More fuel for the advertising rule reform fire.

So, I’m getting a very wonderful opportunity to participate in a debate about lawyer advertising in November in Nashville at The Advocates’ Society annual meeting.  A throng of lovely Canadian attorneys will be traveling to our state capital for a two-day meeting.

I say all of this for two reasons:

Reason the first – today I had the chance to meet the other folks involved (albeit by telephone) to generally lay out what we might talk about.  It was a fascinating experience leaving me with the impression that just as our neighbors to the north were about 15 years behind us in allowing lawyers to advertise, they are still about 15 years behind us on the “what to do about the scourge of lawyer advertising timeline?”

In Canada, particularly Ontario, rules revisions have been recently adopted to impose more regulations on lawyer advertising with worries aimed at things like advertising second opinion services, and undignified locations or contents of advertisements including awards received, and whether lawyers can advertise for cases where they plan to then refer the matter out because they aren’t licensed in the jurisdiction or not capable of handling the matter.

Here in the United States though, the trend is hopefully now moving toward relaxing the marginalia of the restrictions and to streamlining regulations to simply, but strongly, prohibit actually false and misleading advertisements.

Reason the second — not everywhere in the United States is that necessarily the trend.  I was reminded of that fact when reading about this lawsuit filed in Utah over an application of Utah’s approach to prohibiting celebrity endorsements of a lawyer or law firm.  You can read the lawsuit filed by the firm, coincidentally doing business as “The Advocates,” here.

The short version of the story, laid out with a level of incredible politeness that would make even a Canadian law firm proud, is set out in the “Nature of the Action” paragraph of the lawsuit:

Plaintiffs advertise their legal services by way of live and sometimes pre-recorded interviews including statements of lawyers of the firm, radio personalities and others occurring and read during the course of regular programming of certain radio broadcasts, and during regular programming breaks (collectively, “Live Ads”).  Based on obiter dicta contained in an opinion issued November 12, 2014 by the Utah Bar’s Ethics Advisory Opinion Committee, the Utah Bar Office of Professional Conduct (“OPC”) has interpreted and applied Rule 7.2 of the Utah Rules of Professional Conduct to proscribe Plaintiffs’ Live Ads.  With respect and gratitude for the Utah Bar and its Commissioners’ service to the members of the Bar, and with deference to their discretion, Plaintiffs courteously bring this Complaint seeking this Court’s interpretation and declaration of the parties’ rights and obligations under the First Amendment’s protection of commercial speech and other implicated constitutional protections.  Plaintiffs fully intend to abide by the Utah Rules of Professional Conduct as well as the high ethical standards they have set for themselves.  While they believe that their Live Ads at issue in this Complaint are protected speech and fall within the Rules, Plaintiffs will yield to the courts’ final decision, regardless of the outcome.

Setting aside the general silliness of being worried that modern consumers will somehow be tricked by a celebrity endorsement in a lawyer advertisement, and setting aside the additional general silliness that such a concept would extend to radio hosts/DJs reading live advertisements of lawyers and law firms, the whole genesis of Utah’s position that a celebrity endorsement is prohibited by the ethics rules is a pretty interesting example of writers of an ethics opinion losing the plot.

The lawsuit doesn’t explicitly say it, but Utah RPC 7.2 does not contain any direct prohibition on a celebrity endorsement.  The closest that rule would get to such a result is either to misread and expand subsection (b) of its rule which declares:

(b) If the advertisement uses any actors to portray a lawyer, members of the law firm, or clients or utilizes depictions of fictionalized events or scenes, the same must be disclosed.

or to conclude that subsection (f) of the rule doesn’t permit paying a celebrity as being a reasonable expense of an advertisement.

What the lawsuit does explain is that the notion that Utah Rule 7.2 prohibits a celebrity endorsement in an advertisement only comes about because a total non-sequitur was thrown into a Utah ethics opinion that was issued to address the question: “What are the ethical limits to participating in attorney rating systems, especially those that identify ‘the Best Lawyer’ or ‘Super Lawyer’?”

You can go read Utah Bar Ethics Advisory Committee Opinion 14-04 for yourself here, but it truly does bizarrely just add a last sentence in an otherwise unrelated paragraph that says “a lawyer who pays a celebrity or public figure to recommend the lawyer violates Rule 7.2.”  That foray down a rabbit trail actually drew a dissent from a member of that committee to the ethics opinion which is itself not something you see every day.

