Interview with Attorney Josh King Regarding The American Bar Association's Push to Regulate Social Networking and Online Advertising by Attorneys - Part 1
2010.11.30
The American Bar Association is considering the adoption of rules covering how its members interact with clients through the internet. Listen to this two-part interview with Attorney Josh King, Vice President for Business Development and General Counsel of Avvo, Inc. as he explores the issue.
Announcer: Welcome to GAL Radio brought to you by The Greatest American Lawyer blog, changing the way law is practiced through technology, innovation and creativity. Turning the business of law on its head and shaking things up to the betterment of clients, lawyers, law firms and society. Now, here is your host, Steve Quick.
Steve Quick: Hi, and welcome to GAL Radio, my name is Steve Quick. The American Bar Association is considering the adoption of rules covering how its members interact with clients through the internet. Joining us today by phone from his office in Seattle is Josh King, Vice President for Business Development and general counsel of Avvo, Inc., which provides a number of online services to consumers. Hi, Josh, welcome to the program.
Josh King: Thanks, Steve, appreciate you having me.
Steve Quick: Could you describe the impact the internet has had on the public as legal consumers?
Josh King: Well, the advent of the internet has certainly given legal consumers at least the potential, the access, a lot more information, a lot deeper information, than they’ve had access to before. So, whether it’s the ability to, let’s say, look up local statutes, look up case law, research attorneys, find solutions or at least potential solutions, a little bit a direction towards solving their legal needs, the internet has certainly opened up some of those doors. I would say, however, that if you were to compare the benefits of the internet for legal consumers versus the benefits of the internet for consumers and almost any other category of goods or services, however, it has certainly lagged. So, if you think about, for instance, the benefits the internet has brought to those looking to book a hotel room or book a flight or make a reservation at a restaurant, find a good place to eat, buy a book, all of these things have changed dramatically in the last 15 years. We haven’t seen that kind of change yet in legal.
Steve Quick: What roles do social networks like Facebook, Twitter, LinkedIn, etc. play in changing the traditional lawyer-client relationship?
Josh King: I think that the social networks all have the potential to make it easier to create loose connections between attorneys and their clients or potential clients; they can play a humanizing role. In a lot of regards, they are simply a technological extension of many of the networking aspects that attorneys have traditionally engaged in. Whether it is joining a local Kiwanis group or being active in one’s church or other community organizations where you’re out meeting and interacting with people in your community, letting them know what kind of a person you are, the fact that you practice law and may be able to help them out, finding those direct client relationships or those sources of potential referral business within the community, a network like Facebook or Twitter or even LinkedIn, gives you the ability to extend that in-person networking into the online space. It’s really important that…that network be viewed in that regard and not, for instance, as a way to blast one way advertisements. You wouldn’t go into a cocktail party or a church barbeque and go up to everyone you meet and say, “hi, I’m Bob Bah Blah and I’m a personal injury attorney”. You’re not going to do that. It’s really about engaging at a personal level, being authentic. That’s really where these tools can be beneficial but that’s really also an important limitation to how they can be used.
Steve Quick: Well, why would the American Bar Association be looking to regulate the use of social networking by attorneys?
Josh King: Well, there’s no question that attorneys and bar regulators tend to wring their hands over new technological innovations. And one of the reasons why we haven’t seen the level of innovation in legal services online that we’ve seen in every other industry is because there’s a lot of resistance to change. There’s a lot of concern about potential risk. I mean, lawyers are risk averse creatures. And so, the ABA, which has traditional filled the role of promulgating model rules of ethics – model attorney advertising rules – is looking at the social networking websites and wondering the extent to which these tools fit within the framework of both attorney advertising and the potential creation of attorney-client relationships. They may be missing the forest for the trees a little bit, however though, if you think about these tools as essentially being extensions of in-person networking, we don’t have any specific rules with respect to how to handle oneself at a cocktail party, for example, in-person networking or on the golf course, so, wherever it is that we might be engaging in in-person networking. And so, that’s a little bit of the struggle that comes in when we’re looking at these social networks and questioning whether there needs to be any specific regulation and , quite frankly, where a lot of the concern potentially comes up that the ABA is going to promulgate model rules that will be overly extensive regulations and then adopt it and run with by the states who will regulate even further.
