Horace Hunter Legal Blogging vs. Advertising Saga: The Aftermath

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So the Horace Hunter legal blogging vs advertising saga ends with Mr. Hunter receiving a public admonition, the lowest possible sanction, and that he must add an attorney advertising disclaimer to his blog within 30 days to make clear that it’s advertising, the Washington Post reports on its Capital Business page.

But to what end? What can blogging lawyers takeaway from this story?

Are there true distinctions between blogs, other forms of electronic communications, marketing materials, and advertisements?


First, let’s get back to our framework. But this time, let’s generalize our examples using the ABA’s Model Rules:

Information About Legal Services
Rule 7.1 Communications Concerning A Lawyer’s Services
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.

And the comment:

Information About Legal Services
Rule 7.1 Communications Concerning A Lawyer’s Services – Comment
[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

[4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

A reasonable rule, to be sure.

And notice, no distinction between communications made for marketing and advertising versus various other non-marketing communications. Aha! A lawyer must not make a false or misleading communication about the lawyer or the lawyer’s services, period. Regardless of intent. Regardless of whether it is a noble non-marketing blog, a page on a website, a tweet, a facebook status update, a google plus post, a paid search advertisement, a billboard advertisement, a television advertisement, a phone call, a text message, yada, yada, yada…

But perhaps the rule on advertising makes a distinction:

Information About Legal Services
Rule 7.2 Advertising
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

(3) pay for a law practice in accordance with Rule 1.17; and

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

(i) the reciprocal referral agreement is not exclusive, and

(ii) the client is informed of the existence and nature of the agreement.

(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

Hmm… Well surely the comment does (in pertinent part):

Information About Legal Services
Rule 7.2 Advertising – Comment
[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

[2] This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against “undignified” advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

Okay, that’s actually sort of helpful. However, I would suggest that the issue is really a matter of whether or not a communication by a lawyer, about the lawyer or the lawyer’s services (and combine with other rules, really any communication by a lawyer at all), is false or misleading.

And to me, this is a much better perspective from which to view lawyer communications than through the unworkable and impossibly enforceable marketing vs. non-marketing distinction. But for those of you who prefer that distinction, I challenge you to define it, as well as, come up with objective means by which to enforce it. One restriction, you can’t use “I know it when I see it.”

Do we merely ask lawyers, “What was your intention with this communication?” While I respect Mr. Hunter’s honesty and candor in admitting that at least one of the purposes of his online communications was for marketing, I suspect that a vast majority of those placed under scrutiny are likely to recite the popular:

The information provided on my website is for educational purposes only.

Ah, educating people, the primary reason why any lawyer would write anything online… But if you have a workable distinction, definition, and objective enforcement criteria, by all means please share it. Here are some hypotheticals:

  • A prospective client emails a lawyer about a question they have. The lawyer responds via email and says that she has 10 years of experience handling these types of cases.
  • A lawyer posts on her website a thorough analysis of a recent court decision demonstrating her knowledge of this area of law. Prospective client reads the analysis and hires the lawyer.
  • A lawyer tweets back in forth with another lawyer in a general manner about a recent experience that they had on case. A prospective client sees these tweets and thinks, “hey this guy knows what he’s talking about, I’m going to give him a call about my case.”
  • A prospective client text messages a lawyer about a legal issue that he’s having. The lawyer texts the prospective client back stating that he’s dealt with these types of issues in the past.
  • A lawyer posts a facebook status update that they were just elected President of their state’s Trial Lawyers Association. A prospective client reads this update and decides to call the lawyer about their situation.
  • A lawyer authors a blog post about a recent case in the news. The lawyer comments about what they think went wrong in the case and what their experience has taught them about these types of cases. A prospective client facing a similar situation reads the post and calls the lawyer about handling their case.
  • A lawyer pays for a Google paid search Ad that reads, “Download Our Free Protect Your Rights After A Car Accident Guide.”
  • A lawyer posts an image of the office building in which they rent part-time office space on their website.
  • A lawyer posts a picture of himself clean shaven, in a suit and tie, but the lawyer actually know has a beard and never wears a suit.
Which of these are false and misleading? Which of these require a disclaimer? Which of these is marketing? What were the criteria upon which you made a distinction?

