Category: Regulation

Vet Sanctioned For Providing Online Advice

Josh King

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?

Josh King5 Comments
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.[ref]That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc).[/ref]
  • 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.

Answering Legal Questions Online

Josh King1 Comment

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.

Bars May Lose Antitrust Immunity

Josh King5 Comments

The Supreme Court is out today with a really important decision in North Carolina Board of Dental Examiners v. Federal Trade Commission. I wrote about the case back in October when it was argued – it involves the question of whether the North Carolina Board of Dental Examiners enjoys antitrust immunity for its actions excluding non-dentist competition.

Understandably, the case was followed closely by the state attorney regulators – the parallels between dentists excluding commercial tooth whitening outfits and lawyers excluding, say, commercial document preparation outfits being uncomfortably close.

The court made no bones about it, siding with the FTC: the regulatory bodies of self-regulated professions (like dentistry and the law) only get immunity from antitrust liability if they are “actively supervised” by the State.  As the court pointed out:

States, furthermore, can ensure Parker immunity is available to agencies by adopting clear policies to displace competition; and, if agencies controlled by active market participants interpret or enforce those policies, the States may provide active supervision.

Boom.

As I’ve harped on before, states have very unclear policies to displace competition in the legal marketplace. The definition of “the practice of law” is incredibly vague, and is often used to exclude non-lawyers from doing activities that remotely smell of being “legal.” This is a wake-up call that this definition needs to be clarified and refined – right now – if the state bars want to preserve antitrust immunity.

As for state bar advertising review committees – such as those employed in Florida and Nevada – I’d say this decision marks the end of them. The Court noted that “active supervision” requires, among other things, that:

The supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it.

Maybe the states want to interject more active supervision over the decisions these committees make, but I doubt it.  Good riddance.

 

Non-Lawyer Ownership of Law Firms

Josh King

Despite the grand vision implied by the title of the ABA “Future of Legal Services” Commission, the Commission’s scope is modest. It might be summed up as trying to address this question: are there incremental ways that the practice of law could be tweaked – whether in practice or via regulation – such that access to justice might be improved?

There’s certainly work to be done on that front. Getting access to legal services is far from ideal for most folks. And, paradoxically, it’s worst for those who need it the most – those seeking help or government benefits must navigate an increasingly-complex bureaucracy.

Amidst the comments submitted to the commission are many solid ideas. Some, like allowing a measure of non-lawyer ownership of law firms, or eliminating most of the restrictions on attorney advertising, will be seen by many attorneys as massive changes. But these suggestions are really just in line with a simple idea: that the business of providing legal services to consumers could be handled a lot more like other types of services, without any meaningful reduction in quality.

This requires acknowledging some truths that most lawyers, if they are being honest and objective with themselves, would be hard pressed to deny.

Non-Lawyer Ownership

The limitation on ownership of law firms is supposed to preserve the professional independence of lawyers. This regulation presumes that lawyers answer to a higher calling than the cool logic of business.

We’d really, really love to believe that. It’s probably even true sometimes.

But the reality is that law firms are businesses. And even if it is only lawyers at the helm, these are lawyers who must take business considerations into account when making decisions. There are bills to be paid, payrolls to be made, reputations to be preserved. It’s delusional to think that lawyers running law firms are somehow magically above the tradeoffs and calculations that are inherent in running any business.

Businesses and Client Protection

OK, so lawyers face “business” pressures too. But they’re still better about protecting client rights than a faceless corporation would be, right?

Not necessarily.

Yes, attorneys have a fiduciary obligation to clients. But frankly, that’s not that important for a whole lot of routine consumer matters. We’ve got this paradigm of the adversarial system, or the lone individual fighting to speak truth to power, but let’s face it: a whole lot of legal issues involve people just trying to plow through the bureaucracy to get shit done. Get a visa, change a name, establish paternal rights, start a business – the list goes on and on.

Banking, insurance, real estate, finance – all involve similar consumer issues that are capably met by businesses. For many legal issues, people just need to get something dealt with, get the right boxes ticked, predictably, properly and on time, and know that they can move on with life.

