June 2017 Notes: Big Changes for Lawyer Ad Rules?

Are the Bar Ad Rules Finally Changing? One of the little-understood impediments to consumer access to legal services is the way lawyers are regulated. From our monopoly on “the practice of law,” to our antiquated jurisdictional limits and advertising rules, lawyers labor under a regulatory burden with few equals. And while there are some good reasons for “lawyer exceptionalism” – the protection of clients chief among them – too often our over-regulatory impulses get the better of us. But there are signs of hope. The ABA has gotten serious about looking at streamlining the Model Rules on attorney advertising. And, not content to wait, the Virginia State Bar recently adopted changes very similar to those under consideration at the ABA. That’s a very good thing. The legacy ad regs make it harder than it should be for lawyers to inform the public. Here’s hoping that these signs of thaw turn into a torrent of changes to every state’s rules.

 Don’t Sue Over Opinions. There are many sayings about opinions, few of them flattering. We all have opinions, and most of us – if we’re being honest – would admit that we don’t like hearing opinions that we consider wrong. And this can really drive us off the deep end when those opinions are expressed online. Case in point: this real estate lawyer vexed that Zillow’s “zestimate” has made it difficult to sell her home. But what this lawyer (and too many others like her) fails to grasp is that there’s no legal duty to publish “right” opinions. In fact, it’s fine (legally, at least) to publish opinions that are completely, utterly unfounded. This principle offers important protection of the “breathing room” necessary for the fulsome expression of ideas. Keep that in mind the next time someone talks about suing over a hyperbolic online review.

 Blogging Makes You a Better Speaker.  I’ve been blogging for something like 13 years now, but it’s always something I’ve done for myself. I find it makes me more thoughtful – and a better lawyer – when I have to articulate and defend my ideas in written form. Now Kevin O’Keefe points out another benefit of blogging: the positive impact on public speaking performance. This resonated with me, because I’ve certainly experienced it. By having written so much about professional ethics and the First Amendment, I have a huge number of topics I can explore. And even more importantly, the breadth and depth of my writing allows me to improvise and answer questions on these topics quite fluidly. If you’re looking to step up your speaking game, blogging regularly may be just the ticket.

Social Media News and Notes:

More shade thrown at live-tweeting: judges in Bill Cosby case will have none of it.

Hey, someone went and built free plugins to publish your Avvo rating and reviews right on your WordPress website!

Interesting new “Pagefreezer” product captures court-admissible versions of social media evidence.

California’s Proposed Ethics Opinion on Lawyer Blogging Is Out

Last year, I wrote about the draft California ethics opinion on lawyer blogging – and my many issues with it. Although California is one of the best mandatory bars when it comes to issuing thoughtful, complete opinions that take into account the first amendment concerns that limit advertising regulation, this proposed opinion was too far-reaching.

Fortunately, the revised draft – which takes the form of “FORMAL OPINION INTERIM NO. 12-0006” – has addressed many of my concerns, including:

  • The fact that a stand-alone blog refers to the attorney-author by name, includes contact information, and links to the attorney’s website, does not render the blog attorney advertising.
  • A “call me” advertising message on a stand-alone blog will make the post in which it appears attorney advertising, but it does not so convert the entire blog.

One thing the opinion continues to miss on, however, is its insistence that a lawyer’s blog on the same domain as the lawyer’s marketing website is attorney advertising.  As the opinion puts it:

As part of a larger communication (the professional website) which concerns the firm’s availability for professional employment, the blog will be subject to the same requirements and restrictions as the website.

I don’t believe this is right as a general rule; the case law on mixed-content speech would indicate the opposite result. A fact-specific inquiry would be needed to determine whether a given on-domain blog met the test for commercial speech.

That said, in my view legal blogs are more authoritative and have more opportunity to develop a “voice” when they live somewhere other than a staid old law firm website.[ref]Even if SEO gurus debate which is better from a search perspective.[/ref] If lawyers need an ethics-based excuse to move to that structure, so much the better.

Big Win for Michigan Legal Blogger

A few weeks back, I wrote about the case of Michigan personal injury attorney and legal blogger Steve Gursten, who had a bar grievance filed against him by a doctor unhappy with a post Gursten had written that was critical of her.

