5 Wishes For Attorney Regulation Reform

In early April, I left Avvo. It’s been 10 years; it’s time for something new. What that is yet . . . I don’t know. Summer is glorious in the Pacific Northwest; I’d love to take some serious time off and enjoy it with my family and friends.

So I don’t know how much more I’ll be writing here. I suspect, however, that I will stay involved in efforts to improve our legal system, regardless of where my work takes me. So with that adieu, I leave you with a brief wish list of legal reforms:

  • Change to “Principles-Based” Regulation.  The American system of attorney regulation is rules-based: read the rules, comply with the rules. Such a system that has the advantage of clarity, but it’s a poor system for attorneys. It’s brittle. It’s non-responsive to changes in the environment. It focuses on detail (and “creative compliance”) at the expense of the purpose underlying each rule. And it makes innovation hard. Why not adopt the example of our cousins in the UK and move to a system of principles-based regulation? Let’s re-write the Model Rules to focus on desired outcomes, rather than rigid rules, and let attorneys and firms figure out the best ways to achieve those outcomes. We might be surprised the extent to which such a system would elevate the profession to a place where the focus is back on achieving the best outcomes for clients, rather than mere “compliance.”
  • Allow Non-Lawyer Ownership of Law Firms. Law firms are starved of investment – and the innovative thinking that would happen if smart non-lawyers could be invested in the success of those firms – by the flat-out bans on non-lawyer investment in, and ownership of, law firms.  Enough with the hand-wringing about the “uniqueness of the profession” and “corporate profiteering.” Law is already a business, and we are deluding ourselves if we think that attorneys are immune from the pressures of the bottom line. It would be easy to build client protection measures into such a system. And let’s be honest: well-run corporate businesses, with transparent practices and high levels of accessibility, would provide better, more predictable, more responsive, and less conflicted service than most lawyers and law firms right out of the gate.
  • Scale Back the Definition of “The Practice of Law.” Along with allowing non-lawyer ownership of law firms, we should dispense with the field-grabbing maneuver of claiming that everything remotely “legal” is “the practice of law,” and thus can only be handled by licensed attorneys. Let lawyers practice at the top of their licenses, and let everyone else – so long as they aren’t “holding out” as attorneys – be free to dispense legal advice, even to paying customers. There’s a decent chance the Supreme Court will dictate this result within the next few years anyway,[ref]There is a very good argument that telling non-lawyers they are barred from giving legal advice violates the First Amendment, and cases – including this one – challenging limitations on “paid professional speech” are working their way through the courts.[/ref] so some enterprising Bar should just get out in front of this sea change that’s coming.[ref]Also worth noting: the legal monopoly in the UK doesn’t include legal advice; yet things seem to be working tolerably well there.[/ref]
  • Fix Multi-Jurisdictional Practice. My great-grandfather was a lawyer in Indiana. He abruptly moved his family to Tulsa in 1921, arriving just as race riots roiled that city. He had to start his practice over in a new state, but state-based attorney licensing made sense at that time – and certainly up to, and beyond, his retirement decades later. Most attorneys, including great-granddad, worked in wide-ranging, intensely local practices. But in modern society, it’s the rare lawyer who isn’t focused on a narrow area of law. Those narrow areas often span multiple geographies. So why persist in the fiction that general facility with a state’s law – as tested on a single occasion – is a necessary prerequisite to practice law in that state? Why not have admission at the national level, handle discipline at the state level, and control – via more frequent and specific tests – admission to practice before local courts? Doing so would far better police the point where failure to understand the local rules can do the most harm to clients (representation in court), while freeing lawyers (and the clients they would serve) from the arbitrariness of state MJP restrictions.
  • Create Meaningful Regulatory Processes.  Administrative agencies drive a gigantic body of the law – just look at the Code of Federal Regulations.  Non-legislative in nature, administrative rules are nonetheless adopted under a well-developed body of processes and norms.  While this process differs slightly from agency to agency, it is marked by transparency, opportunity for public comment, and responsiveness.  Notices of Proposed Rulemaking are promulgated, and orders imposing new or amended rules offer detailed descriptions of how any serious comments received were addressed. Nothing of the type pertains in lawyer regulatory processes. Supreme Courts treat lawyer regulation as just another adversary process – often freezing non-lawyers out. Publicity, notice, and transparency? Typically non-existent. And even the most well-intentioned regulators inevitably get hung up on a decision-making process that gives interested market participants (who often have the scantest sense of their regulatory obligations) veto power.  If the legal industry is going to maintain self-regulation, it needs to start doing so in a much more serious and neutral fashion.