And frankly, these types of client interests are going to be better protected by the business virtues of consistent, easy-to-use processes, than by a poorly-run law practice that’s barely scraping by.

Business Ownership and Unpopular Causes

The criminal defense lawyer lined up against the government, the consumer lawyer taking on big business, the civil rights lawyer representing a deeply unpopular cause – so much of our lawyerly identity is tied up in these sorts of “heroic” cases.

It’s a fair objection that most business-owned law firms would stay away from these sorts of cases. But again – the vast majority of legal matters don’t present this sort of stress test of a lawyer’s independence.[ref]And it’s not as if traditional law firms are immune from having difficulty representing unpopular clients.[/ref]

We shouldn’t let this idealized vision of independence keep businesses from being able to invest in enhancing consumer access to legal services. And remember – just because businesses can do so in this scenario, that doesn’t mean such firms are the only game in town. Just as with banking, or medicine, or a host of other occupations, specialist practices – probably owned exclusively by lawyers, as they are today – would exist to handle the truly tricky, high-stakes work.

Ultimately, improving access to justice is going to take one of three things: attorneys reinventing their businesses to better serve consumers; the definition of “the practice of law” being scaled back; or the regulators permitting businesses to participate in the legal industry.

I would love to see #1 come to pass, but it may be the case that such reinvention can’t happen at scale until businesspeople can truly partner with lawyers.

Legal Services – The Quality Myth

Josh King

I’ve recently explored a thought experiment relating to what a more practical, consumer-focused license to practice law would look like.

One major objection that attorneys invariably raise – if they can keep from going apoplectic and engage the idea on its merits – is the risk to consumers in getting “legal” help from non-lawyers.

Sure, there are risks. But how serious are they?

First of all, plenty of plenty of people want to pay less for something that’s not fully-custom, with all of the risks and tradeoffs that entails. That’s an important element of consumer choice.

However, there’s a bigger issue: while lawyers are quick to play up the tradeoffs between custom and mass-market services – trotting out the scare tactics about “cookie cutter” services and lack of accountability whenever non-lawyer services are discussed – many consumers may actually prefer such services for reasons beyond just price.

Custom products may win the “spec” battle,  but mass-market solutions are not inferior across the board. There is a high degree of variability among the providers of custom legal services. Not just in competence, but in all of the things that go into the customer experience: timeliness, responsiveness, predictability, etc. One of the things large-scale businesses do well? Solve for these sorts of consumer needs in a consistent way.

Why does this matter? Back to my fashion metaphor: if you have a custom suit made, there’s a lot of potential for individual variation. It may very well make you look fabulous . . . but the process may also be a train wreck, marked by endless delays, lack of communication, rework, etc. Those factors may end up being more important than the ultimate cut of the clothing.

On the other hand, you know you can go into Nordstrom, buy something off the rack, have some in-house tailoring done, and end up with clothes that look pretty damn good. And they’ll be delivered on-time, with a smile.

For most consumers, that combination of predictability and price point makes purchasing off-the-rack the right decision – even if it means foregoing an element of fashion-wonderful upside that’s only attainable by going fully custom. It’s plenty good enough – and the predictability of the outcome makes the process lower risk than going custom.[ref]It may even make it lower legal risk than custom in some areas, as businesses can build in process and quality assurance in a systematic way that few law practices invest in, particularly for lower-value consumer work.[/ref]

In the legal world, imagine customers knowing they could call, anytime, and get an update on their status. Imagine having a clean web interface and all documents stored in the cloud. Imagine any of the myriad ways that a responsive, predictable, and transparently priced experience could be delivered to customers. THAT’s what a larger-scale business could deliver – and it’s what a whole lot of consumers are clamoring for.[ref]This isn’t to say that lawyers couldn’t deliver services this way. It’s just that they haven’t done so, and don’t seem to have much interest in starting.[/ref]

This obviously doesn’t work for every legal issue or practice area. Getting custom help is critical when your freedom is on the line, or the matter is complex, high-stakes, and adversarial. But for many types of legal services, there may actually be more risk in the custom solution than the off-the-rack choice.

If only such options were available.

