued a a very complete and well-thought-out ruling.

This decision is a great step toward a simple yet elusive concept: that Bar regulators should only limit speech where it is necessary to do so, and only to the extent of that necessity.

And ultimately, what’s most damning to the Florida Bar’s position is this: the data shows, unsurprisingly and overwhelmingly, that consumers really want to know what kind of results attorneys get. The Bar should take this message, get out of the way, and let that happen.

Ethics & Competitive Keyword Advertising

December 10, 2014August 1, 2022 Josh King2 Comments

It sounds unethical:

“Buy” the name of your competitor from Google.
When potential clients search Google for that competitor, your ad appears.
Profit!!

Lawyers seem to think so, too. There was the Milwaukee PI firm of Habush Habush & Rottier, which sued a competitor for doing this. The North Carolina State Bar issued an ethics opinion putting a kibosh on the practice. And now “The Hammer” – the Texas Firm of Jim Adler & Associates – has weighed in, asking that Texas also find competitive keyword advertising unethical.

Of course, they’re all wrong.

Habush found this out, after spending several hundred thousand dollars losing their lawsuit.

North Carolina should have found out, after watching even ad-restrictive Florida reverse course and withdraw a proposed opinion barring the practice.

And Adler et al will find out as well, as I expect the Texas Bar will leave them hanging.

Here’s why: look at this competitive ad for the search term “Habush.” There’s absolutely nothing deceptive or misleading about the ad. There’s no “likelihood of confusion” and no trademark infringement. In fact, the search engines have ad rules that affirmatively prevent advertisers from using the competitor’s name in the ad. So all that happens is that a consumer searching for a firm by name also sees an ad for a competitor. Fundamentally, that’s no different than traditional “proximity advertising” – buying a billboard across the street from your competitor, or a yellow pages ad on the opposite page.

And that’s a GOOD THING – because we should favor giving consumers more information when choosing a lawyer, rather than giving lawyers a competition-free channel for online name searches.

On “Lawyer Referral Services”

December 1, 2014May 7, 2015 Josh King1 Comment

One limitation on lawyer advertising, found in ABA Model Rule 7.2(b)(2) and the rules of nearly every state bar, is the prohibition on anything but bar-sanctioned “lawyer referral services.”

What’s a “lawyer referral service?” It’s a service that refers consumers to lawyers. Duh.

But why would that be a problem? Attorneys have a right to advertise, after all. How does a “lawyer referral service” differ from say, buying Google AdWords or banner advertising on a local news website?

To understand the basis of this disconnect – and that of many other problems with attorney advertising regulation – we have to go back to the Bars’ grudging acceptance of Bates v. Arizona, the 1977 decision in which the Supreme Court first found that attorneys have a right to advertise. Instead of scrapping the prohibition on unsanctioned “lawyer referral services” along with the rest of the advertising prohibitions that the Supreme Court found unconstitutional in Bates, the Bars just kept all of the prohibitions in place – but appended a little sotto voce exception allowing advertising. So now, nearly 40 years on, attorneys have to parse the distinction between permitted advertising and prohibited “lawyer referral services.”

Unsurprisingly, this creates confusion.

Some attorneys and bar regulators consider a “lawyer referral service” to be any form of advertising in which the attorney pays for advertising on a per-lead or per-client basis. If the attorney is paying the referring party for each client or potential client that is sent their way, it’s a referral program. Which is prohibited, unless it’s non-profit and approved by the Bar.

This kind of rationale is one attorneys are well-known for: the exaltation of form over substance. Sure, you can say the attorney is paying for each referral. And sure, the bar rules still prohibit unsanctioned “lawyer referral services.” So there’s that.

But go back to Bates, and there’s also this: attorneys have a first amendment right to advertise. Paying for advertising on a per-lead or per-client basis is just a more efficient way of buying marketing. How do we square that with prohibitions on lawyers participating in “lawyer referral services?”

A “lawyer referral service” can’t simply be whatever the bar says it is. The commercial speech doctrine tells us that restrictions on advertising must be narrowly-tailored to mitigate against real, non-speculative harms. What harm is being addressed by the prohibition on lawyer referral services? Surely not the efficient deployment of legal marketing budgets.

