Despite the fact that nearly 100,000 lawyers have claimed their Avvo profiles, thousands of lawyers pay to advertise on Avvo, and Avvo drives over 200,000 consumer inquiries to lawyers every month, there remain those who don’t appreciate what we’re doing. In some cases this is driven by a desire to control every aspect of the information available about one online. In other cases, displeasure that Avvo is shining a light on attorney discipline and poor client service – or shock that our system, which profiles nearly every lawyer in the country and provides a forum for client feedback – may not be, in every instance, perfect.

In any event, I consistently field demands – and threats of lawsuits – from these attorneys. And believe it or not, we take feedback and act on it. Whether it’s product suggestions or data errors, we will always dig in and make corrections and improvements wherever warranted. But what we won’t do is deviate from our mission of providing consumers with more guidance than they’ve ever had in navigating the often-opaque legal marketplace. We won’t delete attorney profiles, client reviews or Avvo Ratings just because an attorney is mad and threatens us with a lawsuit.

It’s sometimes perplexing to attorneys that their lawsuit threats are met with indifference on my part. But I have faith that most attorneys will get past their initial frustration and realize how Avvo can be valuable to their practices – or at least accept that Avvo is operating solidly within the law, and that filing a lawsuit would be futile.

And indeed, lawsuits against Avvo are exceedingly rare. John Henry Browne tried it when we first launched in 2007; his federal class action was promptly tossed on First Amendment grounds. Joseph Rakofsky sued Avvo (and me) over a blog post I wrote, but he also sued just about everyone, and his suit is so utterly without merit that it’s hardly worth mentioning. And finally, there’s Larry Joe Davis.

Davis, a sanctioned Florida lawyer, sued Avvo back in 2010 . Over what, it wasn’t entirely clear; he amended his complaint several times. But he was definitely upset that we had classified him as an employment lawyer rather than a health care lawyer (something he found out about because a potential client called him seeking employment law representation). It’s taken some time to wade through the amendments and get Davis’ case moved to the proper court here in Seattle, but I’m happy to report that, like Browne, Davis’ case has been unceremoniously dismissed.

In fact, it’s been more than dismissed. Since the Browne case in 2007, Washington has enacted an anti-SLAPP statute. This statute allows those who are sued over their constitutionally-protected activities to quickly dismiss meritless lawsuits. Upon such a dismissal, the plaintiff is responsible for the defendant’s legal fees and must pay a $10,000 fine. Davis’ lawsuit was dismissed on these grounds; we will be submitting our fee application in the weeks ahead. (Here’s the decision (pdf) in Davis v. Avvo.)

Anti-SLAPP statutes provide a powerful counterbalance to attempts to silence via threat of litigation. As this case shows, there can be real costs in trying to use the coercion-via-litigation tactic when you haven’t got an actionable claim. Of course, we’re lucky here in Washington that we’ve got such a powerful weapon in defense of free speech. A number of other states have similar laws, but what’s really needed is a national anti-SLAPP law. I’ll be writing more about this in the months to come, but check out the Public Participation Project (of which I’m a board member), which is spearheading the drive for just such a law.

One of my all-time favorite movies is Caddyshack. With Rodney Dangerfield, Chevy Chase and Bill Murray, it’s 98 minutes of cheesy comic gold. And one of the best parts is Murray’s Carl Spackler, the unhinged greenskeeper who embarks on an increasingly-insane campaign against a gopher that is spoiling his handiwork.

In Spackler, I see a stunning resemblance to the RIAA, MPAA and other opponents of online piracy who have embraced a “solution” to their problem that will prove far more damaging than the problem itself. Carl’s answer to his gopher problem is plastic explosives; in our online setting it is the embrace of legislation that would crater much of the internet in an attempt to stop piracy.

Others have provided a comprehensive rundown of the many problems that “SOPA/PIPA” (the “Stop Online Piracy Act” in the House and the “Protect IP Act” in the Senate) would cause (here’s a deep look at some technical issues, and here’s Lawrence Tribe’s take on why SOPA is unconstitutional), but these are the most obvious impacts:

• Government agencies would have the ability to force “intermediaries” to stop providing access to, linking to or serving ads upon “foreign infringing sites.” Such sites can be merely those that “facilitate” the infringing of IP rights. Many devices and websites – think VCRs, disc burners, YouTube – may “facilitate” the infringing of rights despite having clear non-infringing uses. Think about what this means for Google, Wikipedia and a host of other sites designed to provide users with access to a wide range of information.