Efforts to restrict lawyer ads really do cloud the minds of otherwise reasonable and intelligent folks.

Does Avvo provide a bona fide lawyer rating?

A number of folks have already written about how New York has dealt another setback for Avvo Legal Services in the form of NY State Bar Ethics Op. 1132 which found that New York lawyers could not participate in Avvo Legal Services because payment of Avvo’s marketing fee amounts to payment for recommendation of services in violation of New York’s Rule 7.2(a).

You can read the full opinion here.  You can read some other pieces elaborating on the opinion here, here, and here.

The opinion is notable not just for its potential influence and the number of lawyers it impacts but because it is the first opinion weighing in on Avvo Legal Services that explicitly ties together the rating service that Avvo provides and has long provided with the Avvo Legal Services platform that has more recently come to pass.

In doing so, the New York opinion went ahead and analyzed the Rule 7.2(a) question assuming that Avvo’s lawyer ratings were bona fide ratings.  It made the point that, if they were not, then other issues would arise regarding lawyer participation with Avvo and lawyer touting of ratings issued by Avvo but went ahead and assumed they were bona fide.

I want to spend just a moment to tackle that assumption and offer my own opinion on the subject.  Are Avvo’s lawyer ratings bona fide?  No.  Of course they are not bona fide.  They are not bona fide because your only hope of having a high rating is to work with them and cooperate with them.

My basis for having this opinion is not solely about on my own experience.  But, an examination of my own rating with Avvo is an admittedly good place to start explaining my opinion.

I have never “claimed” my Avvo profile nor contributed any information to Avvo to assist in building the profile they have put together on their own for me.  (Interestingly, a few times after I have written posts here about problems with Avvo Legal Services I have gotten multiple, repeated calls from Avvo trying to assist me in improving/completing my profile and offering how to claim my profile.)  When you go search me up on Avvo you will see that they have afforded me a 6.7 rating out of 10.

Now, admittedly all lawyers are egotistical and none of us are truly capable of objectively evaluating are own worth, but …  You can probably say many negative things about me but I don’t think you can say I’m a 6.7 out of 10 when it comes to being a lawyer.

I’ve been listed in Best Lawyers in America every year since 2009.  In 2017, Best Lawyers listed me as its Appellate Lawyer of the Year in Memphis.  I’ve been listed as a “Super Lawyer” by Mid South Super Lawyers since 2011 and for two out of three years before that (2008 & 2010) I was listed by that publication as a “Rising Star.”  I have been AV rated by Martindale Hubbell since at least as early as 2010.  (It’s rating of me is 4.7 on a scale of 5).

All of that information is readily, publicly available and could be gathered and evaluated by Avvo without any input from me and without any need for me to confirm or claim my profile.  But I haven’t claimed my profile and, they’ve pegged me as a 6.7 out of 10.

Just to make clear that my opinion on this isn’t solely based on my own personal experience/situation.  Let me offer a few more examples that are impossible to reconcile with the concept of Avvo offering a bona fide rating system.

Christine P. Richards, the General Counsel of FedEx – she gets an even lower rating than I do, at 6.5.

Also getting a 6.5, Bill Freivogel the conflicts-guru in the ethics world behind Freivogel on Conflicts.  Barbara Gillers a fantastic lawyer with a prominent law firm in New York and who is the incoming Chair of the ABA Standing Committee on Ethics and Professional Responsibility also gets the same 6.7 rating I do.

Or, how about Abbe Lowell the prominent D.C. lawyer who is now representing Jared Kushner.  He gets a 6.6.  Or, here’s a fun one, the lawyer heading up the special counsel investigation into the President, Robert Mueller?  He too is just a 6.5.

But Avvo’s own general counsel, Josh King?  Well, Avvo gives him a 10 rating.

Dan Lear, an attorney who also works for Avvo, he gets a 9.2 rating.

Oh, I can tell you one that they have gotten correct though, Roy D. Simon, who happens to be a member of the NYSBA committee that issued this most recent ethics opinion also gets a 10 rating from Avvo.

(N.B. While I have no misgivings about my level of readership or influence, on the off chance any of these ratings gets changed subsequent to this post, the ratings indicated above have been confirmed as of today’s date and print outs of the pages are on-file with yours truly.)

Here’s something you don’t see every day: Brave Law Firm sues a competitor.

