Category Archives: First Amendment

 

June 11th, 2009

NY Ct. of Appeals: Attorney Newsletter Not an Advertisement (And What of Blogs?)

Two New York blogging attorneys found themselves in a decision today out of our highest court, in Stern v. Bluestone. Andrew Bluestone writes the New York Attorney Malpractice Blog, and was sued when he sent his newsletter via fax to local attorneys. He was defended by Scott Greenfield, of Simple Justice fame, who argued the matter in the Court of Appeals.

And since SCOTUS nominee Sonia Sotomayor may play a role in the First Amendment issues I’m about to discuss, this could be particularly interesting.

Bluestone was sued by Peter Stern, another local practitioner, for violating a federal law (the Telephone Consumer Protection Act) that prohibits using a fax for unsolicited advertisements. But was his newsletter regarding attorney malpractice an advertisement for his services? Both the Supreme Court (our trial level court) and the Appellate Division, First Department (intermediate appellate court) said it was advertising. You can read some of that prior blogospheric commentary here:

Most troubling about the First Department decision was this:

While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone’s services, which are for the specialized field of legal malpractice claims. . . .

Contrary to the dissent’s viewpoint, Bluestone’s motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed “commentaries” are not just information with an author’s name attached, but include the name of the author’s law firm and direct readers to his web sites which advertise his professional services.

Why is that troubling? Because blogs may also come under regulation from New York’s advertising and anti-solicitation rules, albeit it in a different context. As Greenfield noted back on his own blog in February 2008:

The significance of this case has nothing to do with the manner in which it was transmitted, but something far more insidious and troubling for lawyers. It was held to be advertising, for only commercial solicitations fall within the TCPA. With the changes in flux for New York lawyer advertising, this decision could have a disastrous impact on lawyers and their exercise of First Amendment rights.

Every blog that has a name on it, in other words, could be deemed advertising. There are a bazillion shades of gray between an article that appears in a legal journal and what you read here. How, exactly, does a court make that determination of what the primary purpose of the publication is?

But today the Court of Appeals reversed, holding that the newsletter is not an advertisement. The Court noted that the FCC had this opinion on the subject of what is, or is not, an advertisement:

so long as the newsletter’s primary purpose is informational, rather than to promote commercial products”

The Court then went on to decide that:

In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, “[a]n incidental advertisement” of his services, which “does not convert the entire communication into an advertisement”

But this leaves an issue hanging: Who decides what the “primary purpose” of a blog or newsletter is?

It’s worth noting that that exact phrase is part of New York’s anti-solicitation rules. I started writing about it in February 2007 when the new rules went into effect (See:Who, Exactly, Must Comply With New York’s Attorney Advertising Rules? and more on the subject as a whole here: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.)

With so many potential shades of gray, it seems that if and when the issue is ultimately litigated, we will be faced with Justice Potter Stewart’s famous words regarding the definition of pornography, for it seems equally applicable in the context of deciding what is attorney advertising and what is not when it comes to blogs:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

So when will it be ultimately litigated? Hold on to your hats….the issue of New York’s new anti-solicitation rules is now before the Second Circuit. And Justice Sonia Sotomayor was on the panel that heard the case.

Elsewhere on today’s ruling:

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Full disclosure: I know both Bluestone and Greenfield, and both have appeared in my blogroll for the last couple of years.

Links to this post:

shingular sensation scott greenfield wins landmark victory …
on june 9, 2009, new york solo and simple justice blogger scott greenfield won a unanimous, landmark ruling from the the new york court of appeals in stern v. bluestone, which ruled that unsolicited, informational faxes distributed by …

posted by [email protected] (Carolyn Elefant) @ June 15, 2009 7:23 AM

POSTS WILL RESUME SHORTLY
It seems like I’ve been saying that alot. I’ve been busy. For some reason these past few months have been full of assignments, projects, and two line emails that require two hours of work. Court has been especially busy as well. …

posted by . @ June 13, 2009 5:01 PM

post-hiatus supreme court stuff…
it’s been a long time, i shouldn’t have left you… (anyone who can finish that sentence wins a prize!) i have been on a bit of a hiatus while i concentrated on completing my fellowship at the drum major institute for public policy. …
posted by Kia Franklin @ June 12, 2009 6:08 PM

 

May 23rd, 2009

Scott Greenfield Gets A Nastygram

A former cop named Jim Donahue stupidly decided he would send a take down demand to criminal defense lawyer Scott Greenfield of Simple Justice fame. If there is a contest out there for dumb mistakes, Donahue will take the gold. And Greenfield will take the platinum for his response.

