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."

Amen.

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.

Are the human beings who work for the NSA today different from the human beings who worked for the FBI in the 40's and 50's?

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.

Ernie points to a recent (and some might call mind-boggling) ruling of a federal judge that requires the opposing attorneys in a case to settle their latest dispute with a game of "rock, paper, scissors."

Ernie does a nice job of explaining the basis point of our court system and concludes, succinctly, that:

Hell, when a federal judge has to tell the attorneys to use a child's game to resolve their disputes then you know the system is completely broken.

I'm willing to be persuaded otherwise, but I completely agree with Ernie. This isn't Law 2.0.

Where do we go from here? What client is going to be happy with this kind of ruling and the behavior that leads to it? Will lawyers chuckle at this and similar stories as they reap the unintended consequences of breaking the court system? If lawyers make a joke of these matters, why should we expect others to take us or the court system seriously? Consider Ernie's comments carefully.

More on the underlying story here.

Then I read the following in the article Denise linked to:

"From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print."

What, what, what? What about the practicing lawyers with blogs who try on a daily basis to translate legal issues and legal developments into practical explanations and a conversation that we can all understand.

Looks like we have more work to do at the Between Lawyers blog, RethinkIP, Evan Schaeffer's Legal Underground and the many other lawyer and law librarian blogs that are changing the dynamic and the way that the law is discussed today before we get our message out there.

Or maybe the message really is getting out there already. If Marty is getting a million hits a month talking about trademark law, I submit that lawyer bloggers are talking about law in ways that people want to hear it talked about.

Look, I like the law professor blogs and law student blogs, but ultimately what we all really want to find are practical answers to real-word legal questions, issues and problems that face us.

Check out Denise's recent post "Apple v. Does Decision Issued" if you want to see where I think blogging is leading us in the ways we discuss breaking legal developments.

I enjoyed Lithwick's article and agree with her main premise about the value of law-related blogs and what they add to the discussion of legal issues, but I'm surprised by the over-focus on law professor blogs and the invisibilty in the articles of the categories where most of the law-related blogs live.

Interstices are OK for some things, but there are good reasons we called this blog "Between Lawyers" rather than "Jurisprudential Interstices."

What do you think?

I don't know anyone who does not admit to having similar problems when I press them, even though they seem to love their actual cell phones - the hardware, that is. What the heck are we all paying for?

Tonight, I found a podcast of a a presentation from Ed Zander of Motorola and here's the description:

Motorola Chairman and CEO Ed Zander says the ultimate cell phone would come back into the home–that is, it would be the only phone one would need. But that development seems far away for users in North America. “People always say to me, ‘I can go to China, and go to the Great Wall of China and make a better phone call than here in the United States,” Zander offered during his keynote interview with Gartner analysts Nick Jones and Ken Dulaney. “And it’s probably true,” Zander noted.

Zander is more polite than most people I know when they get started on this topic - here's a link to the podcast - http://www.podtech.net/?p=645. Check out his point of view.

What do the rest of you think of cell phone service in the U.S.? What are we getting for what we are paying? Is it reasonable to expect more? Or am I the only one this really bothers?

The Wired GC has now weighed in with a thoughtful and thought-provoking post taking a client's point of view, the first of what he promises will be several posts on the topic. I can't wait to read them all.

The Wired GC stirs the pot with a couple of must-read observations, but here's the money quote:

(We of course know it’s not about price-fixing.)

Hmmm, there's that one hyphenated word.

I remember an earlier round of associate salary increases back in the dot-com era when I was on my firm's hiring committee. As we considered, all the issues you read about in the discussion of the economics of these issues and the need to raise salaries to attract new lawyers, a good number of my friends in small law firms kept using that hyphenated word - "price-fixing." I never bought their arguments.

The category of this post is called "Provocations." Here comes the provocation and we'll see what discussion we get.

In recent months, I've noticed a ratcheting up of the "protections" of the legal profession from within - stories about lowering the rates of bar exam passage, decisions that law firms can't use certain types of advertising (pit bull ads anyone?), other efforts on preventing "unauthorized practice of law," and and now law firms all over the country raising starting salaries by same amounts in all but unison.

Is the legal profession begging for outside (governmental) investigation, intervention and antitrust regulation?

I'm just raising the question to see what people think, not necesarily as a reflection of my own opinion.

Thanks to the Wired GC for asking some tough question. I highly recommend his post.

Imagine that you can have an Internet communications feed between a lawyer in a courtroom, arbitration hearing or deposition and other lawyers, outside experts and/or client representatives who receive a live feed from the proceedings. Those outside the proceedings can use instant messaging or other techniques to assist the lawyer at the proceedings in much the same way they might if they were physically present.

