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No chance that kind of sanction would pass First Amendment scrutiny. See the 1964 SCOTUS decision in Garrison v. Louisiana (related to criticism if judges, but on point re limits on regulating attorney speech).
Kincannon Suit Against South Carolina Bar for Violating First Amendment Right to Engage in Offensive Public Discourse
This is older news, but I was discussing this case and civility regulation in my First Amendment and Lawyer Regulation seminar last week, and I didn’t see anything posted here about it and wondered what others thought. Todd Kincannon, the former executive director of the South Carolina Republica...
Agreed with all except (4). There are areas, particularly around attorney advertising, where all states would be better served by having far more minimal rules. The rules of virtually all states (and the 7 series of the ABA Model Rules) are vague and overly-broad. They make it harder than it should be for lawyers to communicate with the public, and harder than it should be for the public to get access to information about legal services.
Curious about what our readers think
In the discussion about the California rules, I offered the following four propositions in the comments. My fear is that the Supreme Court of California has decided that it wants what its clerk called a minimal set of disciplinary standards with little in the way of comments. As explained in tha...
I'm Avvo's GC.
As I often tell attorneys, there are very effective ways to respond to negative reviews that don't involve saying anything about the case and risking disclosure of client confidences. It's less important to "set the record straight" than it is to communicate that the lawyer is responsive, professional and takes client feedback seriously.
And as for the "no reviews" contract approach, any lawyer attempting that would find it both ineffective (most reviews are anonymous, and most review sites wouldn't honor such a contract) and likely to backfire by painting the lawyer as primarily self-interested.
Attorney faces discipline for posting a response to a client's negative on-line review
I had already started writing an article on this topic before the Illinois Attorney Registration and Disciplinary Commission filed this Complaint against an attorney http://www.iardc.org/13PR0095CM.html. A client posted a couple of negative reviews about his attorney on AVVO. The attorney event...
The problem isn't social media, but rather the fact that so many lawyers use it poorly. If a lawyer makes one ham-fisted attempt after another to use these platforms as outbound marketing vehicles, it will definitely be counter-productive.
But that's not a reason to abandon social media - the real imperative is to use it properly. Even for lawyers who rely on word of mouth, nearly every potential client is going to search online for information about the referred attorney. Far better that they find a wealth of information (including engagement on social media platforms) than a dry, bare website bio.
Anti-Social Media for Lawyers
About five or six years ago, I was talking to a friend, managing partner at a major US firm, about how the profession was fragmenting. He said (paraphrasing) that even in Biglaw much work was closer to commodity work than firms let on, by which he meant work requiring discretion but not brilianc...
I agree, Andrew - although the first prong (the coercive force of a trained advocate and whether the communication calls for an immediate yes/no answer) is far more important than the second. And given that we're talking about the implication of an attorney's First Amendment rights, I would hope an "A" answer would point out that the state carries the burden of showing that such regulation meets the requirements of Central Hudson.
Is texting a solicitation "in person," or "real-time"?
I posted an inquiry on this on a listserv and the answers have been interesting. Ohio says it may not be. Legal ethicists have intuitions both way on the topic. Some wonder if there isn't a generational divide on the question. Here's an article by Mark DuBois on the topic. Excerpts: The Ohio Su...
The rationale of this decision would apply during a matter as well. We can't have a blanket prohibition on attorneys discussing public facts.
What we can have, of course, are large carve-outs for confidences, privileges and things that could breach the duty of loyalty. Had this case centered on specific statements, I suspect the court would have bent over backward to find that they involved one or more of these factors.
But the position the Virginia State Bar took was that ANY discussion of a client's case without the client's consent is grounds for discipline.
That would mean attorneys would risk discipline whenever using PR as part of trial strategy, providing context to the press after a matter is over, or even answering questions about when the next hearing is scheduled. Such overbreadth can't possibly stand.
More on the Confidentiality Implications of Hunter v. Virginia State Bar
In February, we had a useful discussion about the Virginia Supreme Court's decision in Hunter v. Virginia State Bar. In one part of Hunter (see page 18), the Court held that lawyers have a First Amendment right to reveal and publicly discuss confidential, even embarrassing, information about a ...