Many lawyers would regard these as radical changes. But they really aren’t: they are a mix of approaches proven elsewhere and straightforward fixes for obvious regulatory failings. Unfortunately, our profession strongly prefers incremental approaches to anything that smells of “change” – that’s one reason we’ve got the creaky assemblage of Rules of Professional Conduct lawyers are saddled with. If the profession is to adapt and best serve the public, it’s got to do more than just tidy things around the edges. I offer my “wish list” as a modest starting point for that discussion.

More Ethics Opinions on Avvo Legal Services

I recently returned from lovely Asheville, North Carolina, where the North Carolina State Bar moved to adopt an ethics opinion favorable to Avvo Legal Services. The Bar also proposed changes to the fee-sharing and trust account rules to specify that mechanical-but-not-client-impacting payments to intermediaries (the bugaboo of too many regulators) are not prohibited under the Rules of Professional Conduct.

The North Carolina EO and Rule Changes – which are moving forward for final comments and, one hopes, adoption – are the culmination of what has been a model process. The Bar appointed a subcommittee to address the issue, and that group took its time. It held numerous meetings, and got input from all corners to understand the issues. The subcommittee also brought to bear a deep understanding of both the public-protection purpose of the Rules, and the constitutional constraints which govern them.

And then there’s the New York State Bar Association.

The NYSBA announced today that it has issued an ethics opinion finding that Avvo Legal Services violates New York’s rules of professional conduct – specifically, the prohibition against lawyers paying third parties to recommend them.

Unlike the North Carolina State Bar, the NYSBA is a voluntary, non-regulatory legal trade association. It opinions are purely advisory. But New York is a big and influential state, and lawyers are sure to have questions about this opinion. And while the NYSBA didn’t run a transparent and public process like North Carolina’s, it did – to its credit – actually take the time to understand how Avvo Legal Services works.

But they still came to the wrong conclusion.

As in most states, the New York Rules of Professional Conduct prohibits lawyers from paying for “recommendations.” The NYSBA opinion finds that attorneys participating in Avvo Legal Services are making “improper payment for a recommendation in violation of Rule 7.2(a).” Yet in reaching this conclusion, the NYSBA stretches the term “recommendation” far beyond its permissible bounds.

As I am constantly going on about, there are First Amendment limitations on the Rules of Professional Conduct. Attorneys have a right to express themselves, and the public has a right to access information about legal services. What this means in practice is that the Rules can’t mean whatever the regulators want them to mean. It means that the Rules can’t be interpreted to broadly gather in anything that might arguably sound like it could “fit” under the rules.

More specifically, attorney advertising restrictions must:

  • Materially advance important state interests, and
  • Do so in a narrow fashion.

That’s not my opinion; it’s the law.

The NYSBA opinion doesn’t grapple with these obvious Constitutional guardrails. Instead, it basically says:

“Hey, if you squint hard enough, and add together Avvo’s objective system of lawyer ratings plus some marketing statements Avvo uses to refer to lawyers in general, that looks kinda like a “recommendation” of every participating lawyer.”

