Interview with Attorney Josh King Regarding The American Bar Association's Push to Regulate Social Networking and Online Advertising by Attorneys - Part 2
2010.12.01
Part 2 of Attorney Josh King's interview concerning the American Bar Association's Push to Regulate Attorney Social Networking and Online Advertising.
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Steve Quick: Hi, and welcome to GAL Radio, my name is Steve Quick. Today, we’ll continue our conversation with Josh King, Vice President for business development and general counsel for Avvo, Inc., which provides a number of online services to consumers. Josh, last time we talked about how social networks have impacted how lawyers and clients interact with each other. Where do lawyers or law firms’ websites fit into this conversation?
Josh King: You know, it really unfortunately, it kind of depends on the state, and obviously, state attorney advertising regulations are going to differ a little bit from state to state. Florida, in particular, has created some particularly onerous regulations with respect to attorney websites. Their currently a little bit influx, but as they stand right now, they require that any visitor to the website essentially affirmatively accept a disclaimer before looking at any of the information inside. I view that as being very problematic undoubtedly not constitutional. But one thing that attorneys should typically keep in mind is that their websites are, by and large, going to be considered advertising material that is subject to the attorney advertising rules and I think perhaps the deeper you get into a website and the extent to which that website contains more traditionally expressive material, becomes an open question whether those particular pages are going to be subject to the attorney advertising rules but, by and large, attorneys should generally consider that their websites themselves need to be viewed through the lense of whatever the state attorney advertising regulations are. I think, however, that if you’re attorney in Florida, it’s a question whether those regulations have finally gotten to the point that they go so far that you really don’t have an option to comply with them anymore. And I think that’s, quite frankly, where a number of the law firms in Florida are going to end up, that they are going to have to sue the state bar in Florida to have those regulations thrown out by a federal court.
Steve Quick: What might be the result of the American Bar Association creating new rules for lawyers regarding the use of the internet?
Josh King: I think the concern that everyone has is that… as I’ve talked about before, a lot of these are simply new tools that are new ways of engaging an old behavior. So, where you might have in the past said in-person networking in your local community, you now have the ability to extend that network worldwide through the use of social media. And at the end of the day, though, you’re still networking the same way and communicating the same way you would if you were talking to someone in the same room with you, you’re simply doing it with recent technological tools. The concern is that the pace with which the ABA may react to technological changes is going to lag literally years behind the pace of the change itself. It’s impossible for it to stay up. And so, the concern is that the ABA will impose some specific restrictions, that will not only lag the technology, but that will fail to account for whatever the next technological change is. The other big concern is that the ABA itself, although it does regulate individual attorneys, the model rules that the ABA comes up with tend to be followed by most of the states. So, if the ABA were to create, let’s say, a new section of their model rules of professional conduct with respect to different forms of communication via social network, the concern is that the states would adopt these regulations in one form or another, and then would engage in behavior similar to what Florida has done, similar to what New York did before their rules were thrown out by the federal court, and over regulate the attorneys subject to their jurisdiction.
Steve Quick: One of the topics under discussion is pay-per-click advertising. What is pay-per-click advertising and why would a lawyer using it create problems?
Josh King: Well, at its simplest, pay-per-click advertising is just another form of online advertising where the metric by which the advertiser pays is not, let’s say, a subscription placement or a number of impressions on that ad, but literally is paying for the number of times that someone clicks on that advertisement and visits the advertisers site. There, quite frankly, shouldn’t be any problem whatsoever with pay-per-click advertising. It has been tested somewhat in the last year by attorneys who have challenged it as running afoul of state regulations on referral business because there do tend to be, and quite frankly, some antiquated rules with respect to referral business that pre-date the Bates v. State Bar of Arizona, 433 U.S. 350 (1977) decision with respect to permissible attorney advertising. Virtually, ever court or attorney regulatory body that has addressed the issue in a context of this recent challenge which was based on an advertising model pursued by Total Attorneys in Chicago has found that that type of pay-per-click advertising, and Total Attorneys, quite frankly, their model is even more aggressive than traditional pay-per-click advertising, is not an illegal source of referral business. But I do think it is a little bit concerning that the ABA is continuing to look at this, something that is, after all, just another means of calculating the amount of traffic and the way that someone who chooses to advertise is going to compensate the publisher for it.
