One interesting side note to Avvo’s application to the Illinois Supreme Court for attorney records involved our use of counsel. Working for a pre-revenue start-up, I generally do all of Avvo’s public records request work myself, rather than spending money on outside counsel.

In Illinois, however, I needed some help understanding the court’s perspective and the puzzling decision by the ARDC to not release a list of names of attorneys. I also needed someone with deep familiarity with the Illinois Supreme Court and the process for filing an application like ours.

The Illinois Supreme Court

Unfortunately, most of the lawyers I know are in Seattle, San Francisco or New York. While I know a couple of M&A lawyers at Sidley & Austin in Chicago (including the indefatiguable Bill DeCarlo, who I’ve done several telecom deals with), I don’t know any Illinois appellate lawyers. What to do? I could try to get a referral from one of the lawyers I know, but that would take time, and wouldn’t necessarily bear fruit. I could check Martindale Hubbell, but I didn’t even use that 10 years ago when it was the only directory option - it’s just not detailed enough.

So I used Avvo - we ought to eat our own cooking, right? A quick search of Avvo turned up 531 appellate lawyers in Illinois; near the top of the list was Steve Pflaum, a partner at McDermott Will & Emery in Chicago. A quick check on his profile revealed that Steve knows the Supreme Court inside and out, has worked with the ARDC and has served on the Supreme Court’s Professional Responsibility Committee. In short, exactly the background I was looking for.

Steve didn’t expect that claiming his Avvo profile would lead to a parade of consumers seeking him out; he did so more as a matter of interest and online reputation management. However, as my experience shows, there’s no reason Avvo can’t be a resource for in-house counsel as well - and a means for even large firm attorneys to present themselves to potential corporate clients.

Back in March, Avvo successfully petitioned the New Jersey Supreme Court to obtain the release of licensing data for all New Jersey attorneys. We’re now making a similar request of the Illinois Supreme Court, where that state’s attorney-regulating body (the Illinois Attorney Registration and Disciplinary Commission) has refused to release licensing and sanctions data for Illinois attorneys.

Our issues with Illinois illustrate the lack of transparency that continues to beset the legal industry. The ARDC has specific guidelines providing that it can release its “Master Roll” of attorneys to courts, local bar associations and continuing legal education service providers. The ARDC has apparently decided that this is the limit of its obligation to provide this information in a complete form to the public, and that Avvo, as a commercial enterprise not based in Illinois, is not entitled to the records.

What’s curious is that this isn’t a question of confidentiality. The information Avvo wants is freely available on the ARDC website, but there’s a catch -you’ve got to know the name of an attorney to do a search. In this way, the ARDC is making the information public, but in a functionally obscure way. A consumer can check up on an attorney they are thinking of hiring, but they can’t search the ARDC database for an attorney.

Of course, we’ve got a little internet and data mining expertise here at Avvo, so we were able to access most of the attorney records in the ARDC site and include Illinois as one of the 10 jurisdictions covered by our June, 2007 launch. However, while we’re confident we’ve been able to extract data for 95-99% of all Illinois attorneys, we know we haven’t gotten all of them. In fact, several Illinois attorneys have proactively reached out to us and asked why they did not have profiles on Avvo. The bottom line is that there is no way we can offer consumers and lawyers a complete view of Illinois lawyers as long as we have to run this kind of data extraction program every time we update records.

So why would the ARDC oppose lifting the functional obscurity from data that it already makes public? It could be that the ARDC feels like the specific guidelines provided by the Supreme Court for the release of the Master Roll limit it from providing the data directly to Avvo. It could also be that the ARDC finds it anathema to provide this data to a for-profit business that is not a CLE provider. You would think that the ARDC, which counts among its principal missions the discipline of wayward lawyers, would welcome with open arms Avvo’s offer to publicize ARDC disciplinary decisions. Instead, we’re mired in the question of whether Avvo should have the key - a simple list of names - with which to unlock the data the ARDC already makes public.

Ultimately, the ARDC is playing off the same out-of-date rulebook we’ve encountered in places like New Jersey - the mindset that says the attorney regulators and lawyers should control how much information is available to consumers. We’ve seen these walls come down in industries from travel to real estate - remember when the travel agent would key furiously into a propreitary machine to produce three potential travel itineraries, or MLS data could only be accessed by a realtor? Avvo is trying to bring that same level of access to the legal profession. While I hope entanglements like this will be few and far between, we won’t hesitate to keep fighting them in an effort to bring consumers a comprehensive picture of the legal community.

