Blawg Review 325.5

This week I, along with many other blawgers (slang for "law bloggers") were saddened to hear of the passing of "Ed," the editor of Blawg Review. My condolences to his family.

As usual in the blogosphere, when something important happens, bloggers get together and write. As soon as the news spread of Ed's passing, word went out to write a last Blawg Review, #325, in parts assigned to various blawgers. I got part 5.

This is quite an honor, writing part of the last Blawg Review alongside some of the great legal bloggers. Some of them I consider close friends - friends because of our writings that turned in to emails, that turned into meals, that turned in to conversations about the most personal aspects of our practices, and our lives. 

While many lawyers today see blogging as nothing more than a marketing tool, there was a time, not long ago, where lawyers blogged for the simple purpose of putting thoughts to screen. As with any internet site, lawyers quickly ran to blogging as a platform to make money instead of quality writing.

It was in this light that we all met "Ed." To this day I don't know if his name was Ed. I always thought he used that as short for "Editor" Blawg Review was the almost weekly round-up of legal blog posts, hosted by "blawgers.," No one who ran a marketing blog was ever a part of Blawg Review, nor probably ever read any of them.

Ed paid attention to blawgers. He used to chide me for my constant criticism of social media as a marketing tool. But he also noted my interest in wine, often sending me private messages with links to articles about the wine industry, or just a cartoon involving wine or social media. Ed and I didn't speak often, but the communications were always interesting and valuable. 

I hosted one Blawg Review - #298. It was on Valentine's Day, 2011. Ed specifically asked me to do it on Valentine's Day with the following tongue-in-cheek message:

Hey, sweetheart, would you like to host Blawg Review on Valentine's Day? We think you'd do a great presentation of link love to law bloggers 

I enjoyed putting it together, but one secret I can now tell you about Blawg Review is that anyone who was asked to write one, sensed a tremendous fear of embarrassment. Blawgers looked forward to the Monday Blawg Review, and no one wanted to write a substandard one. I remember a couple weeks where Blawg Review was late in posting, or the host didn't write it, and the other blawgers would start screaming - "where is Blawg Review?" "Who's hosting this week?"

Blawg Review is no longer, but truth be told, it died well before Ed. I am one of those bloggers that found other things to do, other places to write, got a little busy and left my blog to rot. Ed saw the blogosphere change, diminish, and stopped asking people to host Blawg Review. So again, I'm honored to come back here for the purpose of honoring Ed.

Now let's do some Blawg Review:

When I first saw some scuttlebutt on Popehat about a police chief in South Carolina named Ruben Santiago, I thought the controversy was that there was a police chief in South Carolina named Ruben Santiago. Nope, seems Interim Police Chief Santiago is spending his interim time patrolling the News Feed of Facebook to warn those that don't think Marijuana is a big problem that he "will find you."

I don't "Like" that.

Either does Scott Greenfield:

Dear Interim Chief Santiago,

Like Brandon Whitmer, I don’t think well of you. In fact, I think the war on drugs sucks, and since you’re proud of your warrior role in it, I think you suck. Rather than pick on Whitmer, try me.
Just so you know, I hang around with people accused of crimes all the time. I eat with them. I drink with them. I sometimes go to their homes and meet their families. And get this, Santiago. I like them. But I don’t like you.



And I think you’re ugly. Butt-ugly. And that’s why girls never liked you.
Who am I? I’m a guy with a bulge in my waistband where my clip-on holster is positioned. I’m a guy who wouldn’t hesitate to walk down the street in the middle of the night in a bad neighborhood because the people hanging out are my friends. These are guys with lot of drugs, bad, evil drugs, who have my telephone number in their pockets. Some of them sell drugs. The same ones call me. What does that tell you, Santiago?

There's more where that came from...

Volokh has the greatest story of the week, maybe the year, and possibly the decade. Small-town Tennessee criminal defense lawyer, aptly named Drew Justice, opposed the Government's State's Motion Not To Be Called The Government Because It's Derogatory, Mean, Bullying, And Causes A Sad:

     The government has moved to ban the word “government.” The State of Tennessee offers precisely zero legal authority for its rather nitpicky position, and the defense can find none. The Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff’s proposed ban on speech would violate the First Amendment. The motion should be denied.

     Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the speech code. First, the Defendant no longer wants to be called “the Defendant.” This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes Mr. D.P. The word “defendant” should be banned. At trial, Mr. P. hereby demands to be addressed only by his full name, preceded by the title “Mister.”

Alternatively, he may be called simply “the Citizen Accused.” This latter title sounds more respectable than the criminal “Defendant.” The designation “That innocent man” would also be acceptable.

Moreover, defense counsel does not wish to be referred to as a “lawyer,” or a “defense
attorney.” Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the “Defender of the Innocent.” This title seems particularly appropriate, because every Citizen Accused is presumed innocent.

Oh just read the whole thing, it has all kinds of awesome.

What does the lawyer who filed the motion have to say?

Rettig couldn’t be reached to comment on her motion or Justice’s response because she was in court Thursday. 

I wonder what arguments she was advancing Thursday? Maybe that Judges shouldn't wear a black robe because it's demeaning to small dogs?

The District Attorney, throroughly embarrassed that she employed an assistant so capable of wasting the court's time, attempted to deflect any attention towards her office as the laughing stock of the entire legal community of the planet, and because she had to say something, did:

Her boss, Williamson County District Attorney Kim Helper, said her prosecutor was just trying to make sure the focus stayed on the facts of the case.

Uh, Ms. Helper (heh), I don't think that motion did what it was intended to do.

“We’re a little disappointed at the response that talked about ‘Captain Justice, Defender of the Realm,’ ” Helper said. “From my perspective, it seemed a little bit — I don’t know what the right word would be. The response did not appear to be in good faith.”

I think Ms. Helper isn't helping the situation, as it wasn't the response that did not appear to be in good faith.

Speaking of the demise of the blogosphere into a sewer of lawyer marketing, Joshua Slayen at Law Insider, tells of his journey since his graduation of law school in '09. He soon left BigLaw to try a start up that failed, and then....wait for it, decided well, he would just be a lawyer (and have a social media consulting business on the side of course). So for all you lawyers out there looking for social media consulting, some of Josh's consulting will help you:

Maintain a constant and vibrant twitter presence

Joining and participating in Facebook and LinkedIn groups

Creating iniovative and intelligent postings (I think it's "innovative," but maybe spelling is an extra fee.)

Displaying creative pictures that have the ability to go viral

Creating up and engaging in meaningful conversations.

So if you're looking to pay for some of this advice, call Josh, operators are standing by.

I see that Lawyerist is still around taking money to show pictures of Alexis Neely, and Sam Glover is still talking crazy about the possibility of having a law practice where lawyers do silly things like network by talking to people. Sam has developed a scientific formula for this idea that is as follows:

So what kind of things should you get out and do with people? Anything. Eat breakfast. Drink beer. Go to a game. Volunteer (not necessarily doing lawyer things). Play kickball. Have a barbecue. Go to a fundraiser. In other words, do normal things.

Kickball. Never thought of that. Who's up for a game?

Speaking of Kickball, Keith Lee over at AssociatesMind has a book coming out this week. I'm not supposed to say anything about it yet, so I won't. I'll probably just go read it again if I have the time.

Speaking of time, gotta go. Time to see what Ken at Popehat has for us at 325.6...

Rest in Peace Ed.

California Lawyer Christopher J. McCann's "Guest Post."

A few months ago, actually many months ago, actually shit, it was over a year ago (April, 2012) I received my 389085th request from some one-named marketer on behalf of a lawyer. That lawyer is Christopher J. McCann, who sounds like he's getting ready to sue the internet (sound familiar?). He tells Matt Brown this:

You have insulting me by clearly portraying me in a false light. As a private individual, that is actionable. I demand you remove any reference to me from that post and my comment.

If you do so, I’ll leave it at that. If not, I am going to explore my legal options against you and your partner who is cc’d on this communication.

Matt has insulting him. Terrible.

