Much ado in the legal blogosphere about “ghostblogging”, an apparently new practice in which lawyers pay professional writers to write their blogs for them. The discussion has evolved to cover not only the appropriateness/efficacy of ghostblogging, but also whether it is ethical (per attorney advertising rules) and whether it is proper for those taking umbrage at ghostblogging to “name names” of those lawyers hiring ghostbloggers.

This entire discussion is mind-bendingly baffling to me. Blogging is a great platform for those who like to write and have something to say. It can be cathartic, informative and lead to engagement with others sharing your interest in the topic. It may lead to writing deals and speaking gigs. It may even help you develop business directly, particularly in the form of referrals from those who have gotten to know and respect you via your blog. But having someone else write your blog? If you haven’t even got the inclination to write, how are you going to deliver the authenticity and engagement that are table stakes to making blogging successful? What’s the point?

On the ethics issue, I’m not a big fan of attorney advertising regulation, and I don’t think blogs in their proper form are even subject to attorney advertising rules. However, when blogs devolve into pure advertising, they’re just like any other lawyer website, ad rules and all. And to the extent a ghostwritten blog involves deception, there’s no question it runs afoul of these rules.

Most amusing to me, however, are the protestations that bloggers like Mark Bennett who have called out lawyers using ghostblogging services are doing something untoward. Hey, if the service isn’t a problem, you shouldn’t care if anyone tells the world you’re using it. The fact that users of ghostblogging services are sensitive about being associated with it speaks volumes about how above-board they really perceive the practice to be. What’s more, they’re ATTORNEYS. I don’t know about these lawyers, but having people tell me I’m full of crap or don’t like what I’m doing has been a regular occurrence throughout my legal career. Grow a thicker skin – and don’t think about blogging if you can’t be authentic and have a real conversation.

Most lawyers who practice internet defamation law are well aware of the Streisand Effect, and you’d think they would be counseling their clients accordingly. But from the looks of it, they aren’t making much headway in convincing internet defamation plaintiffs of the futile and counter-productive nature of most such suits. Or are defamation plaintiffs just so angry, so out to extract a pound of flesh that they insist on pushing forward, irregardless of the wisdom of so doing?

You see, there continues to be no shortage of misguided defamation litigation. This week’s example is a case featuring a dead-loser of a defamation case accompanied by a request to keep the whole thing hushed-up: Vision Media TV v. Forte, et al. Quick summary: the plaintiff (a provider of quasi-news television productions, the subjects of which are asked to pay upwards of $20K in “production costs”) is peeved about comments that appeared on 800notes.com, a site devoted to consumer reviews of telemarketers.

Of course this lawsuit is barred by Communications Decency Act Section 230, and of course Vision Media TV would have been far better off ignoring these comments or asking that satisfied customers post positive remarks. How many people who weren’t aware of the comments, allegations of scammy practices at Vision Media TV, or 800notes.com are now aware of all three, solely due to Vision Media TV filing this lawsuit? Textbook Streisand Effect.

Now, to make matters more amusing, Vision Media TV is seeking a court order requiring that defendant’s counsel (Public Citizen) stop posting the court filings on its “blog website” (click here to see the filings). No matter that these filings are public records, or that merely by making this request more people will pay attention to these filings. No matter that other websites unrelated to the lawsuit will be moved to post the papers themselves (see below). Yep, ask the court to put a muzzle on the lawsuit you brought. How’s that working out for you, Vision Media TV?

Public Citizen Motion to Dismiss
Vision Media TV Motion to Strike Defendants Posting Their Motions to Their Blog Website

Avvo is a great resource for attorneys to generate business, but we’ve heard from some of you that you don’t need any new business. Corporate counsel and government attorneys are two groups, as well as those attorneys who are taking a hiatus from practicing law.

We’re pleased to announce that you can now “flag” your Avvo profile as not taking new clients. You’ll still be found if someone looks for you by name, but you won’t appear in practice area searches. That way, consumers looking to hire an attorney in your practice area won’t come across your profile.

Result? Better search results for consumers, and less distraction for attorneys not looking for new clients. If that’s you, give it a try today – just log in and go to the “practice areas” section of your profile to set the “not accepting clients” flag.

Florida lawyers, your Byzantine and largely extra-constitutional scheme of attorney advertising rules is going to get even uglier. The Florida Bar is poised to issue guidelines implementing that state’s recent Supreme Court edict around the applicability of the ad rules to attorney websites. In addition to requiring that users affirmatively accept a disclaimer before visiting the inside pages of an attorney’s website, the guidelines will also specify that social media sites are also subject to the rules. Wait, there’s more – Facebook friend requests, invitations to connect on LinkedIn (and maybe even following someone on Twitter?) will be considered impermissible in-person solicitation.