Steve Quick: The American Bar Association seems to be concerned with inadvertent lawyer-client relationships. What are they talking about?
Josh King: I think where this typically comes up is a concern that someone is going to ask a question on a website, whether it’s auto-answers, for example, the Avvo Q&A form where people can ask questions and get free answers from real attorneys or ask a question of an attorney via Facebook or Twitter and potentially create an inadvertent lawyer-client relationship. Those of us who have been practicing a while can recall virtually this exact same discussion taking place back in the mid-90’s when lawyers were wrestling with whether or not they should be using email for client confidences. I would expect that a lot of these discussions will go in the same way. On the one hand, there is a concern about creating an inadvertent lawyer-client relationship. On the other hand, people asking questions in online forums, it’s really no different than someone asking you a question in line at the grocery store because they know you’re a lawyer or any of the other informal ways that people will ask attorneys for a little bit of guidance on a particular legal issue. Everyone knows in these contexts that they are not asking you to be their lawyer or represent them in court. They’re looking for a little direction. People are hungry for that direction. Is this the case that I should go talk to lawyer about in more depth? Where can I look online for a resource to find the municipal code that governs this particular situation, whatever the case may be. I think, on the one hand, it’s important that we not create mechanisms where inadvertent lawyer-client relationships can be created, but on the other hand, if we’re thinking about these tools in the context of social interaction, the people on the other side of these – the potential clients – understand how they’re used. They understand the limitation on this and very easy things that forum providers like Avvo or attorneys themselves can do by way of disclaimers, for example, make it crystal clear that there is not an attorney-client relationship being created when these simple straightforward questions are being asked.
Steve Quick: So where do blog sites fit-in in this discussion?
Josh King: You know, blogs are really interesting in that blogs as typically thought of, which is a blog that is written personally by an attorney or group of attorneys about legal developments, legal issues, quirky things that are happening in the law, one’s perspective. In those ways, my view is that that type of blogging is completely outside of the attorney advertising rules. Because the attorney advertising rules, at the end of the day (and we can talk about this in more detail later), they are fundamentally limited by the First Amendment. And they’re limited by the First Amendment even if we’re talking about how they regulate traditional advertisements, stuff that we absolutely know is advertising. But they are even more limited by the First Amendment when it comes to attempts to have them reach into what you would consider to be traditional expressive activity where any state regulation is subject to strict scrutiny. And blogging is really at that level completely indistinguishable from the kind of writing that an attorney would do when they’re having a paper published in, let’s say, the ABA Journal. Yes, there may be some form of promotional motivation behind that article, just like there may be some promotional motivation behind a blog post, but it is still First Amendment protected, expressive activity and it’s not reachable by the attorney ad rules.
Steve Quick: We’ll continue our discussion with Josh King from Avvo, Inc. in our next installment here on GAL Radio. I’m Steve Quick, be sure to tune in.
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Josh: Great insight and analysis of this issue. A lot of lawyers have a visceral response to what the ABA is doing. I have not heard many lawyers capable of constructing the analysis as you have done in this interview.
The internet has been the single greatest thing to happen to legal consumers ever. Prior to the internet, lawyers and law firms, especially those that have been around for a long time, were able to dominate the legal landscape by essentially keeping clients ignorant and in the dark. The internet has provided transparency, free information, and an ability to compare on experience, quality and cost in ways never before possible. What people need to realize is that there are people within the legal profession who will at all costs work hard to keep consumers in the dark where they can be much more easily manipulated.
With regards to social networks, I have over 1000 Facebook friends. Ninety percent of those are other lawyers who practice within my area or other people within the industries in which offer legal services. I love what you have to say about humanizing. Offering them to see pictures of my family, vacations in Mexico, and my viewpoints on life allow them to see me as I am. Will I lose some clients and prospects in the process? Maybe. Will I gain any clients? No doubt, I will since I become a familiar figure to them if and when a legal problem within my areas of expertise arise. Are they better off being my Facebook friend? Absolutely, since they get a much more complete picture of who they’re doing business with. Transparency allows “like minded” people to develop and extend relationships. What’s wrong with that?