This all started with the typical silly request for a guest post. The request is always the same, "do you accept guest posts?" What this is, is that the lawyer is trying to gain an internet presence and either doesn't have a blog or their blog sucks so bad that no one is reading it. In comes the one-named marketer to fix everything. "Let's find lawyers that have blogs people actually read and ask them if we can ride shotgun."

It's a sad, desperate existence.

I've been blogging for some time and I've allowed a total of one guest post. It was from a lawyer who called me and asked me to write on his blog. I did, and then many months later I asked him to write on mine. There were no marketers, no promises of wealth and fame for each other, and no request for links so that our respective SEO juice could overflow.

So Christopher J. McCann's webmaster, Nader (no relation to Ralph I don't think), contacts me. I respond by writing a post about this cheesy disgusting pathetic stupid worthless marketing tactic. So did Matt Brown (who, despite his picture, assures me he's only buried 3 bodies in his life) over at his less-than-prominent blog.

Now it's June 2013.

Christopher J. McCann, who has been trying to gain a presence on the internet, has just discovered that we all know that. He now leaves me this comment: (I've highlighted the interesting passages of this rambling screed):

I am Mr. McCann.

I was not going to respond to you here, but when I see that you have insulted someone that unbeknownst to me has tried to stick up for me, I felt it necessary to explain myself.

It is clear you misunderstood the offer that my (now former) webmaster was putting forth. Firstly, any content in the articles he offered was mine. As a busy attorney, and not as web savvy as other professionals, I am not aware of all of the avenues in which I can get my content published. Nader simply sought out places he felt would be receptive to my content. I don't know why you took such offense towards him or me for making such an offer. You simply could have said "no" and moved on. Or contact me to discuss it. I trusted him to take the time that I don't have to approach other professionals such as yourself, assuming that you would respond appropriately. I was mistaken in my assumption.

It seems you were more interested in just making some point about unethical marketing practices and needed an example. The problem is, you chose the wrong example.

You would be the exception among web marketing professionals who thinks one should not seek to publish content on outside sources.
Nor do I think you are in the majority of persons who think it is unethical to hire someone to find places to publish the content they authored if they don't have the time or know how to locate such sources.

I do know who Scott B. is. At least I am pretty sure because I only know one other attorney with that name and last initial "B". He is a local lawyer, and a very good one, who knows me well. It should be obvious why he doesn't want to (or have to) use his last name when it appears you are only interested in putting down anyone you don't know who disagrees with you. Scott is a great lawyer whom I respect immensely. I liken your response to him as that of a "bully." For a lawyer to behave that way is . I'm surprised to see an experienced lawyer behave so immaturely, and unprofessionally towards another.

Also, you know nothing about me as a lawyer, so I fail to understand how you equate my conduct with being "unworthy of a member of the Bar." You just come off as a bully, and failed miserably to make some sort of point about web marketing.
Perhaps you should have simply contacted me directly when this happened and discussed it with me as one professional to another, rather than hurl insults from behind your computer.

I actually left a message at your office last year after hours after this blog post came to my attention. You never returned my call. If you are so concerned by what I have done, call me. My number is: (949) 596-0060. All calls are personally answered by me.

If you really still have a problem with this, call me anytime. But stop hurling insults at me or my colleagues for no reason. It just makes you look bad.

Well Chris, all I can say is that it may be time for you to take some advice about responding to negative reviews. There's a post you should read, it was a guest post on your blog in February.

Take care.

Anonymous comments are welcome as long as they say something relevant and half-way intelligent and aren't a vehicle for a coward to attack someone. I trust you understand. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.

A Tale Of Two Emails From Young Lawyers, And A Request

Today I saw an email sent to a young lawyer I know. The email was requesting to meet with the lawyer to discuss a job (a job that wasn't available). Lawyers get these all the time. New graduates send cover letters with resumes saying they want to work for the firm, not having a clue whether the firm is hiring. Most just hope for a response (which this guy got.) Most would love the ability to meet with a lawyer (which this guy turned down).

Yeah, the young lawyer responded that he had no job to offer, but sure, the young lawyer could come in and meet him and talk about a possible set up where Mr. Jobless could have his own practice, share space, get some work, etc... It wasn't a job, it was an opportunity (note: Mr. Jobless actually mentioned the word "opportunity" in his email, but as you'll learn from reading Mark Bennett's post on the email, his idea of an opportunity was a paycheck. He couldn't get that, so he said "thanks, but no thanks."

