Last October, I visited Chicago to fill the ABA Commission on Ethics 20/20 in on what Avvo is, and how we go about rating attorneys. One of the charges of the Commission was to examine ratings of lawyers and law firms, and they wanted to hear how Avvo’s groundbreaking ratings of attorneys work.

While the ABA and state attorney regulators obviously have no jurisdiction over Avvo or how we calculate and publicize our ratings, the states do have the ability to regulate attorney advertising. And we have often been concerned about the disregard many states show for the constitutional limits on their regulatory authority.

So I was pleased to learn that the Commission’s draft report concludes that no action is necessary; that attorneys needn’t be further constrained when advertising ratings they’ve received from organizations like Avvo. What’s more, the Commission’s report is notable for two things typically lacking when states adopt lawyer advertising regulations: A thoughtful analysis of the constitutional issues, and a data-driven approach to the question of whether the dissemination of ratings is harmful.

The result? After surveying bar associations, lawyer disciplinary counsel and leading national consumer rights organizations, the Commission found no indication of consumer harm stemming from lawyer ratings. Zip, zilch, nada. Now we’re not at all surprised by this finding, but we’re glad the ABA recognized the importance of empirical research. Here’s hoping those states seeking to further regulate attorney speech take notice as well.
икони

We’ve commented several times over the years about the odd phenomenon of doctors requiring patients to sign agreements to not leave online reviews of the doctor. And although Avvo has been providing an online forum for clients of lawyers for years, we’ve never seen something similar from legal professionals – likely because they realize that such agreements are both ill-advised and unenforceable.

A new public policy site, www.doctoredreviews.com, is seeking to provide doctors with the same sort of guidance should they consider using these contracts. A joint venture of the Santa Clara University High Tech Law Institute and the UC Berkeley School of Law’s Public Policy Clinic, DoctoredReviews provides a great summary overview of the problems inherent in using these agreements, as well as really good advice on how doctors (and any service providers) should respond to negative feedback online.

Among these recommendations are two key points that we talk about to professionals every day:

- You can easily respond to comments without violating privacy concerns. The best response, in fact, is to reiterate your practices, responsiveness and willingness to directly address concerns . . . rather than debating the specifics of the online complaint.

- Negative reviews of professionals are both rare AND potentially a good thing. They are indicative of a credible reputational ecosystem (100% positive feedback feels less-than-real to many consumers), and provide a very powerful platform for a professional to showcase their professionalism and responsiveness by commenting on the negative review.

We’re happy to welcome DoctoredReviews, and encourage any professional concerned about online reputation management to visit the site to learn more – particularly if you’re considering using contracts to try and limit your patient’s right to comment online.

Lindsay Lohan claims that a surveillance tape of her stealing a necklace violates her publicity rights

Charlie Sheen used publicity rights claims to block woman’s right’s activists from selling t-shirts critical of the warlock’s treatment of women.

And here at Avvo? Well, we’re no strangers to lawyers claiming that our listing them on Avvo infringes on their trademarks or publicity rights.

The concept of a “publicity right” is the red-headed stepchild of intellectual property law, a creature of state law not constrained by the statutory limits or decades of case law underlying related claims such as trademark, copyright and defamation. Which explains, to an extent why we see such overreaching claims in this area.

In some cases (like Sheen’s), raising publicity rights is simply an end run on an obviously invalid trademark claim. In others – like the ones we see at Avvo from time to time – people confuse the commercial nature of the alleged “infringer” with a use of someone’s name or image in commerce.

While that may seem like a confusing distinction, it’s actually dead simple. It doesn’t matter if the person or company using your name is a commercial entity. What matters is whether they are specifically trading on your name, in a way that isn’t otherwise protected by the first amendment. And the first amendment provides broad latitude to use trademarks and names for the purposes of description, reporting, criticism, parody, etc. Or creating a directory of doctors and lawyers.

So: while claiming that Lindsay Lohan endorses your line of stylish home monitoring anklets would violate Ms. Lohan’s publicity rights, publishing an article about her latest exploits in a for-profit media vehicle would not. Because if it were, we couldn’t have The New York Times – much less TMZ. And what kind of world would that be?

As part of our effort to make it easier for consumers everywhere to access Avvo’s legal resources, we are now partnering with Boomerater, a fast-growing online advice network for Baby Boomers. Boomerater users can now access the Avvo legal directory within the site itself. For example, a Boomerater user in Boston looking for advice on getting remarried can easily click over to an Avvo-powered page of lawyers who can help them with a prenuptial.

Boomerater did a really nice job integrating the Avvo directory, and is the latest site to use Avvo’s API to easily access and republish Avvo data. Please reach out to me directly if you have any questions about how the Avvo API works.