• The current balancing of rights embodied in the DMCA – which allows sites hosting third party content to do so without concern over third party liability, as long as they honor the DMCA notice and counter-notice provisions – would be upended. IP rightsholders would have the ability to target a website’s financial resources, by sending notices of infringement to financial intermediaries (like payment processors and ad networks) and forcing them to choose between continuing to do business with the site in question or risk liability.

If you think these concerns are overstated, you haven’t been paying attention. Viacom continues to fight a court battle to make Google liable for copyright infringement for content posted on YouTube. Rightsholders have consistently overstated their rights and ignored fair use, forcing the courts to read into the DMCA an obligation to at least consider fair use before firing off a takedown notice. And for a preview of just how far government agencies and rightsholders may take the open-ended language in SOPA, like look no further than the Computer Fraud and Abuse Act. Originally designed to counter foreign espionage and hacking, its uses have been grossly expanded by government prosecutors and private parties alike seeking to bring criminal liability to such everyday issues as using a workplace computer for non-work activities or violating a website’s Terms of Use.

What’s more, SOPA/PIPA is a solution looking for a problem. Like the gopher, who offends greenskeeper Carl’s sensibilities but does little to disturb the pristine fairways and smooth greens of the golf club, online piracy is not a major problem. Yes, the RIAA and MPAA throw lots of numbers around about the billions of dollars and millions of jobs lost to piracy, but these fancies have all been thoroughly, completely debunked.

And just as Carl’s nemesis has a vast network of underground tunnels in which to escape to, thus thwarting even his most extreme efforts, online piracy can easily route around the roadblocks thrown up by SOPA/PIPA – leaving collateral damage, with nothing to show for it.

Every society has to make choices about which evils it chooses to address via regulation. And it must always be careful to ensure that the costs of regulation don’t outweigh the benefits.

Because who in their right mind would blow up a golf course in a vain attempt to kill a few gophers?

[n.b. - yes, in a more rational work of copyright, I would be able to embed higher-quality video clips]

I’ve written before about the appalling practices of Medical Justice, an outfit that sells a perverse form of “reputation management” to physicians and dentists. Core to this “service” is a form agreement, apparently used by several thousand practitioners, that attempts to prevent patients from leaving online reviews. The agreements have taken several forms over the years, from a blunt contractual prohibition on commenting to a more nuanced attempt to transfer copyright in any future reviews automatically to the doctor. In the latter case, the doctor can then use a DMCA takedown notice to attempt to have any online reviews removed.

Not that Avvo or any reputable review site would honor such a takedown notice, but points for creativity, right?

It’s an understatement to call such agreements unconscionable. They’re also wrong on the law and revealing of both a deplorable thin-skinnedness and distrust of one’s patients amongst those practitioners who use them.

However, Medical Justice appears to have finally taken its lumps. In addition to Avvo’s numerous call-outs over the years, 2011 has seen the launch of the excellent DoctoredReviews site, a petition to the FTC by Center for Democracy and Technology to investigate MJ (the petition [pdf] is well worth a read for a detailed review of the MJ contracts) and a Public Citizen suit brought to get a declaratory ruling that the MJ agreements are unenforceable. According to MSNBC, Medical Justice has now decided to “retire” the agreements and urge its doctor members to stop using them.

That’s a great development, but patients must remain wary. There’s no telling how many of MJ’s clients will continue using these agreements. And there is no guarantee that Medical Justice won’t come out with a new twist or technique for doctors to use to try and control online commentary.

For doctors, here’s another approach to consider: Provide excellent service, listen to your patients, and don’t be afraid of what they’ve got to say about you online. It’s going to happen whether you like it or not. And for the vast majority of practitioners, the benefits of enhanced engagement with patients far outweighs the risks posed by online commentary.

Here at Avvo, we’re no strangers to getting sued by professionals who have been sanctioned by the licensing authorities. We believe that knowing about sanctions is powerfully important to consumers of professional services, and that this information should be readily and openly available. Sadly – but perhaps understandably – many of those sanctioned professionals would prefer that potential patients and clients stay in the dark.

