Socially Awkward – Page 15 – Social Media + The Regulation of Professional Speech

New York Issues Social Media Guidelines

June 24, 2015June 23, 2015 Josh King

The New York State Bar has issued a set of “Social Media Ethics Guidelines.” As New York’s is not a mandatory bar, and these are mere guidelines, and not rules, one might pause and wonder why anyone cares. But as Kevin O’Keefe points out, because it’s New York, attorneys who (like me!) pay attention to the developing intersection between legal ethics and technology will imbue these guidelines with outsized importance.

So on we go.

What do I like about the Guidelines? I like that they state that a lawyer’s duty of competence includes understanding how social media works. For many people today, social media is a far more important communication device than a telephone is.

Do you think you can competently represent clients – particularly consumer clients, in matters where communications between parties may be at issue – without knowing how a telephone works?

The same thing now goes for social media.

I like the fact that the Guidelines repeat the advice I often give: if you want to avoid ethics problems when using social media, don’t post social media updates that take the form of advertising. You get a two-fer that way, since you don’t have to think about the rules, AND you’re less likely to come across as a spammy huckster.

Finally, I like that the guidelines provide solid, common-sense guidance on dealing with social media in litigation, from counseling clients to investigating opposing parties and jurors.

What don’t I like about the Guidelines?

I don’t like the fact that the Guidelines continue the silliness of deeming taboo the innocuous term “specialist.”

I don’t like the fact that the authors of the Guidelines are apparently unfamiliar with 47 USC 230(c)(1), and how it would preempt any attempt to find in the rules a requirement that attorneys be responsible for things that third parties independently post about them online.

I don’t like the fact that the Guidelines summarily conclude that specific legal advice can’t be given over social media. Of course it can; “social media” includes channels that are both distributed (public) and direct (private). It’s perfectly appropriate – although perhaps not advisable – to communicate with clients over private social media channels.

And what’s more, a lot of that stuff that lawyers think is “legal advice” when posted on social media? It’s not.

And finally, what I REALLY don’t like is the same thing that gets my goat on most efforts like this: the fact that, despite having dozens of authors, many of whom are no doubt fine attorneys, the Guidelines make little-to-no effort to reconcile the ethics rules with the First Amendment constraints in which they must operate.

Let’s remember: even in New York, attorneys have First Amendment rights.

Protecting Anonymity in Client Reviews

June 3, 2015 Josh King3 Comments

The ABA Journal and several newspapers have picked up the news that we’ve got a legal issue brewing here in Washington over anonymous online reviews, so I thought I’d provide a little context.

I’m going to skip the background (which you can read in the ABA Journal article) and just cut right to the issues.

First of all, anonymous speech: Avvo allows reviews to be left anonymously. Attorneys can argue about whether such feedback is useful, but here’s my take:

The US has a long history – including, notably, the Federalist Papers – of anonymous speech.
The Supreme Court has repeatedly found that such speech is valuable and constitutionally protected.
In my nearly 8 years at Avvo, I have had numerous conversations that expose the reason for this value and constitutional protection: reviewers who fear retaliation from attorneys for speaking, and attorneys bent on exacting such retaliation.
Readers can decide for themselves how to weigh feedback. Anonymity is another factor, just like coherence, detail, and reasonableness, that potential clients can take into account when reading a review.

So while we do a lot to try to ensure review quality – including human moderation prior to posting – you shouldn’t expect anonymous reviews on Avvo to go away any time soon.

The issue in this case is what happens when an attorney believes they’ve been defamed by a review. That’s what the plaintiff believed here; she thought that the review was left by a non-client, and that the facts alleged in the review were false. So she brought a John Doe complaint for defamation and subpoenaed Avvo for records that might “unmask” the anonymous reviewer.

In such cases, I notify the reviewer to let them know that records that might reveal their identity have been subpoenaed. This way, they have the opportunity to fight the unmasking. What’s more, if they can prove to my satisfaction that they were a client, and they have a good faith argument that their review isn’t defamatory, Avvo will actually fight the subpoena on their behalf. That feels like something we need to stand up for if we’re going to have a credible, consumer-focused forum for client feedback.