Having been on the receiving end of my own share of complete-bullshit bar grievances,[ref]Prior to being admitted to the Washington State Bar in 2014, some lawyers, unhappy with Avvo rating them, would file grievances against me for practicing without a license. What they failed to understand was that the Washington Rules of Professional Conduct in effect at the time permitted me to practice in-house in Washington as long as my California license was active.[/ref] my concern was that the Michigan Attorney Discipline Board would take this crap claim seriously, and put Gursten through his paces. That kind of stress and distraction has its own chilling effect on expression. Even if Gursten is willing and able to stand up to it – and he was, in spades – it can make other legal bloggers think twice about being critical of people like Dr. Rosalind Griffin.

So I was delighted to see that not only did the Discipline Board dispose of the matter summarily and briskly, it did so in a way that explicitly recognized that Gursten was well within his first amendment rights to criticize Dr. Griffin. Well done.

Doctor Files Grievance Against Attorney Over Blog Post

Sure, writing a blog post has the potential to get an attorney in trouble with the disciplinary authorities. But it’s usually going to be because you’ve had the bad judgment to reveal client confidences or engage in unabashed advertising.

However, we shouldn’t underestimate the power of butthurt doctors. After all, the medical profession has produced a spate of lawsuits over Yelp reviews, attempts to contract away free speech rights, and even reflexive suing of legal bloggers. So I guess it should come as no surprise that a doctor – who also happens to be a member of the Michigan Attorney Discipline Board – would file a grievance seeking bar discipline for a lawyer over a post he wrote that was critical of her.

I know, it’s a lengthy post that gets into the arcana of independent medical exams in personal injury cases. But Dr. Rosalind’s Griffin’s complaint is light on specifically what it is about attorney Steve Gursten’s blog that she finds defamatory (and as Ken White at Popehat is so fond of reminding us, lack of specificity in defamation complaints is a hallmark of censorious thuggery). To the extent Dr. Griffin complains about specific phrases, they are things like “notorious IME doctor in Michigan” and that her work consists of “hatchet jobs.”

I’ve said it before, and I’ll say it again: the definition of defamation is NOT “something that someone wrote about me on the internet that I don’t like.” Rather, to be actionable, defamation requires false statements of fact that cause damages. Statements of opinion – like the ones above – are not (absent circumstances not present here) actionable as defamation.

Which could be why Dr. Griffin hasn’t filed a lawsuit within Michigan’s one-year statute of limitations for defamation claims, preferring instead to file a bar grievance that may be heard by a body upon which she has some influence.

Finally, there’s Dr. Griffin’s preferred remedy – that Mr. Gursten be ordered to delete his blog post and remove the link to Google results for Goodwin’s name. That, more than anything else, should tell you this most likely just another thin-skinned attack on speech that the subject doesn’t like.

In a better world, the Michigan disciplinary authorities would have summarily disposed of this claim rather than requiring Gursten to respond. Merely taking claims like this seriously exacts a toll on the exercise of free speech. If Dr. Griffin believes she has an actionable claim, she could have pursued it in court, and, had she won, then sought sanctions against Gursten.[ref]The RPCs that Dr. Griffin complains about – Rule 8.4 – is as subject to the First Amendment as any other attempt to regulate attorney speech. Any attack on the content of that speech would need to meet strict scrutiny, which in this case would require a finding that the speech was actually defamatory.[/ref]

Given Dr. Griffin’s membership on the Michigan Attorney Discipline Board, it bears watching how hard Mr. Gursten gets pushed.

Fortunately, it appears he is up to the fight.

California to Issue Ethics Opinion on Lawyer Blogging

**Updated 2/24/16: The Bar has issued its proposed opinion, which addresses most – but not all – of the concerns I’ve identified below.**

The California State Bar is seeking comment on a proposed ethics opinion on lawyer blogging – or more specifically, the conditions under which the California Bar would consider a lawyer’s blog subject to the attorney advertising rules.

As with its 2012 ethics opinion on social media postings, the California Bar uses specific examples of the practice in question.  The draft opinion also doesn’t completely ignore the important first amendment constraints on the Bar’s ability to regulate. Good on the Bar for doing that; too many state ethics regulators don’t bother with this.