I’ve written here pretty frequently about issues of lawyer advertising.  I am too lazy today to try and go find links to other posts of mine in which I have stated that the overwhelming majority of disciplinary complaints filed over lawyer advertisements are filed by other lawyers.  Not always competitors, sometimes lawyers on the other side of the v, but just about always by lawyers.

While that remains true, it is rare that you ever see one lawyer or law firm sue another lawyer or law firm over advertising.  Earlier this month, one such lawsuit was filed.  That lawsuit is captioned Brave Law Firm, LLC v. Truck Accident Lawyers Group, Inc. et al. and was filed in federal court in Kansas. Here is link to the lawsuit (07914726612 brave law firm) if you desire to go read the whole thing.

There are lots of reasons why such lawsuit filings are infrequent.  The fact that in order to come up with a claim for damages a firm is likely going to have to demonstrate losing some clients to the other firm that can be traced to the advertisements in question is usually a pretty solid reason not to do it.  Instead, it is much simpler for a firm or lawyer who wants to complaint to file a disciplinary complaint because any rules infractions won’t turn on whether or not your firm was actually harmed by what the other lawyer was doing.

This suit though provides the basis for the roadmap that you’d see in terms of causes of action for such a lawsuit, including a Lanham Act claim and the relevant state law claim for tortious interference with a business relationship.

What makes the lawsuit a particularly interesting read, however, is that it levels its attacks against advertisements that defendant lawyer’s firms have made about past successes but it does not involve exactly the kind of complaints you often expect hear made about such things.  It does not undertake an assault on the advertisements as being misleading because advertising that you obtained a multi-million dollar recovery for a litigant might arguable mislead a potential client into thinking that such outcomes are achievable in their case as well.

Instead, it challenges the very veracity of the advertised outcomes themselves. The core allegations from the Complaint in this regard are as follows:

29. As one recent example, Defendants Brad Pistotnik and Brad Pistotnik Law, P.A. ran a series of advertisements touting their alleged results [NB: you can see an actual screenshot in the complaint itself but I have not included it]

30. The disclaimer at the bottom of the screen is consistent with the content of the entire ad and explicitly states that the “Amounts are gross recovery before fees and expenses.”

31. Instead, the actual “gross recovery” before fees and expenses was $387,018.00, or 16% of what was advertised.

32. This advertisement is literally false because there was no “gross recovery” of $2,400,000 by any person(s) in the case referenced in the advertisement, either before or after legal fees and expenses.

33. In addition, this advertisement is literally false as it advises the viewer that “Our past performances are no guarantee of future results” when, in fact, the “past performance” referenced in the advertisement never happened at all.

[snip]

35. As another example, all of the Defendants widely disseminated advertisements claiming that they obtained a jury verdict of $4,100,000 in a personal injury case.

36. This same advertisement also advised that the jury awarded a punitive damage award of $2,500,000 to the alleged client.

37. These advertisements were, and are, literally false as the “gross recovery” in that case was approximately $850,000.00 and the jury did not award any punitive damages to the plaintiffs.

38. Other advertisements ran by the Defendants featured other literally false “gross recoveries” via alleged verdicts including ones for $1,100,000, $845,000, and $401,000.00.

39. In addition to advertising alleged “gross recoveries” via jury verdicts that never actually happened, the Defendants also advertised purported settlements that never happened.

40. As one example, all of the Defendants advertised that they had settled a case for $9,000,000 on behalf of a former client.

41. This settlement did not happen as advertised because Defendant Bradley A. Pistotnik and the AAPLO had been terminated by the client prior to the settlement occurring and the settlement was actually obtained by another lawyer, apparently
in another state, but at various times each of the Defendants has claimed it as their own.

Obviously, if such facts could be proven, then disciplinary exposure for the lawyer responsible for such advertisements would be in the mix as well and, might I add, would be within the ambit of the kind of more limited, and more focused, ethics rules on lawyer advertising that are being advocated for adoption as a revision to the ABA Model Rules.

Given that the complaint reads like someone has provided the Brave Law Firm with some significant behind-the-scenes knowledge, it appears possible that there could be more interesting developments arising if this suit moves forward.  For example, I’d be interested to know if someone previously employed by one of the defendants now works for the plaintiff.  Unless the Brave firm got all of this information from people free to share it, then one would think potential counterclaims could get thrown into the mix in the future.

Something to chew on during your holiday weekend.