That’s what happened in this case. The reviewer made such a showing, the plaintiff refused to withdraw her subpoena, and Avvo refused to turn over the identity of the reviewer. The plaintiff brought a motion to compel production. We opposed it, and won. The plaintiff appealed, which brings us to last week’s hearing.[ref]In the interim, Paul Alan Levy of Public Citizen agreed to represent the Doe defendant pro bono; both Paul and Avvo’s attorneys at Davis Wright Tremaine appeared at the appellate argument.[/ref]

At stake is how Washington will answer a developing question: under what circumstances can a defamation plaintiff unmask an anonymous defendant? The coalescing standard – known as the Dendrite standard for the New Jersey case in which the issue was decided – requires both that the plaintiff make a prima facie showing that they have a case, with evidence, and that the court balance the need for unmasking and the strength of the prima facie case against the first amendment right to speak anonymously.

We’re hopeful that the Washington Court of Appeals will affirm Avvo’s lower court win and help establish a clear rule that protects the right to speak anonymously – while preserving the ability of defamation plaintiffs to move forward with discovery on meritorious cases.

Here’s one additional takeaway for attorneys: subpoenaing the identity of anonymous commenters is different. You can’t expect to get wide-and-unfettered third party discovery the same way you might when subpoenaing say, gas station bathroom cleaning logs.

Florida: Text Messages are Direct Solicitation

June 1, 2015September 10, 2015 Josh King1 Comment

Oh, Florida.

Let me get this out of the way first: I don’t think lawyers soliciting clients via text message is very effective. It probably comes across as amateurish and cheesy. And if a law firm isn’t very, very careful, text solicitation risks running afoul of the well-intentioned-but-stinking-turd of a regulation that is the Telephone Consumer Protection Act.

Which is a very bad thing indeed.

But text messages are direct solicitation? The direct solicitation that can only constitutionally be prohibited if it rises to the level of intrusiveness and undue influence found in a personal interaction with a trained advocate?

That’s what the Florida Standing Committee on Advertising decided, voting 6-1 to treat text messages as prohibited direct solicitation. In so doing, the Committee had a series of amusing exchanges about the relative use cases for text messages and mobile phones, but apparently did not consider – at all – the constitutional issues involved.

I mean, it’s not like the Supreme Court hasn’t weighed in on the acceptable contours of prohibiting attorney solicitation on four separate occasions, the last of which involved a Florida regulation.

I haven’t got any great interest in seeing solicitation-via-text. But is it too much to expect that bar regulators look to the constitutional limits on their authority, rather than acting like they regulate in a vacuum?

Update 9/10/15:

The board of bar governors in Florida has reversed the Ad Committee, clearing the way for attorneys to solicit via text messages . . . as long as Florida’s cumbersome attorney advertising rules are complied with.

Yay for a Bar paying attention to the first amendment!

But just because it’s allowed doesn’t mean it’s a good idea. And unless you’ve got a very clear bead on 1) your ROI and 2) how you’re going to navigate TCPA compliance, marketing via unsolicited text messages is a horrible idea.

How Much Does Your Profile Photo Matter?

May 20, 2015May 19, 2015 Josh King2 Comments

I’m back from Las Vegas, where Avvo hosted it’s biggest and best “Lawyernomics” conference ever last week. Between catching up with our customers and partners and listening to some terrific presentations (and giving one of my own, on “Lawyers Behaving Badly,” naturally) it was a whirlwind.

I always come back from this conference with a fresh set of new ideas and resources, and one this year had to do with profile photos. I’ve always known that profile photos are important – visitors to Avvo click on profiles with photos at orders-of-magnitude greater rates, and our VP of Marketing, Leigh McMillan, spent time in one presentation parsing the data on the value of profile photos (and the importance of “the squinch“). But how much difference can the choice of profile photo make?

In a session on new technologies, I learned that there is a photo comparison service that strives to answer this question: “PhotoFeeler.” It’s a web service that allows you to upload profile photos – in categories of “business,” “social,” and “dating” (think “LinkedIn,” “Facebook,” and “Tinder”) – and get feedback on the effectiveness of each photo. Users vote on a stream of photos to gain virtual currency to use for their own photo comparison analysis, thus creating (hopefully) a flywheel of photo comparisons and input.