The Bar offers four hypothetical examples of types of “blogs.” These include:

A.  A stand-alone “blog” that has no interactivity and serves as nothing more than a puff piece for the attorney’s case results.

B.  A law blog that lives on a page on a law firm’s website, and contains the analysis and discussion one would expect to see on a blog . . . but closes every post with the statement “for more information, contact so-and-so.”

C.  A law blog that lives on a standalone site, and contains the analysis and discussion one would expect to see on a blog . . . but closes some posts with the statement “if you have questions about your divorce, contact so-and-so.”

D.  A blog about jazz that links to the lawyer’s site.

The Bar’s Committee concludes that the first three types of blogging are subject to the advertising rules, but the last one is not.

The Committee is half-right. Example A is commercial speech, and example D is not.

But what about B & C? Unfortunately, after acknowledging the first amendment constraints on regulation, the Committee fails to adequately apply the test for mixed-content advertising and editorial speech.

In the case of a blog that occupies a page on the lawyer’s website, the Committee concludes that this factor alone (not even accounting for the consistent message to contact the author of the post) is sufficient to render the blog “advertising” subject to the advertising rules.  While this *might* be true in some cases, it’s too much to say that it applies across the board to all blogs that happen to reside on the same domain as a law firm website. Regulators would need to analyze, in each case, whether the combination of content, format, and motive is sufficient to render the communication commercial speech.

That said, it’s possible the Commission means that having a lawyer blog on a law firm website plus the inclusion of the consistent “contact me if you have further questions” message renders the blog advertising. But it would be nice if they said so – and I also don’t believe that message is necessarily a commercial one.

And as for blogs on stand-alone sites, in which the occasional post refers readers to contact the author about their individual cases, the Committee is really going too far to find that such a message bootstraps the entire blog into being advertising.  It may be the case that such a message – because it refers to a reader’s own case, and not questions about the editorial content – would render the post in which it appears commercial speech. However, the idea that a few isolated message such as this would “infect” the entire blog and all of its content is well beyond the Supreme Court’s test for determining whether mixed-content speech is treated as “commercial.” It’s even beyond the only-in-California Kasky test for mixed-content speech.

Why Should We Care?

Some would say, who gives a rip? Attorneys can just slap an “attorney advertising” disclaimer on their blogs and be done with it. But putting aside the efficacy of that, the perverse fetish lawyers seem to have for disclaimers, and the fact that attorneys should not have to worry about including some asinine disclaimer on everything they write, there is a bigger issue at play here:  the chilling effect that this type of over-regulation has on free expression. And that chilling effect not only impacts the attorneys who would otherwise freely express themselves, but also the extent to which consumers can obtain information about the quality and nature of legal services and providers.

Subjecting attorney blogs to advertising regulation opens up an entirely new avenue for collateral attack on attorney speech.  After all, under traditional speech analysis, bloggers can express themselves freely, without worrying overmuch about hyperbole and misstatement. And that’s a good thing; it’s part of the “more speech” solution we as Americans have chosen for our system of expression.

But if a blog is subject to bar regulation as “advertising,” lawyers suddenly need to worry about their expression being regulated under the lesser standard of intermediate scrutiny. Their competitors can file grievances with the bar over what would ordinarily be editorial content, and as “advertising” that writing will also be open to attack on publicity rights grounds.[ref]And publicity rights actions are particularly toxic in California.[/ref] Lawyers likely lose the protection of California’s anti-SLAPP law to defend their free speech rights, as well as most fair use defenses to copyright actions. In short, they’ll need to consider the fact that anything they write is putting their license at risk. Under such a regime, it’s a fair bet that many legal bloggers will censor themselves.

What the Opinion is Missing

The Commission’s opinion is also notable for not choosing as an example a far more common case: the law blog – whether a page on a law firm website or a standalone site – that doesn’t close any posts with an explicit invitation to contact the author, but prominently displays contact information for the lawyer or law firm.  Nearly every reputable legal blog I can think of is set up this way, offering some way – telephone, email, twitter, etc. – to contact the lawyer-blogger.