I am nowhere near the most plugged in when it comes to lawyers on the forefront of tracking the ways in which rapid developments in technology are changing the practice of law.  I’m a bit more aware than likely most lawyers, in part because I’m constantly looking for things worth writing about here, but also because I’ve been fortunate enough over the last two years to be a members of the Tennessee Bar Association’s Special Committee on the Evolving Legal Market.

For a combination of those reasons, I’ve been reading a bit about the latest tool that Ravel Law has unleashed on the world, “Firm Analytics.”  Among other selling points that Ravel Law touts, and the one I want to leave you to think about over the weekend is:

In another first, Firm Analytics also provides rankings of firms across key variables including practice area, case volume, venue experience, and motion win rates. These leaderboards allow comparisons across substantive performance metrics, a significant innovation to traditional revenue and size rankings. As part of this launch, we are releasing rankings of the top five law firms across employment, securities, antitrust, administrative law, and bankruptcy (more below).

This is, of course, excellent information to be made available in the marketplace and with the constant creation of new ways to better, and more quickly, aggregate and synthesize data it is also inevitable for it to come into existence.

The thought I want to leave you with though is this — how crazy is it that, in many U.S. jurisdictions, if a lawyer or law firm wanted to advertise themselves using this same kind of data (win rates, success history, etc.), they would likely be opening themselves up to a disciplinary complaint under state advertising rules that prohibit lawyers from touting past successful outcomes in matters?

For example, let me pick a state at random and not a state that has any reason at all to be in the news, Montana.  If a law firm in Montana or a lawyer there decided to aggregate this data and tout their win percentages, they’d likely be at risk of seeing bar regulators accuse them of violating either or both of these provisions in Rule 7.1 prohibiting communications about a lawyer’s services that:

(b) is likely to create an unjustified expectation about results the lawyer can achieve;

(c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits.

Wisconsin rightly says no to name dropping without consent.

Earlier this week I criticized what I consider to be a pretty bad ethics opinion that was issued by Rhode Island.  To balance things out a bit, I want to write about an ethics opinion out of Wisconsin that gives the correct answer to its query – Wisconsin Formal Ethics Opinion EF-17-02.  That opinion correctly explains that because of the broad swath of confidentiality created by Rule 1.6, even the names of clients qualify as confidential information and, therefore, a lawyer can only disclose the name of a client if in advertisements or materials circulated for marketing or any other personal purpose if the client has given informed consent to the disclosure or some other exception within Rule 1.6 applies.

In issuing this opinion, Wisconsin had to withdraw an older opinion that provided guidance that the names of clients were not confidential information, Wisconsin Ethics Op. E-93-5.

Lots of lawyers (not just in Wisconsin) do not immediately grasp that this is the correct result — that the identity of a lawyer’s clients is itself confidential information.  A lot of times they don’t do so because doing so requires recognizing that there are a lot of things lawyers do that they really shouldn’t without getting their clients approval.   The Wisconsin opinion uses the example of talking about the fact of a representation as a cocktail party as an example, but there are less obvious ways this issue crops up.  Lawyers often don’t think twice about providing information about the details of their prior representations as part of responding to requests for proposals from insurance carriers as part of trying to become approved as panel counsel, for example.  Some lawyers will rationalize their approach on the basis that they are only disclosing information that can already be found in public records, but the Wisconsin opinion rightly makes the point that Rule 1.6 doesn’t remove the obligation of confidentiality for the lawyer merely because the information is available in a public record.

I’ve often attempted to explain the policy choice that Rule 1.6 enshrines for lawyers along these lines.  Imagine you are a family law attorney.  Now in order to file a divorce complaint for a particular client you are going to have to disclose in the filing a lot of details about your client’s life that they really hope no one finds out about.  Members of the public certainly could go down to the courthouse or go online if the court has electronic records and read all of the sordid details, but the client definitely hopes people don’t.  The ethics rules stake out a position – at least jurisdictions that have the ABA Model Rule version of Rule 1.6 do — that even though the lawyer has to put those things in the public complaint, lawyers are going to be charged with not talking about those things without the client’s consent to do so.  I then often ask lawyers to think about how a conversation would go if you called your client and asked them for permission to offer up the interesting anecdote about their situation.

The ramification of that policy choice ends up being that the rule errs on the side of confidential treatment even for things that many clients might not even expect could be confidential and that’s the reason, for example, that firms who circulate materials about representative clients, whether on their website or elsewhere, need to get client permission to do so.

