Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at firstname.lastname@example.org.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at email@example.com.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at firstname.lastname@example.org.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at email@example.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
Legal marketing guru Burkey Belser takes a few stabs at the recent New York and Florida efforts to restrict legal advertising and communications in his post "Rotten to the Core." I agree with his assessment that the law of unintended consequences will apply many times over with these rules and the risks of arbitrary enforcement are quite high.
The money quote:
One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.
There's good practical advice in the post and a helpful chart you can download.
I'm sure we'll see more commentary later, but there's a lot to read and digest.
My first quick read gave my the odd feeling that I was reading a new Miranda marketing warning for legal marketing ("You have the right to remain silent. Anything resembling marketing that you or your law firm may do may be treated as an ethical violation."), but I'll reserve judgment until I can read the rules more closely.
Two thoughts: First, I think that my characterization of the proposed rules as "micromanaging" is even more true of the final rules. Second, I believe that this type of state regulation, which undoubtedly will be picked up by other states, all but begs the FTC to step into lawyer regulation.
I understand that the next item on the New York agenda is a lawyer dress code. ;-) Hmm, maybe that's not so far-fetched. Consider this quote from the Caher article:
Finally, the new rules ban advertising "techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence." That provision was added partially in response to advertisements run by a Long Island, N.Y., attorney who permitted herself to be filmed in provocative poses to tout her real estate practice. Those ads generated complaints from Long Island practitioners who noted that the attorney's cleavage had nothing to do with her legal abilities, officials said.
The one element of these new rules I really like is the use of the all-but-forgotten word "moniker." I assume that the rules on use of monikers may bring the end to Morrison Foerster use of the term of endearment "MoFo." Heh.
I'm quite curious to see what the response of New York lawyers will be to these rules.
Bar regulators in New York and many other states will be on the phone scheduling meetings to stamp out some of the new and innovative marketing ideas in Ari Kaplan's new article, "Lawyers Must Get Creative About Marketing."
There are some great ideas and insights in the article. I personally would be afraid to try them in today's increasingly "Lawyers Must NOT Get Creative ABout Markeing" environment. The biggest danger: since the suggested methods are reasonable and recommended by marketing experts outside the legal profession, they might work.
As we continue to keep our eyes on the proposed regs in New York and elsewhere and the ongoing efforts of regulators to cause the FTC to regulate the regulators, it might be useful to think about Between Lawyers' own Denise Howell's quote in this article:
Blogging reaches a broader, more distributed audience, and provides a search-friendly, enduring archive of knowledge-oriented breadcrumbs.
Unless you're our colleague Ernie, that is: "I don't want to put any disclaimers on my blog," said Ernest Svenson, a blogger better know as Ernie the Attorney. "It's a buy-in to a mindset that I want to go away." Well said, as to what should by rights be able to remain unsaid.
Bruce Marcus, one of the most-respected voices in legal marketing, has a very thoughtful analysis of the problems raised by New York's proposed regulation (or is it micromanagement?) of lawyer communications. His historical perspective is a welcome addition to this discussion and I hope that regulators will read and consider it, as will you.
The money quote:
To consider legal blogs as mere promotional devices is to ignore the significant contributions the legal bloggers make to the practice. And if, in the course of dissemination of information and informed opinion somebody gets the idea that one lawyer’s blog indicates that the blogger’s view of law is more thoughtful than the firm currently being used, there’s more benefit than harm – to both the profession and the clients.
Kevin O'Keefe reports that "FTC staffers, with the backing of commissioners, say they are concerned the changes are not specifically tailored to prevent deception and could instead suppress truthful, nonmisleading advertising."
The New York efforts are one more round in the continuing state-by-state trend of vague, micro-managing restraints on lawyers' speech which are all-but-impossible to understand, let alone comply with, and directed at "problems" that existing rules should cover and have many unintended consequences, the most unintended of which may be to bring the FTC or some other Federal inititatives into the regulation of lawyers. In the current environment, national rules promulgated by the FTC might well be better than the crazy-quilt of state regulations we are now seeing.