There was debate in the comment section to Bennett's post about whether this kid was just bat shit stupid or deserved understanding because he made it clear he wanted a "job" and not an opportunity to at least sponge off some lawyers for a while while trying to make a few bucks. Hell, it's the internet, everyones got an opinion and where ever you fall on this, I really couldn't give a crap.

Later in the day, I myself got an email. Here are the relevant portions:

Mr. Tannebaum,

Could I fire off some questions to you?  I would like very much to enjoy the practice of law, but am at something of a crossroads as to how to do so...  

Specifically, I'd like to go solo, and am not sure where I should, what I should practice (I studied criminal and IP in law school), or how to balance it all and still have a personal life.  I don't know. . . Because I know it sounds odd, I will say that part of my problem is that I left the state I went to law school and am in a whole new network. I won't hound you or anything. . . just thought I'd give it a shot.

Reading the tone of this email, I wonder what this kid would do if I invited him to come meet me at my office for a 5 minute conversation and no promises? Sure, he makes clear he wants to go solo, but he's not sure he can make it and would probably take a job if offered. He would at least jump at the "opportunity" for a meeting.

So while I'm going to respond to his email directly, I'm asking you to help him. Give him your best advice. I think he deserves it. I think he'd appreciate it.

Anonymous comments are welcome as long as they say something relevant and half-way intelligent and aren't a vehicle for a coward to attack someone. I trust you understand.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of  Defending The Lawyer Before The State Bar          

Understanding The New Florida Bar Advertising Rules, If That's Possible

There's new advertising rules for Florida Lawyers. They're available in this 53 page opinion released by The Florida Supreme Court this week.

Don't worry, you don't have to read 53 pages of a legal opinion, I'll help you with this.

From the Court: the Bar concluded that the existing lawyer advertising rules should be entirely restructured, focusing primarily on preventing the dissemination of misleading and unduly manipulative information.

But what about simply "manipulative information?"

Moving on...

And don't worry, like any rule change proposal: The proposals are designed to make the advertising rules more cohesive, easier for lawyers who advertise to understand, and less cumbersome for the Bar to apply and enforce.

Easier, less cumbersome. Of course.

So here we go:

Rules 4-7.1 through 4-7.10 are deleted. Gone. Poof.

We now have:

4-7.11 (Application of Rules);
4-7.12 (Required Content);
4-7.13 (Deceptive and Inherently Misleading Advertisements);
4-7.14 (Potentially Misleading Advertisements);
4-7.15 (Unduly Manipulative or Intrusive Advertisements);
4-7.16 (Presumptively Valid Content);
4-7.17 (Payment for Advertising and Promotion);
4-7.18 (Direct Contact with Prospective Clients);
4-7.19 (Evaluation of Advertisements);
4-7.20 (Exemptions From the Filing and Review Requirement);
4-7.21 (Firm Names and Letterhead);
4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).

If you're keeping count, and I do, we now have 12 rules instead of 10.

We also introduce the new term "objectively verifiable" in Rules
4-7.13 and 4-7.14

Meaning?

If the attorney can show, by objective facts, that the statement is true, then he has presented an objectively verifiable statement in the advertisement. On the other hand, making a subjective statement such as "the best trial lawyer in Florida" is a misleading statement that fails to meet the requirement because it is neither objective nor verifiable. The advertising statement must be supported by verifiable facts.

So you can't say you are awesome, unless it can be verified. But can you then just list your past success? That's verifiable.

Well... as long as the past results are not:

atypical of persons under similar circumstances.

Also:

A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client's actual damages, is also misleading.
So is the Bar still staying away from the internet?

This subchapter applies to all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail , electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video  sharing media.

So now you can't use the internet as a haven for deception. What will the marketers do?

Also: This subchapter applies to communications made to referral sources about legal services.

"Communications?" So I can't get drunk with a referral source and say things that are not "objectively verifiable" The bartenders lobby should have been all over this one.