Steve Quick: Another area of concern seems to be something called VLO. What is VLO and how would it be impacted?
Josh King: Well, VLO is a virtual law office. This is really one of those areas where we’re just starting to see the seeds of some change that I mentioned earlier how so many other industries have been transformed by the internet, almost without exception for the benefit of consumers. And the legal profession has lagged behind. A virtual law office if you were to back away from all the regulations and handwringing that attorneys tend to worry about makes a lot of sense, right? Why not deliver legal services without needing a brick and mortar office. Why not do it all online communicating with clients via email, instant messaging, over the phone, that’s the concept of a virtual law office in a nutshell. Now, there have been a number of regulatory proceedings at the state level in the last couple of years questioning whether virtual law offices are permitted under the rules. And mind you, any of these challenges to these rules when you see them come over the state level, you will never see consumers raising these complaints, they’re always brought by a lawyer’s competitors and many state attorney advertising rules and ethics rules have a requirement that an attorney have a bona fide office. The idea of being that there needs to be some accountability, there needs to be a way for clients or regulators or opposing counsel to literally find an attorney, contact them if they need to. And what that has resulted in is some questions that whether a virtual law office meets that model. I think that ultimately where it’s going to end up is that it’s not going to be a problem because there are easy ways to achieve that end of making someone accountable and reachable without requiring that they go rent an office suite somewhere. But, again, it’s illustrative of a kind of handwringing and over concern the looking at of the sort of archaic regulations that act as a brake on innovation in the legal industry.
Steve Quick: What are some of the other issues that we might be looking at regarding these new American Bar Association rule proposals?
Josh King: The biggest concern with any of these rules, and again, it’s not the ABA so much as it is when they promulgate the rules than they’re implemented at the state level, is that the legal industry is self-regulating at the state level. And it has, the history of attorney self-regulation, particularly when it comes to advertising is really, really poor. Despite being defenders of the constitution or whatever else attorneys want to call themselves, the regulatory impulse amongst state bar regulators has been to over regulate and that’s why it took so long to finally get the Bates v Arizona and the allowance of attorney advertising. The concern is simply that there’s going to continue to be this over regulation and lack of respect for attorneys’ first amendment rights. While the bars have the ability to regulate commercial speech, which is essentially advertising speech, they have, and we’ve seen this in Florida, we’ve seen it in New York, they will extend those regulations as far as they can and that’s why you’ll see Florida has an out-and-out prohibition on testimonial advertising. And now, they’re wondering whether that extends to proactively left client comments on internet forums like Avvo. That’s completely ridiculous. There’s no way that’s constitutional. The FTC has been telling Florida for years that it shouldn’t have a restriction like that. It doesn’t benefit consumers, it raises the cost of legal services, and yet, the state bars continue to pursue this regulatory impulse despite the constitutional constraints. And obviously for attorneys, they have concerns that the bar has the ability to restrict their license, there’s a lot at stake for them. They don’t necessarily want to be the test case for the constitutionality of a state’s overreaching bar advertising regulations. But certainly, I think to the extent to which we see more and more intrusive regulations out the ABA and by extension to state bars, you’re going to necessarily see more challenges to the constitutionality of these rules.
Steve Quick: But what can we do if we want to weigh in on this subject? I know that this is part of the comment period for the American Bar Association process, isn’t it?