With regard to why the ABA is looking at this issue, while I want to be open minded about their effort, I’m extremely suspect of their motives. Do they even have enough experience using the internet, working with clients online, signing up clients who find them as a result of their blog posts, developed friendships within social networking tools such as Facebook and Twitter, and other key areas which would be the only way for them to have the basic information in order to even have an intelligent opinion? If it were a special committee of people who had background and knowledge in these issues, I would be less pessimistic.
In order to come to intelligent opinions, you have to be able to see the amazing things for consumers happening in the trenches. Otherwise, the consumer benefit of the equation could never be grasped nor appreciated.
Posted by: Enrico S | 2010.12.06 at 11:47
There should be no limit to truthful and conspicuous advertising, whether that advertising concerns legal services or toothpaste.
Regulation to the contrary reduces consumer information, consumer choice, innovation, and price competition.
Posted by: Brooke | 2010.12.06 at 13:06
The ABA can't regulate information anymore than they can oversee formal written and paid for opinions by paying clients. Let the market and the system of grievances and complaints handle the bad ones.
Posted by: Giovanni | 2010.12.06 at 13:31
As Josh King points out, lawyers are often informally questioned for basic guidance on legal matters. Members of the public benefit enormously from this mechanism. It is the most basic and valuable form of preliminary research available to them. That is why people frequently take the opportunity to question lawyers.
As a rule, the policies of the ABA should be guided by how attorneys can best serve the public. It is difficult to see how denying members of the public the opportunity to informally speak with an attorney will actually serve the public. Moreover, it flies in the face of commonsense, for it places substantial unintended burdens on members of the public and attorneys alike.
Technology has been a great blessing. Purposefully denying individuals the fruits of technology – whether they are members of the public or attorneys – should never be taken lightly. The ABA needs to serve the public and carefully rethink this.
Posted by: Rob | 2010.12.06 at 15:04
As a lawyer who blogs, podcasts, and participates in multiple social networks I'll weigh in on the AGAINST side of the "should we regulate attorneys' online advertising", but I have to say I don't feel particularly threatened by the the ABA's rumblings. It's the various States that I'm most concerned about.
The fact is, each State's Bar association will have to weigh in on the issue, and we'll once again be confounded by a patchwork of regulations, each proscribing different kinds of advertising, communications, and publications.
Blogs, podcasts and YouTube-style videos are the wave of the future for attorney Marketing and advertising. Educating the public is a profoundly effective way to position oneself as an expert and attract prospective clients.
The Internet and World Wide Web are merely new media, but the same old rules (should) still apply. Don't mislead, falsify, solicit, or establish the attorney-client relationship inadvertently. The device(s) on which people see/hear our message doesn't really matter. As long as the conten isn't a solicitation, doesn't in itself create an attorney-client relationship, and is not misleading as to the attorney's track record, qualifications, etc., the ABA and State Bar Associations really have no business telling us what we can and can't do online.
But, if we must have regulation, I'd (grudingly) prefer a uniform set of rules, so we're not competing on an uneven playing field.
Posted by: Gordon Firemark | 2010.12.07 at 00:12
The public is exposed to false and/or misleading advertising in every industry and through every medium - ultimately, it's up to the consumer to be smart in their ability to decipher the marketing message as truth or falsity. And just as magazines have print ads peppered in between articles delivering truthful and useful information, the internet and all its components - websites, blogs, social networking profiles, forums, etc. - do, as well. Even if the "advertisements" are disguised as a sentence within an informational blog post, they're still there and it's still up to the consumer to decide its validity.
So the real issue here doesn't appear to be in the vehicle used for the delivery of information - the internet, in this case - but rather the quality and ethic level of the message being delivered. And no general set of restrictions is going to completely eliminate the issue at hand - marketers will always find a way to bend their intended message to fit within the guidelines. Even if that means moving it from a blog to a billboard.
Posted by: Ashley | 2010.12.09 at 13:01