While Avvo is big enough to fend off the occasional lawsuit from a sanctioned professional – and knowledgeable enough in the law to not be intimidated by the many threats of lawsuits we receive – bloggers and reviewers who write about doctors and lawyers are not usually as well-situated to defend against litigation, threatened or actual. The latest example is Portland blogger Tiffany Craig. Craig wrote a post this summer about plastic surgeon Jerry Darm, pointing out that he had been sanctioned for allegedly sexually harassing a patient. However, in pointing out the sanction, Craig referred to Darm surrendering his license. In fact, he’d been allowed to continue practicing, but with several conditions, including that he be accompanied by a chaperone when treating female patients.

Darm sued Craig for defamation, claiming $1 million in damages from Craig’s post about his sanctions. To Craig’s great credit, she fought the lawsuit and has not deleted the post in question. So many times, these types of claims are less about seeking damages than they are about silencing comments that the plaintiff doesn’t like. It’s unlikely Darm cares so much about the technical distinction of whether his sanction involved a suspension from practice or the imposing of significant conditions thereon; rather, he doesn’t want anyone to know about his sanction at all, and he believes – foolishly – that this lawsuit is a way to achieve that end.

There’s a term for this kind of claim: a strategic lawsuit against public participation, or SLAPP suit. This type of claim seeks to silence otherwise-lawful speech by raising the specter of having to incur ruinous costs in defending the lawsuit. It’s a strategy that’s been employed by the prickly-and-deep-pocketed for quite some time, with the most notable recent example being Washington Redskins owner Dan Snyder’s suit against the Washington City Paper over an unflattering portrayal.

But there are two dynamics that are starting to shift the playing field against those bringing SLAPP suits. The first is the Streisand Effect, where the defamation suit itself brings far more attention to the allegedly defamatory comments than they ever would have received had the object of the comments simply ignored them. And the second is the rise of anti-SLAPP laws, which provide defendants an expedited path to getting a SLAPP suit dismissed. Many such laws also provide a mechanism for the prevailing defendant to recover their attorney fees – or even a fine – from the party bringing the SLAPP suit.

While such laws aren’t available to SLAPP victims everywhere, they are spreading. Washington adopted a very strong anti-SLAPP law in 2010. Texas and Washington, D.C. have followed suit this year. And thankfully for Tiffany Craig, Oregon has an anti-SLAPP law. That law has allowed Craig to stand up to Darm’s lawsuit.

None of this is to say that defamation shouldn’t be actionable. An anti-SLAPP law provides no protection to someone who engages in actual defamation. But the concept of defamation is far more limited that those bringing these suits would have it. Tiffany Craig certainly didn’t defame Dr. Darm by writing about his sanction; he was in fact sanctioned, and truth is an absolute defense to a defamation claim. To survive Craig’s special motion to strike under Oregon’s anti-SLAPP law, Darm would have to show that he has a prima facie case of defamation. In order to do so, he would have to show that Craig’s overstatement – that Darm was suspended from practice in addition to having conditions imposed – is actionable defamation.

One issue that those claiming defamation often latch onto is this sort of minor inaccuracy or overstatement, thinking that statements must be 100% accurate to avoid being defamatory. But if you unpack this a bit, the problem Darm has is the disclosure that he was sanctioned. It matters a whole lot to potential patients of Aesthetic Medicine that Dr. Darm was sanctioned for allegedly molesting female patients; it matters a whole lot less whether that sanction resulted in practice conditions or a period of suspension. There’s a concept in defamation law called the “substantial truth” defense. As long as the gist of the claim is true, minor inaccuracies or overstatements will not support a defamation claim. This defense has been successfully applied in cases where far more onerous crimes and punishments have been reported, and would likely work in Craig’s favor here.

This isn’t to say that sloppy reporting should be excused, or that writers should be less-than-diligent in looking into those matters they plan to publish, particularly when they involve someone’s reputation. But at the same time, it impoverishes our discourse if the bar for accuracy is set impossibly high, and expressing oneself is done at risk of being sued for a foot-fault. Craig’s motion presents an interesting test of anti-SLAPP as applied to a “substantially true” defamation case.

However . . . this coming Thursday would have seen the hearing on whether Darm’s suit was a SLAPP, but as Craig announced on her blog at the end of last week, the case has been settled. As her original post is still up, that settlement likely involved Darm agreeing to drop his suit in exchange for Craig not going after him for her attorney’s fees (which she would be entitled to had she prevailed on her motion).

While we won’t see a court ruling on this particular issue, the case dismissal indicates what Darm thought of the merits of his defamation case as the moment of truth drew near. Kudos to Tiffany Craig for fighting the good fight to the end.