The opinion does suggest, in its discussion of example “C” (law blogger on a stand-alone site) that the inclusion of a link from the blog to the attorney’s website is not enough, on its own, to render the blog attorney advertising. However, the opinion would be better if it expanded on this point, and had a more in-depth discussion of the types of “contact me” messages that could render otherwise non-advertising content commercial speech.

As discussed above, there is a fundamental difference between these two messages at the end of a blog post:

“For more information, contact Joe Smith.”

“For questions about your legal matter, contact Joe Smith.”

The latter is advertising; the former is not. But what of email addresses, chat boxes, hyperlinks and telephone numbers? Do such passive invitations to contact turn a blog post into advertising?

I’m fairly certain the answer is “NO,” at least as an across-the-board rule. While there certainly could be an accumulation of factors that would turn a blog into advertising, the availability of contact information alone would not meet the test.

And, frankly, even the explicit invitation to contact the attorney about one’s legal matter should not make the entire blog commercial speech. It’s easy enough to parse out the advertising message (“contact me”), apply the advertising rules to that and leave the rest of the blog alone.

This is an important point, and the Commission misses it entirely in its analysis. The test for mixed-content speech contains a secondary test for expression where the commercial message is “inextricably intertwined” with the editorial content. In such cases, the whole thing is treated as editorial speech.[ref]See Riley v. National Federation for the Blind of NC, Inc., 487 U.S. 781 (1988).[/ref] The flip side of this test is this: if the messages can be separated, they are to be, with commercial speech analysis (and the potential for Bar regulation) applying to the commercial message, and the editorial expression subject only to any regulation that might survive strict scrutiny.

The “contact me with questions about your divorce case” message is certainly not inextricably intertwined with a blog post about divorce; it’s merely appended on to the end. As such, while the invitation to contact should be treated as an advertising message, the lesson of Riley is that it should not infect the entire post – or the entire blog – with its commercial character.

In any event, here’s the proposed opinion; comments are due by March 23, 2015. I’ve submitted comments along the lines of this post, and I’d encourage any readers to do the same.

And feel free to contact me if you have any questions.[ref]And no, this post is NOT lawyer advertising.[/ref]

Birth of a Solo Practice

I really hope Leo Mulvihill goes on to have a phenomenally successful career, because the kickoff of his solo practice would make an awesome origin tale for a future lion-of-the-Philadelphia-bar Leo to relate to wide-eyed baby lawyers. As Leo puts it:

So there I was, a secretary performing law clerk work while running my part-time practice at night out of an office I got for free.

Probably not how any of us would have drawn it up when choosing to go to law school.

Leo’s whole story is well worth the read, particularly for the instructive example he’s set using hustle and networking to build his practice. He also offers his thoughts on social media and blogging, which are pretty much right on point with what I’m always telling lawyers who are thinking of starting a blog:

Don’t start some stupid sham blog where you pay some marketing company to do it for you. Either write for yourself because you want to, or because you have something interesting to say. No one cares if you simply repost news articles.


Another Blogger Disciplined

I’m always quick to encourage blogging to those lawyers who love to write; I strongly believe it makes you a better lawyer – and one who is more professionally fulfilled to boot. It may even help generate business, but that is a long game.

But it’s not without risk to the unwary. Your blog may be overly promotional. It may reveal client confidences – even if you try to conceal them.

Or you may, as Illinois attorney Joanne Denison did, go on a rip against the local judiciary, and have sanctions recommended for abusing the judges a bit too harshly.

It’s true that attorneys have fairly wide latitude under the First Amendment to criticize judges (see my “Criticism of Judges” page for more details). But when that criticism totters over the line into defamation, the attorney making the criticism is fair game for bar action.

The facts in the Denison case are complicated, and it’s difficult to tell whether the attorney’s complaints about judicial corruption really meet the test for “public figure” defamation (meaning they must be made maliciously or with reckless disregard for the truth). But the takeaway here, as with most cases of judicial criticism, is that care and diligence are in order when taking judges to task.

Also, because I am regularly railing on attorney regulators for disregarding the free speech rights of attorneys, I must note this: the Illinois Attorney Registration and Disciplinary Commission did an exemplary job of parsing the First Amendment issues in rendering their decision. I can’t say for sure that the facts support their conclusion, but at least the IARDC fully considered the constitutional dimensions.

h/t Kevin O’Keefe

Um, yeah . . . that’s not how you do it

So let’s say you’re a legal blogger. One day, when writing about developments at your local court, you get a little carried away. You suggest that the judges might be venal, corrupt, unscrupulous. You don’t mince words.