Does the Florida Bar Standing Committee on Advertising not take counsel on First Amendment issues? Unless the guidelines are very narrowly focused on just the most blatant advertising-based uses of social media, they’re haven’t a chance of passing constitutional muster. If there’s a silver lining here, it’s that these changes are significant enough that some attorneys are sure to seek federal court help in striking them down.

OK, so end-of-year top blogging lists are as inevitable as the rubber-stamped holiday card. Having said that, we’re going to do it anyway (and we’re not even going to pay lip service to objectivity). Here, in no particular order, are those legal blogs that generated the most conversation around the Avvo offices in 2009:

1. Myshingle – Carolyn Elefant is the fairy godmother of solo practitioners, offering advice from the philosophical to the pragmatic. She’s also willing to jump into any fray on behalf of solos – providing the first defense of the 5 solo practitioners targeted with felony prosecution in the Total Attorneys case.

2. Above the Law – People Magazine meets legal blogs. If blogs were magazines we’d have a stack of Above the Law in the men’s room.

3. WSJ Law Blog – Ashby Jones filled some big shoes when Peter Lattman left WSJ’s Law Blog – which remains one of the best sources for insightful commentary on breaking legal issues.

4. Simple Justice – Scott Greenfield is described thusly in Avvo’s office: “that guy is an abrasive ass – but I love reading his blog.” I think Scott would agree.

5. Robert Ambrogi’s Lawsites – Through blogging his thoughts, Bob Ambrogi has arguably become the legal industry’s most insightful commenter. If you really want to stay up to speed, tune in to Lawsites.

6. Social Media Law Student – Rex Gradeless is on the list because of the Paris Hilton effect: he’s famous for being famous. But if you still have your head in the sand about social media, Rex spoke last week on a Martindale Hubbel panel based entirely on his ability to become the most followed Twitter lawyer – - – while still in law school.

7. The Legal Satyricon – Easily the most NSFW of legal blogs, it’s a rare day that we aren’t chuckling at Marc Randazza’s tales of First Amendment and political “asshattery.”

8. What About Clients? – Sure, we’d all love a little work-life balance, but Dan Hull and crew offer a constant (and literature-steeped) reminder that being a lawyer is all about service to one’s clients.

9. My Law License – Brian Tannebaum provides a knowledgeable, insider’s view of bar regulation and the legal marketing industry. And he’s not afraid of a fight. He also holds legal blogging’s best disclaimer “You pay for legal advice. This is free.” (Which we’re pretty sure he lifted from Greenfield.)

10. Citizen Media Law Project Blog – Besides lawyers of course, we here at Avvo love coffee, peanut M&Ms and the First Amendment. We’re also kinda fond of the concept of open government. CitMedia does a great job delivering news and notes on the last two.

To everyone on this list – and the rest of those legal blogs that entertained us, provided us with great information, or both throughout 2009 – keep up the good work. We’re looking forward to more of the same in 2010.

Last week, I wrote about the Florida Bar’s settlement of litigation relating to client reviews and online directories. In summary, the settlement notes that the Bar is engaged in a review of its advertising rules, and that while the review is pending the Bar will treat profiles on directory sites such as Avvo as “communication at a prospective client’s request.” As such, Florida Bar advertising rules would not apply to such profiles.

One little problem: Not two days after the Bar’s settlement of the Rothman litigation, the Florida Supreme Court issued an opinion changing Florida’s attorney advertising rules to explicitly bring websites “controlled or sponsored” by a lawyer within the ambit of the advertising rules. Previously, attorney websites had been largely considered information provided at a prospective client’s request.

Predictably enough, Florida lawyers are confused – do the rules apply to directory profiles or not? While the settlement can be read consistently with the new rules with respect to Avvo (as most items in Avvo profiles, including client reviews, are not “controlled” by a lawyer), what of directories like LinkedIn or Facebook where all of the content – and the existence of a listing in the first place – is controlled by an attorney? What of other directories that let attorneys pick and choose those reviews that appear? It certainly seems that the Bar’s intended interpretation of such profiles conflicts with the new rules adopted by the Supreme Court.

At a minimum, the disconnect between the settlement and the new rules reflects the lack of influence the Florida Bar wields with the Florida Supreme Court. In adopting the new rules, the Court declined to adopt the Bar’s suggested changes; there’s no reason to think the outcome will be different this time when the Bar presents the results of its review. It may well be that the best hope for clarity for Florida lawyers is the resumption of the Rothman litigation.