Rather, as Kentucky Bar Ethics Opinion E-429 does a particularly good job of pointing out, the prohibition against lawyer referral services is intended to guard against consumer deception. Shady lawyer referral services operate by making the consumer believe that their legal issue is being vetted, and that they are being sent to the appropriate attorney for their needs – when in fact they are simply being sent to whichever attorney is next in the rotation, or has purchased the exclusive rights to all leads in their area.[ref]Which begs the question of why the bar’s own referral programs should pass muster, but that’s a question for another day.[/ref]

Modern performance-based advertising programs may superficially look like referral programs (in that lawyers are paying per-referral or per-client), but they are missing, crucially, that which made the shady old lawyer referral programs a problem: consumer deception. Consumers who click on a Google AdWords ad or get connected to the first available attorney through Avvo Advisor aren’t being conned into thinking their cases are being screened and they are getting an attorney hand-picked for their specific needs. Rather, these consumers are simply responding to a form of attorney advertising that has tied the marketing fee much closer to actual performance.

Ultimately, the restriction on lawyer referral services could be safely stricken from the Rules of Professional Conduct, as the general prohibition on false and misleading advertising would cover any such practices that deceive consumers. As it stands, this is a rule that simply acts as a drag on attorneys participating fully in performance-based marketing – which ultimately comes at a cost to the consumers that the advertising rules are intended to protect.

Regulate or Permit?

November 20, 2014November 19, 2014 Josh King

As someone who has worked in tech for nearly my entire career, it’s natural for me to think a lot about innovation. Innovation – or at least the aspiration to innovate – runs in the veins of any successful technology company. It’s what leads to breakthrough growth, opens up new markets, provides new answers to old problems, and makes the leading companies wildly successful.

But here’s the thing: we lawyers aren’t the most comfortable around innovation. We’re trained to respect precedent. It’s a principle that’s great for stability, but it doesn’t lend to our being drivers of rapid change. And that’s OK to a point – the role of the lawyers is, in many cases, to be the voice of caution in the room, the one highlighting the potential risks and problems that shiny innovations can leave in their wake.

Unfortunately, our profession is also possessed of another tendency that’s actively harmful to innovation – our regulatory bias. Because we are trained in drafting and interpreting rules, we lawyers have a tendency toward addressing problems and uncertainties by creating rules.[ref]If you’ve even been in a fantasy football league run by lawyers, you’ll know what I mean.[/ref]

This regulatory bias, in combination with our backward-looking emphasis on risks, acts as a very real brake on innovation. This manifests itself in the widespread favoring by lawyers of what’s known as the “precautionary principle:” the idea that the best way to handle changes and new developments is carefully and cautiously, with rules and regulations governing the acceptable parameters of such changes.

The trouble with the regulatory bias is that it offers only the illusion of control. Prophylactic regulation of new technology almost always prevents the benefits of such technology from being fully realized. It slows things down. Sometimes that’s OK. It can be a useful brake on concepts that are getting ahead of themselves. But such regulation frequently leads to unforeseen, negative consequences – consequences which are sometimes far more significant than the theoretical harm the regulation was intended to prevent.[ref]There are many, many examples, but this article from the Freakonomics guys is a good place to start.[/ref]

But as Adam Thierer argues persuasively in his book Permissionless Innovation, there’s an alternate model to the lawyerly reflex to regulate new technology. Under Thierer’s model, the default is instead to be hands-off, letting things develop with a minimum of regulation – at least until (and unless) such regulation proves to be necessary. This model requires that lawyers do something that may feel a bit unnatural, which is step back from their role as rule-makers and wait for firm evidence that rules are needed before restricting new technology.

Permissionless innovation requires acknowledging the hard truth behind regulation: no matter how noble its ends, it is often wholly ineffective – and it often produces unanticipated consequences to boot.[ref]These realities are documented exhaustively and persuasively by Yale law professor Peter Schuck in his recent book, Why Government Fails So Often: And How It Can Do Better. [/ref] Yes, sometimes it succeeds. And sometimes we are willing to accept a fair dose of imperfection and high cost because the choice of not regulating is even worse.