That’s far, far too broad. To survive First Amendment scrutiny, a prohibition on recommendations must be narrowly limited to those recommendations that actually mislead the public. And the NYSBA opinion acknowledges this in passing, noting its earlier Opinion 799, which found that the “recommendation” line is crossed when the referrer “purports to recommend a particular lawyer or lawyers based on an analysis of the potential client’s problem.”

This is getting at the issue, because such a recommendation – particularly in the absence of transparency and consumer choice – can lead the consumer to believe they are being sent to the best possible attorney for their legal problem, when in fact they are being sent to the one paying the most money.

But instead, the opinion treats “recommendation” as a broad-ranging term into which anything bearing a passing resemblance can fit. That’s not a stand that will survive its first encounter with judicial review.

And this is yet more evidence of a far too common pattern: applying the prophylactic, overly-cautious ethics opinion approach to rules where the Constitution dictates a much lighter hand. It’s a continuation of a decades-long habit of chilling lawyer speech, to the detriment of consumers and lawyers alike.

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.

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.[ref]I wrote about the Washington ethics opinion earlier this year.[/ref]

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.


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.[ref]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.[/ref]

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.

Answering Legal Questions Online

I get questions from lawyers all the time about the appropriateness of answering legal questions online. Which isn’t a shock, since Avvo operates an online forum where people can ask questions about legal issues and get free answers from lawyers.

As I’ve harped on mentioned before, attorneys tend to focus on risks, and the risks of answering questions online aren’t that hard to spot – inadvertently forming an attorney-client relationship, malpractice, out-of-state practice, etc.

But are these REAL risks? Are you really putting your license (and potential clients) at danger? The short answer is no – because while all of these risks are out there, they exist in what I like to call “the margins:” that area where a risk may materialize if all of the ill-fated stars align to screw you over. Or if you’re blitheringly reckless or stupid.

And guess what? Getting out of bed every morning exposes you to risks in the margins. You could step out in front of a bus. You could give a client advice that’s 100% wrong because you’re feeling rushed and under-caffeinated.

Face it, lawyers – life offers no cure for recklessness, stupidity, or fate.

So relax and accept it. Because life – and practice – should be about growth and development. And growth and development aren’t going to be in the cards if you’re too busy fretting over minuscule risks and things that can’t be changed.

Lest you think I’m being unduly dismissive of your lawyerly concerns, let’s take a closer look at the risks of answering questions online.

Don’t Forget Your Free Speech Rights

I’m going to start with something fundamental that many lawyers overlook in their rush to fixate on risks. Here it is, and I will block-quote for emphasis:

Discussing legal issues and answering legal questions in a public forum IS NOT THE PRACTICE OF LAW.

Or to be more precise: it’s not “the practice of law” as regulated by the bars and restricted to those admitted to Bar membership. Everyone – lawyers and non-lawyers alike – has a First Amendment right to comment on legal matters.

Yes, you may regret this, as you survey your Twitter feed following any noteworthy Supreme Court decision.  But there’s nothing the attorney regulators can do to restrict anyone from writing or talking about legal matters.

Where this First Amendment right ends – and the ability of the state to start regulating expression and behavior begins – is when someone holds themselves out as a lawyer, or starts charging clients for doing work that is “legal” in nature.

I’ve written plenty lately about the issues around Bar regulation of non-lawyers.  But for lawyers, the red lights should start to go off when questions get closer to being “client-type” discussions. You know the type: private, personal, specific, and heading in the direction of actual representation. For while the “practice of law” is a vague and amorphous term, it is generally understood to be characterized as holding oneself out as a lawyer and taking on a client relationship of trust and reliance.[ref]Washington, D.C. has the best definition I’ve seen:  “’Practice of Law’” means the provision of professional legal advice or services where there is a client relationship of trust or reliance.” D.C. Rule 49(b)(2).[/ref]

Forming an Attorney-Client Relationship

On a forum like Avvo’s, it is structurally impossible to form an attorney-client relationship. That’s not because the site very clearly points out to users that no such relationship is being established – although that, importantly, goes a very long way toward properly setting the expectations of those asking questions. Rather, it’s because all questions are asked anonymously and in an open forum.