Florida may have a lot of onerous ad regulation, and it may sometimes take a lawsuit to affect change in the Sunshine State, but they’ve made a change for the better today: In settling a suit brought by Florida lawyer Joel Rothman and Public Citizen, Florida has agreed to exempt online directories such as Avvo from most of its ad rules.

Last year, the Florida Bar held that members may run afoul of the state’s prohibition on testimonial advertising by having client reviews on Avvo. Problem is, attorneys don’t control the client reviews on Avvo. Part of Avvo’s mission of transparency in the legal industry is ensuring that clients ultimately decide if reviews appear, and what those reviews say.

What’s great about this settlement is that it goes beyond the obvious – that lawyers can’t be held responsible for reviews left for them on Avvo – and sets forth the principle that directory profiles are information provided at the request of a potential client. Such communication is exempt from the vast majority of Florida’s attorney advertising rules, including limitations on testimonial advertising and referring to past results. Result? Florida lawyers need no longer worry about consumer opinion or otherwise-truthful information that appears in their Avvo profiles. We congratulate all of the parties involved on reaching this commonsense solution.

Anyone coming to the world of lawyer marketing from a consumer product background would be stunned by the state bar rules governing lawyer advertising. The vestigial remains of the courtly days before lawyer advertising, these rules are typically a mix of picayune detail and over-expansive reach, an attempt at lawyer exceptionalism in our 21st century media landscape.

Do these rules do any good? I’m unaware of any empirical data showing – or even suggesting – that attorney advertising rules actually protect consumers (the one exception being limits on in-person solicitation immediately following accidents). The Federal Trade Commission, which knows a thing or two about advertising practices and consumer harm, has long advocated that bars loosen or eliminate their advertising restrictions. What’s more, these rules are supposed to be interpreted within the parameters of the commercial speech doctrine, which significantly limits the ability of the state to restrict non-deceptive advertising.

Within this framework of questionable utility and limited constitutionality, one would expect that state bars would tread carefully when it comes to their advertising rules. Instead, some states lean heavily into their rules, enforcing them as expansively as possible. The latest example: Connecticut, which has laid the hammer down on 5 lawyers who participated in the Total Bankruptcy advertising site (thanks, Ben Glass, for posting the memo).

What did these scofflaws do? They paid Total Bankruptcy to send potential customers their way. In any other field, this type of behavior is called “advertising.” In the eyes of Connecticut’s disciplinary counsel, it’s “felonious.”

The Bar has fixated on its prohibition of unapproved and unregulated “lawyer referral services,” which it considers Total Bankruptcy to be. Could there be issues with such services? Sure, depending on the facts. If consumers are being deceived or misled, that’s a problem. But the bars need to proceed with caution, not rabidly pursue disciplinary action and suggest that attorneys using such a service should be charged as felons. Consider:

1. Are consumers being harmed? Connecticut’s restrictions aren’t constitutional if they aren’t narrowly tailored to address a substantial government interest. Is the ban on “unapproved lawyer referral services” intended to protect the public or preserve the local bar’s sinecure in referring clients to lawyers, often taking a cut of legal fees in the process? While there may be an important consumer protection element in regulating organizations that purport to perform customized evaluations and selective referrals, the bar needs to carefully consider whether a marketing vehicle is actually making that claim, or whether it simply “smells like” a lawyer referral service.

2. Is state-sanctioned lawyer referral really the only way to go? As Carolyn Elefant points out, the “official” lawyer referral services aren’t for everyone. While they can offer a wonderful service, many consumers don’t want or need the handholding involved, and don’t want to pay a $35 fee to get an initial consultation that would be free elsewhere. Many consumers are also savvy enough to know that they will need to do their own diligence on an attorney’s qualifications and “fit” for them, regardless of whether the attorney is recommended by a friend, the state lawyer referral service, or a service like Total Bankruptcy.

3. Why does Connecticut stretch the law? The Connecticut memo makes much of historical prohibitions on “runners” being used to drum up business, and equates Total Bankruptcy to a “runner.” The problem is that Total Bankruptcy – and any online service – doesn’t remotely fall into this category. Runners are a form of in-person solicitation, which is subject to far more restrictions than advertising, for obvious reasons. Adding insult (and offense) to injury, the memo uses this bogus argument as its linchpin for threatening the “Total Bankruptcy 5” with felony convictions.