As any Avvo user knows, professional profiles include any discipline imposed by licensing bodies. Suspensions, probations, licensing conditions – if the State Medical Board, State Bar or other licensing authority has imposed discipline, we will include it in the doctor or lawyer’s profile.

What are people not always aware of? First, Avvo does not have a direct feed into state discipline systems. There is a lag time between when discipline is imposed and when it is reflected in an Avvo profile. And second, we’re scrupulous about only including final discipline. We do not publish complaints or allegations. And we don’t include criminal or civil penalties, unless and until they result in discipline. We made the decision long ago to not substitute our judgment for that of the licensing authorities.

Given the delay inherent in the system, we greatly appreciate it when members of the public bring professional discipline to our attention prior to our update process picking it up. We’ll quickly confirm it with the licensing authority and then update the profile on an ad hoc basis.

However, it’s important to keep our point about professional discipline in mind. Just because you believe a professional is less-than-ethical or has a shady background is not going to cause Avvo to change that professional’s profile. We’ll screen the information to make sure there’s no professional discipline we’ve missed, but that’s the end of it.

The Avvo Rating is simply a starting point for hiring a professional, and is based on a combination of peer review and objective information in a professional’s background (including discipline). Subjective concerns can be handled by leaving a review online detailing your experience, or by making a complaint to the licensing authorities. Just don’t expect us to weigh and consider the evidence you’ve sent us. We’re not the licensing authorities. But if you let us know the minute final discipline is imposed, we will promptly update a profile to reflect it. We promise.

Yesterday, I talked with KIRO 7 news about a developing story: A man here in Seattle had left a negative Yelp review for his apartment management company. In an all-too-predictable turn of events:

- The management company sued him and subpoenaed his identity from Yelp.

- The reviewer went to the media.

- The story was blown far bigger than it ever would have been had the company not sued.

- In the face of this media attention, the company pulled the lawsuit back.

According to Greg Lawless, the attorney for management company David Poletti, the lawsuit was motivated by the need to correct some statements in the review that were “flat out wrong.”

And this is where things go off the rails. If you as a business owner get so focused on correcting the details in online feedback, you’ve already lost.

You see, it doesn’t matter if the details are wrong. In the vast majority of cases, it doesn’t even matter if the online comments are defamatory.

Your goal is to minimize the impact of negative online feedback. Your goal is to satisfy your customers, keep them coming back, and grow your business. Your goal is not to reflexively focus on everything being written about you being 100% accurate.

Any approach to online feedback – responding constructively, encouraging other reviews, ignoring it – is preferable to seeing your name splashed across the evening news as a business that sues its own customers.

Avvo has partnered with Seattle Met magazine – the city’s leading lifestyle magazine – to produce this year’s list of Seattle’s top doctors. The issue, which hits newsstands this week, recognizes over 600 Seattle doctors, based on their Avvo Ratings. Congratulations to the winners!

You hear that, state bars? It’s the sound of the foundation crumbling beneath your creaky and outdated structures of attorney advertising regulation. While a number of states (including our more enlightened jurisdictions here on the West Coast) take a relatively benign approach to regulating attorney advertising, the seeds of speech repression still germinate in the rules kept on the books in these states. And other states – notably Florida – continue to roll forward with Kafka-esque levels of attorney speech regulation. Want to run an internet ad in Florida? You’ve got to wait 3 weeks, hope for approval from a kangaroo court made up of a mix of your competitors and non-lawyers and pay $150 for the privilege. And that’s just a glimpse of the thicket of ridiculousness awaiting those who would practice in the Sunshine State.

(photo by David Lat)

Miami’s own Brian Tannebaum and I wrote an article, published today in the Daily Business Review, exposing the farcical nature of the Florida Bar’s attempt to give lip service to Constitutional requirements while still maintaining its bizarre and repressive system of ad regulation. And what better to reinforce our point than yesterday’s U.S. Supreme Court decision in Sorrell v. IMS Health Inc.? In Sorrell, the Court expanded the commercial speech doctrine, finding that otherwise-truthful advertising cannot be restricted simply because the state wants to prevent the public from making what it believes to be bad decisions.

To whit: “That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.” This is precisely what bars like Florida’s seek to do via review boards and restrictions on common advertising techniques such as testimonials, comparative ads and the use of compelling imagery.