An attorney cannot represent a client whose identity is unknown to them. I won’t belabor the reasons for this, but central among them is this: an attorney cannot deliver any of the fundamental professional obligations owed a client if they don’t know the client’s identity.

On other sites – say, Facebook or Twitter – this may be of slightly more concern, as those asking the questions are often not anonymous. However, to the extent that questions are asked publicly – as opposed to a direct message via a social media platform – the lack of confidentiality strongly weighs against the possibility that any reasonable person would think an attorney-client relationship had been formed.[ref]And see comment [2] to the Comments on ABA Model Rule 1.18 for more detail on the conditions that must be met before an actual attorney consultation will have occurred.[/ref]

However, and more fundamentally, this is where it’s important to remember the first rule of professional use of social media: treat it like a real-life encounter with a real person.

If someone asked you a legal question at a social event, would you provide them some general guidance, and invite them to contact you directly and privately if they wanted to get into more detail? Great! Do the same thing online. You may find, however, that it’s useful – particularly if the person asking the question is someone you don’t know – to take pains to point out at the beginning that you aren’t their attorney and can only provide general information.

One overarching point: I wish I didn’t have to recommend that attorneys clearly call out at the beginning that their answers are general and they aren’t representing the person asking the question. However, I’ve seen a number of well-intentioned lawyers run into people – typically blog commenters with questions – who get confused about this and think that the attorney has agreed to represent them going forward.

It’s best to just keep things clear, even if you know that the public nature of the forum and the general tenor of your guidance isn’t going to risk the creation of an attorney-client relationship. Be direct and upfront; it’s far better than trying to point to fine-print disclaimers on your blog or social media profile. Our experience at Avvo is instructive on this point – we’ve had millions of answers to millions of legal questions, and I’ve yet to encounter a situation where a consumer thought they had formed an attorney-client relationship via our forum.

Legal Malpractice

Legal malpractice isn’t a risk where there’s no attorney-client relationship. Avoid that, and you’ve got a two-fer.

But let’s say you DO form an attorney-client relationship with someone asking a question online. What about that?

My answer would simply be this – there’s nothing special about interacting online. If you’re actually offering legal services online (which can be done, although I’d recommend getting paid to do it, and not doing it through a public social media forum), you should do so with the same level of competency that you bring to bear whenever you provide legal services.

And if you’re worried about that  . . . you should probably pursue an occupation other than the law.

Multi-Jurisdictional Practice

What of people who ask questions from other jurisdictions? Could you be engaging in the unlicensed practice of law?

The lawyerly answer is that the rules of professional conduct speak to where the lawyer is located, not the client.[ref]See ABA Model Rule 5.5.[/ref]  ABA Model Rule 5.5(b) proscribes holding oneself out as a lawyer in a state where the lawyer is not licensed, or “establish[ing] an office or other systematic and continuous presence” in such a state. Such concerns are clearly not implicated by simply answering the question of someone online who claims to be from another state.[ref]There’s also the “on the internet no one knows you’re a dog” issue – how do you know that an asker – particularly an anonymous asker – is actually from the state they claim to be in?[/ref]

However, one caution: I am talking about simply answering general legal questions online, without compensation or the confidentiality that marks the provision of legal services. These nuances of the multi-jurisdictional practice rules would be thin reeds indeed to rely on if you were selling online legal services without regard for state boundaries.


Remember: just because you’re a lawyer doesn’t mean you’ve checked all of your First Amendment rights at the door. You’ve got every right to sound off on the law. You’re also perfectly entitled to give people general legal guidance, and it doesn’t matter whether that interaction takes place online or off.

In many ways, this is how legal business development has always occurred. General questions move to specifics, and a lawyer is hired to help resolve a problem, start a business, or handle a lawsuit. And just as it has always been, it’s important to keep your lawyer-senses attuned for when these discussions need to move behind closed office doors – or end.

