Wednesday, February 16, 2011

Lawyer blogs: Man in suit on doorstep or flyer in mailbox?

This post discussed the seminal attorney-advertising case, Bates v. State Bar of Arizona. The year after Bates v. State Bar of Arizona [1], the Court took up the issue of attorney speech once again, in Ohralik v. Ohio State Bar. [2] Ohralik dealt with an attorney who personally visited the home of an accident victim, after learning that an automobile accident had occurred. In affirming the Ohio Supreme Court’s ruling, the United States Supreme Court held that in person solicitation of legal services can be constitutionally banned by the state.

The Court stated that in-person solicitation by a lawyer who is seeking employment is a “business transaction in which speech is an essential but subordinate component.” Furthermore, it stated that commercial speech is afforded limited protection with regard to the First Amendment. The court listed two interests of the state: (1) protection of consumers and (2) protection of the professionalism of the legal career.

It reasoned that, first, regarding the protection of consumers, the interest of the state is strong because lawyers act in a government function as “officers of the courts.” Furthermore, the court discussed that while lawyers are self-employed business men, they are also “trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Next, regarding the issue of professionalism, the court reasoned that the “evils of solicitation” are especially strong in the context of in-person solicitation.

Ten years later, the United States Supreme Court took a step back from Ohralik when it decided Shapero v. Kentucky Bar Ass’n. [3] In Shapero, petitioner sent a letter to the Kentucky Bar Association for approval, which he planned to send to potential clients who have had foreclosure suits filed against them.

In holding the banning of the letter as unconstitutional under the First Amendment, the court stated that the “relevant inquiry is not whether there exist potential clients whose ‘condition’ makes them more susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility.” The Court also stated that “[o]ur recent decisions have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the cost of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.”

Comparing this case to Ohralik, the court reasoned that targeted direct-mail poses “much less risk of overreaching or undue influence” than in-person solicitation. The court went on to say that in-person contact, unlike direct mail, involved the “coercive force of personal presence of a trained advocate.” In short, the person, when presented face-to-face with a proposition by an attorney, feels added pressure to give the attorney a yes or no answer regarding inquiries. With regard to the direct mail at issue in this case, the court noted that mail is something that can be easily put in a drawer and ignored; in person solicitation is not. Furthermore, the court reasoned that, unlike in person solicitation, direct mail can be easily regulated due to the fact that a permanent record of the advertisement exists.

Before discussing the most recent Supreme Court holdings on this matter, a preliminary issue exists with regard to the topic of lawyer blogging. Before it can even be decided whether lawyer blogging can be regulated, and how lawyer blogging can be regulated, we must discuss what lawyer blogging is. Once we are able to answer what category blogging fits into, it will be easier to discern whether the court should treat blogs more like Ohralik or Shapero.

Therefore, the narrow question is this: is blogging more like in-person solicitation or more like direct mail? My argument would be that is a hybrid of both.

First, regarding in-person solicitation, unlike a face-to-face conversation, the interaction between the attorney and client takes place behind the computer screen, and, perhaps, in each persons’ respective homes. Therefore, the client or potential is “protected” from any on-the-spot coercion that may take place when faced with a live person. In addition, unlike a live person, who a potential client may not intend to interact with, many lawyer blogs are only reached when the client voluntarily decides to “visit” the site. There is danger, however, where lawyers solicit their blogs on areas such as facebook; a client may click on a link for the lawyer blog without realizing what they have just clicked on. This interaction may be akin to being confronted by a lawyer face-to-face.

In addition, the argument could be made that, while the coercion may be absent, there is a serious invasion of privacy into a potential client’s home when a lawyer has the ability to “reach out” to potential clients over the internet. Because the potential client is most likely in their home, and potentially relaxing on the couch, or even in bed, there is a serious concern that lawyers could actually become more coercive because the potential clients feel relaxed and at ease. Furthermore, the court may be concerned with the ability of lawyers to invade even the most private areas of potential client’s lives: their homes. Therefore, even though blogging is not as coercive as face-to-face contact, the privacy concerns are an issue that the court may need to address in the future.

Next, regarding direct mail, blogging is, arguably, less intrusive than direct mail. Unlike direct mail, a potential client would most likely seek out a lawyer blog. The court discusses in Shapero the idea that a potential client can just choose to throw away a piece of mail they do not wish to look at. This same idea rings true of blogs: if a potential client doesn’t want to look at it, they can just not visit the site. The link that might be sent to a potential client might be similar to a piece of mail being sent to a potential client.

Also, like direct mail, blogs can easily be regulated. As discussed in previous posts of this blog, internet web addresses are tracked via IP addresses. Furthermore, visit to a particular site can be tracked via various programs. For example, has a feature that allows the user to examine who has viewed the site, and from which source. It follows that the State Bar can easily regulate lawyer blogs by requiring lawyers to submit the web address of their blogs, just as the state bar allows the lawyer to submit potential advertisements for approval.

As a result, blogs fit squarely between in-person solicitation described in Ohralik, and direct mail, as described in Shapero. This blog will discuss in further detail, in a later blog, where blogs fit into the current jurisprudence of First Amendment lawyer speech. It is clear that lawyer blogs can not categorically fit squarely into in-person solicitation or direct mail.

[1] 433 U.S. 350 (1977).
[2] 436 U.S. 447 (1978).
[3] 486 U.S. 466 (1988).

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