Jeremy Hammond Once again the First Amendment, as it applies to lawyers, is under attack. The First Amendment! The one that says speech is protected from being abridged by the government. That one. Here it is, in case you forgot:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

14th Amendment. Bla bla. Equal protection. Applies to the states. Yet, here we are again, a government body is telling lawyers that they cannot speak freely. Did anyone in Ohio read Bates v. State Bar of Arizona? We’re not talking about misleading language (which is a violation of any false advertising law), but handing out a brochure or pamphlet with your contact information, or having a Q&A after a CLE. Continue Reading The First Amendment should apply to everyone, even lawyers in Ohio

first amendmentFor anyone who follows the saga of the State Bar of Florida v. the First Amendment of the United States, I am happy to announce that the First Amendment has won yet again. In the latest ruling, as Larry Bodine points out on his blog, a federal judge,

[b]lasting the Florida Bar, … threw out state ethics rules that ban the use of past results in lawyer advertising in indoor and outdoor display, television and radio media. The court held that the rules were unconstitutional and in violation of the First Amendment.

Fans of the First Amendment will enjoy ready more about the case at Rubenstein v. The Florida Bar. You’ll find such great tidbits, such as The Florida State Bar’s own research shows that 74% of respondents “indicate that past results are an important attribute in choosing a lawyer.” Or quoting Bates v. State Bar of Arizona, where the US Supreme Court rejected arguments that “the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information.” In a country where Yelp! and Google are the go-to research tools for anyone trying to purchase a product or service, more information is better, not less. As I have written before, every state, and the federal government, already has rules in place prohibiting false advertising (click here for more posts). Use those laws for enforcement, if needed. But the rules for lawyers, via the state bar associations, often times go way beyond those constitutionally acceptable prohibitions. One of my favorite rules is where a bar association bans (explicitly or implied) the word “expert” or “specialist” when an attorney is describing him or herself in a bio. A quick search in Google finds that an expert is “having or showing special skill or knowledge because of what you have been taught or what you have experienced,” and a specialist is “a person who has special knowledge and skill relating to a particular job, area of study, etc.” (And it didn’t take a juris doctorate from an ABA-accredited law school to figure out what those word mean) Riddle me this: When you’ve spent the past 20-plus years as an IP attorney, or litigating hundreds of (fill in the blank) cases, or exclusively representing families in divorces, why shouldn’t you be able to call yourself an expert or specialist? With or without a state certification in such a field? But the state bar associations have no problem with you branding yourself a Super Lawyer or Best Lawyer (with or without the plaque). If you have past experience, and verifiable results, why should you not be allowed to communicate that to the purchasers of your services? Oh, wait, you now can, thanks to the First Amendment. I just wonder how many billable hours and attorney fees went into getting to that decision that seems so obvious to this “non-lawyer”? (probably enough to call yourself a specialist in Constitutional Law.) Once again, let’s give it up for the First Amendment … now, if we can just get rid of some of those other crazy disclosures rules.      

California Supreme Court in San FranciscoThere’s a case before the California Supreme Court, Simpson Strong-Tie Co. Inc. v. Gore, which could give lawyer ads protection as free speech.

The contested ad, which you can view here (p. 17), is, well, quite boring and innocuous, but that’s a whole other discussion.

The questions at hand is: is the lawyer’s ad considered commercial speech, and therefore “isn’t protected by the state’s anti-SLAPP statute,” or is it free speech and therefore Constitutionally protected?

[The ad] — which was two sentences long — was composed by Los Gatos class action lawyer Pierce Gore and appeared in early 2006 in the San Jose Mercury News and the Los Gatos Weekly Times. It advised wood deck owners to contact Gore if they had built their decks after Jan. 1, 2004, with galvanized screws manufactured by three companies, including Pleasanton-based Simpson Strong-Tie Co. Inc., because they might be entitled to monetary compensation or repairs.