While Wisconsin’s opinion is praiseworthy on its substance, Wisconsin should still get criticized for its insistence on shielding its formal ethics opinions from the public and providing access to them only for members of the Wisconsin Bar.  That’s a silly and outdated approach.

As a Tennessee lawyer, I only know about what the new Wisconsin opinion says because the fine folks at ABA/BNA reported on it.  Presumably, as they always do, they did a good job and, thus, if you go read their article here then you, like me, can know what Wisconsin had to say in construing its ABA Model Rule-based ethics rule on confidentiality.

Coming full circle, while I can’t stand the substantive outcome offered up by that Rhode Island opinion discussed earlier this week, at least Rhode Island allows for public access to the ethics opinions it issues.  For as long as there continue to be jurisdictions like Wisconsin that shield theirs from view, then offering public access will continue to deserve praise in Rhode Island and elsewhere.

Virginia’s revised lawyer advertising rules – big win for APRL’s effort to streamline the advertising rules

[In the interest of full disclosure for those who might be new here, I am presently a member of the Board of Directors of the Association of Professional Responsibility Lawyers (APRL).]

For those who aren’t new here, you know full well my personal opinion on lawyer advertising and what the ethics rules should and should not try to do in terms of regulation.

Unsurprisingly then, I was pleased to learn of Virginia’s decision to adopt new lawyer advertising rules effective July 1, 2017 and to learn that they largely do the kinds of things that APRL has been advocating should be the approach to these issues through proposed revisions to the ABA Model Rules.

You can go read the order entered by the Supreme Court of Virginia earlier this week that lays out the full text of what will now be its only rules in the 7.1 through 7.5 series, Rules 7.1 and 7.3 and accompanying Comments that will become effective July 1, 2017, but here are a few highlights:

  • Rule 7.1 will read in its entirety: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
  • Rule 7.2 has been deleted and instead any issues that it used to address are now addressed, if at all, in paragraphs of the Comment to Rule 7.1.
  • One such Comment to Rule 7.1, [2], explicitly acknowledges that the right kind of disclaimer can cure something that might otherwise be argued to be “a statement that is likely to create unjustified expectations or otherwise mislead the public.”
  • Another such Comment to Rule 7.1,, [4], explicitly acknowledges that someone could be a “specialist in a particular field of law by experience,” and that such a person can communicate that specialty as long it is not done in a way that is “false or misleading.”
  • Rule 7.3 addresses all aspects of targeted solicitations and also addresses the prohibitions on providing payment or things of value to someone for a recommendation or referral.
  • As to solicitation, Rule 7.3 makes clear that it applies only to communications that are “initiated” on the lawyer’s end.  And, appears to not attempt to prohibit in-person or real-time solicitation of clients.
  • Instead, it limits its outright prohibition on solicitation to situations where the solicitation is directed to someone who has made known to the lawyer they don’t want to be solicited or when the solicitation “involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.”
  • It does contain a provision requiring an “ADVERTISING MATERIAL” disclaimer on “written, recorded or electronic solicitation[s]” but not if they are addressed to the universe of folks ABA Model Rule 7.3 has traditionally excluded from the in-person/real-time ban (other lawyers, family members, prior professional relationships, etc.)
  • Rules 7.4 and 7.5 are deleted altogether.

Kudos to the Virginia State Bar, the Supreme Court of Virginia.  One state down, 49 more (plus D.C.) to go.

Ohio Opinion 2017-1: Too much and too little at the same time

An opinion worthy of discussion was issued in Ohio back in February 2017  but I didn’t stumble across it until this past week.  (A tweet by ALAS got it onto my radar screen.)

Advisory Opinion 2017-1 from the Ohio Board of Professional Conduct addresses advertisement of contingent fee arrangements and, in particular, it addresses the following question:

Whether it is proper for a lawyer who advertises to use statements such as “No fee without recovery” or “You pay no fee unless you win” or “There’s no charge unless we win your case” or “You pay us only when we win.”

The opinion focuses only on the distinction in a contingent fee arrangement between fees and repayment of advanced expenses and, as a result, offers the same answer to all of the examples – no.  Now even on the opinions own terms – focusing only on the distinction between expenses and fees, I disagree that all of those should get a “no” answer, but I also think that the Ohio opinion missed an opportunity to evaluate an even more significant question about these kind of statements that has always hit me as potentially problematic.