Food for thought: As Kevin O'Keefe says, "Strange that the FTC may have to protect consumers from lawyers passing restrictions supposedly to protect consumers. Looks to me like 'well entrenched lawyers' are passing restrictions to prevent younger lawyers from taking some of their legal work through education based marketing that helps consumers."
More details and comments on the proposed rules can be found here and here and here and here. My comments from a few months ago can be found here.
Let's discuss, because the expansive definitions in the New York rules mean, on their face, that the rules may apply to any lawyer anywhere with a web page, let alone a blog.
As I read the rules, EVERY public communication is an advertisement and any communication that isn't an advertisement is probably a solicitation. That should cover almost every communication between lawyers and the public.
In either case, a shocking number of draconian and micro-managing rules will apply.
I'll let others consider the free speech and other aspects of these rules, but I'd love to see some marketing experts analyze what the actual marketing effectiveness of any communication that satisifes these rules will have. My tentative conclusion is that if an "advertisement" or "solicitation" might in even a limited way be effective, it will violate the rules. If it has even been recommended as an effective form of marketing, it will probably cause you trouble.
This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era.
Should you care? Well, consider this quote from the rules: "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this state if the lawyer provides or solicits any legal services in this state." Take a quick look at the definition of "computer-accessed communication" in the amended rules and consider how a website or blog located anywhere is likely to be treated by the plain language of these proposed rules.
Once again, we see a concern about a limited problem being turned into wide-ranging regulations that will have enormous unintended consequences and seem designed primarily to protect established, successful practices from new competition.
Are we seeing the last gasp of an attempt to apply 19th century concepts to a 21st century world, or will lawyers be the only group able to roll back the changes the Internet has brought to the rest of the world? I'm betting on the Internet, but I'm quite curious about what others think about these proposed rules and others like them. It might be a good discussion topic for a summer Friday.
Looking for another unique, technologically attuned way to market yourself, firm, and/or practice? You could always try gaming MySpace. Or Digg, for that matter. (Please know I'm just kidding, and think those who game social networking sites are a life form on the same sub-primate order as spammers.)
David Hudson's article, "Florida Muzzles Pit Bull Ads," in the ABA Journal eReport tells the detailed story of the recent Florida Supreme Court ruling that the law firm Pape & Chandler's use of a marketing logo and campaign featuring the image of a pit bull violated Florida's Rules of Professional Conduct. It does a great job of talking with people involved in the case and analyzing the arguments and the ruling.
I mention this decision because it iillustrates how difficult it is for lawyers and law firms to do "creative" advertising and, indeed, use the normal types of advertising techniques that are commonplace in advertising for other goods and services. This case should show those outside the legal profession why lawyers seem so reluctant to try standard advertising and marketing approaches and why many inside the profession think the rules create a minefield of potential problems for both the unwary and the well-intentioned.
The money quotes;
[T]he Florida Supreme Court reversed the referee’s ruling, finding the pit-bull ads "demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice."
The state high court relied in part on the comment to Rule 4-7.1, which provides: "A lawyer’s advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements using slogans … fail to meet these standards and diminish public confidence in the legal system (Note: emphasis mine; quoting the material quoted in the article, which uses the ellipsis)."
The law firm plans to appeal the case to the U.S. Supreme Court. It might be interesting to hear Judge Alito's answer to a question about this type of regulation of the legal profession.
My own opinion, for what it's worth, is that rulings such as this one provide a real disincentive for lawyers who want to innovate in almost any aspect of the practice of law, whether they are in Florida or elsewhere, because of the "chilling effect" that they create. I'm curous what others think.
The opinion does seem to only address actual advertisements. As you may have noticed, many law firms have marketing slogans these days. It'll be interesting to see how other Florida firms change their ads in light of this ruling.
Adam Smith. Esq. has a commentary, noting that Boies' high-profile in corporate governance matters makes this matter particularly embarrassing.
An interesting point to consider is proper procedure for 'selling' ancillary services (note: even the act of recommending another lawyer within your firm to a client is conceivably 'conflicted' advice).