Protecting The Public

While there are undoubtedly a litany of purposes for professional rules like these, the one that seems to ring loudest is protection of the public from being lied to and misled. The first question that a free-market libertarian-leaning person might ask is whether the public needs protection at all. And to me, the answer is yes, there do need to be some basic rules, especially with regard to lawyers about honesty, integrity, and fair-dealing.

The next question that usually follows is how much protection does the public need? And by what standard do we measure that protection? The civil litigators among us might suggest the trusty “reasonable person standard” (which by recent notes coming out the ABA seem to be the direction the rules will be taking). And how do we determine reasonableness? Through the process.

Which in the case of attorney advertising, means hearings, grievances, and perhaps civil litigation. And how should this process be invoked? My humble suggestion is that it should be by the very people that the rules are designed to protect, the public. Or in other words, people who reasonably relied on a lawyer’s communication and were misled.

Is this any more effective, just, or fair than having a State Bar try to distinguish between advertising and non-advertising communications? In my humble opinion, you bet your a**.

But Kevin O’Keefe says:

There there is no record of disciplinary action against Virginia attorneys regarding blogging dating back to 1999. We have 7,000 lawyers blogging on the LexBlog Network and none have been sanctioned anyway. Not a big risk here with lawyers who blog.

Must be all those blog disclaimers at work…

Do disclaimers actually protect the public from being misled? Does anyone even read them? Or do they just make us feel good:

Tommy: Let’s think about this for a sec, Ted, why would somebody put a disclaimer on a website? Hmmm, very interesting.
Ted Nelson: Go on, I’m listening.
Tommy: Here’s the way I see it, Ted. Guy puts a fancy disclaimer on a website ’cause he wants you to feel all warm and toasty inside.
Ted Nelson: Yeah, makes a man feel good.
Tommy: ‘Course it does. Why shouldn’t it? Ya figure you put that little disclaimer under your pillow at night, the Disclaimer Fairy might come by and leave a quarter, am I right, Ted?
Ted Nelson: What’s your point?
Tommy: The point is, how do you know the fairy isn’t a crazy glue sniffer? “Buildin’ model airplanes!” says the little fairy, well, we’re not buying it. He sneaks into your house once, that’s all it takes. The next thing you know, there’s money missing off your dresser and your daughter’s knocked up, I’ve seen it a hundred times.
Ted Nelson: But why do they put a disclaimer on the website?
Tommy: Because they know all they sold ya was a disclaimed piece of shit. That’s all it is, isn’t it? Hey, if you want me to take a dump your website and add a disclaimer, I will. I’ve got spare time. But for now, for your potential clients’ sake, for your daughter’s sake, ya might wanna think about vetting quality legal representation through more than a website disclaimer.

“But c’mon man, the burden of adding a disclaimer is so low.”

Sure, if we’re talking about the footer of your website/blog. But what about these communications:

  • Emails
  • Text Messages
  • Phone Conversations
  • Paid Search Ads
  • Tweets
  • Facebook Status Updates
  • Articles In Legal Publications
  • Comments on Blog Posts

Let’s just require attorneys to write/say “attorney advertising” any time that they want to make a communication at all.

Admittedly, that was a bit of a rant.

Back to the point. Lawyers can’t make false or misleading communications. If someone believes that they reasonably relied on a false of misleading communication by a lawyer, there should be, and there is, a resolution process. The public bears some amount of accountability as to whether their reliance on communications by lawyers is reasonable.

‘Nuff said.

To me, trying to distinguish between advertising and marketing communications, and all the other types of lawyer communications is a spiral into absurdity. And requiring lawyers to try to decide whether their communications should or should not have disclaimers is equally preposterous.

Alas, for now, you’re probably better off just putting a disclaimer on as much as you can… So, ATTORNEY ADVERTISING?

But that’s just my two cents. Okay, maybe three cents.