I saw this kind of technology demoed live at the ABA TECHSHOW in 1998. I thought that it was a great way to improve the representation of your client and offered some significant benefits for training and supervising lawyers, savings on travel costs, and the like.

Move the clock forward eight years.

The Detroit News has a story called "High-tech snooping corrupts legal system: Attorneys in legal case transmit private arbitration hearing to off-site consultants," in which there are scathing denunciations of what seems to me to be exactly the same use of technology.

As I understand the story, there does not seem to be a question about whether the outside consultant could not be in the arbitration hearing, although there is a lot of discussion about whether this use of technology should be disclosed to the other side. There is not a lot of discussion about whether this approach afford a client better representation.

Here's my question: Am I missing something here if I am thinking that this is an innovative use of technology (even though the tech has been around for awhile) rather than a "corruption of the legal system"? I'm willing to learn where I'm wrong, but I like this use of technology.

What do you think?

The article then goes into detail about what might and might not be permitted in the rounding of time to the nearest billing increment. Read it yourself. I'll simply note that some of the examples referred to specific questionable practices that looked suspicious on their faces.

The most interesting comments are from a law professor who suggests than ANY rounding should be prohibited. In other words, time entries would become 5 minutes, 24 seconds, rather than .1 hour. The technology, she suggests, is available to do this. This might give new meaning to "being on the clock." Before long, embedding chips directly into lawyers' brains might make timekeeping even more accurate.

You might want to read this article right before you read Ron Baker's recent comments about lawyers as knowledge workers.

This might also be a good place to plug my recent white paper on improving time capture for lawyers, a topic which might have become much more interesting to lawyers, especially those in Kansas.

If this article makes you think about alternative billing models, Tom Mighell and I wrote a couple of columns about resources on this topic here and here.

Technorati tags: law practice timekeeping legal ethics billable hour between lawyers

It goes without saying that this state of affairs again raises the "are we safer now?" question and, if you read the entire article, you'll wonder where priorities really lie in the current bureaucratic approaches.

HOWEVER . . .

In the middle of Hayes' article comes one of the most intriguing, even innovative ideas we are likely to see in the field of intelligence analysis.

Consider this quote:

Following several weeks of debate, a consensus has emerged: The vast majority of the 2 million captured documents should be released publicly as soon as possible.

Defense Secretary Donald Rumsfeld has convened several meetings in recent weeks to discuss the Pentagon's role in expediting the release of this information. According to several sources familiar with his thinking, Rumsfeld is pushing aggressively for a massive dump of the captured documents. "He has a sense that public vetting of this information is likely to be as good an astringent as any other process we could develop," says Pentagon spokesman Larry DiRita.

Fascinating stuff. Surely putting thousands of eyes onto these documents must be better that storing them in boxes. It would also be interesting to see what cutting-edge scanning and analytical tools used in electronic discovery could do with these materials.

I encourage you to read the article and draw your own conclusions. I find this story quite troubling and think that it would be a good idea to "open source" this material rather than to keep it in closed boxes. A public debate over the issue would also be worthwhile. Consider this approach in contrast to John Robb's recent comments on the problems of isolated decision-making.

". . . intervention in a partisan conflict in the Texas House of Representatives using the resources of a Federal agency, the Federal Aviation Administration. This action raises serious concerns under House standards of conduct that preclude use of governmental resources for a political undertaking."

How did President Bush and other high-ranking officials respond to this mis-use of governmental resources?

Did they say something along the lines of: "This is wartime - the government is asking for unprecedented powers over the citizenry, therefore those in government must do their utmost to uphold trust that it will yield power responsibly. Congressman Delay's actions erode that trust"

No, they didn't say anything like that.

And when Delay gets indicted, the President uses his presidential prerogative to do Delay a favor, a favor that has been characterized by Democrats as jury-tampering.

Resistance to heightened governmental power is not based on a desire to coddle terrorists, but, among other reasons, on a fear that these powers will be abused. These fears are not hypothetical.

Discussion here.

"I am retaining a copy of this letter in a sealed envelope . . . "????

"And, therefore, we're working with Congress to make sure that as we go forward, we make it possible -- more possible to do our job. There's an enemy that lurks and plots and plans, and wants to hurt America again. And so, you bet, we'll aggressively pursue them. But we will do so under the law. And that's why you're seeing members of my administration go and brief the Congress. We want to work together in this matter. We -- all of us have an obligation, and it's a solemn obligation and a solemn responsibility. And I'm confident that when people see the facts, that they'll recognize that we've -- they've got more work to do, and that we must protect ourselves in a way that is lawful."