Votes in the “business” section are on a 0-3 scale of whether the photo communicates a sense that the subject is “competent,” “likable,” and “influential.” Although those are obviously highly subjective measures, there’s little question that they are traits that business leaders are looking to communicate via their photos. The idea of PhotoFeeler is to build up enough crowd wisdom to determine whether a photo is effective at that purpose.

As I’ve been using the same old photo on LinkedIn for the last 4-5 years, I thought I’d give PhotoFeeler a try. To get a better test, I paid a few bucks to get a fairly complete comparison – 40 votes on each photo – of my existing LinkedIn photo and my new photo that graces the Avvo “Leadership” page. Here’s what the PhotoFeeler community had to say about my current LinkedIn photo:

Ouch! Less than 20% for “competent?” That’s not exactly getting it done. At least nearly half the people surveyed think I look likable . . .

Suitably chastened, and fearing that maybe it’s just me, incapable of coming across as anything other than an incompetent, churlish brute, I tried my newer, professional photo:

OK, so THAT’s a relief. But the takeaway for me is this: while I’ve always known that photos make a difference, helping form immediate impressions of qualities such as influence and competence, I hadn’t grasped how BIG of a difference this might be.

Anyone who is relying on profiles to connect with others would be wise to check PhotoFeeler out (and maybe get some professional – or at least thought-out – headshots taken).

Oh, and my LinkedIn profile? I’ve already updated that photo.

On “Ambulance Chasing”

April 30, 2015August 14, 2017 Josh King

This article from former Georgia Bar President Ken Shigley is illustrative of how tough an issue client solicitation can be. As Shigley notes, the days following the loss of a loved one, already grief-filled and exhausting, can get even worse when lawyers start insinuating themselves:

Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or days after a tragedy, by people who represent themselves as “counselors,” “investigators” and even clergy, who slip into conversation a question about whether they have a lawyer yet.

According to Shigley, the problem isn’t so much Georgia law – which already prohibits in-person and telephonic solicitation, as well as written solicitation within 30 days of an accident – but the lack of interest among the public and prosecutors in reporting and pursuing solicitation cases.

But is solicitation really a problem?

I can see where it looks that way to Shigley; he’s a long-time plaintiff’s personal injury attorney and a car accident attorney with a great track record and a sterling reputation. I’m sure it annoys him no end to see less scrupulous – and probably less competent – personal injury attorneys playing fast and loose with the law. And there’s no question that many people, in the days following a tragedy, are in no shape to be making a choice of counsel.

And yet, as Shigley notes, claims adjusters and other insurance representatives don’t labor under similar restrictions. They are free to communicate with those who have suffered losses, and potentially to get these putative plaintiffs to give up valuable rights under circumstances where those who would otherwise represent them are barred from proactively communicating about these rights.

I don’t think this is a tenable state of affairs. And I doubt that Georgia’s law – which includes criminal sanctions – would survive constitutional scrutiny if the Supreme Court reviewed it.

It’s been 20 years since the Supreme Court heard an attorney solicitation case, and that decision – authored by probably the most ardent defender of attorney advertising regulation in the modern era, Sandra Day O’Connor – was split 5-4.

O’Connor, obviously, has long since left the bench. And today’s Supreme Court is far more respectful of the First Amendment than the court was in Florida Bar v. Went For It. It’s hard to imagine a court that has decided in recent years that the government can’t censor independent campaign advocacy, punish citizens for pretending to be war heroes, or bar nutcases from protesting funerals, finding that the “disrepute to the bar” and general sleaziness of ambulance chasing is sufficient to overcome the first amendment interest in having full access to information about one’s legal rights.

This doesn’t mean that regulations couldn’t bar deceptive advertising, or even in-person or telephonic solicitation. But a 30-day ban on written solicitation? While such advertising may seem undignified and offensive, the precedent on which restricting it rests is increasingly shaky.

Competitive Keyword Advertising: Ethical, But Dumb

April 27, 2015April 26, 2015 Josh King

Santa Clara lawprof Eric Goldman is coming out with an academic paper on the ethics of competitive keyword advertising. If you wonder what “competitive keyword advertising” is, check out my post from last October.

Eric and I both believe that there is no legal ethics issue whatsoever with the practice. Many lawyers disagree, but I’ve yet to speak to one who really “gets” what competitive keyword advertising IS, and what it IS NOT.