Simpson — the world’s largest manufacturer of screws for use in wood-frame construction — sued Gore, alleging defamation and false advertising, but Gore filed an anti-SLAPP motion, accusing Simpson of trying to stifle his free-speech rights. A superior court judge granted the motion and in 2008 San Jose’s 6th District Court of Appeal affirmed, creating a conflict with Los Angeles’ 2nd District.

As a legal marketer I’ve always had concerns about the restraints on lawyer advertising where the First Amendment is concerned, and the arguments in this case will have wide-spread implications.

[Jon] Eisenberg contends that the ad is unprotected commercial speech because it contained representations Gore made about his business and statements he made in the course of delivering his legal services.

But Thomas Burke, a First Amendment specialist and partner in Davis Wright Tremaine‘s San Francisco office who represented Gore, disagreed.

The commercial speech exemption to the anti-SLAPP law, he argued, applies only to “representations of fact” made about the operations, goods or services of the speaker or a business competitor. There was no statement of fact in the ad, he noted, and it did not pertain to Gore or his competitors.

Burke also mockingly said the ad could have won the Hall of Fame award for “benign” advertising and was based on warnings in the news.

“There was a consumer alert before Gore issued his notice,” he said. “There was an investigation by the Contra Costa County district attorney’s office.”

I, for one, am rooting for the First Amendment here and will keep an eye out for the decision in the case, which is due within 90 days.

Disclaimer: As always, I am not a lawyer and I don’t even pretend to play one at work or in bars. These are just my humble opinions.

Oh, those kids over at the Florida Bar Association are kicking it up again.

My friend (and guest blogger) Gail Lamarche just posted this link over on the Legal Marketing Association‘s member listserv, The Florida Bar Guidelines for Networking Sites (updated as of January 10, 2012).

Before we all start to panic, go read the actual guidelines.

As I have said many times, what you do IRL (in real life) needs to apply online, and that’s what I’m seeing here:

Florida is simply attempting to extend their (overly restrictive, in my opinion) current rules to the social platform.

However, I’m no lawyer, so this is not advice. Just the opinion from the marketing hack.

I think my colleague Igor Ilyinsky said it best, “Be careful who you friend – as they can report you to the (state) bar.”

In other words, you can do it, just don’t be a jerk, piss someone off, and get reported.

Seriously. When was the last time a corporate attorney was reported to the state bar for sending out an email?

So, yes, Virginia, you can have a Facebook page, and you don’t have to include a disclaimer:

Pages of individual lawyers on social networking sites that are used solely for social purposes, to maintain social contact with family and close friends, are not subject to the lawyer advertising rules.

Don’t spam people on LinkedIn:

Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer. Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, or persons who have requested information from the lawyer. Direct e-mail must comply with the general advertising regulations set forth in Rule 4-7.2 as well as additional requirements set forth in Rule 4-7.6(c). Information on complying with the direct e-mail rules is available in the Handbook on Lawyer Advertising and Solicitation and in the Direct E-Mail Quick Reference Checklist on the Florida Bar website.

Watch those testimonials:

Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.

If they follow you on Twitter, they are signing up to receive what you send:

Lawyers who post information to Twitter whose postings are generally accessible are subject to the lawyer advertising regulations set forth in Rule 4-7.2 as above. A lawyer may post information via Twitter and may restrict access to the posts to the lawyer’s followers, who are persons who have specifically signed up to receive posts from that lawyer. If access to a lawyer’s Twitter postings is restricted to the followers of the particular lawyer, the information posted there is information at the request of a prospective client and is not subject to the lawyer advertising rules under Rule 4-7.1(h).

Keep it simple and you don’t have to report it:

Finally, the Standing Committee on Advertising is of the opinion that a page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.

And, in the words of Wendy L. Patrick, don’t engage in false or predatory friending. Use your manners, and common sense.

Now, I obviously cut and pasted information that I wanted to highlight from the Florida Bar Association. There’s more to read, so go read it, here.

As a marketing director, I do encourage every attorney to connect on LinkedIn with people they meet. You’ve MET them already. It’s okay.

