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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).
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.
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.
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.
Toggle Commented Aug 29, 2013 on Anti-Social Media for Lawyers at Legal Ethics Forum
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.
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.
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.
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.
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.
Toggle Commented Mar 13, 2013 on Thinking of You at Legal Ethics Forum
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:
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.
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).
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.
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 . . .
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 "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.
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?
Toggle Commented Aug 7, 2012 on Credit Reciprocity Table at Gina's CLE Blog
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.
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.
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.
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.
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).
Toggle Commented Sep 9, 2011 on Rating the Zagat Deal at The InfoCommerce Blog
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.
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.
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.
Toggle Commented Nov 23, 2010 on Teaching to do, not to Spot at Legal Ethics Forum