However, this is rarely the case with new innovations. Are there risks to holding off and letting innovation flourish, free of regulation? Of course. But it defies the history of regulation to assume that regulators can deftly avoid those risks, optimize the benefits of innovation, and also keep any unanticipated consequences from popping up.

And to bring this full circle to the subject of this blog – permissionless innovation is a mindset that can be applied to many areas even outside of technology. As I’ve argued many times before, the sprawling pages of lawyer advertising regulation do far more harm than good. In attempting to address any number of potential marketing techniques and theoretical harms, the rules only succeed in keeping consumers uninformed about legal services. The vast majority of actual consumer harm from lawyer advertising could be addressed through a simple rule prohibiting false and deceptive advertising.

My railing against precautionary regulation isn’t a political point, or an objection on principle to ALL government regulation, which is often necessary and sometimes effective. It’s simply a reminder that we as lawyers, instead of rushing in to propose new rules, should regularly pause and reflect whether the better course isn’t to simply let things play out.

Because a great deal of the time, it’s going to be.

Publicity Rights & Commercial Speech

October 24, 2014 Josh King

Yes, I’m about to write about a case involving NFL Films, which has approximately nothing to do with lawyer advertising. But it’s a nice example of the relatively narrow parameters of the commercial speech doctrine.

And repeat along with me, lawyers: only your commercial speech can be regulated by the state bar advertising rules. If you’re staying non-commercial, you don’t have to worry about whether the ad rules apply to your tweeting or Facebook updates.

In our NFL Films example, three former players sued, claiming that NFL Film compilations of old game highlights violated their rights of publicity. What’s important about the Federal District Court’s dismissal of the case on summary judgment is its detailed discussion of these two principles:

1) Publicity rights claims (which, you might have gathered, I loathe) can only survive if the underlying communication is commercial speech; and

2) Commercial speech, while continuing to evade a bright-line definition, must contain some meaningful combination of economic motive, advertising format and reference to a specific product.

The decision reiterates that economic motive alone is NEVER sufficient to render speech “commercial.” It also notes that the fact that the films are all about the NFL and its players does not make them a form of “image advertising,” but rather expressive products in their own right.

All in all, a good case to remind us of the limited scope of commercial speech, and the fact that free expression needn’t face the publicity rights tollbooth just because it features people whose images have commercial value.

Why Care About Attorney Advertising Rights?

October 21, 2014October 22, 2014 Josh King

I am occasionally asked why I spend so much time focused on the tension between lawyer advertising regulation and the free speech rights of attorneys. The perhaps-too-obvious answer is that my employer, Avvo, is built upon attorney advertising, and I’ve got a vested interest in seeing that attorneys continue to be able to advertise.

And it’s certainly true that working at Avvo has colored how I think about attorney advertising – but perhaps not in the way one might think. For while I certainly do have a vested interest in seeing that attorneys continue to be able to advertise, that particular fight has long been over. Attorneys can advertise, attorneys will continue to be able to advertise, and attorneys will pay good money to advertise for the foreseeable future.

For that, Avvo (and I) thank them.

But what I’ve discovered in 7+ years at Avvo is that the state Rules of Professional Conduct governing lawyer advertising are a sloppy mess, doing a disservice to lawyers and consumers alike.

Since Bates v. Arizona was decided nearly 40 years ago, it’s been settled law that the RPCs can’t stop lawyer advertising, or even limit those ads deemed to be beneath the dignity of the profession. Some might argue that this is a bad thing. But that’s like trying to stop the tide. In the years since Bates, the Supreme Court has greatly solidified the commercial speech doctrine, with the First Amendment clearly protecting the right of businesses to engage in non-deceptive advertising. Absent an abrupt, 180-degree reevaluation of how the First Amendment relates to commercial speech, this is not going to change.

Unfortunately, rather than regroup in the aftermath of Bates and devise more streamlined, meaningful rules, the bars simply kept their existing frameworks and bolted on begrudging exceptions for attorney advertising.

The result? Now attorneys have to parse the rules to understand whether they are participating in a “referral program,” or doing something that might be considered “solicitation,” or having the temerity to suggest they might “specialize” in an area of law. There are any number of ordinary means of communicating with other human beings that might technically run afoul of the bar’s advertising rules – particularly as means of communication proliferate.

