Socially Awkward

The 11th Circuit in Florida has just issued its en banc ruling in the infamous “Docs v. Glocks” case. This is something like the third or fourth decision in this case, which addresses the question of whether and to what extent doctors can ask their patients about firearms in the home.

As I’ve written about before, my interest in the case is what it tells us about state regulation of professional speech. Such regulation is an open area, and obviously important to lawyers and the legal profession. After all, most of what we do professionally consists of “speech.”

Today’s decision – which reverses the prior panel, thus striking down the speech-offending portions of the law – spends a fair bit of time parsing the meager state of occupational speech regulation law (much of which consists of Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C.). In so doing, it affirmatively rejects the appropriateness of “rational basis” review of occupational speech-limiting regulation, while leaving the ultimate question (which is it, intermediate or strict scrutiny?) hanging:

Because these provisions fail to satisfy heightened scrutiny under Sorrell, they obviously would not withstand strict scrutiny. We therefore need not decide whether strict scrutiny should apply.

Darn it. Still, it’s good to see a decision solidly finding that professional speech is entitled to First Amendment protection – even if it can’t quite tell us how limited the state’s power to regulate might be.

I launched this blog as a place to keep all of my notes and thoughts on the professional regulation of attorney speech, a topic largely (but not entirely) informed by the commercial speech doctrine. The doctrine – which permits the government to limit or compel speech under a laxer set of standards than would apply to “core” expression – labors under an unfortunate name. Too many people, including far too many lawyers, think that the doctrine applies to ALL speech by businesses.

This is, of course, demonstrably wrong. The vast majority of media outlets in the U.S. are “commercial,” insofar as they are owned by for-profit entities. In fact, many of these entities are the corporations that people (many of whom surely know better) inveigh against when gnashing their teeth over the Supreme Court’s Citizens United decision. As the Supreme Court has held, time and again, the fact that something is published for commercial reasons (i.e., to make money) does not make it commercial speech. Because if it did, we couldn’t have an independent media.[ref]For additional context and background on this, check out Avvo’s 2016 federal court win, which turned on this very question.[/ref]

And it seems to me that right about now is when we really, really should see the benefits of an independent media. We’ve got a new administration that has explicitly called out the media as the “opposition party,” that traffics in falsehoods, lies, and gaslighting, and which seeks to punish those outlets that aren’t deemed sufficiently obsequious to its agenda.

This is why it’s particularly galling that people on the left continue to be some of the loudest voices for chipping away at media independence – or free expression rights in general. We’ve seen in recent days an MSNBC journalist suggesting that the federal government should regulate to prevent “fake news,” and even my neighborhood college campus is now up in arms over “hate speech.”

While I could fall back on my lofty exhortations about the value of a robust First Amendment, I would ask all of these would-be censors a simpler and more pragmatic question:

Is this the government you want to let decide what you can and cannot say?

 

 

If you want to see a particularly bleak example of what’s wrong with the legal profession’s over-regulation, check out Massachusetts Bar Ethics Opinion 98-1. This opinion finds that attorneys can’t offer limited scope legal services to clients if those services consist of “ghost-writing” litigation documents.

While this opinion is something of an outlier (and, it should be noted, was issued by a voluntary bar), many states have specific regulatory limitations on the ability of consumers to buy limited scope legal services in the form of help with drafting pleadings.[ref] Lawyerist recently published a comprehensive list of each state’s rules.[/ref]

These rules usually take the form of some requirement that attorneys sign off on or otherwise notify the court that they – and not the pro se litigant – have written the document, and are justified on the theory that to not do so would be to somehow deceive the court.

This seems to take a particularly dim view of the capabilities of judges, while simultaneously playing up the supposed uniqueness of lawyers (as anyone who reads a lot of pleadings can tell you, there is vast range of quality across pleadings drafted by lawyers).

And more importantly, it acts as (yet another) regulatory barrier to access to justice. Lawyers who must sign off on pleadings they help draft are going to be far more reluctant to offer limited scope services, or will only do so at a cost level approaching full-scope representation.

Look, attorneys have since time immemorial relied on other attorneys – often not listed in the caption – to help them craft their pleadings. Pro se litigants regularly rely on family members and friends to pitch in.

