Category: Uncategorized

Another 11th Circuit case, also involving doctors. Rebecca Tushnet has the details, but it’s another of those relatively-rare cases dealing with the question of whether something that isn’t a straightforward advertisement can be commercial speech. The answer here – applying the slippery 2-or-3 part test (advertising format, promoting a specific product, with economic motive) – was NOPE.

Helpfully, the court also disposes of the oft-raised (but asinine) argument that advertising revenue converts otherwise-editorial content into commercial speech:

Even if Dr. Novella receives some profit for his quasi- journalistic endeavors as a scientific skeptic, the articles themselves, which never propose a commercial transaction, are not commercial speech simply because extraneous advertisements and links for memberships may generate revenue.

UPDATED: Somehow I missed that the lawyer representing the defendant here was none other than my friend, counsel, and First Amendment badass Marc Randazza. Congrats on another great Florida win, Marco (especially the part about getting California anti-SLAPP law applied in a Florida court)!

Last Friday, Avvo submitted comments to the Florida Supreme Court in response to the Florida Bar’s proposed changes to the state’s Lawyer Referral Service Rules. You can read our submission here, but here’s the backstory and highlights:

• This isn’t the first attempt to change the LRS Rules. After the last go-round, the Florida Supreme Court instructed the Bar to go back to the drawing board and create rules that prohibited LRS entities owned by non-lawyers. The court was apparently concerned with the proliferation of such services in Florida, and in particular those that operated with cross-referrals to chiropractors and other medical professionals.[ref]Note that Avvo is *not* a lawyer referral service. Such services are entities that operate in an environment lacking in consumer choice: users are typically sent to whichever attorney has paid the most, bought geographic exclusivity, or is next in the rotation. That’s why many states choose to have more extensive regulation of lawyer referral services than they do of other forms of legal marketing.[/ref]
• The Florida Bar apparently concluded that it couldn’t legally limit LRS to those owned only by lawyers. That’s probably right – it’s hard to see how such a limitation would survive first amendment (and antitrust) scrutiny.
• Instead of going back to the court, the Bar decided to amend the rules. The amendments are not, remotely, what the court asked for. They are also notable for lacking any focus on either consumer harm or benefit. Rather than considering how the rules could enable Floridians to get better access to both legal services and information about legal services, the Bar simply futzed around with its rules.
• In its futzing, the Bar managed to arrive at a particularly perverse result. The existing LRS rule – designed to protect against a particular type of marketing that is inherently deceptive – has been largely watered down. And, to make matters far worse, it’s now going to apply to virtually every company that lawyers use for marketing.

That means Florida lawyers will need to start gathering diligence materials for marketing providers. Those providers will have to submit annual lists of their Florida participants to the state bar. The ads that such providers run will need to comply with Florida’s picayune advertising rules (and, perhaps, even require pre-approval by Florida’s advertising review committee). This drives several results, none of them good:

• The Bar is signing itself up for a massive new compliance program. Monitoring “qualifying providers” for compliance and processing all of those annual lists is going to cost the Bar a ton of money and time. Or, more likely, the Bar will simply enforce the rules in a highly haphazard and inconsistent fashion – making it unclear to lawyers and providers alike whether their marketing activities are in compliance with the Bar’s interpretation of its rules.
• Diligent members of the Florida Bar will be even more reticent to provide consumers with information about legal services, concerned that their marketing providers – many of whom will be national or global companies serving many industries – are not technically in compliance with Florida’s rules.
• In a similar fashion, the new rules – which attempt, via the comments, to make things like fee-splitting and pay-for-performance marketing per se against the rules (despite, naturally, any evidence that such practices are inherently bad for consumers) – will make it harder for Florida attorneys to get comfortable with innovative attempts to expand access to justice (like Avvo Legal Services).