 

What Would A Meaningful Law License Look Like?

Josh King

A couple of weeks ago, I asked the question of whether occupational licensing for lawyers really benefits consumers. While I’m convinced that the license requirement makes it likelier that people will get competent legal help, it also adds a powerful level of cost, by foreclosing other options that consumers might legitimately want to choose.

In Avvo’s comments to the ABA Future of Law Commission, I observed that if we were to analogize the legal industry to the fashion industry, we have given consumers a choice between only two, starkly different options: haute couture or making their own clothes.

Just as we’d all look a little better if we could walk around in custom-tailored clothes, we would all be better-served – at least insofar as the contours of our legal solutions would tightly hug the curves of our specific situations – if given the luxury of custom legal work.

But just as with custom tailoring, most people can’t afford that level of fit and quality. And most people are OK with the tradeoffs between full legal representation and something a little more, shall we say, off-the-rack – at least for a whole range of straightforward and relatively low-risk matters.

Take, for example, “Legal Docs By Me,” which offered, for a flat fee, professional help completing basic forms like change of name applications. For that, the company’s owner, Derek Distenfield, was prosecuted for practicing law without a license.

Was the complaint against Legal Docs By Me filed by a customer unhappy with the service provided? Of course not – it was filed by the local bar association.

As Tom Gordon points out in this recent WSJ editorial, the definition of “the practice of law” is quite vague. It’s been left up to the courts to define, and has largely been used, by lawyers, to try to define within the exclusively cartel of the lawyers any work remotely related to legal matters.

Like help filling out forms, or basic guidance.

Look, I respect lawyers. In fact, I respect them enough to say that we should rise above this pettiness – our education, judgment and experience is worth more than simply helping consumers fill out forms. Let’s preserve a shred of dignity and cede some ground that it’s petty and pointless to fight over.

Yes, I know that threatens some lawyers’ livelihoods. But I’m also confident those folks can move on to something that makes better use of their talents.

So what would a meaningful license for the practice of law look like? It would start with a better, more limited definition of what, exactly, the “practice of law” really is.

Courtroom Advocacy

Representing clients in court – that’s what a lot of people think of when they think of “the practice of law,” and it strikes me as the sort of thing that should go to the heart of what it means to practice law. It’s the combination of zealous advocacy and preservation of the clients’ interest above all else. It doesn’t take much to make the case that this should constitute “the practice of law.”

Advice and Counsel

This is where it gets a bit trickier. Advice and counsel may be the biggest single area of legal work present today. It includes a wide swath of activities: advising clients in putting contracts together, working to comply with government regulations, to form business entities and combinations, to shape company direction, and to prepare for litigation.  Much of this work is what we would think of as “the practice of law.” It involves both the application of specialized legal training and the presence of a client relationship of trust and reliance.

But then there’s all of the day to day-to-day stuff.

Should it really be considered “the practice of law” for someone to help another person out with the bureaucratic paperwork required to facilitate a no-fault divorce or guardianship paperwork? Or to do a name change, or to apply for disability benefits?

Our increasingly bureaucratic world requires more and more paperwork. And ironically, the impact of all this red tape falls most heavily on those least able to pay for professional help in dealing with it. Those with steady incomes, stable marriages, and reasonably trouble-free children have little, if any, exposure to this world – while those going through a flood of troubles end up encountering it at every turn.

But should they want help – of any kind – in dealing with it, their choices are limited to dealing with it themselves or choosing the black box of professional legal services. It’s back to do-it-yourself or haute couture.

Limit the License

Given the expansiveness of field-claiming by the legal profession, I propose a rather radical adjustment: limit the definition of “the practice of law” – and, correspondingly, the activities for which a lawyer is required – to those situations where third party representation is involved. That’s mostly going to be courtroom and administrative agency advocacy.

Anything else that smells “legal?” Anyone can do it.

Stifle the gasps; this wouldn’t be the end of the world for lawyers. Sophisticated users of legal services would go right on insisting that their transactional and counseling services be rendered by people with specialized legal training and credentials. The bars could go right on limiting their membership exactly the way they do today. Their members could use that as a marketing/quality advantage.