First, as the opinion explains all of these statements must be run through the filter of RPC 7.1 and a determination has to be made about whether they are false or misleading.  The Ohio opinion concludes that all of the variations of statements tackled are “inherently false or misleading” because they “omit reference to the client’s responsibility for expenses and costs” and thereby “impl[y] that the client will not be required to pay litigation costs, regardless of the outcome of the litigation..”

On one level, I think that goes too far in terms of a harsh result for the two of the four examined statements that plainly speak in terms of “fees.”  To say that those are inherently misleading is a conclusion with which I just disagree.

On another level though, I think this opinion doesn’t go far enough because it fails to address a more legitimate question of how such advertisements can be misleading.

In my opinion, three of the four statements have a problem but it is because of the use of “win” as the conditional event triggering payment of fees.  A client who pursues a contingent fee case and has a serious injury but ends up settling their case for a small amount, let’s pick $30,000 as a random amount, might very well not consider their lawyer to have “won” their case.  For me, the statement that ought to be the exemplar for use is the first one “No fee without recovery.”  And the second one ought to be acceptable if it were to say “You pay no fee unless we recover for you.”  Maybe each of those statements would be even better if “attorney” came before “fee” but I think that’s the path where a consumer is more likely to feel misled or deceived by such an advertisement rather than on the basis that there is an implication about expenses if a lawyer only speaks in the advertisement in terms of fees.

A glimpse into the world of consumer-facing legal services providers

Yesterday, I had the pleasure of serving as a moderator at a CLE event in Nashville focused on developments in the world of consumer-facing legal services providers.  There are a world of companies – predominantly existing only online — that have an increasing presence in the lives of people in need of legal services and answers to their legal questions who, often otherwise, would not reach out directly to a lawyer to try to obtain help for their problems.

The full event was a 3 hour long seminar covering several topics, but the panel I moderated encompassed an hour of conversation with Bob Aicher of ZeekBeek, Matt Horn from Legal Services Link, and Dan Lear from Avvo.

Now, if you are reading this, you’re likely already familiar with the various aspects of Avvo’s footprint in the marketplace.  You may not know as much, however, about ZeekBeek or Legal Services Link.

In some ways, they do quite similar things but the approach is different.  Both operate as an online platform through which people in need of legal services can connect with lawyers who are willing to provide services.  ZeekBeek partners exclusively with state bar associations and, thus, in those states comes across as an entity that has the imprimatur of the state regulatory body and also — for a fee — provides its participating lawyers within a state a different platform for making referrals of work to other lawyers.  Legal Services Link monetizes its provision of a market place for consumers to ask questions and obtain legal advice and representation from participating lawyers by allowing lawyers to view questions for free but requiring lawyers who want to interact with the consumer by replying and answering their inquiries to pay an annual membership fee for that privilege.

While each of the three representatives had differing views on the topic of whether they versus those they compete with are able to do what they do in a way that the participating lawyers can be assured of compliance with the ethics rules, it was very interesting (though not surprising) to hear all three of them agree that the ethics rules that relate to their services are desperately in need of change.

It was a very interesting and engaging discussion.  The good news for you, if you are interested in checking it out, is that you can view the entire program by registering/purchasing it at this link from the TBA.  (As of now there is no way to just pay for the middle hour which was the program I moderated, but should that change I will update this post.)

 

Friday Flashback – Folks still forgetting The Streisand Effect

In my early days (If a blog that has only been around for just a smidge over 2 years can be characterized as having early days.), I wrote a post with a reference to “The Streisand Effect” and the need for lawyers and law firms who are thinking about trying to take actions to shut down unfair criticism online to give real thought to whether they are just amplifying the negative publicity.  If you are interested in reading that post, you can get there from this link.

My guess is that reminding people about the concept of The Streisand Effect will never get old.  This time though, to save people a step, I’ll simply share the quote from the Wikipedia entry itself rather than making you click a link to see what we mean when we refer to The Streisand Effect:

The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. It is an example of psychological reactance, wherein once people are aware something is being kept from them, their motivation to access and spread the information is increased.

It is named after American entertainer Barbra Streisand, whose 2003 attempt to suppress photographs of her residence in Malibu, California, inadvertently drew further public attention to it. Similar attempts have been made, for example, in cease-and-desist letters to suppress numbers, files, and websites. Instead of being suppressed, the information receives extensive publicity and media extensions such as videos and spoof songs, often being widely mirrored across the Internet or distributed on file-sharing networks.