If you speak at a conference, and they give you their business card, send a request to connect on LinkedIn (Jim, it was great meeting you at the ABC conference earlier this week. Next time you’re in L.A. make sure to give me a call. I’d love to grab a cup of coffee with you).

If you attend a conference, and hear great speakers, connect with them on LinkedIn (Mr. Smith. I heard you speak at the ABC conference this week and really enjoyed what you had to say on XYZ. I’d like to add you to my LinkedIn connections).

My marketing advice is simple: Conduct yourself online as you would in the real world. Be authentic. Be polite. Don’t spam. Don’t be a jerk. Don’t engage in predatory friending.

Image via Legal Juice.

Can I get a Hooyah! for Ed Poll’s tip today, Lawyers in a “Guilded” Cage? (sic) Anyone who works in the legal industry in Florida, and most legal marketers nationwide, know that the rules restricting lawyer advertising and communications in Florida are the most restrictive in the nation. Hiding behind the “profession” of law, the need to protect the “unsophisticated” purchaser of legal services, and, well, the snobbishness of corporate attorneys on how to deal with those pesky consumer defense practices, the Florida Bar prohibits and restricts most forms of communications which, per my non-lawyer’s eyes and for what is strictly my PERSONAL OPINION, are in clear violation of the First Amendment rights of lawyers and law firms. As a legal marketer, I cannot imagine taking on the challenge involved when it comes to overseeing law firm marketing and advertising in Florida, and have great respect for my friends and colleagues who do so. There are so many hoops to jump through, that, well, I just avoid Florida every chance I get. In the past few years, however, individual lawyers, law firms, and the ACLU have begun fighting back, and the First Amendment is winning. Hooyah! Per Ed’s post today:

Now it appears that some lawyers may have had enough. As reported in the New York Law Journal and summarized in the ABA Journal, the Florida Bar (which imposes some of the strictest regulations in the country on lawyer advertising) has run into a “firestorm” of objections from law firms, the ACLU and the Federal Trade Commission over its attempts to make those rules even tougher. The rules proposed to ban online testimonials, summaries of case results and “deceptive, misleading, manipulative” or confusing audio or visual content, resulted in protests that such restrictions are overly vague and unfair. The Florida Bar offered a “compromise” that would allow existing web sites to be viewed if visitors clicked through a disclaimer process and double-click barrier in order to get useful information about legal services. When major law firms protested loudly, the Bar put off its July 1 implementation deadline and is allowing lawyers to submit comments through mid-August for further modifying the rules. It is one thing to regulate for truth and fairness in promotional statements, and to restrict hyperbole so as not to create false expectations. It is another thing to say how the communication can be framed, create vague restrictions on what can and cannot be said, and impose physical restrictions on information that should be freely available. The Bar seeks to regulate lawyers in ways that other professional associations do not, would not and could not. The losers are small firms and sole practitioners – and those clients who would benefit from learning about them.

Josh King, General Counsel and Vice President of Business Development for Avvo, guest blogged here about the recent 11th Circuit decision in Harrell v. The Florida Bar. That’s right, Florida. Take that. Lawyers are business people and you will soon see that they have the RIGHT to operate their businesses as, well, businesses. States already have laws in place for “truth-in-advertising,” for ALL businesses. In California, businesses are governed under Business and Professions Code at §17200 and §17500. Federally, the Lanham Act (15 U.S.C. 1125), which is generally enforced by the Federal Trade Commission (FTC) can, and should, cover law firms. Really, for how long must we continue to stamp “advertising” on all of our advertisements and communications, just to be on the safe side? For how long will we have to include “newsletter enclosed” in a 10 pt font on all envelopes carrying newsletters? How many disclaimers on websites, blogs, and at the bottom of every email MUST we include, and how often, and how big, and how long?? Is it our responsibility to make certain that the consumer understands that the disclaimer at the bottom of the web page includes the disclaimer? Or, per the Florida Bar Association’s proposed “compromise,” why should the consumer have to click “through a disclaimer process and double-click barrier in order to get [to the] useful information about legal services”? Come on, if you’re going to ban anything, how about banning legalese?? That will do more for consumer confidence and understanding than the standard disclaimers I read. Ahhhh, I do love the smell of a First Amendment win against restrictive bar rules. The battles are being won, and, hopefully, the war will be won one day as well. Hooyah!