It’s not deceptive. It’s not misleading. It’s simply pointing out to someone who is looking up a competitor’s name that they have other options.

As Eric stresses, having choices like that is a really good thing for consumers.

Unfortunately, many lawyers take a proprietary approach to their names. They bristle at the thought that another lawyer would try to nudge their own ads into searches done for the first lawyer’s name, despite being unable to articulate precisely why such a practice should be wrong.[ref]And no, it’s not because of trademark. Trademark doesn’t let you exclude all other uses of your name; only those that create a likelihood of confusion. It certainly doesn’t offend trademark for a competitor to use your name in comparative advertising, or as a filtering signal for serving up their own ads.[/ref]

But as Carolyn Elefant asks, even if competitive keyword advertising doesn’t violate the ethics rules, should attorneys do it? Carolyn doesn’t think so, calling it the “gaining [of] an undeserved advantage on someone else’s coattails.”

I don’t agree with that reason; I’m pretty sold on Eric’s point that the practice is non-deceptive and potentially good for consumers and competition.

However, I still think most lawyers shouldn’t do it. Why? Because it’s most likely going to be completely ineffective; a distraction that delivers little to no value.

Fairly or not, it’s going to piss off your competitors. They might bring a frivolous lawsuit against you that you have to defend. They might file a pointless bar grievance you’ll have to deal with. They might engage in an e-shaming campaign over your behavior. Or they might just say snide things about you behind your back.

And what do you get for that?

Most law practices are intensely local businesses. The “name search volume” – the number of monthly Google searches for a law firm or lawyer’s name, against which your ad will be displayed – might well number in the single digits. If you are in a big market, or your competitor is well-known, they may number in the low hundreds.

For example, I checked the keyword volume for the firm of Habush Habush & Rottier, a prominent personal injury firm in Milwaukee, WI. Habush brought a lawsuit against a competitor a couple of years ago for competitive keyword advertising, which, predictably, they lost.

How many searches are done in Milwaukee for the Habush firm? In March, there were 70. And that was the best month in the last year!

It gets worse. The click-through rate for competitive keyword ads – the number of those searches for your competitor’s name that actually result in click-throughs to your website – is estimated at less than 2%. That means that even if there are 100 name searches for your competitor in a given month, you can expect all of 1-2 clicks on your ad.

That’s “clicks” – not “calls,” and certainly not “clients.”

You’ve got to ask yourself whether results that meager can possibly be worth the aggravation. For the vast majority of lawyers, the answer should be a resounding “NO.” There are far better places to focus one’s marketing and business development resources.

Checking for Conflicts on the “Legal Hotline”

April 20, 2015April 19, 2015 Josh King

As a brand-spanking-new lawyer in San Mateo, CA back in the early ’90’s, I was super-anxious to learn anything and everything about the practice of law. I defended every deposition I could. I argued mundane motions. I attended a status conference that almost turned into a fistfight.

Yes, I thought litigation was awesome – until I discovered that litigators actually spent most of their time not in court, but in dealing with pissing matches over pointless bullshit.

Which is why I’m no longer a litigator.

But I digress. Back there in the day, working for a nine-lawyer general practice law firm in San Mateo, CA (the awesome Fox, Shjeflo, Hartley & Babu), I wanted to get as much experience as a lawyer, as quickly as I could. So a couple of days a month I would work for a few hours at the San Mateo County Bar’s law clinic. Sitting at a table at the library in Redwood City, I – a newbie lawyer with all of 3-4 months’ experience – I would deal with whatever legal issues walked in.

It was awesome.

Mind you, this was pre-internet. I couldn’t just hit up Google and figure out how to file a guardianship petition, or whatever. But it was a great way to test my legal knowledge, analysis, and on-the-fly research abilities. And it really helped develop my sense of “what does the client really want to achieve?” Because it doesn’t really matter what your cold legal rights are – what matters is what outcome you’re trying to achieve. There’s a world of difference between “exact maximum revenge” and “move on happily with my life.” Ultimately, desired outcomes are most important, and I learned very early, in that library meeting room, that my mission as a lawyer wasn’t so much to “valiantly vindicate the client’s legal rights” as it was to get them to the place they needed to be in their life.