Doctors? Sure. Coke that was suppressed? Sure, IF you assume that all of that is in the public record.
A doctor in Andrew's example would likely still be limited to the basics of what's in the public record. A lawyer in Richard's example would need to tread carefully around the confidential discussions leading to the suppression motion. And most doctors and lawyers would choose not to write about this sort of stuff regardless, out of both professionalism, client relations, and a desire to not reveal confidences.
If there's one thing we know about the first amendment, it's that we can't prohibit truthful speech across the board in order to address edge cases.
More on the Confidentiality Implications of Hunter v. Virginia State Bar
In February, we had a useful discussion about the Virginia Supreme Court's decision in Hunter v. Virginia State Bar. In one part of Hunter (see page 18), the Court held that lawyers have a First Amendment right to reveal and publicly discuss confidential, even embarrassing, information about a ...
The VSC got this part right, even if it got the disclaimer part wrong. A blanket prohibition on attorneys speaking about true, non-confidential/non-privileged matters utterly fails the First Amendment. It's also bad for the administration of justice and public insight into the judicial system.
More on the Confidentiality Implications of Hunter v. Virginia State Bar
In February, we had a useful discussion about the Virginia Supreme Court's decision in Hunter v. Virginia State Bar. In one part of Hunter (see page 18), the Court held that lawyers have a First Amendment right to reveal and publicly discuss confidential, even embarrassing, information about a ...
Of course this illustrates a problem unique to the billable hour - that it reduces legal services to the time spent, rather than the value delivered.
Or to put it another way: the notion that all time spent on a legal matter is equally valuable to the person paying the bill. It should be obvious that this is not the case, but the billable hour forecloses such a possibility.
Thinking of You
Every so often, I've been asked if it's all right to bill for time thinking about a client's problem -- not reading, not writing, not meeting, just thinking. This was a frequent subject of debate when I was a young lawyer at a big firm. Does it matter where you're thinking? I sometimes go to Cen...
And I thought this was such an open-and-shut issue; I've been far more focused on the Bar's requirement that Hunter post a disclaimer on his "blog." In my mind that was a much closer call: http://lawyernomics.avvo.com/blogging-2/court-sides-with-bar-on-need-for-blog-disclaimer.html
Lawyer blogs, public facts, and confidentiality (or, that blogging criminal defense lawyer from Virginia won on First Amendment grounds)
Many of us have been following the case of Horace Frazier Hunter, the criminal defense lawyer in Virginia who blogged about his cases without client consent and without a disclaimer about outcomes and guarantees. The State Bar successfully disciplined the lawyer but he appealed on First Amendmen...
Yes, if the lawyer was contractually obligated to the client to not disclose those non-privileged confidences.
But I'm not exactly sure what that "non-privileged confidence" means - I would think that, except in edge cases, any confidential information disclosed by the client would also be privileged. And regardless, the state can constitutionally regulate disclosure by attorneys of confidential client information. But we're talking about disclosure of public information here.
Lawyer blogs, public facts, and confidentiality (or, that blogging criminal defense lawyer from Virginia won on First Amendment grounds)
Many of us have been following the case of Horace Frazier Hunter, the criminal defense lawyer in Virginia who blogged about his cases without client consent and without a disclaimer about outcomes and guarantees. The State Bar successfully disciplined the lawyer but he appealed on First Amendmen...
John, the problem with the NDA/non-disparagement comparison is that it breaks down as soon as you insert state action into the equation. There's a massive difference between private contractual limitations on speech and state-enforced limitations (starting with the fact that the first amendment doesn't apply to the former).
Lawyer blogs, public facts, and confidentiality (or, that blogging criminal defense lawyer from Virginia won on First Amendment grounds)
Many of us have been following the case of Horace Frazier Hunter, the criminal defense lawyer in Virginia who blogged about his cases without client consent and without a disclaimer about outcomes and guarantees. The State Bar successfully disciplined the lawyer but he appealed on First Amendmen...
I don't see how the court could have ruled differently. There's no compelling government interest in restricting lawyer speech about the public aspects of completed matters. And while Hunter is not exactly the poster child for lawyerly discretion, I'm far more concerned about state bar regulators (who don't exactly have a stellar track record when it comes to respect for the first amendment) unduly restricting the free speech rights of attorneys.