(photo: http://www.flickr.com/photos/uberzombie/281610353/)

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  • http://myshingle.com/ Carolyn Elefant

    I wrote a law journal article and I wasn’t required to apply a disclaimer. I’ve seen lawyers who write op-ed pieces in the newspaper and they don’t apply disclaimers. We accept that these forms of communications are educational in nature. Blogs that contain this type of analysis are not advertising.
    The distinction between advertising on the one hand and substantive analysis on the other is critical for First Amendment analysis. Bates held that lawyer advertising is entitled to some protection so bars can’t ban it entirely. But they can regulate advertising and regulation of ads are subject to less strict scrutiny than regulation of speech. Thus, bars may prohibit deceptive advertising – because the state has an interest in protecting consumers and prohibiting deceptive ads is a means to protect the state interest. By contrast, if I, as a lawyer, engage in political speech that relies on all kinds of crackpot and false facts, I can’t be regulated even though it’s deceptive because it’s first Amendment protected speech.
    I disagree that it’s impossible to distinguish between speech and advertising. In fact, an Illinois federal district court did so in a junk fax case. The junk fax law prohibits unsolicited faxes for advertising purposes, but not for speech. The court was called upon to determine whether a law firm newsletter was protected by First Amendment or if it was an ad. The court found it was an ad because the newsletter was ghostwritten and the law firm logo took up something like 60 percent of the page. (Case is posted on here – http://blog.ericgoldman.org/archives/2011/09/junk_fax_class.htm)
    I will not disclaim the substantive discussion at my blogs. The information and analysis that I put out is pure content whether it’s in a journal article or on my blog.

    • http://gyitsakalakis.com Gyi Tsakalakis

      Carolyn, thanks for the thoughtful comment. I checked out the junk fax case, but am still struggling with the distinction between advertising and non-advertising.

      From the junk fax case:

      “The TCPA defines an unsolicited advertisement as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5).

      ***
      The quarter page of the Daily Plan-It that detailed defendant’s identifying information is an advertisement under the TCPA. (Holtzman, 2008 WL 2510182, I don’t have access to the underlying analysis).”

      So anything that has a threshold size logo and contact information, regardless of content, is per se an ad?

      I’m with you that there might be a distinction, but I have yet to see a workable standard.

      Even Professor Goldman notes:

      “while the content’s marketing intent is clear and unmistakable, the newsletter’s substance is also unambiguously editorial content however broadly or narrowly we conceive of it. The law doesn’t handle editorial-content-as-marketing overlaps very well, unfortunately.”

      With all respect to SCOTUS, I think the Court struggles immensely with the commercial speech doctrine, especially as it pertains to mixed editorial and commercial speech like in Bolger.

      Is it, the ‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech? Is it, speech which does no more than propose a commercial transaction?

      BOLGER V. YOUNGS DRUG PRODUCTS CORP., 463 U. S. 60 (1983)

      And the junk fax case, as well as, the facts in Bolger present seemingly much more clear advertising intent cases. To me, the devil’s in the closer calls.

      On top of that, we have the recent striking of Florida rules.
      http://blogs.wsj.com/law/2011/10/04/florida-court-strikes-down-limits-on-lawyer-advertising/

      With language like, “The term ‘manipulative’ is so vague that it fails to adequately put members of the Bar on notice of what types of advertisements are prohibited.”

      And the attorney in that instance stating, “The bar rules were so vague, you couldn’t understand what they meant,” he told the Law Blog. “An ad can’t be manipulative? What does that mean? By definition, advertising to some degree is designed to persuade and manipulate.”

      The ABA rule says, “Whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

      If I, as a lawyer, write something purely editorial that actually persuades someone to hire me, is it commercial or non-commercial?

      If I, as a lawyer, write something purely editorial with the intent of persuading someone to hire me, is it commercial or non-commercial?

      If I, as a lawyer, write “Through my 30 years of working on cases of such and such, this is what I’ve learned…”

      Commercial?

      I think that, depending of course of the content, if a lawyer writes a law journal article and was patently false and misleading, they might have some trouble.

      I don’t think the answers here are clear at all. I think that if you presented a handful real-world examples, to a handful of lawyers, you’d get a handful of different conclusions.

  • Robert Laragen

    What everybody seems to miss, and what the three judge panel missed, is that Hunter was posting information that consisted of his clients’ personal information he learned in the course of representing them without their consent….who would want the whole world to know that they had been charged with a drug offense or an assault, even if acquitted? I mean, what lawyer does this?!!! What’s next, postings by Hunter regarding the details of one’s divorce case or maybe details about how his client was accused of rape? At least one of the matters he revealed without consent related to representation of a minor. So this was much simpler than a constitutional issue. The three judge panel missed the boat…..in fact, they didn’t even find the water.