A big buzz word these days is “transparency” and what it means. For me, transparency on a blog and in social media is the foundation for the trust we are attempting to build with our reader.

I like how Social Wayne describes transparency in social media:

Transparency in social media especially pertaining to blogging and covering a product, brand or service means that’s I’m giving you an honest non-biased opinion or truth when I write or cover a particular topic. Online this can mean that, I am who I say I am online and that my reason for posting or having a discussion about a product, brand or service does not have any hidden agendas. Or if I’m posting or having a discussion about a product, brand or service and was paid or hired to do so, you’ll know about it up front or it will be included in the conversations.

Which brings me to ghost-blogging and legal ethics, which popped up in Legal Blog Watch’s Ghostbusters of the Blawgosphere Take Aim at ‘Ghostblogging’:

It feels like a debate that has been going on for weeks, but it was just Thursday of last week when attorney/ghostbuster Mark Bennett wrote on his Social Media Tyro blog about “ghostblogging.” Bennett wrote that “[h]olding someone else’s resume, face, or results out as your own in marketing your practice is fraudulent. No ethical lawyer could possibly think that any of that would be okay. So how is it okay for a lawyer to hire a ghostwriter to write his blog?”

I’m not going to address the back story of this blog post, you can read that for yourselves. However, the idea of ghost-blogging does bring up legal ethics, as defined by our state bar associations. In a post yesterday, Use your blog to tell a story, I stated that in California it is not ethical for an attorney to use the term “expert” or “specialist.” Call me old school, but it’s a conservative interpretation of Section D of the California Bar Association Rules of Professional ConductRule 1-400 Advertising and Solicitation:

(D) A communication or a solicitation (as defined herein) shall not:
  1. Contain any untrue statement; or
  2. Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or
  3. Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public; or
  4. Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or
  5. Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.
  6. State that a member is a “certified specialist” unless the member holds a current certificate as a specialist issued by the Board of Legal Specialization, or any other entity accredited by the State Bar to designate specialists pursuant to standards adopted by the Board of Governors, and states the complete name of the entity which granted certification.

I am not a lawyer, and I don’t even play one at the water cooler, but I would think ghost-blogging might be frowned upon via sections D-1 (you didn’t write it), D-2 (you didn’t write it), and, D-3 (you didn’t write it). Yes, there is the argument that associates write content for partners to slap their names on, but in our firm, and other firms I have worked at, the partners are usually involved in the writing process, if only serving as a senior editor, and the associates do get credit for their work product. The product, however, is collectively and solely produced by the firm. So I’ll ask the same questions posed by Bruce Carton:

  • Is it ethical to have a ghostblogger secretly write your blog?
  • If not, what if you disclose that fact somewhere on the blog?
  • Is there anything wrong with ghostbusters such as Bennett highlighting and linking to a page on the LGB Web site that publicly lists its clients?
  • If not, would it be appropriate for ghostbusters to “out” people who secretly use ghostbloggers?

So, Coolerites, what say you??

Back in 1977, Bates v. Arizona paved the way for legal marketing as a concept, industry and career for many of us.

The concept of free speech, while a cornerstone of our society, seems to be lost on the law. It has been tossed aside again and again because, for some reason, lawyers and the law are “different” than plumbers, electricians, auto-mechanics and others who sell services that we “unsophisticated” consumers purchase.

And now the latest law suit in defense of free speech has been filed. AVVO, love them or hate them, might break down another wall. Their Web site allows for client testimonials, which are banned by the Florida Bar Association.

According to The National Law Journal, “Public Citizen’s suit argues that the Florida Bar Association’s rules violate attorneys’ free speech by holding them accountable for client posts on Web sites that the attorneys don’t control.”

It will be interesting to see where the law suit goes. I, for one, am rooting for free speech!