Thanks to Bates, we’ve now got ever-more-ridiculous attorney television and billboard ads. Yet at the same time, attorneys ponder whether they can respond to inquiries posted on Twitter, or highlight on their websites feedback from clients. Where straightforward advertising is clearly allowed, other, more direct forms of communication – which are often far more valuable – exist in a legal gray area. In this way, the uncertainty of the rules acts as a tax on lawyer communications, making it much harder than it should be for consumers to get information about legal services.

Some lawyers might think that’s a feature, not a bug. After all, less direct communication means less opportunity for lawyers to deceive clients. But that condescending viewpoint hardly gives clients – or lawyers, for that matter – the credit they deserve. In most things speech-related, America has chosen the “more speech solution” as the preferred approach. Rather than censoring speech, we’ve determined that it’s preferable to let competing voices hash things out in the marketplace of ideas.

Unfortunately, in the marketplace of ideas around legal services, we’ve got the screeching of the Law Hawk and the “life’s short” lady – and a whole lot of attorneys who are going around not communicating with potential clients out of fear of ending up on the wrong side of the Bar.

That’s messed up. And that’s why I care about restoring attorney free speech rights, and scaling back the reach of the advertising regulations so that they are properly focused only on false and misleading advertising – and not on a clutch of outdated, picayune concerns.

Naughty Words Attorneys Can’t Use

October 1, 2014November 27, 2014 Josh King1 Comment

Attorney ethics rules offer some great examples of the problems inherent in the mechanistic application of the law. Sometimes, it’s a matter of a well-founded rules being applied to circumstances where technology has gutted the purpose of the rule .[ref]For example, prohibitions on fee-splitting being applied to purchases via Groupon, where there is no danger whatsoever of the fee split interfering with the lawyer’s independent professional judgment.[/ref] But other times, it’s a case of the expansive regulator: the deacons at the bar stretching the breadth of the rule far beyond its logical (or constitutional) limits.

Back in 1990, the Supreme Court held, in Peel v. ARDC, that a bar can’t prohibit an attorney from truthfully advertising that they had been certified as a specialist by a bona fide organization. The Court also expressed skepticism about the state’s position that the word “specialist” has a unique, narrow meaning apart from its generally understood meaning of “a person who has special knowledge and skill relating to a particular job.”[ref] Thanks, Mirriam-Webster![/ref] Nonetheless, many states (including Florida and New York) continue to prohibit attorneys from using terms like “specialist,” “specialize,” “expert,” and “expertise” except in conjunction with a bona fide certification.

What these states are missing is that it’s the certification that’s doing the work. It’s false and misleading if attorneys hold themselves out as being “certified” specialists or experts when no legitimate certifying agency has conferred the honor. But the use of general terms like “specialist” or “expertise” on a standalone basis, with no claim of third party certification? There is virtually no question that prohibiting such use is unconstitutional.

The wonderfully-named New Orleans attorney Kearney Soniat du Fossat Loughlin thought so too. He had been disciplined by the Louisiana disciplinary board for stating on his website: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.” Loughlin wasn’t content to take this slap on the wrist, so he appealed the discipline to the Louisiana Supreme Court, challenging the constitutionality of Louisiana’s prohibition on the use of the word “specializing.”

Loughlin won. Unfortunately, he won because the court found that a) he hadn’t intended to break the rule and 2) the public wasn’t harmed. It didn’t address his constitutional argument.

It’s great the Loughlin was willing to take on the bar. I wish more attorneys would do so in cases like this. There are real problems with false advertising that the bars can go after, but policing the use of harmless, ordinary words isn’t one of them.

Attorneys: It’s Not Always OK to Lie

September 22, 2014 Josh King

Look, it’s OK to lie. Or, at least, outside of some fairly specific circumstances, the government can’t punish you for lying. Go check out U.S. v. Alvarez – and the now-unconstitutional “Stolen Valor Act” to see what I mean.

That doesn’t mean it’s not despicable to pass oneself off as a Medal of Honor winner, and the same First Amendment that protects our lies[ref]Or, more aptly, protects us from the chilling effect of laws allowing the government to determine what is true and what is false.[/ref] also allows us to call out those practicing such behavior as the pathetic lowlifes that they are.

