Given the amount of time I spend thinking about legal marketing and its impact on the legal profession, I couldn’t help but watch in amazement/amusement the debate between Lexblog honcho Kevin O’Keefe and Tom Watson, Senior Vice President at Wisconsin Lawyers Mutual Insurance Company.
Watson wrote about a cautionary post about the perils of social media.
Use social networking sites to better serve your clients and help create new business. But do not lose sight of your ethical obligations in accessing, or protecting a client from, information disclosed electronically.
He also gave a long list of horribles, and short list of benefits. This made Kevin start to sweat profusely, and prompted this response.
I don’t know whether Watson uses Twitter, Facebook, or a blog to build and nurture relationships or enhance his reputation as a thought leader on malpractice insurance statewide or nationwide. He may not fully appreciate how social media works nor the benefits it brings to the public an lawyers.
I understand that he is just doing his job as a legal malpractice carrier and that he is citing other authorities for much of what he writes. But my gut tells me articles like this on the perils of social media do far more harm than good to lawyers and the public we serve.
Things get uglier in the comments, where Watson argues that he’s saying nothing more than be cautious, and Kevin, in an interesting rejoinder, questions whether anybody has ever been disciplined for something they did on social media.
This is a dangerous question in the abstract, but because there have certainly been disciplinary cases involving social media (even if Kevin doesn’t know about them), but more importantly, the sine qua non of ethics isn’t whether someone was nailed for a violation of a disciplinary rule, and the suggestion that anything that doesn’t land you in lawyer-jail is cool is, frankly, dangerous and foolish. Some of us prefer to be ethical. Some of us prefer to do whatever serves our self-interest, provided we don’t get caught. What’s your preference?
While the dispute didn’t strike me as too, well, serious, it apparently compelled Kevin to write another post questioning whether the use of all social media is subject to ethics rules. This is where an otherwise mundane disagreement becomes interesting.
The simple answer is that everything a lawyer does is subject to ethics rules. Being a lawyer is a 24/7 gig, and no one should be confused about the obligation to be ethical after hours. But that’s not really the issue Kevin’s raising. Rather, the issue is whether all use of social media is advertising, and therefore subject to the rules for attorney advertising.
To answer this question, it helps to know the definition of commercial speech, which is subject to intermediate rather than strict scrutiny, and can therefore be regulated provided the government has pretty good reason and it’s regulations don’t go too far over the edge.
Kevin kicks the question over to my buddy Josh King, who holds the curiously divergent positions of general counsel of Avvo and VP of business development. In a video interview with Colin O’Keefe (Kevin’s son and a great kid) done at Avvocating 2012 (see my keynote address that went undelivered), Josh defines commercial speech (and thus speech subject to regulation as attorney advertising) as speech which “proposed a commercial transaction.”
Well, yeah. That’s accurate as far as one definition is concerned, but it’s not the end of the story, both because defining a word by using the word in the definition never works, and more importantly, that’s not the end of the definition. Caselaw also defines commercial speech as that which informs the public of the quality, nature and availability of good and services. That means much of the writing by lawyers in social media is certainly commercial speech. All of it is not.
This is where Kevin gets himself into trouble, with an unfortunate attempt at analogy:
Is fashion attorney Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?
Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers.
Is Riordan’s activity on Twitter and Facebook advertising? How about her Fashion Law Blog?
For some reason, I suspect Staci’s making partner had more to do with her abilities as a lawyer than her blog. Why Kevin would choose to diminish Staci’s substantial professional accomplishments in order to promote her blogginess, wrapped up in such absurdly pretentious language that it makes me wince, is that it serves his interest, the promotion of blogging. Staci deserves better.
But the problem is that if Staci’s blog was directed to the purposes Kevin attributes, it would likely be commercial speech rather than substantive speech. If her purpose is to grow business rather than illuminate issues in the law, then it’s about the quality and nature of services for sale. Sure, Kevin tosses in at the end “better lawyer,” but nothing else he’s written suggests any connection whatsoever. It plays better if you try not to think too hard.
So what’s the point? It’s hard to imagine how anyone without a direct financial interest would have a problem with Tom Watson’s admonitions to be cautious and ethical in social media. We should be ethical in everything we do, and this shouldn’t be controversial. Similarly, Josh’s argument, that we ought to push the limits of ethics to test how far we can take speech to reap financial rewards is troubling. It seems like the Gordon Gecko version of ethics in the age of greed.
As for Kevin’s point, perhaps he’s right that there are financial benefits to engaging in social media, though I’ve never found it to be true, or that the trade-offs come close to making it worth your time if your purpose is to develop business. There may be that one in a thousand lawyer who’s gotten enough business off the internet to make it worthwhile, and I don’t begrudge her if that’s the case.