It seems Donahue wasn’t too happy that other cops treated him as a mere civilian, instead of giving him preferential treatment. Those other cops should have known he was a cop, he whined at Officer.com, since:

I am wearing my only sweatshirt, which has a breast emblem from my previous department in Michigan. I just got my “high & tight” haircut tuned up yesterday. It would not be a great leap of faith to think that I may be a retired cop, a current cop, or minimally, related to law enforcement based upon my appearance and demeanor.

So Greenfield wrote the story up last December, using his picture that you also see here to show the unmistakable awesomeness of the “high and tight.” And Donahue then made the grave mistake of “insisting” that Greenfield surrender his First Amendment rights to him and take down the picture: Greenfield’s response? He deservedly chewed up Donahue and spit him out. You’ll have to go to his site and read Drop the Photo or I’ll Shoot for the rest, but here’s a taste:

You put your appearance in issue, and I used your photograph to make the point. Don’t like having it on a scummy criminal defense lawyer blawg like this? Bummer. Be a man and take it, you wussie with your “high and tight” hairdo. You were tough enough to call out other cops for not treating you with the respect due a fellow officer, but not tough enough to bear having your image shown to the public you pretend to serve and protect? Exactly.

No one will ever accuse Greenfield of equivocating in his response, telling said former cop to “bite me.” And that was the most polite part of his stomping of Donahue, who no doubt is used to people following his orders. Donahue also has probably never had anyone call him a “big-mouthed blowhard” that is also “an ignorant, hypocritical poster boy for people who are undeserving of a shield and gun.”

The post is an instant classic.

Winner: Greenfield by knockout in the first round.
Lesson: Don’t mess with Greenfield. Even if you do sport a “high and tight” hairdo.

Update: Donahue may not be a former cop after all.

 

January 22nd, 2009

New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified


New York’s 2007 lawyer advertising rules will be before the Second Circuit today (NYLJ: 2nd Circuit to Hear Arguments on Lawyer Ad Restrictions). In 2007, many of the restrictions had been struck down by a federal judge in Alexander & Catalano v. Cahill, though one particular restriction — the 30-day anti-solicitation rule — was upheld. (Decision and briefs here)

This posting discusses how the anti-solicitation rule can be circumvented and why it causes First Amendment problems in certain circumstances due to the breadth of its definition of solicitation. Indeed, under the rules, this very posting could qualify as an ethical violation as I use the US Airways Flight 1549 splash landing in the Hudson River as a case example on how the solicitations can occur. In fact, the ethics rule is so full of holes that it would sink in a true disaster.

An Internet savvy lawyer may try to beat the rules by making agreements with legal marketers from outside New York. I refer to the work-arounds as Ethics Laundering, for the reasons that follow. If New York wants its anti-solicitation rules to have any real effect, it will have to more fully appreciate how the Internet has altered the field of attorney marketing, how the ethics rule might be laundered, how they may violate the First Amendment, and deal with it appropriately.

By way of background, the 30-day rule came into being in the wake of the 2003 Staten Island Ferry disaster that killed 11 people. While rescue efforts were still underway, lawyers raced to the Staten Island Advance to place ads in the paper before the afternoon deadline for the next day’s paper. It was not the personal injury bar’s most shining moment.