But I digress.

One of the really interesting things about working in the library legal clinic was the sheer variety of matters you’d face. I mean, sometimes there would be a dozen or more people waiting to get legal advice. It seemed crazy to me then. But I realize now how hard it is for most people to get access to legal services.

Some years after my early days working the legal clinic, the ABA adopted Model Rule 6.5, which has since been adopted by most states. Rule 6.5 attempts to make it easier for “legal advice hotlines” and other forms of quick, legal-clinic-like guidance to flourish. The rule does two important things with respect to conflicts: it effectively removes the obligation of the clinic lawyer to run a conflict check prior to providing advice, and it keeps information possessed by one hotline attorney from being imputed to another (and thus potentially conflicting the hotline out entirely from providing advice in the matter).

As you’d expect, this beneficence is not without limit. Attorneys providing such advice can’t ignore conflicts they are actually aware of, and all of the rules around conflicts spring back into play should the limited-scope guidance of the hotline turn into full-scope legal representation.

It’s also fair to ask how this rule should be squared with Rule 1.2(c), which allows for limited-scope representation but in many formulations requires procedural formalities (like written fee agreements) that are ill-suited to a brief telephonic or online advice session. One would hope that such rules would be interpreted in a way that provides maximum access to justice while preserving consumer safeguards. For example, a fee agreement (provided it isn’t larded down with regulated disclosure language) could be communicated and agreed to, verbally or electronically, at the outset of a call.[ref]Note that while I believe it is questionable whether the advice given on a legal hotline call is actually “the practice of law” in the first place, this doesn’t mean reasonable consumer protection regulations – like avoiding conflicts and requiring confidentiality – couldn’t apply to it.[/ref]

But Rule 6.5 also has this curiosity: it is limited to court-sponsored or nonprofit providers of legal advice hotlines. Neither the rule itself nor its included commentary offer any illumination on why this limitation is included. Rule 6.5 was added during the ABA’s “Ethics 2000” initiative, and the new rule engendered far less discussion than the other rule additions and changes. The Reporter’s Explanation of Changes offers this:

“The Commission believes that the proposed relaxation of the conflict rules does not pose a significant risk to clients when the lawyer is working in a program sponsored by a nonprofit organization or a court.”

The reasons for this belief will remain shrouded in mystery. One commentor – the Brennan Center for Justice – noted the unfairness of relaxing the ethical standards only for organizations serving the indigent, and suggested that one solution was to relax the conflict rules for all attorneys providing such services.

The minutes of the Commission’s meetings don’t reveal that these concerns were ever addressed. In my experience, that’s not unusual. My guess is that this limitation stems from nothing more than inertia: such legal advice hotlines have, historically, only been offered by court-sponsored and nonprofit organizations. The rule was drafted to apply only to such programs, and the Ethics 2000 Commission focused its attention on more contentious changes to the ethics rules.

But what if a law firm wanted to provide such a service? Or a group of enterprising solos, who pooled their marketing budgets and used it as a way to reach a broadly underserved market?

Or what if attorneys just did it themselves, powered by a technology and marketing platform that brought these limited-scope legal advice calls to them?

Ensuring that major or obvious conflicts don’t exist is a good idea, regardless of what the rules say. But being able to be more relaxed about it, to simply do a high-level, cursory pass before taking the call, would make it a lot easier for lawyers to get comfortable with providing legal-clinic-like advice to a whole bunch of consumers.

So here’s another thought for the expanding list of regulatory changes to enhance access to justice: take the Brennan Center’s suggestion and amend rule 6.5 so that it applies to ALL “legal hotline” programs – regardless of who is operating them.