Of course, business would quickly dry up for attorneys operating in areas where there is little need for legal training. People who are paying for a lawyer only because no alternatives are available would swiftly migrate to lower cost services.  But for those offering services really involving the application of legal skill and training? Most people who currently pay licensed attorneys to do this work would continue to do so (although attorneys would probably have to work a little harder to market WHY it’s important to choose a licensed attorney).

Geographic Silliness

Limiting what’s included within the definition of “the practice of law” (for which a license would be required) would also largely solve for the rigid geographic licensing rules. Today, lawyers bend their minds around whether they can telecommute from a neighboring state, or live in one state where they aren’t licensed while operating a law practice in the state where they are.

It’s the height on inanity that anyone burns any brain cells whatsoever thinking about this, but the bar rules are what they are, and there have been plenty of cases of bar regulators mechanically interpreting the rules in ways that would prevent such practices.

Taking such a stance requires going WAY down the hyper-regulatory rat hole. First, you’ve got to assume that licensing in one state somehow evidences a level of competence and familiarity with that state’s law and procedure that a lawyer licensed in another state would not possess. That’s a huge assumption, given how expansive and specialized the law has become. A Washington-licensed divorce lawyer would be far more competent to handle a California divorce than I would be, but guess which one of us is authorized by the regulatory authorities to handle that matter?

Second, you’ve got to blind yourself to the question of consumer harm. Telecommuting lawyers? Lawyers living in one state and working in another? There is zero impact on consumers; it’s the logic of grocery clerks and bureaucrats that has anyone worried about such matters.

If, however, we limit the definition of “the practice of law” to representation for courtroom advocacy, there’s no need to worry about these demarcations – and we’re back to dealing with a distinction that actually means something. In the courtroom, local knowledge – particularly of state procedural rules – matters a lot. And a lawyer wouldn’t be able to appear in a state’s courtrooms without being licensed there (or, perhaps, getting authorization to appear pro hoc vice). It’s a simple, bright-line test. For anything else – whether counseling or telecommuting – it wouldn’t matter where the lawyer might be licensed, as those activities are not “the practice of law.”

What do you think? Why not just take licensing back to the core of what it means to be a lawyer?

 

WSBA Ethics Opinion on . . . Avvo

Josh King

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.

WSBA Ethics Opinion re Online Lead Generation

Josh King

The Washington State Bar (of which I am a member) has issued an ethics opinion finding that attorneys can, generally speaking, participate in online lead generation services.

While it’s good to see the WSBA take this step, it isn’t breaking new ground. The centerpiece of the opinion reflects the comments (paragraph 5) the ABA added to Model Rule 7.2 last year.

Unsurprisingly, I also have a few beefs with the opinion.

Too Many Rules

First of all, I wish we could simply dispense with all of this nonsense. Attorneys can advertise – in any of a million ways, as long as such advertising isn’t false or deceptive. We’re burning far too many brain cells, and depriving consumers of far too much information, worrying about all of these irrelevant details. We should simply eliminate most attorney advertising regulation as the counter-productive surplussage it is.

What First  Amendment?

It would have been nice if the Bar had given a nod to the First Amendment, and the substantial constraints it places on regulation of commercial speech.  Too few bars do this in their ethics opinions, and fewer still actually interpret their rules (at least when giving ethics guidance) as if they are subject to the First Amendment. In this case, the Bar stuck exclusively to citing chapter and verse from its own Rules of Professional Conduct.

Forms of Payment for Advertising

While acknowledging that attorneys can participate in online lead generation, the opinion does not come flat out and say that attorneys can pay for such advertising on a per-lead or per-client basis. They imply as much, via a footnote, but the opinion would be clearer and more useful if they just came out and said it.

Words Attorneys Can’t Say

The foolishness around “specialists” and “experts” continues. Again, this IS what the Bar’s rules seem to call for. But the Bar would be wise to clarify that restrictions on the use of such language by attorneys are only constitutional to the extent such terms are accompanied by a statement or implication that a third party has certified such specialization or expertise.  For example: as long as I’m not saying or implying that someone has conferred the honorific upon me, I’m confident the Bar can’t prohibit me from stating that I have expertise in attorney advertising regulation and communications law.