And of course, the added irony: Florida – like all states – is suffering from an acute crisis where consumers can’t get help with their legal problems. As the Florida Bar itself notes, over 70% of civil court defendants are representing themselves. Help with even routine legal problems is out of reach of the vast majority of consumers. The system is hobbled from both ends. First, by a hidebound profession that can’t see beyond full-scope, gold-plated representation[ref] And, for many, a burning desire to protect its monopoly at all cost.[/ref] And second, by a regulator so focused on the minutiae of its rules that it can’t see how its meddling is hampering the availability of information and the market for innovative legal services.

It’s not like this issue has been lost on the Florida Supreme Court. Less than two years ago, Chief Justice Jorge Labarga kicked off the Florida Commission on Access to Civil Justice.  Here’s hoping the Court is able to see, where the Bar seemingly cannot, how badly these Rules are dis-serving the needs of Floridians.

 

I went to college, in the 1980’s, at the University of Oregon. The campus stood out, even among generally-left-wing institutions of higher learning, as a very, very liberal place. And unsurprisingly, I held a lot of very liberal ideas. Now, this wasn’t entirely due to the University. My background could work well as a parody “origin story” for a tie-dyed action hero: conceived during the Summer of Love by very young (and soon to split) parents living in the Haight-Ashbury. Grew up in the woods in rural Oregon, brought up on a lot of permissive and progressive ideas. You get the idea.

However, my mother had always raised me to have an open mind. And so, in the midst of my sophomore year at Oregon, I began reading The National Review and The Economist, in an attempt to gain some alternate perspective on the philosophy and political science classes I was taking.

This didn’t seem like a particularly important step at the time. I just felt – like many a “question authority” youngster – that I might not be getting the full picture from my lefty professors. And thinking back, my reading didn’t really change my mind on much. Sure, I wasn’t down with the socialism silliness that too many of my classmates went in for, but I was on board for a whole lot of progressive ideas. Because while the reading sometimes moderated my views – or even changed my mind – on many more occasions it exposed the shallowness of whatever counter-arguments existed to the material I was learning in class.

In the 30 years since, I’ve tried to retain this habit of mind. I continue to seek out a diversity of points of view, whether in terms of news and analysis or conversational partners. It feels natural, like the only way to really understand the world, and to feel solid in one’s views.

Maybe I’m approaching this too rationally, but how can you feel confident that your views are sound, if all you hear is the echo chamber?

To this point, Keith Lee recently wrote about “choice architecture:” how the choices we make about the information we consume deeply impacts the interpretations of events were are exposed to. Keith’s post calls to mind Scott Alexander’s “I Can Tolerate Anything Except the Outgroup,” which notes (among A LOT of other things) our culture’s descent into tribalism, and how we increasingly surround ourselves with tribes (and the tribal voices of social media) that speak only to our own, narrow, perspectives. We only consume information from news outlets tuned to our bias, to say nothing of perspective – opinion pieces – which also come exclusively from our tribe’s outlets.

This seems odd to me, as I’ve grown up with family members who hold a diversity of views, and I’ve internalized the habit of seeking out contrary opinion. And yet, there’s something to Alexander’s amazement that he cannot, in his circle of friends and acquaintances, find anyone who identifies with traditional conservative/religious notions:

According to Gallup polls, about 46% of Americans are creationists. Not just in the sense of believing God helped guide evolution. I mean they think evolution is a vile atheist lie and God created humans exactly as they exist right now. That’s half the country.

And I don’t have a single one of those people in my social circle. It’s not because I’m deliberately avoiding them; I’m pretty live-and-let-live politically, I wouldn’t ostracize someone just for some weird beliefs. And yet, even though I probably know about a hundred fifty people, I am pretty confident that not one of them is creationist. Odds of this happening by chance? 1/2^150 = 1/10^45 = approximately the chance of picking a particular atom if you are randomly selecting among all the atoms on Earth.

About forty percent of Americans want to ban gay marriage. I think if I really stretch it, maybe ten of my top hundred fifty friends might fall into this group. This is less astronomically unlikely; the odds are a mere one to one hundred quintillion against.