Josh

Two years ago, when Barry Bonds was in the throes of the BALCO investigation, a quirky thing happened in the ESPN fantasy baseball league I participate in: The league website stopped referring to “Barry Bonds”, substituting instead the nomiker “San Francisco OF.” It turns out that ESPN pays Major League Baseball a licensing fee to use the names of major league players; the league was in a dispute with Bonds, and one side or the other insisted that his name not be associated with MLB for a time.

The particulars aren’t important. What is amazing is that MLB felt like it had the right to license the player’s names, and fantasy baseball league operators like ESPN actually went along with the licensing scheme. But not all of them did - a smallish outfit in St. Louis challenged the licensing deal and won in court. MLB pushed the case all the way to the Supreme Court - which just denied cert, letting the lower court victories for fantasy baseball stand. Good news for baseball fans and advocates of sensible IP rights everywhere.

Having done my share of M&A work, I’m a big fan of Steven Davidoff’s “Deal Professor” column in the NY Times Dealbook. His recent bit of informed speculation about the nature of Facebook founder Mark Zuckerberg’s rights viz-a-viz his VC backers is a great high-level illustration of some of the not-immediately-obvious issues that founders need to consider when considering venture capital investment.

On a lighter note than yesterday’s post about the rating of state supreme courts, I’ve got to pass along this effort to rank the 50 worst album covers of all time. Sure, the approach may be just a little less scientific, but these examples of album cover art(?) are not to be missed.

Those who recall Avvo’s launch, nearly one year ago, will no doubt remember the chorus of lawyers aghast that we would dare to rate members of the legal profession. We hear little of that these days, as our approach has become accepted - if not always welcomed - within the legal community.

In the spirit of those appalled that legal practitioners could be rated, I was amused to come across this University of Chicago Law School paper that sets forth a methodology for ranking state supreme courts (and compares it with the surprising number of other recent rankings of such courts).

Quelle horreur - How can one possibly rank the complex work undertaken by these lofty collectives of jurists? Easy, if you’re a bunch of law and econ guys: Create a ranking algorithm based on productivity (number of opinions published), influence (on other courts and academia) and independence (from partisan pressures).

Interestingly, the authors had this to say about the utility of rankings:

“The alternative to rankings is, as a practical matter, virtually no information, and public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well. Rankings, however imperfect, serve an important information-forcing function. Institutions that do poorly on rankings should have the burden of coming forth with an explanation for their performance; but if the explanation is plausible, then the ranking should be discounted.”

That’s lot like how we think about the Avvo Rating - a good place to start one’s search for a lawyer, but not the end-all-be-all in making the decision.

So how did the states do? Our authors’ top 10:

Arkansas
California
North Dakota
Montana
Ohio
Georgia
Mississippi
Massachusetts
Rhode Island
New York

Sad to see our Washington court, which finished no worse than seventh in the other three rankings, didn’t make the list. Read the paper for the in-depth discussion of why using an unbiased algorithm provides a more balanced picture than the traditional ratings, which typically focused on only one of the algorithm’s three factors.

It’s no secret that Avvo has raised $13 million in venture funding from Benchmark Capital and Ignition Partners. In the process, we’ve talked to lots of other folks in the venture world; you might say we’re familiar with the ideosyncracies of those who inhabit that world. Lots of smart people, lots of ego, and a relentless drive to always look forward. So I was delighted to read about Bessemer Venture Partners’ “Anti-Portfolio” – those investment opportunities BVP passed on. From their take on Google:

“[BVP Partner David] Cowan’s college friend rented her garage to Sergey and Larry for their first year. In 1999 and 2000 she tried to introduce Cowan to “these two really smart Stanford students writing a search engine”. Students? A new search engine? In the most important moment ever for Bessemer’s anti-portfolio, Cowan asked her, “How can I get out of this house without going anywhere near your garage?” “

BVP has had a lots of hits and can afford the candor, but it is refreshing all the same to see these guys look back and laugh at what might have been.

Josh

According to a recent post by Tim Stanley, the founder of Justia - the terrific site for, among other things, free legal reference materials - the State of Oregon is demanding that Justia pay a licensing fee to display the Oregon Code.

As someone who grew up in Oregon, I have to say I’m a bit embarrassed for my home state. First and foremost, shouldn’t a state want its statutes disseminated as broadly as possible? After all, it’s hard to comply with the law if you don’t know what it says.