Ultimately, in the absence of consumer harm – and, indeed, a crystal-clear fit within the law’s prohibitions – states should never find that lawyer marketing practices violate their rules. Any other result is constitutionally infirm. While the bar owes it to the public and its members to carefully evaluate marketing practices that may mislead consumers, it must do so carefully and avoid rushing to judgment or overreaching. Let’s hope that when Connecticut’s Statewide Grievance Committee holds its hearing on this matter next week it does just that.

At Avvo, the vast majority of the tens of thousands of client reviews we receive are positive (over 80%). Still, some attorneys have recently begun commenting on the fact that we allow “anonymous” reviews. “Anonymous” is in quotes because it can mean a number of different things. At Avvo, “anonymous” means that we require reviewers to register with the site; but we do not require them to disclose their identities to the general public. We also do not disclose the reviewers’ names upon request. The latest commentary calls for an end to such anonymity. Different lawyers have also suggested that Avvo independently verify all reviews, or that reviewers waive their attorney-client privilege as a condition of leaving a review.

We believe this commentary has merit, but ultimately misses the mark.

Online communities place enormous value on sharing experiences. The tremendous growth of Yelp, Amazon, Twitter and other aggregators of public opinion (including, indeed, Avvo) points to the value individuals place on being able to share their experiences and learn from the experiences of others. And the more robust the community, the more efficient the information and the better experience for all users.

Are there issues with client reviews? Of course – and in this way reviews are no different than any other form of communication, on- or off-line. But the fact that a review system isn’t “perfect” from a lawyer’s point of view doesn’t mean it doesn’t offer significant value in the aggregate. As with any other community, the goal is to balance competing factors in order to make the information as useful as possible.

At Avvo, we start that balancing process by policing the community. A human looks at every review before it is posted, to ensure it meets our community guidelines. We also offer attorneys a mechanism by which reviews can be escalated; in this process Avvo verifies that the reviewer wants the review to remain posted.

But while our community guidelines, human review and escalation process make Avvo’s the most responsible system for client feedback out there, we need to ensure that clients remain comfortable leaving reviews. This is why offering anonymity is a must.

Ultimately, people are going to talk about lawyers and their practices, and they’re going to do so online. Many will rave about how wonderful their lawyers are; others will bemoan attorneys who failed to return their many phone calls. Still others will attempt to falsely inflate or deflate reputations, or blame attorneys unfairly for losing unwinnable cases.

The answer to these marginal abuses isn’t to try to curtail all speech in this forum – it’s to meet it with more speech. Look at Amazon, where reviews abound, positive and negative; credited and anonymous. Even products universally lauded as wonderful will feature a number of negative reviews, but the aggregate “voice” these reviewers offer potential customers is powerful and compelling. As more and more reviews come online, a reputational ecosystem will develop where the pattern of multiple reviews will help reveal the real character of what it’s really like to work with that attorney. This has already happened with most major categories of consumer products and services, and is happening in Avvo’s biggest markets. The sooner we attorneys disabuse ourselves of the notion that our services are less amenable to review than those of a hotel or a roofer, the better off we’ll be.

Back in the 1960’s, Houston became home to the first major artificial playing field – the original, inglorious, Astrodome. So it’s only fitting that the largest city in Texas can now proudly claim title to the reigning king of “astroturfing”: In online parlance, the practice of buffing up one’s reputation by posting phony user reviews online.

Houston criminal defense attorney Andy Nolen – or someone who has a stake in Mr. Nolen’s online reputation – has been posting, on Yahoo Local, positive reviews of Mr. Nolen and scathingly negative reviews of his competition. 31 posts, all on Houston attorneys, all negative, except for one: Andy Nolen.

Others have filled in the backstory on Nolen, including consummate Texas bloggers and attorneys Mark Bennett, John Floyd and Cynthia Henley. Let’s just say that much like the astroturf that was rushed into Houston’s dome to replace a failed go at growing grass indoors, Andy Nolen’s ersatz reviews appear to be an attempt to substitute for courtroom success that failed to thrive.

What’s important to note is that “astroturfing” is more than just juvenile and corrosive of the quality of information that consumers are growing to demand from online marketplaces. It’s also illegal. Just last month the New York Attorney General’s office announced the successful prosecution of an astroturfing plastic surgery concern, resulting in a $300,000 settlement and injunctive relief.

Professor Eric Goldman, a leading authority on internet law and online forums, has noted the importance of online reputational ecosystems and the need to keep them as open as possible. As these systems build out, real feedback will drown out or expose any artificial reviews. Attempts to flame the competition or astroturf should be aggressively reported to site operators, but the best of all cures for this behavior is more input from clients.

By the way, if you want to review your lawyer, you can do so here: Avvo Lawyer Reviews. But astroturfers take note – Avvo reads every review before deciding whether it gets posted.