So Florida – and all of the other states burdening attorneys and increasing the cost of legal services while diminishing the amount of information available to consumers – your attempts to wave your hands over the constitutional issues while quieting the speech of your members through advertising review boards and Byzantine regulation cannot stand. It’s well past time to give it up. Prohibit false advertising. Aggressively go after offenders. But beyond that, respect the professionalism of your members and stop making them worry about whether their advertising tag line or marketing campaign violates one of your pedantic little rules.

Nearly three years ago, I wrote about the California Bar’s misguided attempt to limit public access to its records. By using a bit of lawyerly kung fu, the bar sought to occupy a little island of non-transparency unique among government agencies.

The first step was avoiding the Public Records Act. Easily done; as part of the judiciary, the Bar is exempted from the Public Records Act. But the problem is that court records are subject to similar openness requirements under both the First Amendment and common law. And that’s where the second step comes in: The Bar isn’t a “court”, so its records aren’t subject to these common law principles. Presto – no right for the public to see the bar’s records!

Yes, it’s embarrassing, a weasel-like argument that should shame any public servant who cares about accountability or the perception of the legal industry. But the Bar shamelessly used it against an attempt to access records, and I’ve certainly run across the same argument when dealing with regulators in other states.

So while it’s taken awhile, I was happy to see that the California Court of Appeals finally rapped the Bar’s knuckles and dumped its quest for lawyer-regulatory-exceptionalism. Score one for transparency.

Although it’s been nearly 20 years since I started my legal career, I can still vividly recall two recurrent thoughts from the first year or two I practiced:

• How was I going to learn all of this stuff? The actual practice of law required mastery of all sorts of technical rules, industry practices, professional understandings and strategic considerations. The senior attorneys in the firm just seemed to get it all; for me, as a newly–minted lawyer, it was a daily reminder of how little I knew.

• People will take advantage of your mistakes. You screw up, and opposing counsel is going to make you pay. This was one of the most unique – and terrifying – aspects of learning how to practice law.

What kept me out of trouble was being aware of these limitations. I learned as much as I could, everywhere I could. I asked questions. I looked things up. I worked hard, and absorbed everything. And if I had to give a partner or a client a legal answer that I knew they wouldn’t like, I took the time to make absolutely, positively certain that I was right.

After all, these were people with vastly more experience than me. I couldn’t presume to take a legal position based on something I remembered from law school, or came up with based on a cursory bit of research.

When I first read about Joseph Rakofsky getting over his head in taking a murder trial so early in his career, I immediately thought of how I felt when I was a year out of law school. Unprepared. Often overwhelmed. And I’ve thought about it more since the filing of “Rakofsky v. the Internet”, and being named as a defendant for writing a blog post about his ill-advised decision to file the suit. How could the lightning of ineptitude twice strike someone who should know better?

But I had two things as a young lawyer that Rakofsky apparently lacks: Awareness and good mentors. The effortless competence of the attorneys I worked with at that small litigation firm in San Mateo was a constant reminder of how much I needed to learn. And those attorneys were always offering guidance, advice and support.

Perhaps Rakofsky didn’t have mentors to help guide his decision-making in these formative early years of his legal career. It’s got to be harder to get advice from experienced attorneys when you’re trying to fly solo right out of school. But perhaps it wouldn’t have made a difference. Rakofsky had co-counsel for his murder case. He has a more experienced lawyer representing him in his Quixotic quest to silence those who wrote about his missteps. Surely someone has tried to offer some adult guidance. But if you haven’t the awareness, the understanding that you don’t know very much when you’ve just gotten your law license, mentoring hasn’t a chance.

There’s a concept in psychology known as the Dunning-Kruger effect. It’s a cognitive bias encountered by some incompetent people, in which they lack the ability to appreciate their own limitations. Perversely, this makes them MORE confident.

While those suffering from the Dunning-Kruger effect may lead happy and contented lives in other occupations, the adversarial nature of practicing law is inevitably going to lay incompetence bare. That seems to be the case with the unfortunate Mr. Rakofsky. His murder trial ended badly, and his civil lawsuit will only compound the damage.

What’s the lesson of Rakofsky’s ineptitude? I believe that the vast majority of young attorneys are aware that they don’t know much, that law is a difficult profession where proficiency is earned only by time and practice. But if you’re a young lawyer, and what you’re thinking of doing flies in the face of conventional wisdom or the advice of more experienced attorneys, you need to look extra-hard in the mirror. You may be right. But you’ll be doing yourself a favor if you interrogate your ideas and conclusions from every angle before taking action. Or at least entertain the possibility that you’re wrong.

Because probably, you are.