Do Bar Assocations Want The Public to Shut Up?

Doug Cornelius operates a blog at compliancebuilding.com that “is about compliance and business ethics.” He raises a question in a blog post today about LinkedIn’s “recommendation feature” as it relates to attorneys using the service, Doug specifically discusses whether the recommendation violates lawyer advertising regulations.

The justification behind this question is simply this: Your LinkedIn profile likely states that you offer certain services, and therefore, would be considered an “advertisement” by most states’ ethics rules.

The query should not stop with the LinkedIn service. Similar social networks and internet websites will raise the same questions. For example, Facebook wall-posts, Avvo.com’s peer and client “endorsements,” and even GoogleMaps’ ratings.

Some of these services allow you to control and edit recommendations (such as LinkedIn), but there are less controls with others (such as Google Maps).

A component of Wolfe Law Group’s lawsuit against the new Louisiana lawyer regulations speaks to exactly this problem with how the old advertising rules relate to modern day internet communicating and networking.

After reading through Mr. Cornelius’ blog post this morning, I submitted the following comment to his post:

Good post, Doug – and I think you are exactly right with your analysis. Recommendations on LinkedIn, however, is really just the tip of the iceberg. What about wall postings that “recommend” a service on a company’s facebook page? How about client and peer endorsements on Avvo.com? What about “ratings” on GoogleMaps.

The fact is, those of us who are regulated by bar associations and other organizations are going to have a very difficult time turning all of this free speech off. In fact, in many instances, our only option would be to not use the service.

This issue is front and center in our lawsuit against the Louisiana State Bar Association (Scott Wolfe Jr. v. Louisiana Attorney Disciplinary Board, et al., USDC ED 08-4994). You can keep up with this suit at http://www.protectspeech.com.

Of course, advertisements by attorneys will still be regulated online. The old rules just don’t fit any longer.

The New Louisiana Regulations

The proposed advertising rules from Louisiana would certainly speak to “recommendations” made on LinkedIn. Proposed Rule 7.2(c)(D) states:

(1) A laywer shall not make or permit to be made a false, misleading or deceptive communication about the lawyer, the lawyer’s services, or the law firm’s services. A communication violates this Rule if it: (d) contains a reference or testimonial to pass successes or results obtained…”

The communication of a “testimonial” through electronic mediums (such as the Internet) is regulated by Rule 7.6(d), which provides that those communications are subject to the requirements of Rule 7.2. This would even require the attorney to submit the “recommendation” to the bar association, with a $150.00 fee, for the bar’s review of its contents.

What do you think?

In essence, the bar association is making attorneys responsible for what other people are saying about them and their work.

While the regulation over “testimonials” make a bit of sense (not constitutionally, but at least sense)with respect to comments used in television or print advertisements…the acquisition of those testimonials are a completely different experience from the acquisition of a ‘recommendation’ on LinkedIn, or a favorable endorsement from a peer or client on Avvo.com.

Should attorneys and other regulated professionals be in charge of telling others to shut up online?

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4 Responses to Do Bar Assocations Want The Public to Shut Up?

  1. Scott -

    Thanks for sharing your thoughts. Your comment was tagged as spam and ended up with all the ads for Viagra. I have published it to the site. Don’t take it personal. It was Akismet that didn’t like you.

    I think the Louisiana approach is terrible. You would think that since they are currently rewriting the rules they would address some of the current tools in use. They are acting like it is 1998 instead of 2008.

    They should clearly address how the internet is currently used. We may not like how the rules end up, but they should at least remove the uncertainty.

    The review fee is just silly.

    • Hi Doug – Thanks for the comment. I changed the post to reflect that the comment appears on your blog. I think you’re right…and the Louisiana Supreme Court has actually postponed the rules to “consider the constitutional challenges.” Not sure exactly what they are reviewing, or whether they will consider changing the rules – but I do hope they do, and that they consult with folks about the www before passing the regs.

  2. “Should attorneys and other regulated professionals be in charge of telling others to shut up online?” In a word, no.

    It is good to see that attention to this issue is gaining steam. While there is no question that a balance needs to be struck between a lawyer’s constitutional right to commercial speech and protecting the public from misleading/”unethical” advertising, the current rules of most state bars are simply out-of-date, impractical, and unworkable.

    At best, they leave lawyers scratching their heads about what they are and are not allowed to do.

    And that doesn’t even begin to address the problems faced by lawyers with multi-state practices.

    In my humble opinion, proposed rules need to be tailored to protect the public from being misled, while keeping in mind the lawyer marketing 2.0 environment (i.e. social media, blogs, websites, and search engine marketing).

    Here’s one to play around with: Under some states’ current ethics rules, one might argue that Google constitutes a lawyer referral service.

    • I have heard some talk about bar associations having conversations about Google being classified as a lawyer referral service – I think you’re spot on with the concerns your raise. The disconnect between current and pending regulations, and the www, is becoming laughable.

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