Lawyer blogs, public facts, and confidentiality (or, that blogging criminal defense lawyer from Virginia won on First Amendment grounds)
Many of us have been following the case of Horace Frazier Hunter, the criminal defense lawyer in Virginia who blogged about his cases without client consent and without a disclaimer about outcomes and guarantees. The State Bar successfully disciplined the lawyer but he appealed on First Amendmen...
Agreed that there is no problem with a lawyer accepting an endorsement that reflect their skills. But assuming the endorsement has to do with those skills, I don't see why lawyers would need to concern themselves at all with the reviewer's level of familiarity with those skills.
As for your website hypo, the only issue is the lawyer asking friends (not clients) to leave testimonials. But if we change your facts slightly again so that the lawyer isn't affirmatively asking non-clients to leave reviews, CDA 230 would again come into play. Not that I think many attorneys would tolerate the risks of such an open forum on their own websites . . .
The Ethics of Accepting LinkedIn Endorsements
Recently, a number of my LinkedIn contacts have offered to “endorse” my skills or knowledge in certain areas, such as “legal research,” “legal writing,” or “courts.” (This is a relatively new LinkedIn feature.) Of course, I am grateful for the offers to “endorse” me, but I do have some ethics-re...
Let's take the case then where the attorney has listed skills and third parties add endorsements for one or more of those listed skills. I wouldn't see that as being any different than any other third party review for the purposes of CDA 230.
And in any event, so long as the skills are things the attorney legitimately possesses, I don't see how any attempt by a bar to limit attorney use of LinkedIn endorsements could survive first amendment scrutiny.
The Ethics of Accepting LinkedIn Endorsements
Recently, a number of my LinkedIn contacts have offered to “endorse” my skills or knowledge in certain areas, such as “legal research,” “legal writing,” or “courts.” (This is a relatively new LinkedIn feature.) Of course, I am grateful for the offers to “endorse” me, but I do have some ethics-re...
The "International Law" example is counter-factual. People can only endorse you on LinkedIn for things you've claimed expertise in. If you've done so for International Law despite not knowing anything about it, you've got bigger problems.
What's more, any extension of testimonial advertising restrictions to third-party reviews or endorsements is 100% preempted by 47 USC 230. Under CDA 230, attorneys cannot be liable for comments posted by third parties (assuming those third parties haven't been employed by the attorney, of course).
And that's to say nothing of the fact that no meaningful restriction on third party reviews for lawyers could survive constitutional scrutiny anyway.
I realize not every attorney wants to be a test case for the stupidity of their state's attorney advertising regulations, but no one should lose sleep over LinkedIn endorsements.
The Ethics of Accepting LinkedIn Endorsements
Recently, a number of my LinkedIn contacts have offered to “endorse” my skills or knowledge in certain areas, such as “legal research,” “legal writing,” or “courts.” (This is a relatively new LinkedIn feature.) Of course, I am grateful for the offers to “endorse” me, but I do have some ethics-re...
Gina, this is an awesome resource you've created here - I was looking everywhere for a chart like this!
And isn't it ridiculous that there isn't more blanket reciprocity for courses approved in other states?
Credit Reciprocity Table
If a CLE educator is... Then its courses are presumptively-approved for MCLE credit in... An American Bar Association Accredited Law School: Alaska, Arkansas, Idaho, Maine, Mississippi, Missouri, New Hampshire, North Dakota, Oregon, Texas, Utah, Washington, West Virginia An Associat...
If Dershowitz is accurate in his description of the conversation, the only conclusion is that Corey is a moron who is dangerously out of her depth - on both the ethics issue and the defamation claim.
Taking the high road (and don't rise to the bait!)
I've been following the prosecution of George Zimmerman for the homicide of Trayvon Martin and have more than once cited to Alan Dershowitz's articles in the popular press on a topic that continues to interest me: whether a prosecutor filing a probable cause affidavit can deliberately omit facts...
One word I didn't see in the main article: CLIENTS. These pleadings are written for, and paid for by, CLIENTS. And speaking from the perspective of a client, what I see here is lawyers far more interested in navel-gazing and admiring their own prose than providing the best service and outcome to their clients. Disgusting.