Question for discussion: The law places a lot of stock in disclosure. Is disclosure sufficient protection when a lawyer gives advice where his or her interests or not necessarily aligned with those of the client?
Here's FindLaw's lawyer marketing page, launched this week, including this article mentioning BL, quoting Tom, and weighing in on the "are blogs advertising" issue: "Do lawyers need to be concerned about the ethics rules on lawyer marketing when they blog? Well, yes. But no more so than in any other forum in which a lawyer writes or speaks."
Commenting on a post at my other blog about the session on "The Law Now" that will be part of next week's Gnomedex, Enrico Schaeffer writes:
The thought that new business models in the law can thrive is starting to take hold. I have launched a firm, branded, marketed and implemented around the concepts of technology and service. We use flat fee, project-based and shared risk billing models which clients love. Our blog generates several new clients per month and will certainly generate six figures in revenue this year. Within 4 months, we have grown from one attorney and one secretary to include one additional office staff person, three virtual law clerks and one virtual paralegal. We have already grown out of our space.
I attribute our success to our alternative business model. How hard is it to distinguish yourself from a bunch of stuffed suits who can't see beyond hourly billing?
Dennis writes that, despite his far from meager intellect and his best efforts to be a good soldier, he doesn't "have a clue about what you can and can't do anymore" regarding being a lawyer and being on the Web, and prays for rules that make sense for 2005 and beyond. Amen to that. Two quick hits as well in response:
An old post of mine discussing the blurring of distinctions between the personal and professional online, and the failure of the ethical rules to keep up: "[W]hat's a 'blawger' to do?"
In the ad, the Florida firm had the unmitigated audacity to use a print ad that featured a row of ice cream cones, with the final ice cream cone in the row (note to lawyers: this ice cream cone metaphorically represented the law firm) having three scoops of ice cream rather than the single scoop found in the other cones.
However, it was neither the use of pictures nor the use of metaphors that caused the concern.
The ad had a tagline that said: "expect more from your law firm." No, it wasn't even the lack of initial capitalization that caused the problem.
Instead, the problem was this: "the phrase 'Expect [sic] more from your law firm' created 'unjustified expectations about results the attorney can achieve' and 'compares the services of one attorney to another without factually substantiating the comparison.'"
In a nutshell, there you have the lay of the land in the sometimes incomprehensible world of lawyer advertising.
The good news is that the Florida authorities reversed their decision. The bad news is that there is a regulatory environment that provides disincentives for lawyers and law firms to use any kind of normal (meaning "effective") advertising methods while seemingly ignoring what would seem to be violations of advertising rules if you could even figure out what the rules mean.
I've complained about this state of affairs before (here, here and here, for example). My belief is that it is too difficult for a well-intentioned law firm or lawyer who wants to comply with all of the rules to have any confidence that they have done so with any level of confidence.
I've also studied and tried to comply with the advertising rules for lawyers for the ten years that I've had a website. I wrote about and spoke about these issues nearly ten years ago. I think I know the rules and the decisions interpreting these rules pretty well.
And I don't have a clue about what you can and can't do anymore. The wheels on this train went off the track a while back and it's time to give some thought to getting things back on a track that makes sense for 2005 and beyond. Who was being protected by the first decision of the Florida authorities about teh ice cream cone ad?
Here's a quiz. Can you spot at least three issues raised by the following seemingly innocuous description of a law firm and its services under common interpretations of the ethical rules covering lawyer advertising?
XYZ law firm is a national full-service law firm with offices in the eastern United States. XYZ has the breadth and depth of resources to deliver the highest quality legal services to a broad range of individual, corporate, nonprofit and government clients.
(1) Use of term "national" when they only have offices in eastern US.
(2) "full-service" has been considered an inaccurate, misleading term, based on the reasoning used with ice cream cone ad.
(3) "highest quality" is, of course, not objectively provable and at least implies a comparison to other lawyers.
You may have additional answers.
What, then, is the purpose of these rules and do they (and state-based regulation in general) make sense in 2005? I simply ask the question.