People like to talk about social bubbles, but that doesn’t even begin to cover one hundred quintillion. The only metaphor that seems really appropriate is the bizarre dark matter world.

I live in a Republican congressional district in a state with a Republican governor. The conservatives are definitely out there. They drive on the same roads as I do, live in the same neighborhoods. But they might as well be made of dark matter. I never meet them.

I feel like I inhabit less of a bubble than Alexander does, but only slightly less. Working in technology, in a western coastal city, it’s exceedingly rare to run across people who would hold themselves out as creationists, or inveigh against gay marriage (hell, many people in my circle probably consider me an outlier because I like guns, dislike regulation, and have friends who are Republicans). So even with a purposeful approach to information choice architecture, it’s really hard to avoid getting drawn into a form of limited-perspective monoculture just by virtue of work environment and lived geography.

Short of seeking out radically new activities or joining a church, I’m unlikely to add much viewpoint diversity to my circle. And there’s this as well: much as I like engaging with people who have heterodox views, the signal-to-noise ratio in seeking out such perspectives can be depressingly high. There’s far too much position-staking; not nearly enough willingness to engage with and consider evidence. That can make the investment in avoiding the bubble – particularly with respect to actual humans, as opposed to books and articles – seem hardly worth the return.

Which is a shame, because engaging with different views and defending our own is how we grow and improve. There’s also little question that the rigidity of our “bubbles” exacerbates political polarization. I’d like to think that if we all worked a little harder, and regularly challenged ourselves by drawing from a broader range of information sources, we’d be closer as a culture. Unfortunately, the proliferation of sources and customization online are, if anything, making our bubbles even more insular and permanent.

No, not more liquor – though that might help, too.

I’ve been talking with quite a few state bar leaders recently, and there’s a lot of angst out there: concern about the growing inability of consumers and small business to afford what the legal industry is selling. Concern about the rapid pace of change in communications technology, and how legal services are marketed and sold. And concern about the future of the legal profession in general, and whether it can propel itself forward in the face of these changes, and others (like the lowering quality of new entrants to the Bar, as a rapidly shrinking applicant pool competes for a near-record number of law school slots).

So what’s a bar to do? I can’t promise to have all of the answers, but here’s one answer I know is wrong: sticking one’s head in the sand, applying the industry-protective rules as broadly as possible, and protecting the legal monopoly at all costs. To do so is to defend a bygone notion of the profession that doesn’t fit with the realities of our modern bureaucratic state, developing technology – or the law.

I will develop these points much more fully in later work, but at a very high level, here’s my prescription for what the Bars need to do:

•  Narrow What’s Included in the Legal Monopoly

The definition of “the practice of law” – all the work that is swept in within the monopoly enjoyed by lawyers – is hopelessly vague and overbroad. It’s practically begging for a challenge on both First Amendment and antitrust grounds. Rather than fight and lose those battles, the Bars would be better served (as would the public they ostensibly exist to protect) if they proactively got back to the core of the practice. That’s trial and other advocacy work, for the most part, and it’s where the benefits of legal training and experience are most relevant. Attorneys could, of course, offer other services in competition with non-lawyer providers, and many consumers would choose them for their training and experience. But there’s no benefit to the public in casting such a wide net that non-lawyers (many with substantial subject matter expertise) are excluded from offering advisory services on “legal” matters.

• Shorten and Simplify the Advertising Rules

The Association of Professional Responsibility Lawyers (who know a thing or two about lawyer regulation) have persuasively argued for a simplification of the attorney advertising rules. As they point out, the current rules are outdated, overly broad, and often at odds with the First Amendment rights of lawyers to express themselves and consumers to get access to information about legal services. There’s little that’s special about lawyer advertising (with the possible exception of in-person solicitation) to merit the extensive, detailed regulations that too many lawyers labor under. Replacing them with a simple prohibition on false and misleading advertising – of the sort every other industry seems to deal with just fine – would greatly enhance the flow of information and new services for consumers.