Yet, denying that social media doesn’t hold the potential, if not the likelihood, of being a vast cesspool of unethical conduct by lawyers is fundamentally wrong. It is not a truth-free zone. It is not absolved from ethical considerations because it’s web 2.0. It is not an opportunity to put on those pink hotpants and strut down the boulevard.
You want to use social media to generate business? Heed Tom Watson.
And now we return to our regularly scheduled programming.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Blawgers are people, too, my friend. Flawgers, not so much.
Not even if they “nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers”?
Or is that just fancy talk for strut their stuff and hope someone buys?
This is what I understand to be Kevin O’Keefe’s argument:
1. The fundamental purpose of blawging is client development and networking.
2. Writing posts to educate the public or to address ethical issues affecting the legal profession, while laudable, is Blawging-Lite.
3. Blawging is protected commercial speech and is not, with a few exceptions, subject to legal malpractice claims or discipline under applicable Lawyer Codes of Ethics.
5. Blawgers who “indirectly” advertise their “knowledge, skill and “expertise” by writing posts on legal developments are generally sound-minded, responsible, ethical professionals.
6. Therefore, Blawging is not an activity that constitutes the practice of law, or should be regulated or governed by state bar associations.
The logical flaw(g) in Kevin’s argument is that any form of activity—blawging, tweeting, public speaking—which encompasses legal commentary as a licensed attorney, necessarily invokes the overarching ethical duties owed to the public and protection of the public interest. The operative word is “license”, which is not a “right” to practice.
I’m not sure this accurately characterizes Kevin’s position, but mine is:
1. The fundamental purpose of blawging is to write about legal subjects that interest you, to engage with other practitioners and become a better lawyer by so doing.
2. This has a side benefit of showcasing one’s competence and approach online, and creating additional referral sources (much as writing for legal publications does).
3. Such blawging is not commercial speech, and is not subject to the attorney advertising rules.
4. However, blawging remains subject to other ethical dictates. The duties of client confidentiality, professionalism and non-interference with adjudicatory proceedings are all areas where an injudicious blawger could get into trouble.
And of course, this presupposes the preferred form of blawging. Certainly those blawgs-in-name-only that are set up as marketing vehicles would be as subject to attorney advertising rules as a lawyer’s website is.
Josh,
The blawging that you refer to is commercial speech. It is advertising. Whether you wish to concede this point is immaterial. This is a fact, not an opinion.
There is nothing inherently wrong with blawging to try to get clients or “showcasing one’s competence and approach online”, but until you, or your legal marketing colleagues are able to produce hard evidence (i.e. statistically verifiable data) that blawging results in “additional referral sources”, I remain unconvinced.
I think that your statement “blawging is not commercial speech, and is not subject to attorney advertising rules” could be construed as a statement of fact, rather than opinion. Cf. the ABA Standing Committee on the Delivery of Legal Services which is proposing changes to the ABA Model Rules of Professional Conduct (see Kevin’s post of January 26, 2012). As far as I can tell, the proposed change to ABA Model Rule 7.1 (Attorney Advertising)has not been passed.
Finally, you refer to “those blawgs-in-name-only that are set up as marketing vehicles”. If you mean, FLAWGS or SPLAWGS, then I agree.
That’s where Josh’s analysis goes astray. If the collateral benefit of business development exists alongside what might otherwise arguably be protected speech, it is commercial speech. Commercial speech includes advertising, but is not limited to advertising, and if the purpose of speech is to inform the public as to the quality of legal services (i.e., “showcasing competence”), that’s commercial. That it doesn’t actually work to develop business is a secondary matter; even ineffective advertising is advertising.
If it was fully protected free speech, it would have no intended commercial purpose, whether primary or secondary. That does not mean that no collateral commercial benefit derive from it, as nobody can stop someone else from thinking they’re a swell lawyer, but it is written for no purpose other than the expression of ideas, substantive content.
So let’s not confuse the regulation of adversiting, commercial speech and free speech. More importantly, let’s bear in mind that we’re all pretty hip to the game of blogs pretending to discuss content but really trying to fulfill Kevin’s dream of showcasing competence and nurturing trusted relationships.
So is SJ commercial speech or not?
From my perspective, SJ is fully protected speech. First, I have neither an interest nor expectation that anyone will retain my services because of SJ, which is borne out by the 10,000 phone calls I get asking for free advice. Second, the content of what I write, which more often than not would turn a potential client or referring lawyer away because I try not to hold my punches, belies my purpose. If I wanted to be loved and admired, I would write in a way that was conducive to that. I don’t, and it shows.