So why are we so worried about disclosure when a lawyer helps a pro se litigant? Yes, maybe in some edge cases these litigants will gain an edge due to judges giving them some pro se deference despite the professional nature of their briefs. But see what I wrote above about judges – and keep in mind that the deference given to parties who represent themselves is almost never substantive; it’s more about getting more leeway on the process side.

When it comes to the arcana of courtrooms and litigation procedure, unrepresented parties could use all of the help they can get. And I’m sure judges would agree that the whole process would run a lot more smoothly if pro se litigants had regular access to SOME sort of limited scope advice.

At the end of the day, we are fighting the imagined demon of judicial deception at the expense of providing greater access to legal support for pro se litigants.

Maybe that tradeoff was intentional, but I doubt it. Rather, I bet these rules were adopted under roughly this algorithm:

1. Hey, here’s a theoretical problem!
2. OK, here’s a potential solution to your theoretical problem!
3. Great, let’s draft a rule!

If we ever want to get serious about improving consumer access to legal services, we’re going to need to rein in our lawyerly fondness for regulatory solutions, and start fully considering the potential consequences of each rule.

The Georgetown Law Journal just published an article by Alberto Bernabe, a professor at John Marshall Law School in Chicago. Titled “Avvo Joins the Legal Market; Should Attorneys Be Concerned?,” the article goes through twenty-some pages to arrive at the answer that yes, attorneys should be concerned.

While I’m happy with Professor Bernabe’s choice of topic (and hey, he even cited to this blog), I don’t see this work adding much to the discussion.

Why? Because it’s easy to argue why attorneys could be concerned about any application of facts to the law. Hell, “being concerned” might as well be the job description of most attorneys; it’s what we’re built for.

The harder – but increasingly necessary – thing for attorneys to do is to try to think about how they can get past their concerns and look toward the opportunity to better serve the public. Bernabe closes his piece by arguing that “the rules must have meaning; their text must be observed.” I’m not sure what this means; outside of those black-and-white cases where something is clearly covered by the rules, we are always engaging in an effort to interpret the rules. And when it comes to the Rules of Professional Conduct, that interpretation must be guided by two related principles:

1) that the purpose of the RPCs is protecting clients, consumers, and the integrity of the judicial system; and

2) that Rules impacting the rights of consumers and attorneys to exchange information are constrained by the First Amendment.

From where I sit, this means that any “concern” we attorneys feel should be focused primarily on whether a practice helps or hurts consumers – not whether it might run afoul of some bloodless, mechanical interpretation of the law.

Oh, and I have some specific quibbles:

Fee-sharing: Bernabe underplays the fact that the fee-sharing prohibition in Rule 5.4 has been routinely interpreted to permit fee-sharing in situations where an attorney’s independent professional judgment is not at risk. In addition to not mentioning that this outcome is found in a majority of “deal of the day” ethics opinions, there is no recognition of the fact that regulators have no concern with the fee-sharing that happens when credit cards are used to pay for legal fees. This classic example of the Rules being interpreted to their purpose (an example very analogous to Avvo’s services) goes completely unmentioned by Bernabe – probably because it rather flies in the face of his “only the text matters” argument.

And let’s go a little further: anyone who argues that Avvo’s Services violate Rule 5.4 is trying to have it both ways – as a rule that prohibits both obvious fee-sharing AND anything else that feels like it is related to the fee a lawyer earns.

But all of a lawyer’s expenses are related to the fees he or she earns. Attorneys are business owners. They have to pay for things. Things like rent, and staff salaries, and advertising. And they are “sharing” the fees they earn whenever they pay for this stuff.

We could be concerned that Rule 5.4 creates problems when it comes to “sharing” our fees with City Light by paying our utility bill, but even lawyers have their limits. Rather, the rule can only be coherently read in one of two ways. It is either:

• A rigid rule that prohibits the literal sharing of a client fee (this would be the “textualist” approach); or
• A flexible rule that prohibits a wider range of fee-sharing, but only in circumstances where the arrangement risks compromising the lawyer’s independent professional judgment.

Bernabe thinks it can work both ways – applying technically (and without regard to the purpose of the rule) to anything that seems like it might have a linkage to the legal fee. Such a result finds support neither in the text nor the purpose of Rule 5.4.