Secondly, Oregon’s position is flatly contrary to very well-established copyright law. Cases going waaaay back have found that public laws are not copyrightable; at best, publishers (such as the State of Oregon) can protect the “creatively original” portions of the “selection and arrangement” of their publications of the codes. I’ll go out on a limb and predict that no court is going to find that the numbering or structure of the Oregon code is copyrightable by the state.

Kudos to Justia for continuing to fight to make this kind of information more readily accessible to the public.

Josh

Avvo’s launch in Florida did not go unnoticed - in advance of our entry to the Sunshine State, the Florida Bar’s Standing Committee on Advertising issued a specific decree that Florida lawyers could not advertise their Avvo Ratings. Hey, we like attention as much as anyone else, but this left us a bit miffed. We hadn’t gotten any warning that we’d be singled out like this.

So, a couple of weeks ago Mark and I talked with the Committee and walked them through what Avvo is doing. Long story short: The Committee summarily reversed itself, determining that Florida attorneys CAN advertise their Avvo Ratings. Here’s the official notice. If you’re a Florida lawyer holding off until now to add the dynamic Avvo badge to your site, just go to your Avvo profile and click on the link for “add the Avvo Rating to your website.”

(To illustrate the difficulties consumers face in accessing public records on attorney licensing, we are providing an ongoing account of Avvo’s attempt to obtain attorney licensing information from the state of New Jersey. See Part 1, Part 2 and Part 3)

New Jersey, like many states, has an “Open Records” act that renders most government records available to the public. New Jersey’s act is, in many ways, a model of openness – it contains a sweeping presumption that the public will have access to government records, it specifies relatively easy procedures for appealing a denial of a records request, and even provides for the imposition of penalties on recalcitrant records custodians.

Unfortunately, the New Jersey Court system – which includes the agencies responsible for attorney licensing and discipline - doesn’t think it applies to them. They may have good reason for this – other states specifically carve the judiciary out of Open Records Act coverage, and there likely are some separation of powers issues involved in imposing any such legislation on the courts. However, New Jersey’s OPRA on its face doesn’t appear to exclude the courts:

“’Government record’ or ‘record’ means any [record] that has been made, maintained or kept on file . . . by any officer, commission, agency or authority of the State or of any political subdivision thereof.” (OPRA; NJ Statute 47:1A)

Dispute this seemingly-broad applicability, the Courts have simply decided that the OPRA doesn’t apply to them. To some extent, this shouldn’t matter – New Jersey has a Court Rule (NJ Court Rule 1:38) that provides for wide-ranging public access. But Rule 1:38 doesn’t go as far as the OPRA, and it doesn’t contain the procedural safeguards – right to appeal, penalties, etc. - of the OPRA.

We’ve run headlong into this problem in our quest for records on New Jersey attorneys. We’ve also made an interesting discovery: At the same time we are beating our heads against the wall to get what should be very basic records out of the Court administration, the New Jersey Supreme Court is nearing the end of a several-years-long process to revise and expand Court Rule 1:38 to more closely match the coverage and breadth of the OPRA.

This is, of course, a laudable goal. The proposed Rules are notable for their openness and support of the public’s right to know. The disappointing part is that the proposed changes to Rule 1:38 flat-out excludes the Court’s regulatory agencies . These agencies - a category largely made up of the agencies governing judicial conduct and attorney licensing, conduct and discipline - are given at least an additional year to devise their own rules (see pp. 59-60 of the Special Committee’s Report). Why? The Special Committee simply concludes, sans any analysis, that these agencies “may require special consideration.” While the rules ultimately adopted by the agencies must “start from a presumption of openness and be consistent with the spirit” of the Special Committee’s Report, there is no guarantee that they will be as expansive as the Court’s rules or the OPRA, or that it will be any easier for the public to access these records. What’s more, it will be at least a year before any such rules are in effect.

Comments on the Special Committee’s Report were due March 24, 2008 - Avvo, among others, has asked that the Special Committee reconsider whether these agencies need special treatment. After all, if the Proposed Rule 1:38 is sufficient to cover the variety of messy business that makes up the daily life of the Courts - from domestic violence to intellectual property disputes; from traffic infractions to gangland trials - shouldn’t it be more than adequate to cover the relatively mundane business handled by these housekeeping agencies?