Wednesday, February 23, 2011

Lawyer blogs banging down the door of potential clients.

In this blog I discussed whether lawyer blogs fit more closely in the category of in-person solicitation, or direct mail. While I concluded that there is no categorical rule the court can use to decide where lawyer blogs fit, Florida Bar v. Went For It [1] might provide some guidance on the distinction.

In Went For It, the Florida Bar adopted new standards as part of a 1989 study regarding attorney advertising. These standards placed a 30 day moratorium on direct and indirect lawyer solicitation of accident victims and their family members. Plaintiff, Stewart McHenry, owner of Went For It, Inc, a lawyer referral service, filed suit, arguing that the regulations were a violation of his First and Fourteenth Amendment rights to the United States Constitution.

In holding that the Florida Bar regulations on advertising were constitutional under the First Amendment, the court stated:
We have always been careful to distinguish commercial speech from speech at the First Amendment’s core. Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values. And is subject to modes of regulation that might be impermissible in the realm of noncommercial expression.

Accordingly, the court applied the intermediate scrutinyCentral Hudson test:
1. The government must assert a substantial interest in support of its regulation;
2. The government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and
3. The regulation must be narrowly drawn.

First, regarding the government’s substantial interest, the court listed three government interests it deemed as substantial:

1. The government’s interest in establishing licensing standards;
2. The protection of well-being, tranquility, and privacy of the potential clients’ home, and
3. States can legislate to avoid intrusion

The court highlighted the main interest of the State as protecting the well-being, tranquility, and privacy of the potential clients’ home. The court reasoned that the purpose of the ban is to “forestall the outrage and irritation” with the legal profession when the victims have the accident fresh in their minds. Therefore, the court emphasized its concern for the appearance of the lack professionalism where an attorney makes direct contact with a recent accident victim.

Next, regarding the material advancement of the government’s interests, the court indicated that the State provided statistical and anecdotal data which displayed the fact that the Florida regulations would further the State’s goals.

Lastly, regarding whether the regulations best “fit” to serve the State’s interests, the Court stated that there is no other alternative in regulating the speech in a less restrictive way. Furthermore, the regulation merely imposes a moratorium; it does not impose an outright ban.

The court distinguished this case from Shapero in several ways. First, unlike Shapero, the treatment of the potential client’s privacy was casual. Next, Shapero dealt with a broad ban on all advertising, rather than a mere moratorium. Lastly, the State in Shapero did not give any evidence of actual harm caused by targeted direct mail.

The question remains with respect to blogging: Is the regulation of blogging constitutional under the First Amendment? Due to the inconsistency of Supreme Court’s rulings with respect to attorney speech, the answer to this question becomes even fuzzier than it would otherwise be.

Putting all of the attorney cases together, we know:
1. The Central Hudson test is the current test for determining whether attorney speech regulations are constitutional under the United States Constitution;
2. The ban of in-person solicitation of clients is constitutional under Ohralik;
3. Outright bans on attorney advertising via direct mail are unconstitutional under Shapero;
4. 30 day moratoriums on attorney advertising via direct mail are constitutional under Went For It.

As discussed previously, lawyer blogs could arguably be either direct mail or in-person solicitations. While Went For It did not provide any distinction between in-person and direct mail analysis, the court provided clarification to Shapero when it discussed the fact that the privacy of the individuals in their homes is the most important interest due to the issue regarding the appearance of attorney professionalism.

In the blogging context, this is especially troublesome. While lawyers are not approaching potential clients in the traditional sense, a lawyer can “approach” a client over the internet. While sending an advertisement in the mail can make this same level of contact, the level of privacy over the internet is much more concerning. Unlike direct mail, a lawyer can contact a potential client in real time, meaning that the lawyer can, if they wish, speak to the client as the client is in the privacy of their own home, while they are in their own home. A potential client can choose not to look at lawyer blogs. However, with the invention of such sites as facebook, this becomes increasingly more difficult. Facebook give the availability of advertisers to see what people might be interested in.

Here is an example:

If any of the links are clicked on, a person would be led to that site’s page. The court’s main concern with the lack of privacy is that professionalism of attorneys may suffer due to lawyers’ ability to contact potential clients when they are at their most vulnerable. Is this concern any lower for lawyer blogs? Certainly not. Therefore, I would argue that state bar regulations for lawyer blogs that are no more restrictive than the standards set forth in Went For It would not only be recommended, but constitutional. In addition, it is my opinion that the restrictions should be at least as restrictive as those in Shapero. Even though the restrictions were held as unconstitutional in Shapero, lawyer blogs are more intrusive on a potential clients’ privacy.

[1] 518 U.S. 618 (1995).

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