The new anti-solicitation rules, which cover more than mass disasters but that seems to be where the real problem lies for online solicitation, went into effect on February 1, 2007 after a period of comment. Here’s the text:

DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death

(a) In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

The easiest place to start analysis of how the rule works is with direct solicitation, and then work through several examples of the more troublesome indirect solicitation that serve to launder the ethics involved. While direct solicitation has, in the past, generally dealt with direct mail, this positing will deal solely with Internet related marketing.

Bear in mind that, because no lives were lost on the US Airways crash, and because a flock of birds seems to be the leading cause, we were not swamped with ads. Thus, this piece is written in advance of the full implementation of the rule, while the matter is pending in the Second Circuit, with the hope that the rule can be modified to take these devices into account.

First, direct solicitation can take place with simple Google AdWords. Those are the ubiquitous ads you see on top of the natural search results or in the right hand side bar when you Google “personal injury lawyer” or most any other service or product known to the human race. People and companies, working through Google, submit words or phrases that will trigger the ad. Those keywords don’t have to be part of the ad. For instance, a generic personal injury ad may run, but there may be hundreds of keywords that trigger it regarding medical malpractice, drug interactions, car or labor law accidents, etc. Where you land in the advertising results, be it in the first position on the first page or buried on page three, depends on how much you bid for the particular keywords you used.

So in the wake of the Hudson River crash, I searched around and found one firm that seemed to blatantly violate the ethics rule, according to my reading, by actually using these words in addition to the firm’s website link:

USAirways Crash Victim?
Helping Victims of Flight 1549
[Law firm link redacted]

But not all such solicitation is so obvious. How about the firm that uses the keywords “Hudson River” and “1549” to get placement of their aviation law firm in the Google results, but doesn’t mention the particular accident in the ad that the public sees? In this manner, law firm marketers get their ads placed under the noses of searching victims in violation of the rule, but without making it obvious. Catching these people requires someone actively looking for the violations by ignoring obvious keywords (aviation, airline, attorney, etc.), and then subpoenaing Google to get the list of keywords from the lawyer’s account.

Another trick is to simply modify the website of a firm and lard it with keywords for Google to index. Is that a solicitation in violation of DR-711? According to Ethical Consideration (EC) 2-18 of the rules:

A “solicitation” means any advertisement:
a) which is initiated by a lawyer or law firm (as opposed to a communication made in response to an inquiry initiated by a potential client);
b) with a primary purpose of persuading recipients to retain the lawyer or law firm (as opposed to providing educational information about the law) (see EC 2-6(c));
c) which has as a significant motive for the lawyer to make money (as opposed to a public interest lawyer offering pro bono services); and
d) which is directed to or targeted at a specific recipient or group of recipients, or their family members or legal representatives. (emphasis added)

Does the act of adding the text of the accident to an existing website mean that it is an ad “directed to or targeted” at the victim group? It would seem so, since the definition of “directed to or targeted” means that it is referring to the target group. The definitional text for the phrase is under Ethical Consideration (EC) 2-19(c):

“…an advertisement in a public medium such as newspapers, television, billboards, web sites or the like is a solicitation if it makes reference to a specific person or group of people whose legal needs arise out of a specific incident to which the advertisement explicitly refers.”

If all one needs to do is “make reference” to an accident, then it seems to create a troubling constitutional issue. What is to stop a firm from putting an “in the news” on its web site that deals with Flight 1549 (or a big construction accident or other event) that just so happens to tickle the magic Googlebots with the “correct” keywords for the victims to find them? The result, it seems, would be a clear First Amendment battle.

The same issue may exist for a blogger who writes about local accidents in the hope that someone will Google the accident and find the firm (see: Attorney Solicitation 2.0 — Is it Ethical?). While this can be a very crude and obvious device, it nevertheless also runs into the same First Amendment issue. Even a subtle mention of the accident — I did make reference to US Airways flight 1549 in this article didn’t I? — might trigger the rule in the eyes of some. There are a million shades of gray between the obvious and the subtle in determining which blogger is trying to add to the discussion of an issue and which one is hustling business.