Josh King: It is, and I believe the comment deadline is on the 14th or 15th of December. I would encourage anyone to weigh in with comments. They needn’t be formal. You can send them in by email, quite frankly. I just think it’s important to point out specific concerns, specific areas of focus. You visit the ABA’s website. It’s the Ethics 20/20 Commission which is the particular commission that is looking at all of these issues around technology and just make your voice heard on that with respect to the specific rules and the interest in not over regulating and not putting regulations in place that are likely to be outdated by the advance of technology by the time they go into play.
Steve Quick: Thanks, Josh, for joining us. It was a real pleasure having you here today.
Josh King: All right, Steve, you take care.
Steve Quick: You too. Bye now.
Josh King: Bye.
Steve Quick: We’ve been speaking to Josh King, Vice President for business development and general counsel of Avvo, Inc. This is Steve Quick for GAL Radio, have a good day.
Announcer: This net cast is powered by Vertio.net. Vertio.net, optimizing you brand and web presence worldwide. Vertio.net. Be heard. Be seen. Be found.
Steve Quick: What might be the result of the American Bar Association creating new rules for lawyers regarding the use of the internet?
Josh King: I think the concern that everyone has is that… as I’ve talked about before, a lot of these are simply new tools that are new ways of engaging an old behavior. So, where you might have in the past said in-person networking in your local community, you now have the ability to extend that network worldwide through the use of social media. And at the end of the day, though, you’re still networking the same way and communicating the same way you would if you were talking to someone in the same room with you, you’re simply doing it with recent technological tools. The concern is that the pace with which the ABA may react to technological changes is going to lag literally years behind the pace of the change itself. It’s impossible for it to stay up. And so, the concern is that the ABA will impose some specific restrictions, that will not only lag the technology, but that will fail to account for whatever the next technological change is. The other big concern is that the ABA itself, although it does regulate individual attorneys, the model rules that the ABA comes up with tend to be followed by most of the states. So, if the ABA were to create, let’s say, a new section of their model rules of professional conduct with respect to different forms of communication via social network, the concern is that the states would adopt these regulations in one form or another, and then would engage in behavior similar to what Florida has done, similar to what New York did before their rules were thrown out by the federal court, and over regulate the attorneys subject to their jurisdiction.
Steve Quick: One of the topics under discussion is pay-per-click advertising. What is pay-per-click advertising and why would a lawyer using it create problems?
Josh King: Well, at its simplest, pay-per-click advertising is just another form of online advertising where the metric by which the advertiser pays is not, let’s say, a subscription placement or a number of impressions on that ad, but literally is paying for the number of times that someone clicks on that advertisement and visits the advertisers site. There, quite frankly, shouldn’t be any problem whatsoever with pay-per-click advertising. It has been tested somewhat in the last year by attorneys who have challenged it as running afoul of state regulations on referral business because there do tend to be, and quite frankly, some antiquated rules with respect to referral business that pre-date the Bates v. State Bar of Arizona, 433 U.S. 350 (1977) decision with respect to permissible attorney advertising. Virtually, ever court or attorney regulatory body that has addressed the issue in a context of this recent challenge which was based on an advertising model pursued by Total Attorneys in Chicago has found that that type of pay-per-click advertising, and Total Attorneys, quite frankly, their model is even more aggressive than traditional pay-per-click advertising, is not an illegal source of referral business. But I do think it is a little bit concerning that the ABA is continuing to look at this, something that is, after all, just another means of calculating the amount of traffic and the way that someone who chooses to advertise is going to compensate the publisher for it.
Steve Quick: Another area of concern seems to be something called VLO. What is VLO and how would it be impacted?