The Reporter’s Committee for Freedom of the Press reports that New Mexico is launching a new “Sunshine Portal” to make it faster, easier and more convenient for New Mexicans to access government records. Promising to be “your window into government spending, budgets, revenues, employees, contracts and more,” the Sunshine Portal is a nice step forward for states making their records more accessible. After all, the internet makes this easy – why not put the vast majority of stuff online? It’s better for members of the public, less bureaucratic, and requires less state resources as there should be far fewer public records requests to respond to.

The irony is that while the rest of New Mexico moves forward with this admirable transparency, the State Bar of New Mexico remains a bastion of opacity. Want to find out when an attorney was licensed? Whether they’ve been sanctioned? Fat chance you’ll find this information on the State Bar of New Mexico website. And good luck even getting it in response to an open records request.

Why? Because the judiciary, unlike every other state agency in New Mexico, considers itself exempt from that state’s Inspection of Public Records Act (IPRA). And while the New Mexico Supreme Court has created court rules that extend IPRA-like provisions to court records, the Bar (an agency of the New Mexico Supreme Court) considers its records to be outside these rules.

So the New Mexico Bar – whose members write these rules – are the only element of state government free of public transparency. As a result, the public has access to far more information about the licensing and disciplinary history of sign language interpreters, massage therapists and barbers (to name but a few) than for lawyers. While the bar could easily address this, it has chosen not to – and also won’t provide the data to others (like Avvo) who would post this information for the public.

Were I a member of the New Mexico Bar, I would be profoundly embarrassed to fall further behind the rest of state government in public openness – particularly given the “professional excellence and service to the public” the State Bar of New Mexico claims to be dedicated to.

When we updated the Avvo Terms of Use (“TOU”) at the end of October to cover our launch of the medical directory and Q&A, we made a number of other more ministerial changes as well. One of these was to provide for notice of changes to the TOU via the Avvo Blog. While we may provide notice of certain changes by other means (email, newsletter, etc.) as well, we decided that the easiest, most predictable way to provide notice was to post to the Avvo Blog whenever we update the TOU. To receive notice of changes to the TOU automatically, just subscribe to the Avvo Blog by email or using an RSS reader (my go-to RSS tool is the free Google Reader).

So here’s the first notice of a change, albeit a very minor one: We’ve updated the TOU, effective today, to delete a reference to arbitration from the forum selection clause (paragraph 22 of the TOU). We’re making this change to reflect the fact that the TOU no longer has an arbitration clause, as it was deleted in the October 31, 2010 revision.

Please don’t hesitate to comment below – or contact me directly – with any questions or comments about our new TOU update policy.

As Conrad mentioned the other day, the ABA is cranking up the process of looking into lawyers’ use of social media tools. The ABA Ethics 20/20 Commission (in front of which I had the pleasure of testifying last month, on another topic they are investigating – lawyer ratings) has issued a 15-page-long “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools.”

Comments to the paper are due on December 14, and they will no doubt be voluminous. One concern of many lawyers is that this process will lead to even more overreaching regulation by the states – sowing confusion and making it harder for lawyers to communicate with and offer innovative services to clients.

I was struck, then, by a release this week from the ABA’s counterpart in the world of medicine. The American Medical Association this week issued its policy on this topic, titled “Professionalism in the Use of Social Media.” Those reading it will be struck first by its brevity; it clocks in at all of 358 words (the commentary alone to ABA Model Rule 7.1 – which simply prohibits false and misleading attorney ads – is almost that long):

The Internet has created the ability for medical students and physicians to communicate and share information quickly and to reach millions of people easily. Participating in social networking and other similar Internet opportunities can support physicians’ personal expression, enable individual physicians to have a professional presence online, foster collegiality and camaraderie within the profession, provide opportunity to widely disseminate public health messages and other health communication. Social networks, blogs, and other forms of communication online also create new challenges to the patient-physician relationship. Physicians should weigh a number of considerations when maintaining a presence online:

(f) Physicians must recognize that actions online and content posted may negatively affect their reputations among patients and colleagues, may have consequences for their medical careers (particularly for physicians-in-training and medical students), and can undermine public trust in the medical profession.

Ponder, for a moment, the reflection and simplicity here. There is a tacit acknowledgement that physicians are professionals – professionals who may need some guidance in this area, but certainly not in the form of having every communication scrutinized for compliance with the rigid corners of some picyune rule. Are lawyers really so different than doctors that we need detailed, step-by-step rules for communicating in public? Is it not enough that professionals be guided by basic, high-level principles?