So the Bar comes calling. Because while attorneys can certainly exercise their first amendment rights in criticizing judges, there are limits (limits roughly congruent with the counters of public figure defamation) to so doing.

Faced with disciplinary proceedings in such circumstances, you would have choices. You could choose to be remorseful, and plead a temporary overload of emotion. You could choose to stand on your rights, and argue that your statements are protected by the first amendment and that the judges should grow a thicker skin.

Or, you could choose to sue the disciplinary authorities for copyright infringement for including portions of your blog in the disciplinary filings.

If you wonder how door #3 would work out, well, it’s about what you would expect.

Is “Ghost Blogging” Unethical?

Jayne Navarre has a post on “ghost blogging” today, but it conflates the practice with two other types of writing that are less of an issue.  Let’s break them apart:

  •  Ghost-blogging.  Professionally written posts for those too busy to regularly blog on their own.
  • Ghost-written website content.  Professionally written copy on a lawyer’s website.
  • Editing.  Professional editing of posts or other content written by the attorney whose name is on the blog or website.

Let’s address the last two first.  There’s nothing wrong with having a professional write the content on your website.  It’s marketing copy, subject to the advertising rules, and there is no pretense that it’s written by the attorney.  Editing is an even easier case.  We could all use a good editor, and there’s nothing wrong whatsoever with having another set of (usually uncredited) eyes helping us to make our ideas clearer and more incisive.

But then there’s ghost-blogging . . .

Put aside the fact that it’s utterly pointless to have a blog you don’t write yourself.  Forget that using third-party content robs you of the relationship-building and becoming-a-better-lawyer benefits offered by writing an actual blog (and to her credit, Jayne agrees with this, noting that blogs “are not the optimal domain a ghostwriter”).

Let’s just address the special ethical issues for attorneys considering having someone else blog under their name. There are two related ethics problems, the first having to do with Model Rule 8.4 and the second having to do with the advertising rules.

You see, there’s a crucial difference between ghost-blogging and other situations – like pleadings, articles and letters – where the labor of other writers may appear under a single lawyer’s byline, and this difference can be summed up in a single phrase: the intent to deceive.  An attorney using this method is effectively claiming someone else’s words as their own in order to bolster the attorney’s credibility.  That’s textbook deception, and it violates ABA Model Rule 8.4(c), which prohibits “dishonesty, fraud, deceit or misrepresentation.”

Does adding a disclosure of the ghost-blogging to the fine print in the blog’s terms of use solve the problem?  No.  While so doing may (or may not) address the issue of out-and-out deception, it also concedes the obvious: that the putative “blog” is really just a marketing vehicle cloaked in a put-on veneer of credibility, competence and engagement.

If you’ve read my section on blogging, you’ll know that a proper blog doesn’t fall under the attorney advertising rules as it is not “commercial speech.”  However, that safe harbor goes out the window if it turns out you’re paying someone else to create all of that writing under your name in an effort to build your image.  What you call a “blog” will be treated as the advertisement that it is – complete with the question of whether any disclaimer can truly cure the deception caused by an attorney claiming thoughts and expression written by others as his or her own.

Bottom line – if you don’t like to write, don’t blog.  If you do blog, feel free to follow Jayne’s suggestion and hire an editor.  But make sure you write your own damn posts.

Critiquing New York’s Social Media Ethics Guidelines

Last week, the New York State Bar Association came out with a comprehensive set of “social media ethics guidelines.”   The creators take pains to point out that what they’ve created is more like the Pirate’s Code than something having the force of law.


Which is fair, considering the NYSBA isn’t a mandatory bar association and it has no licensing or disciplinary power over attorneys.

Nonetheless, given the prominence of the organization and the depth into which social media has been delved, these Guidelines are sure to get much attention, and even deference.  So let’s look at how good a job the NYSBA did on the portions of the Guidelines relating to social media and the advertising rules.