Josh King: Well, VLO is a virtual law office. This is really one of those areas where we’re just starting to see the seeds of some change that I mentioned earlier how so many other industries have been transformed by the internet, almost without exception for the benefit of consumers. And the legal profession has lagged behind. A virtual law office if you were to back away from all the regulations and handwringing that attorneys tend to worry about makes a lot of sense, right? Why not deliver legal services without needing a brick and mortar office. Why not do it all online communicating with clients via email, instant messaging, over the phone, that’s the concept of a virtual law office in a nutshell. Now, there have been a number of regulatory proceedings at the state level in the last couple of years questioning whether virtual law offices are permitted under the rules. And mind you, any of these challenges to these rules when you see them come over the state level, you will never see consumers raising these complaints, they’re always brought by a lawyer’s competitors and many state attorney advertising rules and ethics rules have a requirement that an attorney have a bona fide office. The idea of being that there needs to be some accountability, there needs to be a way for clients or regulators or opposing counsel to literally find an attorney, contact them if they need to. And what that has resulted in is some questions that whether a virtual law office meets that model. I think that ultimately where it’s going to end up is that it’s not going to be a problem because there are easy ways to achieve that end of making someone accountable and reachable without requiring that they go rent an office suite somewhere. But, again, it’s illustrative of a kind of handwringing and over concern the looking at of the sort of archaic regulations that act as a brake on innovation in the legal industry.
Steve Quick: What are some of the other issues that we might be looking at regarding these new American Bar Association rule proposals?
Josh King: The biggest concern with any of these rules, and again, it’s not the ABA so much as it is when they promulgate the rules than they’re implemented at the state level, is that the legal industry is self-regulating at the state level. And it has, the history of attorney self-regulation, particularly when it comes to advertising is really, really poor. Despite being defenders of the constitution or whatever else attorneys want to call themselves, the regulatory impulse amongst state bar regulators has been to over regulate and that’s why it took so long to finally get the Bates v Arizona and the allowance of attorney advertising. The concern is simply that there’s going to continue to be this over regulation and lack of respect for attorneys’ first amendment rights. While the bars have the ability to regulate commercial speech, which is essentially advertising speech, they have, and we’ve seen this in Florida, we’ve seen it in New York, they will extend those regulations as far as they can and that’s why you’ll see Florida has an out-and-out prohibition on testimonial advertising. And now, they’re wondering whether that extends to proactively left client comments on internet forums like Avvo. That’s completely ridiculous. There’s no way that’s constitutional. The FTC has been telling Florida for years that it shouldn’t have a restriction like that. It doesn’t benefit consumers, it raises the cost of legal services, and yet, the state bars continue to pursue this regulatory impulse despite the constitutional constraints. And obviously for attorneys, they have concerns that the bar has the ability to restrict their license, there’s a lot at stake for them. They don’t necessarily want to be the test case for the constitutionality of a state’s overreaching bar advertising regulations. But certainly, I think to the extent to which we see more and more intrusive regulations out the ABA and by extension to state bars, you’re going to necessarily see more challenges to the constitutionality of these rules.
Steve Quick: But what can we do if we want to weigh in on this subject? I know that this is part of the comment period for the American Bar Association process, isn’t it?
Josh King: It is, and I believe the comment deadline is on the 14th or 15th of December. I would encourage anyone to weigh in with comments. They needn’t be formal. You can send them in by email, quite frankly. I just think it’s important to point out specific concerns, specific areas of focus. You visit the ABA’s website. It’s the Ethics 20/20 Commission which is the particular commission that is looking at all of these issues around technology and just make your voice heard on that with respect to the specific rules and the interest in not over regulating and not putting regulations in place that are likely to be outdated by the advance of technology by the time they go into play.
Steve Quick: Thanks, Josh, for joining us. It was a real pleasure having you here today.
Josh King: All right, Steve, you take care.
Steve Quick: You too. Bye now.
Josh King: Bye.
Steve Quick: We’ve been speaking to Josh King, Vice President for business development and general counsel of Avvo, Inc. This is Steve Quick for GAL Radio, have a good day.
Announcer: This net cast is powered by Vertio.net. Vertio.net, optimizing you brand and web presence worldwide. Vertio.net. Be heard. Be seen. Be found.
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