And Yet More Over-Regulation

The Bar properly notes the issue with “lawyer referral services,” insofar as they suggest they are “matching” a client to the best possible lawyer but instead sending them to the attorney who has paid for promotion.  That’s no good; it deceives consumers and would violate even a sensible and limited set of ad rules.

However, the Bar goes too far in stating that it is likely “that prospective clients will infer that the lead generation service is making subjective matching decisions.”

Says who? Does the Bar have any empirical evidence showing that consumers make these kinds of assumptions?

There is a long list of federal court decisions over the last ten years dismantling attorney advertising regulation precisely for making these sort of evidence-free conclusions. Attorney regulators carry the burden of showing that their attempts to limit speech are both necessary and no more extensive than required.

Instead of making such a case, the Bar plows ahead to solve this “problem” by requiring that lead generation services “clearly disclose, in plain and conspicuous language, that the match was made solely based on specified objective information (e.g., geographic information, years of practice, or practice areas as described by the lawyer).” Such a “solution” is not only unsupported by any evidence that it is necessary, but is also overbroad in not acknowledging that there are many ways a company could market to consumers without implying that it was “matching” them to the right attorney based on subjective factors.

It comes full circle to my first point: by continuing to rely on such picayune, detailed advertising rules, the Bar makes it harder than it should be consumers to get information about, and access to, legal services.

 

End Occupational Licensing . . . For Lawyers Too?

Josh King
California Bar Card

This New York Times article starts out with some well-deserved gushing over how Uber has disrupted the incumbent taxicab industry, but goes on to note the increasing skepticism over occupational licensing in general. The Obama administration has proposed sending some $15M in federal funding to the states to study the costs and benefits of occupational licensing.

As the article notes, there are a lot of weird anomalies in occupational licensing requirements, and a paucity of data showing that such requirements actually produce better consumer outcomes.

One thing we do know, however: occupational licensing is great for establishing a cartel that keeps prices high, and which fights viciously to keep competitors out.

Which naturally made me think of the Bars.

Uber is upsetting the cab cartels, and it’s pretty certain that some of the excesses of licensing expansion (license requirements for hair braiding, anyone?) are going to be pulled back. But what if we did something really outlandish and eliminated the occupational licensing requirement for lawyers? What would happen?

One belief held by many lawyers is that occupational licensing protects clients by ensuring a competency. If that argument sounds familiar, it should – it’s used by approximately 100% of all occupational licensing proponents.

Perhaps the Obama administration funding will get through and we’ll start seeing more hard data on this. But let’s pause for a moment and ask ourselves whether the claim of heightened competence is really true for the Bar.

To be sure, the necessities of going to law school (typically) and passing the bar act as gates to the completely vacant offering up legal services. But I’ve got news for you: it’s not that high of a gate. And it only tests one, narrow type of competence. There are a lot of really bad lawyers out there. Maybe not really bad in the knowin’ the law kind of way (although I’ve run across plenty of those), but really bad in the have-their-shit-together-and-can-communicate-with-real-people kind of way. Or can-run-their-business-effectively kind of way.

The state-based limitations on practice offer no particular help; I’m licensed in California, but I couldn’t tell you the first thing about most California law. The law has gotten so broad, so complex, that it’s illusory to think that someone licensed in a given state necessarily has any greater competence there.  But despite not having lived in the state for the last 14 years, and not having appeared in a California courtroom in nearly two decades, I could move there tomorrow and start representing clients.

Would it be so bad (for consumers) if law could be practiced without a license? Consumers could still choose to use someone who went to law school, or who met the membership requirements of a bar association. It just wouldn’t be their ONLY choice if they have anything remotely related to a legal question.

Or what if we adopted a system like the UK, where a license is only necessary to engage in certain “reserved activities,” such as representing clients in court, handling probate, and transferring real property?

I do think there are a lot of things that people need a “real” lawyer for. But I’m not convinced that our current system of state-based occupational licensing is really protecting consumers so much as it is protecting our cartels.