Advice, and “the Practice of Law”

April 9, 2015July 24, 2017 Josh King1 Comment

After posting about occupational licensing and the first amendment, and the Texas court decision regarding the dispensing of veterinary advice online, I’ve distilled a few thoughts on where I see the (uneasy) line between lawyer licensing and free speech rights:

Providing advice is a form of expression, protected by the First Amendment. The fact that someone charges to provide it does not change the analysis, or the government’s heavy burden to show that its attempts to regulate such expression can survive strict scrutiny.
The legal industry has drawn a very wide circle in defining “the practice of law.” It typically includes services, provided by non-lawyers, that offer advice to low-income consumers on how to fill out forms or otherwise engage with bureaucracy or the legal system.
Prohibitions on paid advice are typically rationalized as being necessary for consumer protection. While this sounds good, it’s hard to see how such arguments could survive strict scrutiny. Besides the fact that the advice given in such situations is typically very straightforward, there are plenty of narrower means of regulating available, from disclosure to bonding to malpractice insurance requirements. And let’s be frank – there is at best no more than a tenuous of connection between the requirements of legal licensing and the ability to, say, advise a consumer about how to file for a name change.
The state can prohibit people or businesses from holding themselves out as lawyers to consumers. Any such holding out would be both deceptive and commercial, and thus easily barred under traditional commercial speech analysis.
The state can regulate non-expressive conduct. For example, regulations limiting to attorneys the signing of various documents would not offend the first amendment. However, given the uniquely speech-centered nature of legal practice, there is less non-expressive conduct to play with than is present with other licensed occupations such as doctors or dentists.
The state can regulate who is allowed to engage in traditional courtroom representation and advocacy. There are two grounds for this: the fact that courtrooms are considered non-public fora, and the fact that courtroom advocacy of the interests of others is the core function of being a lawyer, and has a long history of occupational regulation.

I suspect that a first amendment challenge to the occupational licensing of attorneys – if reviewed by a court objective enough to set aside their own lawyerly biases – would result in a sharp drawing-in of what we think of as “the practice of law” reserved for those with professional licenses. We could well end up with a system such as that which prevails in the United Kingdom, where “the practice of law” is limited to six “reserved” areas of legal work that only lawyers can perform. You’ll notice that “legal advice” is not one of the six:

Rights of Audience (appearing as an advocate in court)
Conduct of Litigation (managing a case through court processes)
Reserved Instrument Activities (specific types of real estate and property transfers)
Probate Activities (handling probate matters)
Notarial Activities (acting as a Notary[ref]Notaries in the UK must be lawyers.[/ref])
Administration of Oaths (taking oaths, swearing affidavits, etc.)

My belief is that this would be an unequivocally good thing for both consumers and free speech. But would it necessarily be bad for lawyers? Outside of those areas where lawyers currently use their monopoly status to overcharge consumers for work that doesn’t require a lawyer, I don’t think so.

Much of traditional legal work would still require a lawyer. And even beyond that, clients would still want to use lawyers for a lot of work even if non-lawyer alternatives were available. That seems to be how things are working out in the UK, where plenty of London solicitors continue to make a fine living providing legal counseling and advice.

NY Ethics Opinion Whiffs on LinkedIn

April 3, 2015April 3, 2015 Josh King

I wish more authors of ethics opinions would pay attention to the Constitution. But NOOOOO – here’s yet another ethics opinion, this time from the New York County Lawyers’ Association, that completely ignores the fact that the first amendment governs how state attorney advertising rules are to be interpreted.

Instead, NYCLA takes the tack that it can just read the ethics rules and come up with commonsense interpretations of what they mean. That’s cool and all, but it’s also completely meaningless – and not just because NYCLA is a voluntary bar association, and its word on matters of legal ethics is about as authoritative as a Duane Reade shopping bag.

Here’s a tip: if your interpretation of advertising regulations doesn’t account for the Central Hudson factors, this would be a fair criticism of your position:

Oh, and naturally, without the application of First Amendment limits on regulatory overreach, NYCLA ended up at a pretty dumb place: that LinkedIn profiles require disclaimers, that attorneys need to monitor their profiles for accuracy in content added by others,[ref]Which they SHOULD do, but not due to any regulatory obligation.[/ref], and that attorneys cannot be categorized by others as “specialists.”

That’s pretty much entirely wrong. Disclaimer requirements are a form of compelled speech, enforceable only to the extent necessary to prevent deception. Federal law explicitly holds that users of websites can’t be held responsible for independent postings by third parties. And prohibitions on the use of words like “specialist” only come into play when such words are accompanied by other words stating that some third party has certified the lawyer as a specialist.

So nice opinion there, NYCLA – but you’re not exactly advancing the profession’s understanding of speech regulation.