On the other hand, am I unaware of the fact that I make a living practicing law and write about legal issues at SJ, which may provide a collateral business development benefit despite my best efforts to kill it? Yeah, I am aware of it. So it may well appear to others that this is just as commercial as anyone else’s speech, and although I disagree, it would not be absurd for someone to reach a different conclusion.
I don’t wish to concede the point, because you are wrong.
If business development is only a “collateral benefit” of one’s writing, than such writing is not commercial speech. There are numerous Supreme Court cases addressing this principle (and I recall Scott had a related case under an anti-fax statute), but you can start by checking out the discussion in Riley v. National Federation 487 U.S. 781, 795-796 (1988).
Commercial speech is still protected, but under lesser scrutiny. Commercial speech and advertising is not coterminous. Using a blog for the purpose of business development is commercial speech, though it may not be advertising or aguably the primary purpose.
When I won in Stern v. Bluestone, the basis was not that the speech wasn’t commercial, but it wasn’t advertising, and thus fell outside the parameters of the junk fax law. I do not argue that all speech by lawyers is commercial, but most blogs are.
I asked the question of whether SJ was commercial, and received an interesting response from @ntswanson:
He explained further :
He makes an excellent point, and it demonstrably reflects the writer’s commercial purpose, even if secondary.
My personal belief is that SJ’s content shouldn’t be considered attorney advertising any more than a lawyer writing an opinion column in the newspaper, but I have no confidence whatsoever that a bar association won’t find that the http://www.simplejustice.us/ portion is entirely commercial advertising and thus foolishly conclude that every page, phrase, and word on the entire site is purely attorney advertising. They do stupid things like that; look at the Hunter case, where accurately reporting his own cases was found to be a stealth guarantee of results — even while large Virginia firms routinely do exactly that without any disclaimers.
I think my static website is clearly attorney advertising and should be fully subject to regulation. Whether this blawg, by virtue of being a offshoot of the domaine becomes advertising is a good question. Maybe it ought to be on a seperate domaine to distinguish it from the website?
As for Horace Hunter, you’re much too kind to him. His was advertising, and by his calling his self-promotional “news” section, all about him and his victories, a blog has done grave damage to real blogs. His was not merely commercial speech, but advertising whose purpose was clearly marketing. And the fact that others do it as well doesn’t mean Hunter’s should be ignored, but others should also be recognized for what they are.
While the name you chose could be regulated, the blog posts on SJ could not. If a blogger’s content is inextricably intertwined with the commercial motivation (as it is for all non-flawging blogging, or articles in legal publications, for that matter), it’s not commercial speech.
So you have the super-secret magical ability to ascertain other people’s motivations? Cool! I thought I was the only person who could do that.
But seriously, Josh, what do you think of my Avvocating Keynote address? Great stuff, huh?
That’s the test the Supreme Court has given us. And it doesn’t seem particularly difficult to figure out in any given case.
I’ll check the keynote later and be sure to leave you a comment . . .
So you have a Supreme Court decision you’ve been hiding from the rest of us? That’s terribly selfish.
Here’s a bit from a post Tom Goldstein wrote for Cato on the Nike v. Kasky case, where SCOTUS granted cert, and then, at the last moment, changed its mind, leaving the CA Supreme Court decision to stand:
As it goes on to explain, as much as the subject was one of widespread public interest, Nike’s interest was commercial, even though it may well have had non-commercial purposes.
And so, commercial speech it was.
The California Supreme Court got that one wrong, even if (unlike blawging) they had an obviously primary commercial purpose to hang their hat on. And you know that a denial of cert and a buck fifty will get you a small coffee at Starbucks.
The ACTUAL Supreme Court rule for speech involving a blend of the commercial and non-commercial, as cited in the Riley case:
“where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression.”
As I’m sure you know Riley (decided well before the Nike case) relates to entirely different issues, an attempt to regulate facially fully protected free speech (charitable solicitations) by arguing that mandating the disclosure of the percentage of profit to be made off the solicitation only mandates a severable commercial component. This isn’t even orthogonally close to the issue here.
Feel free to pimp Riley on blogs, but I wouldn’t try to rely on it in court unless you want to get slam dunked.
How am I ever going to read your keynote at this rate?
I’m going to have to expand on this in a blog post.
A non-commercial one, of course.
Of course!
Adding “and this blog sells no advice” or the like to your “Legal advice you have to pay for” above in the sidebar might strengthen the case that this blog is substantive, not commercial, speech.
“Pay” is the only word that perhaps suggests commerce on the page and the suggestion is awfully thin in that context.