The AMA has focused on the positive ways that social media enhances communication between physicians and patients, with a gentle reminder – befitting professionals – to be aware of potential risks to the integrity of the physician patient relationship. The ABA could do the same, and offer clear reminders about the big-picture issues with social media instead of mucking about in the weeds.

Sadly, all indications are that lawyers will end up with something a good deal more Byzantine than the AMA’s thoughtful policy.

Cory Doctorow wrote a thought-provoking piece this week on the fool’s errand of trying to stop the free flow – and copying – of information and entertainment online:

“The topic I leave my family and my desk to talk to people all over the world about is the risks to freedom arising from the failure of copyright giants to adapt to a world where it’s impossible to prevent copying. Because it is impossible. Despite 15 long years of the copyright wars, despite draconian laws and savage penalties, despite secret treaties and widespread censorship, despite millions spent on ill-advised copy-prevention tools, more copying takes place today than ever before.”

Whether we’re talking about works of art or government records, the internet has made all data much more freely accessible and transformable. This is an unequivocally good thing for the vast majority of people, who can enjoy, connect, create and learn in ways unimaginable a generation ago. Who isn’t it good for? Those who create desirable content, and those who profit by controlling access to information.

The reactionary, lawyerly answer is more of what we’ve had to date: more widespread censorship; more draconian laws. If piracy exists, we should legislate against it and go after the violators, right? The problem is that it doesn’t work. Legalistic efforts to stem this tide are no more effective than Prohibition or the “war on drugs”, and even more prone to pushing ancillary costs onto lawful uses. Slowing the internet down, denying access, creating barriers: All will catch a tiny percentage of pirated content, while burdening everyone else.

As Doctorow points out, we’re at a dangerous point, where ever-more-desperate media owners are seeking brute-force, intrusive methods of copyright enforcement. While such efforts will most certainly fail to achieve their goals, there is great potential for collateral damage. It’s time to replace this reactivity with creativity, with novel ways for copyright owners to adapt and thrive in a world where information flows freely.

We’ve been posting about the curious case of L. Joe Davis, the sanctioned St. Petersberg, FL lawyer suing Avvo. Earlier this week, our counsel received this email from Mr. Davis (click on image for larger view):

Is L. Joe Davis on to something? Are we not giving him a fair shake? Are we defaming him?

Or is he once again trying to bully Avvo into not talking about the real reasons for his meritless lawsuit?

In the interest of transparency, let’s look at each of the issues Davis claims are “false and defamatory” and see if they’re supported by the record – in this case, the stipulated facts, referee’s report and order imposing discipline on Davis.

1. Was Davis NOT twice found guilty of willfully refusing to pay court-ordered child support? Here’s once . . .

(Consent Judgment, page 2)

. . . and here’s twice.

2. How about court dates? Check; after missing trial dates on two occasions, the court had to issue a bench warrant to get his attention:

(Consent Judgment, page 3)

3. Finally, what about willfully obstructing the Bar? Although the detail of his obstruction is too lengthy to recite in this post (but you can read it all here), here’s how the referee conducting the bar’s disciplinary proceeding against Davis characterized the aggravating factors behind his sanction:

(Report of Referee, page 2)

L. Joe Davis says these “false and defamatory statements made in and to the press are probably more damaging to my reputation than anything else that avvo.com has done to date.” He’s half right – his misguided lawsuit IS calling more attention to his sanction and the circumstances leading up to it.

Mr. Davis can continue his on again-off again libel threats, but we’re not going to be bullied into not talking about the real reasons for Davis’ animosity toward us.

Eight of the Sunshine State’s largest law firms have now joined the Florida Bar in asking the Florida Supreme Court to revisit its recently-adopted and widely-derided advertising rules for attorney websites.

The law firms’ brief (pdf available here) offers a great overview of the limits on attorney advertising regulation. And while the brief closes with a request that the court simply go back to how things used to be (i.e., websites are “information provided at the request of a client”, and hence not subject to the ad rules), it also provides support for a more expansive undertaking:

Scrap all attorney advertising rules.

Bar regulators in states like Florida, New York and Louisiana have proven that they can’t be trusted to regulate within the bounds of the Constitution. They routinely flout the First Amendment, create uncertainty in their membership and drive the cost of legal services higher. It’s high time to cut them out of the loop and simply let general prohibitions on deceptive advertising operate for attorneys as they do for every other product or service.

In any event, kudos to Bilzin Sumberg, Carlton Fields, Foley & Lardner, Jorden Burt, Holland & Knight, Hunton & Williams, Weil Gotshal and White & Case for pointing out the abject unconstitutionality of the Florida Supreme Court rules. While it’s doubtful the Court will listen to you, here’s hoping that at least one of you takes this fight to federal court.