 Guideline No. 1.A Applicability of Advertising Rules

The NYSBA says that for social media profiles used for “hybrid” purposes – both personal and business – it would be “prudent” to assume the attorney advertising rules apply.   That’s fair, if a bit conservative.  Social media profiles that have a mixed purpose (as properly used ones would) aren’t commercial speech; there wouldn’t be a need to put an advertising disclaimer on a twitter bio, for instance.  The question would really turn – as the California Bar noted – on the substance of individual social media updates.

As putting advertising messages in social media updates is spectacularly clumsy and ineffective, there’s a very simple way to avoid the question of the ethics rules entirely:

Don’t include advertising messages in your social media updates.

Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media

The NYSBA says that lawyers can’t include any information under a heading that reads “Specialist” (and, presumably, the derivative “specialties”).  Some social media platforms may have default headings like this, and the NYSBA view is consistent with New York’s advertising rules (and those of many other states) that prohibit the use of terms like “specialist,” “specialty,” “expert,” and “expertise.”

That doesn’t make it right.  None of these “forbidden words” regulations are likely to survive constitutional scrutiny.  The problem is statements that mislead consumers into thinking some legitimate organization has certified an attorney as a specialist.  Without reference to third-party certification, these statements simply indicate the attorney’s area of focus and attention.  And there’s no legitimate state interest in preventing an attorney from innocuously stating, for example, that they “specialize” in elder law, or have “expertise” in federal energy regulation.

Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content

This one starts out OK, noting that attorneys aren’t responsible for social media postings made by others – say, reviews on Avvo or comments on a lawyer’s blog.  It’s nice of the NYSBA to recognize this, since the law – 47 U.S.C. 230(c)(1), to be precise – explicitly states that people aren’t responsible for third-party postings.

But then the Guidelines get into more troubling territory.  First comes the assertion that attorneys are responsible for such comments when the attorney “prompts such person to
post the information or otherwise uses such person to circumvent the ethics rules concerning advertising.”

The latter part is fine; as New York attorney Eric Turkewitz famously noted, “outsourcing marketing = outsourcing ethics.”  There’s no question an attorney would be responsible for content created at the lawyer’s behest by a third party.

But “prompted?”  That’s far too overreaching.  Attorneys SHOULD be prompting their clients to leave online feedback for them.  And unless the attorneys are putting words in their client’s mouths, they are not responsible – under the attorney advertising rules or otherwise – for what those clients write. [ref]Again, thanks to 47 U.S.C. 230(c)(1).[/ref]

Doubling down, the NYSBA then goes on to state that attorneys have an obligation to monitor third party information posted to their social media profiles, and take down anything that may run afoul of the advertising rules.  If the attorney can’t remove it, they’re supposed to ask the person who posted it to remove it.  And failing that, they should consider whether a “curative post” needs to be made.

While there’s no question that moderation is a good idea, there’s also no question that attorneys shouldn’t have the force of law hanging over the diligence of that moderation.   I’d rather see a state for once recognize that this regulatory interpretation is completely preempted by federal law rather than chilling attorney use of social media.


Guideline No. 2.A: Provision of General Information

The Guidelines note that it’s OK to provide general information over social media, but not to provide specific legal advice, given concerns about creating an attorney-client relationship and disclosing privileged information.

That’s sound advice, for the most part.  However, it’s not a concern in places – like Avvo Answers or Quora – where the person asking the question is anonymous.  It’s also important to recognize that social media in many ways is simply facilitating the types of general legal discussions that attorneys have always had with friends, colleagues and acquaintance offline.  General information to orient the asker is given first, with more specifics – if necessary – provided in a more formal setting.  There’s nothing unique about social media in this respect.

Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications

I liked this part of the Guidelines, as it bolsters the idea that only “live” communications – whether in-person, telephonic, or electronic – are subject to limitation as solicitation. Soliciting business through social media may be ugly and counter-productive, but it shouldn’t lead to an ethics violation.

The remaining Guidelines relate to how to handle social media questions that come up while representing clients and in litigation.  They seem complete, thoughtful and well-balanced.  And while it’s beyond the scope of this post, I’ll make this observation: for lawyers who represent consumers – particularly in litigation – facility with social media is rapidly becoming a job requirement.