Lawyers as Plaintiffs in Copyright Suit Against Lexis and Westlaw
The story is here. As I understand it, West & Lexis make available briefs, etc., that they somehow acquire (Pacer?). I have used the database and it is a great resource. Lawyers are now bringing a proposed class action suit to stop this practice. I don't know enough about copyright law to kno...
Not a chance. Rule 7.1 only applies to advertising, i.e., communication the primary purpose of which is to solicit a commercial transaction. The fact there may be a secondary business development purpose does not render such discussion commercial speech. This piece was no more an advertisement than any law blog or article written by a lawyer for a trade publication.
What's more, Prof. Huber has simply shown himself to be a censorious, thin-skinned jerk. Who files an ethics complaint over a critique of a scientific study? Any law professor worth his salt should know that the answer to speech you don't like is more speech - not running to the bar regulators to try and sanction the speaker.
Law Professor Files Ethics Complaint Against Crowell & Moring
The story is here. The professor's complaint concerns a document that appeared for a short time on Crowell's website (here). Several of Crowell's lawyers contended in the document that a scientific study, which concluded that West Virginia mining operations have been causing birth defects in t...
It's a gripe site, unlike Avvo, Yelp and most other sites that take both positive and negative reviews. But that wouldn't make any difference here in the US, where the operator would be immune from defamation liability under CDA 230. And if the opinions were those of the site operator himself, he would be protected by the First Amendment.
What this story really reveals - besides the thin-skinned nature of the English bar - is the sorry state of defamation law in the UK.
"Solicitors from Hell" website faces a day in court, doesn't back down
Independent (UK): A website devoted to naming and shaming solicitors who (allegedly) provide poor service has been summoned to see a judge after lawyers brought a defamation action. How different is that site from, say, Avvo or other new media sites that help clients "yelp" about their lawyers?
Watch for a Hart-Scott-Rodino filing. If the deal closes without one, the price will have been less than $66 million (that's the threshold for being required to report the transaction to the DOJ or FTC).
Rating the Zagat Deal
When first I heard that Google had acquired Zagat Guides, I thought I would need some time to ponder the merits of this acquisition. I've changed my mind. A deal this patently harebrained doesn't require deep reflection. A few thoughts for your consideration: Let's start with the optics. Google...
Don, thanks for the comments. Perhaps there is some hope if state bar regulators are starting to think like you!
As you point out, economic protectionalism and the "negative lottery" are also big factors weighing against lawyer advertising regulation. I'm sure you saw some examples of the latter in your time on the Indiana Supreme Court Disciplinary Commission.
As for Bruce Johnson - he represented us in spectacular fashion (motion to dismiss granted in a published decision) on the class action filed against Avvo when we launched.
Josh King (part 3 of 3): The Costs of Overregulation of Attorney Advertising
Many people I talk to (and, indeed, many of the commentators on my previous posts regarding attorney advertising, acknowledge that there are flaws in the heavy-handed ways that most states regulate attorney advertising, but feel that these warts and overreach are acceptable in order to rein in t...
Alice, I agree (of course), that existing, non-industry specific rules are more than adequate to protect consumers from deceptive attorney advertising.
What's more, while any attempts to regulate the professionalism/dignity of attorney advertising would certainly be useless, they would also be utterly unconstitutional.
Josh King, of Avvo, "Post 2 – Are Attorney Advertising Rules 'Safe Harbors”? Should they be?"
[Josh King offers the second of his three posts on attorney advertising.] In response to the question I posted originally regarding the reasons for attorney advertising rules, some commentators opined the rules are generally OK and provide attorneys with “safe harbors” when it comes to deceptiv...
Patrick - yes. Businesses and business people succeed by taking risks. Lawyers should understand their client's business, competitive positioning and level of risk aversion, and then help them take smart risks.
Teaching to do, not to Spot
I found this article utterly fascinating. The basic notion is that legal educators (moi) teach "issue spotting" which teaches ways not to do things, not to help the client accomplish its goals. Broader than our focus here, but an interesting read. It also reminded me of the difference, or a dif...
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