Pay-Per-Action: Related to the above is Bernabe’s objection that the fact that Avvo’s marketing fee is predicated on a Service being actually delivered renders it an impermissible fee-share. At the risk of belaboring the point, this analysis can’t be done without looking at whether the arrangement threatens the lawyer’s professional independence. Which Avvo’s Services do not do.  For more, read my earlier post, “Pay-Per-Action, Legal Edition.”

Handling Client Money: It’s strange how persistent this issue is, unmoored as it is from any plausible consumer protection interest. These are people who are paying for legal services with credit cards. If they have any concerns about their money, they have protections via the card issuers that are far stronger than anything the bar regulators can impose.

What’s more, Bernabe significantly munges up how Avvo’s Legal Services work. In the vast majority of cases, Avvo is not charging a client’s credit card until after the legal fee has already been earned (most services are primarily in the form of brief paid consultations, and the client’s card is not charged until after a consultation occurs). And in cases where the fee may be earned over a longer period of time, attorneys can have the fees deposited directly into their trust accounts.[ref]And in fact, Avvo encourages attorneys to set their accounts up so that ALL fees earned from Avvo Services are deposited into their trust accounts. Avoiding co-mingling requires both that the attorney not mix client funds with the attorney’s operating funds, but also that the attorney not mix earned fees with unearned client funds. We believe that the best practice is to deposit all fees into the trust account, and regularly review and sweep to the operating account those fees that have been earned.[/ref]

Bernabe also raises the question of how attorneys can meet their trust account obligations if Avvo holds the fees for some period of time before they are earned or deposited into the lawyer’s trust account. But this question is a red herring.

Yes, Avvo may hold unearned fees for a short period of time before they are earned. But so does any financial intermediary – a bank, a credit card processor, etc. The reason no one worries about the financial world’s “hold or transfer” periods – which may extend from several days to several weeks – is because these holds don’t put the client at risk of loss. Thus, it’s nothing more than a metaphysical exercise to worry about where the money resides during this interregnum.

The Commercial Speech Doctrine:[ref]Trigger warning: this section is long on law-geekery.[/ref] Bernebe takes me to task here:

Thus, Avvo is wrong about the types of speech to which the constitutional protection applies, as well as to which constitutional standard applies, and confuses the elements of the intermediate scrutiny standard with those of the strict scrutiny standard, which is one that clearly does not apply.

Dang! I’d say in my defense that I wasn’t writing a freaking law review article, and Bernabe has the advantage of much more ink (and time, and law clerks) with which to hone his argument.

Except I’m not the one who is wrong.

While I don’t really care that he creates a strawman about the types of speech protected by the commercial speech doctrine (I’ve never argued that false and misleading advertising is protected by the First Amendment), it’s a bit baffling that Bernabe so badly bungles the intermediate scrutiny standard. He smacks me for conflating the “intermediate” and “strict” scrutiny standards, arguing that “narrow tailoring” of regulation is not an element of the commercial speech doctrine.

Except that it is. Had he looked beyond the Zauderer case (a curious choice to cite to, given that it’s a relatively forgettable, middle-of-road case in the Supreme Court’s voluminous commercial speech jurisprudence) he might have found:

Central Hudson (only the seminal case establishing the commercial speech doctrine):

“For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.“

or SUNY v. Fox:

“What our decisions require is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends, a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but, as we have put it in the other contexts discussed above, a means narrowly tailored to achieve the desired objective.” [citations removed]

Oh, or even Zauderer, several pages later:

“the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means.”

This may seem a technical point, but if you’re going to argue for 20+ pages that attorneys should be concerned about Rules that must be interpreted via a constitutional doctrine, you ought to get that doctrine right.

And it’s actually more than technical. The “narrow tailoring” requirement is a key element of my view that attorneys don’t need to worry about these rules as applied to Avvo’s Services, as any interpretation that would find that our Services violate the RPCs would neither advance an important government interest nor be narrowly tailored to that end.

Summing Up . . .

Yes, we can worry about anything. Lawyers are very, very good at worrying about things. But if we are going to expand access to legal services, if we’re going to grow the market of people willing to hire lawyers, we’re going to need to adopt some more innovative ways of thinking. Instead of looking under the rugs for things to worry about, how about thinking creatively about how we can avoid worry? The public needs us to find better, more flexible ways to help them address their legal needs. Let’s not let our inherent reservoirs of worry keep us from delivering on that.