Which bring us to the tale of Los Angelese attorney Svitlana Sangary, who festooned her law firm website with numerous photos of Ms. Sangary hanging with celebrities. Problem was, it was all phony – Sangary had photoshopped herself into all of the pictures. She now finds herself facing the likely suspension of her law license.

Now, it’s important to note that the potential suspension recommended by the California State Bar Court wasn’t only because Sangary put some phony photos on her website. It’s also because she utterly failed to cooperate, behaved in a manner that’s textbook “How Not to Handle a Bar Complaint,” and generally acted as a poster child for the proposition that admission to the Bar is no guarantee of fitness to practice law.

But I want to focus on the photos. Sangary would have a good First Amendment defense if the bar had come after her for having the photos at issue here on a personal blog, facebook profile, or the walls of her office. Just like everyone else, attorneys have the right to lie. They might do so for any number of reasons: lack of self-esteem issues, to piss people off, or abject failure to understand social norms.

And again, remember: this isn’t to say that it’s not shameless and pathetic for a lawyer (or anyone, really) to behave in this way. It is. It’s just that there can’t be any state-sanctioned penalties for so doing.

However, one reason for lying that isn’t protected by the First Amendment is commercial speech. Not only is commercial speech in general subject to less protection than “core” speech (intermediate vs. strict scrutiny), false commercial speech is entitled to NO First Amendment protection.

So, Sangary’s photos. There’s no question her website is a form of advertising, nor that the page with the doctored photos was designed to fulfill a particular marketing task: instilling Sangary’s potential clients with a feeling of trust, cachet, and exclusivity. Thus the photos are a form of false advertising, and easily form the basis for Sangary to be disciplined.

That, plus the crazy way she handled it. Seriously, the details in the judge’s order are a stark example of why consumers need to do more than be starstruck by a few celebrity photos when it comes time to choose a lawyer.

Publicity Rights vs. Media Law

August 28, 2014August 28, 2014 Josh King

I’m going to expand on a theme that recurs in my world with depressing frequency: the idea held by many (including many lawyers, who should know better), that the “for profit” nature of a company somehow limits that company’s right to publish information about an individual.

The usual argument is that the publisher – let’s say Avvo in this case – is publishing information about lawyers. Because Avvo is “profiting off” those directory listings of lawyers, it must get permission from the lawyers involved (and, presumably, share the wealth if such permission is obtained). [ref]Avvo does not sell directory listings or charge readers to use the site. It publishes the information proactively for consumers, and is supported by advertising sales.[/ref]

This argument is a conflation of the publicity rights doctrine (which holds that companies DO have to gain permission from and compensate endorsers) with “Media Law 101” (which holds that everyone – for-profit companies included – has a fundamental First Amendment right to write about other people.

It’s really not very complicated. If Avvo was to run an ad campaign claiming that “Attorney Brian Tannebaum thinks Avvo is the greatest,” we’d need to get Brian’s permission to do so. We’d be engaging in commercial speech, and we can’t just appropriate the value of Brian’s publicity for ourselves.[ref]Note that publicity rights issues most often come up with respect to celebrities and sports stars who already have a market for their endorsement. I expect I could get Brian’s endorsement for the price of a bottle of halfway-decent Chateneauf du Pape.[/ref]

But when we create a profile of Brian, and an opinion about him in the form of the Avvo Rating? That’s not commercial speech, and it’s fully protected by the First Amendment. We don’t need his permission to publish it. It is neither commercial nor infringing on his right to monetize his own publicity.

And what of the fact that Avvo makes money from its publishing activities? After all, we wouldn’t be able to sell ads if we didn’t have those attorney profiles and Avvo Ratings, right?

It doesn’t matter. At all.

It’s the distinction between co-opting someone’s persona for marketing vs. covering that person in the media. If it’s the latter – whether an Avvo profile, a feature article in The New York Times or a listing in Google – there is nothing the subject has to say about it.

And that’s precisely how it should be – because as should be obvious by now, we wouldn’t have any media if this wasn’t the case.