This is a requirement that may strike fear throughout the Bar:

Legibility. Any information required by these rules to appear in an advertisement must be reasonably prominent and clearly legible if written, or intelligible if spoken.

And you lawyers that take the case and send it to another lawyer to do the work?

Ut oh.

If the advertising lawyer knows at the time the advertisement is disseminated that the lawyer intends to refer some cases generated from an advertisement to another lawyer, the advertisement must state that fact. An example of an appropriate disclaimer is as follows: 'Your case may be referred to another lawyer.

While trying to prevent "Deceptive and Inherently Misleading Advertisements," is admirable, this part of the rule will be fun to litigate:

An advertisement is deceptive or inherently misleading if it:

(3) implies the existence of a material nonexistent fact.

Like me, do you often get annoyed when people are being...wait, let me get this right... deceptive and misleading by implying the existence of a material nonexistent fact?"

Here's an example of an implied existence of a material nonexistent fact:

Another example of the implied existence of a nonexistent fact is a statement in an advertisement that a lawyer is a founding member of a legal organization when the lawyer has just begun practicing law. Such a statement falsely implies that the lawyer has been practicing law longer than the lawyer actually has.

So young lawyers, don't be self starters. Don't "found" anything and advertise it to anyone. It's misleading, apparently.
You can say (even if it's not true) that you are:

aggressive, intelligent, creative, honest, or trustworthy.

You cannot say that you are:

"the best," "second to none," or "the finest."

You can use the words:

"goal," "dedicated," "mission," and "philosophy."

And your precious testimonials?

Testimonials by clients on these matters, as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible.

Now let's talk about Potentially Misleading Advertisements. This is a pretty clear standard (there's still not a font for sarcasm?)

(1) advertisements that are subject to varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context;

(2) advertisements that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;

(3) references to a lawyer's membership in, or recognition by, an entity that purports to base such membership or recognition on a lawyer's ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria, and that includes among its members or those recognized a reasonable cross-section of the legal community the entity purports to cover.
 

Ok. I'm going to just move on from that one before my head explodes.

But before I do, just know that even if your ad is potentially misleading:

Clarifying Information.

A lawyer may use an advertisement that would otherwise be potentially misleading if the advertisement contains information or statements that adequately clarify the potentially misleading issue.

Now that we all understand Deceptive and Inherently Misleading Advertisements and Potentially Misleading Advertisements, let's talk about....

UNDULY MANIPULATIVE OR INTRUSIVE ADVERTISEMENTS
A lawyer may not engage in unduly manipulative or intrusive advertisements. An advertisement is unduly manipulative if it(and I'll summarize this:

images, sounds, videos, dramatizations, authority figures such as a judge or law enforcement officer, or an actor portraying an authority figure, voice or image of a celebrity, except that a lawyer may use the voice or image of a local announcer, disc jockey or radio personality who regularly records advertisements so long as the person recording the announcement does not endorse or offer a testimonial on behalf of the advertising lawyer or law firm... to mention a few.

This of course is my favorite part:

Notice of Compliance and Disciplinary Action.


A finding of compliance by The Florida Bar will be binding on The Florida Bar in a grievance proceeding unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement. The Florida Bar has a right to change its finding of compliance and in such circumstances must notify the lawyer of the finding of noncompliance, after which the lawyer may be subject to discipline for continuing to disseminate the advertisement.

I wonder what happens if the Bar files a complaint, the ad was found to be in compliance, and then after the complaint is filed the Bar revisits its finding? The word "after" seems ripe for litigation.Those of you who use those cheesy referral services need to read 4-7.22, and read it carefully - specifically section (b).

So there you go, easier, less cumbersome, or as Justice Canady said: I am persuaded that the proposed rules remain unduly restrictive.

I'm reminded of the time I was at a conference listening to the head of the Florida Bar Ethics Department talk about lawyer advertising. I asked why we couldn't just simplify the rules. The response: "why don't you help us do that?"

I wrote "4-8.4 - nothing false, misleading, or deceptive" on a napkin and handed it to her.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of Defending The Lawyer Before The State Bar