WSBA Ethics Opinion on . . . Avvo

I missed this when writing about the Washington State Bar’s new ethics opinion regarding online lead generation, but the bar has also issued an opinion on attorneys participating in an unnamed service that sounds an awful lot like Avvo:

1. May Lawyer claim the profile and provide personal and professional information, knowing that the website will generate a publicly viewable numeric and descriptive rating
that is, at least in part, influenced by the amount of information that Lawyer provides?

2. May Lawyer claim the profile and participate in the website if other users attach to Lawyer’s profile publicly viewable (1) client ratings or (2) peer endorsements about Lawyer’s services?

3. May Lawyer endorse another lawyer in exchange for a reciprocal endorsement?

The WSBA’s conclusions are, unsurprisingly, Yes, Yes, & No.

Despite once again failing to acknowledge the first amendment boundaries on the bar’s ability to regulate in this area, the WSBA concludes that lawyers can indeed use this mysterious service, provided the communications involved are not materially misleading. A few nuggets from, and thoughts on, the opinion:

  • Lawyers are to take “reasonable steps” to ascertain how the service will make representations about the lawyer, and should not participate (other than to ensure information is accurate) if the service does not disclose how ratings are calculated.
  • In case you’re wondering, you can read about how the Avvo Rating is calculated here and here.
  • Attorneys who claim a profile have an obligation to ensure the information in the profile remains accurate and up-to-date. That’s straightforward enough, and – regardless of what you might think of this as a regulatory mandate – is a critical practice for online reputation management.
  • Client reviews and endorsements must be “accurate.” I don’t think that word means what the bar thinks it means – reviews and endorsements are typically statements of opinion, and as such are not amenable to determinations of “accuracy.” In any event, to the extent an endorsement refers to factual inaccuracies, an attorney can delete it from their Avvo profile. However, for reasons that should be obvious, Avvo does not allow attorneys to delete client reviews.
  • I rather suspect that the Bar’s reading of an obligation upon attorneys to monitor-and-attempt-to-remove “inaccurate” client reviews and endorsements is preempted by 47 U.S.C. 230(c)(1).
  • The Bar says that lawyers can’t “logroll” endorsements – provide an endorsement simply because the other lawyer agrees to post a reciprocal endorsement. I don’t agree with the opinion’s conclusion that reciprocal endorsements violate the rule against “providing something of value for recommending a lawyer’s services.” That rule has been swallowed by its exceptions – including, notably, the right to pay for advertising – and is long overdue to be eliminated.  However, we at Avvo have always advocated against logrolling endorsements. Posting – or accepting – endorsements in the absence of familiarity with the other lawyer’s work looks deceptive, shoddy, and cheap. Endorsements are best, for the lawyer and potential clients, if they provide a specific, detailed view of what makes that lawyer stand out.

7 Years at Avvo

I just realized that today, October 29, is my 7-year anniversary at Avvo.  It’s also fully a third of my career so far, and represents the longest time I’ve spent with a single employer.

You’d think a lot would change over that period of time, and you wouldn’t be wrong.  Avvo has gone from a concept (a concept facing a company-threatening class action at the time I was hired) to the market leader in consumer legal information and guidance.  We’ve also:

  • Grown from 20 to over 200 employees
  • Gone from an attorney rating to a force that drives hundreds of thousands of consumer contacts to lawyers every month
  • Moved from nominal revenue to profitability

But some things don’t change.  The job remains great fun; it’s challenging and offers something new every day.  And I work with terrific colleagues.[ref]Seriously – join our team; we’re hiring![/ref]  And then there are all of you attorneys.  I love you all![ref]OK, most of you.[/ref]  Not only do you make my job possible, but you enrich it with all of the questions, comments and feedback.  Even all of the legal theories about how we’re doing something wrong.  Thanks for everything – especially keeping me on my toes!