The solution here may be well beyond anything that the courts can do by way of ethical rules due to constitutional constraints. It thus becomes up to writers to speak up when they see these things happen in the hope that public humiliation will stop the conduct, as the implied threat of destruction to one’s Google reputation can be a powerful incentive in the digital age. While the briefs and lower court opinion in today’s case didn’t go into the level of detail I have here, one can clearly see how the rule may not be workable.

Now moving on to the more secretive and, I think, insidious types of advertising: The attorney search services. These are web sites that are not affiliated with any one law firm, with charming names like WhoCanISue and SueEasy, that run ads trying to attract potential clients. Leads are then distributed by the company to attorneys, whose names do not appear anywhere on the website. There are dozens of these companies out there, and I regularly get calls and emails from them. One called PleaseGetMeAnAttorney, for example, sent me an unsolicited email that offered to provide leads at “$3,995.00 per territory, per month.”

These attorney search services are particularly diabolical from the ethics standpoint. They are unlikely to have their home in New York and may not even be run by attorneys. They therefore will fall well outside any jurisdiction that New York courts may have to discipline for ethics violations. They can advertise free from any constraints and may skate right off the edges of the ethical pond. But what of the attorneys that have signed up with them? They, no doubt, turn a blind eye to the devices used by the companies and will cry ignorance if confronted.

And very similar to the attorney search services are the “national” law firms that are little more than referral mills. They seek to sign up clients the same way the attorney search services do, but instead of getting paid a flat fee for leads they will receive a piece of the legal fee if the matter successful, as part of a joint venture with local counsel.

How, exactly, is New York going to stop these outside lawyers and search services from soliciting in New York and laundering the ethical rules that local counsel must abide by? Well these outsiders are theoretically subject to New York’s anti-solicitation rule under EC-221:

Extra-Territorial Application of Solicitation Rules

EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.

But if the Second Circuit upholds the constitutionality of the 30-day rule, how will enforcement actually take place for the attorney that is not admitted in New York? And has a New York lawyer committed a violation by accepting the case from the outsider that violated the rules? And how is the New York lawyer supposed to know that the out-of-state referring lawyer or search company violated the ethics rules?

I suggest that the Office of Court Administration use the Retainer Statements to catch the ethical launderers. Those statements, that must be filed in every personal injury case taken on contingency, require the retained lawyer to specify who the referring sources are, be they attorneys or not. In the event of a tragedy that triggers the rule, OCA must anticipate the problem and do an immediate web search to see who is violating the rules, then cross-check that list against the incoming Retainer Statements. The rules must be clear now that, if the referring lawyer or service violated the anti-solicitation rule, then the matter will be forwarded to the disciplinary committee.

There should be little doubt that search services, as well as non-New York Lawyers that solicit here for the purpose of entering into joint ventures with local counsel, are agents of the law firms and that local counsel must therefore be accountable for the acts of these agents. For only by forcing accountability on local counsel will they, in turn, demand ethical conduct from the search company or New York outsiders. If local counsel understands that they may lose their fee after having done substantial work, they will more than think twice about whom they do business with.

This is not, by any means, a plea to get rid of the 30-day anti-solicitation rule altogether. Solicitation is ugly and a blight on the profession. Rather, it is a plea to clean the rule up, either before or after the Second Circuit decides, and make it clear that attempts to circumvent the rule by laundering the ethical issues will not be tolerated. And that is something that should be done now, and not after a real disaster.
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Photo credit: Jordan Husney (via Flickr)
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Update 1/23/09, After the Second Circuit Argument: 2nd Circuit Skeptical Over Restoration of Rules Curbing Content of Ads (NYLJ via Law.com)

Links to this post:

I’ll Take Turkewitz on Ethics Over Jack Marshall Any Day of the Week
Over at his sparsely populated and impossible to navigate blog Ethics Alarm, American University Washington College of Law adjunct ethics professor Jack Marshall accuses wildly popular New York Personal Injury Law Attorney Law blogger …

posted by Carolyn Elefant @ April 05, 2010 12:36 PM

why the devil’s in the details of ethics rules when you start a …
i’d love to be able to share the specifics about how to start and run a law firm for every jurisdiction in the country. in part, that was the reason behind myshingle’s the bars, reviewed which summarizes the benefits for solos and small …

posted by [email protected] (Carolyn Elefant) @ March 17, 2009 10:41 PM

february 3 roundup
lawyer charged with particularly awful pattern of thefts from disabled/incapacitated persons [nytimes, steven rondos]; “buy american” provisions in stimulus bill could start trade war [postrel]. parting blow to america’s taste buds: …

posted by Walter Olson @ February 03, 2009 1:11 PM

mortimer, morden, and miracles
a few “quickies” that took too long to write this saturday morning afternoon: thank you, john mortimer, for creating rumpole: as today’s new york times reports, “john mortimer, barrister and writer who created rumpole, dies at 85” (jan. …
posted by David Giacalone @ January 17, 2009 1:25 PM

 

December 14th, 2008

The Bill of Rights and John Peter Zenger (Updated)


With Monday being Bill of Rights Day, it gives me a chance to write about a shopping plaza. Yeah, I know, that isn’t really the first thing to jump to your mind when discussing our rights. But as you can see from my photo, this particular shopping strip is called Bill of Rights Plaza, and it’s a couple miles from my home.

As it happens, Westchester County, just north of NYC for you out-of-towners, played a pretty big part in the creation of freedom of the press. It started with an election in 1733 on the village green in front of St. Paul’s Church in Eastchester. It seems that some folks wanted to vote, and others tried to stop them. Yes, I know that some things haven’t changed.

John Peter Zenger wrote about those voting irregularities, and in doing so was critical of the colonial governor. But since criticizing the British crown or its colonial puppets was not something to be tolerated, he was promptly arrested and put on trial for seditious libel. The truth of his writings was irrelevant under the law of seditious libel. To help insure a guilty verdict, the governor picked the judges.

Zenger’s defense — and the reason I write about it 275 years later — was novel; instead of contesting whether he he was guilty of the crime, he contested the law itself. Since what he wrote was true, he argued, he couldn’t be guilty of libel. The jury was asked to disregard the law, a concept we now call jury nullification. And the jury found Zenger not guilty.

From this one trial was born a concept that every member of the press (and every blogger, whether you think you are press or not) cherishes, for it now forms part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Whether our nation’s founders thought it would be a good idea to name a shopping plaza after the Bill of Rights is another story. But if it makes a child or two ask their parents about that sign, then it seems to be worth it.

Updated:
Marc Randazza at the Legal Satyricon has put up a sensational Blawg Review #190, dedicated to the Bill of Rights. He’s got commentary from around the legal blogosphere on all ten.

See also:

Links to this post:

it’s bill of rights day
as blawg review’s righteous editor reminded us a few days ago, president bush has declared today to be bill of rights day. you’ll find the text of the bill of rights — the first ten amendments to the us constitution — at the foot of …

posted by David Giacalone @ December 15, 2008 12:57 PM

blawg review #190 – bill of rights day
billofrightsplaza-779503 the carnival of law bloggers has honored us with the privilege of hosting blawg review #190. we decided that since it was a carnival, we would just hold a freak show — no links to other blawgs, just pictures of …
posted by marcorandazza @ December 15, 2008 7:29 AM

 

October 7th, 2008

Med-Blogger Subpoened Over Comment on Blog

Medical blogger Westby “Dr. Wes” Fisher has been subpoenaed. Not over something he wrote, but over something a commenter wrote.

According to Wes:

I can tell you I was subpoenaed for a discovery deposition about one of my posts on this blog. I was not named as a party in the suit occurring in Cook County Circuit Court here in Illinois, mind you. Rather, the plantiff thought for sure that I knew one of the anonymous commenters on my blog. I did not. They insisted that I take down the post on my blog. I have not. They asked that I remove the comments identifying individuals on my blog. I have not and will not. They wanted me to take down an image I posted on my blog. It still stands.

More at his site, linked above.

Update – See also:
Physicians and Blogging (Kevin M.D.)