• Permit Sharing of Fees with Non-Lawyers

So many in the Bars hate this idea, but the prohibition on fee sharing is significantly holding us back. It keeps our practices from being able to get the full benefit of non-lawyer professionals, and it forecloses all sorts of innovative services that lawyers could provide in concert with business enterprises far more versed in marketing, operations, and customer support. The prohibition also rests on two extremely dubious assumptions: that our fellow lawyers are intrinsically above influencing our independent professional judgment over matters as trivial as mere money; and that at the same time we as lawyers are incapable of resisting such influence when it comes from non-lawyers. There’s no reason it couldn’t be done away with, tomorrow, and replaced with flexible rules that permit sharing but censure any form of professional interference that might result.

There’s work to be done, to be sure, to make sure that regulatory changes such as I’m proposing don’t leave a consumer-harming vacuum in their wake. But we’ve enough experience with other industries to know that there are myriad ways to protect the public short of the byzantine, rigid accretion of rules we’ve allowed to build up over the last century or more. It’s time to take these changes seriously, rather than persisting – as we as a profession have done for far too long – with business as usual.

Why are lawyers stuck when it comes to thinking about expanding the legal marketplace? It’s not as if there’s no opportunity here; it’s widely accepted that most people don’t avail themselves of legal help, and that there is a massive “access to justice” problem.  So what gives? I can think of two obstacles:

1. Lawyers have a tendency toward “perfection thinking.” There are few issues that we can’t offer gold-plated solutions for, even in cases where a more modest solution would be equally (or nearly) as good.
2. Our practices lead to a form of survivorship bias. We have a tendency to think only in terms of customized legal services because the only people who end up buying these services are customers who have a) complex legal needs, and b) money.

The result? Most lawyers are only thinking in terms of customized, gold-plated legal solutions for consumers with complicated legal problems. What they aren’t thinking about is the vast market of people who aren’t buying legal services: people who either a) have relatively straightforward legal problems, or b) have more complex problems but who are willing to trade price for quality.

Lawyers who want to unlock this untapped market need to be comfortable embracing mediocrity.

This sounds lame. Who wants to be mediocre?

But lots of great companies are “mediocre” when compared to their fully-custom competitors. McDonald’s is mediocre. Target is mediocre. Hell, even most of the clothes at Nordstrom are mediocre, when compared to custom tailoring.  But this doesn’t mean these companies don’t offer a valuable product to their users. People need to eat and be clothed, and everyone understands the tradeoffs involved when choosing between the prix fixe meal at Le Cordon Bleu and the drive-thru window at Mickey Dee’s.

Lawyers willing to embrace this level of mediocrity would offer off-the-rack solutions for people who either don’t need or can’t afford bespoke services. And they wouldn’t do so as a poor alternative or pressured upsell for custom services. Instead, they would take a page from companies that offer products to consumers at scale and emphasize things like price, speed, and predictability.

For example: imagine a law firm that offered same-day turn around on basic services. That guaranteed its clients would always have someone to talk to about where things stood. That offered an online portal continuously updated with documents and status changes. That sent out automatic email or text notices whenever developments occurred. That offered warm handoffs to other attorneys when more advanced services were needed.

There are countless possibilities, but they all exist in the space that exists when you move beyond “attorney competence” and focus on “client service.”

What kind of legal services lend themselves to this “embrace of mediocrity?” I would challenge every attorney to think of something within their practice area that could be packaged into a clear and price-transparent bundle for new clients with simple legal needs. Something that could be handled, most of the way, by non-lawyer staff members.

• Family law – how about a prenup or uncontested divorce?
• Estate planning – who doesn’t need a basic will and living will?
• Business – what about a compliance check-up, or business formation?
• Litigation – wouldn’t pro se coaching sessions be popular?