In this story at The American Lawyer (which it seems almost entirely unnecessary to state has a significantly larger readership than this here little blog), a reader will probably learn a few things.

First, the existence of a four lawyer construction firm in Houston, Texas named The Cromeens Law Firm.

Second, the existence of a negative review of the firm on Yelp as well as some others on Google.  Which armed with that first piece of new information and the second piece of new information becomes really easy to find and read.

Third, that the four-lawyer firm is worried enough about these reviews that it is willing to spend some part of its time not focused on matters for its clients but rather in pursuing a lawsuit against unknown defendants to try to make the reviews go away.

Your mileage may vary, but my view on such matters continue to be that: (a) more people will read the reviews now than they ever would have before; (b) the lawsuit is very unlikely to succeed in making the reviews disappear; and (c) contractors and subcontractors who might be making decisions in and around Houston about whether to retain these construction lawyers probably weren’t likely to be all that influenced but unless the goal of this suit is to make stories about it end up being pretty high on the list of things that turn up in an online search about your law firm, this probably doesn’t end up being a net positive.

Now, in fairness, if the negative reviews you are trying to get to go away are at the very top of what people see if they search for you online, then a suit like this might accomplish the rare “reverse Streisand” by replacing those with higher results referencing the lawsuit at least, but when I checked today several of the first hits for this law firm’s name were good ones, so . . .

 

Dear ABA – Embrace reform of the lawyer advertising rules. Please.

I have written in the past about the APRL white papers providing the rationale for, and data supporting the need to, reform the way lawyer advertising is regulated in the United States by state bar entities.  You can read those prior posts here and here if you are so inclined.

Jayne Reardon, the Executive Director of the Illinois Supreme Court Commission on Professionalism, over at the 2Civility blog has posted a very thorough report on events that transpired in Miami earlier this month and that reminds folks that the deadline put together by the ABA working group looking at whether to back APRL’s proposals is March 1, 2017.

I am a proud member of APRL – actually presently I’m even fortunate enough to serve as a member of its Board of Directors – but was not able to make it down to Miami for our meeting and the ABA meetings this year.  If you are a reader of this blog, you know that my view is that the only advertising rule that ought to be necessary is a version of RPC 7.1 that states, as does the ABA Model:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Period.  Full stop.

Now Jayne’s report from the ground mentions that some folks criticized or complained about APRL’s proposal because it would not apply only to advertisements by lawyers.  To me that is a feature, not a bug.  As I’ve also written and spoken about, RPC 7.1 is violated when a lawyer sends a fraudulent bill to a client saying they spent more time on something than they really did and that’s a good thing.  It also, for example, applies to lawyers who lie on their resumes as we saw with this recent instance of lawyer misconduct.

The concern expressed by someone that it could result in discipline against a lawyer politician (presumably one who would have to have lied about some aspect of their personal history I guess) does not give me much pause because if it were so applied it would likely fail First Amendment scrutiny because of the higher standards afforded to protect political speech rather than constitutional speech.

While I think RPC 7.1 ideally is the only rule that ought to exist, I recognize that people are going to insist there be some restriction on in-person solicitation so I also support APRL’s proposed approach to having an additional rule, over and above RPC 7.1, to address that.  As I’ve said before, my only quibble with APRL’s proposal on that front is as to how it defines a sophisticated user of legal services:

If I had one criticism of the APRL proposal, it is with the way it defines a sophisticated user of legal services.  The second part about regular retention of legal services for business purposes is likely where it should have stopped, as the first portion of the definition is pretty amorphous and subject to manipulation.  For example, would a recidivist offender who has gone through repeated jury trials and spent many years in prison someone who would qualify as having had significant dealings with the legal profession?  Seems like a pretty clear argument could be made that the answer would be yes.

I’m going to send this post in to the ABA working committee as my own personal comment.  If you have a viewpoint on these issues (whether it jibes with mine or not), I’d encourage you to send your thoughts as well to them at this email address: modelruleamend@americanbar.org.  (Unless you don’t think lawyer advertising rules are strict enough already.  Then I’d encourage you to stay busy doing other things.  Kidding, just kidding.  But more like Al Franken’s kidding on the square actually.)