You get the idea. The trick is to not instantly devolve into lawyerly “issue spotting mode” – where you gravitate to the “well, what if the person has x, y, and z legal issues?” way of thinking – and consider the kind of help you could give the vast numbers of people who don’t, in fact, actually have all of those legal problems you’re agonizing over. People who just need a little assistance and reassurance that they are on the right track.  With the right process, and clear descriptions of what’s in (and not in) each service package, lawyers can offer useful legal services that work for a much wider audience than traditional full-scope representation.

 

One thing that new in-house attorneys have drilled into their heads is the importance of the legal department not being seen as a roadblock. This brings with it the avoidance of saying “no” –  and that’s not necessarily a bad thing. Too many lawyers ARE roadblocks, preferring to mitigate every possible risk rather than focus on the business opportunities lying on the flip side of those risks.

However, this Seth Godin post from the other day reminded me that – despite my 20+ years of in-house work – I’m still a big believer in the power of “no.”

I love “no.” I use “no” all the time.

However, “no” has to be used right. “No” isn’t an excuse to do less work, or (worse still) to stifle a massive opportunity.  It shouldn’t be a shortcut or a default setting.

It’s also something I probably use more in negotiating than in dealing with internal clients. But there, too. Because where “no” gets its power is in clarifing the issues.

If you know the answer is going to be “no,” why not get there quickly and move on?

Too many times, we feel like it’s more polite, or more preserving of feelings, or less adversarial, to hem, haw and equivocate. But all that aimless discussion does is featherbed the ultimate answer, wasting time in the process. It can extend discussions far beyond what should be their natural courses.

But “no” can be delivered politely. It can be done with empathy, and even, in many cases, with alternatives. And it can, in a moment, get you to the root of the thing, without going through a set piece of conversation to wheedle out of having to be direct. It can be an enormous time-saver.

Even today, I know I could be better, more consistant, about embracing the clarifying power of “no.” But if this is something you struggle with, consider Godin’s message: “no” is a boundary-setting device, and, more often than not, a feature rather than a bug.  

As frequent readers of Socially Awkward know, I often rail against regulation. Usually lawyer speech regulation, but there are parallels across the regulatory board.  It’s not that regulation is inherently evil; it’s just that so much regulation is ineffective and counterproductive.

So I’ll admit to having some mixed feelings when President Obama came down hard in favor of regulating the internet as a utility under the FCC’s Title II authority, in order to preserve net neutrality.  I mean, when the regulator-in-chief calls strongly for more regulation, it usually helps to check your wallet.

But here’s the thing: this is one of those instances where regulation is necessary.  I’d go into more detail on why (and having spent virtually my entire professional career working in telecom and internet companies, I have some perspective on the issue from both sides), but Mike Masnick at Techdirt wrote a fantastic post a few months back that really gets to the heart of it.

You should read the whole thing, but the short story is that access to the internet is a natural monopoly – there are only a handful of companies that can provide the infrastructure for the internet.  And natural monopolies are as much the enemy of innovation and consumer choice as overbearing government regulation can be (as any customer of Comcast can tell you!).

As those who have worked in telecom know, this infrastructure level, where connections are made, sites built, etc. has always been heavily regulated.  It needs to be, because the companies involved are often the only game in town, and overall, it’s worked.  Trouble arises when the regulation gets into rates, terms of service or preservation of regulated monopolies. And that’s precisely the sort of regulation that Obama is calling for the FCC to forbear from (i.e., not do) as part of reclassifying the internet as a Title II utility.

So – regulation of internet infrastructure, including guaranteeing there are none of the toll roads or fast lanes envisioned by the ISPs.  But non-regulation of consumer experience and services that ride over the internet, enabling the fantastic innovation that the internet has engendered to continue to thrive.

In the months to come, critics from many corners will characterize this as “regulating the internet.”  It’s a dog whistle message to many, because it would be bad indeed if the government tried to regulate content and services that flow over the internet.  But this is only regulation of the internet’s plumbing. And it’s necessary – as regulation sometimes is – to keep the handful of natural monopolists who control those pipes from slowing down the pace of online innovation and expression.