On The Florida Bar Guidelines for Networking Sites Approved by The Standing Committee on Advertising

Posted by on January 27, 2012

Silly. Child-like. These are just a couple of ways The Florida Bar Guidelines for Networking Sites Approved by The Standing Committee on Advertising have recently been described.

And as I wrote in Solely Social or Used to Promote?, they demonstrate a fundamental lack of understanding about how we communicate.

You see, the Florida Bar would prefer to look at communications by lawyers on social networking sites as fitting into neat little boxes.

In one box, they would put communications by lawyer "solely for social purposes, to maintain social contact with family and close friends." These they suggest are not subject to the lawyer advertising rules.

In a second box, they would put "pages appearing on networking sites that are used to promote the lawyer or law firm’s practice." These they suggest are subject to the lawyer advertising rules.

And while some communications by lawyers may fit neatly into one of the two boxes, of course we know that the overwhelming majority of communications will include social purposes, as well as, promotional purposes.

But even if we recognize that communications are intended to convey a variety of meanings, there's really another question here. Should the intent of the communication be the distinguishing factor?

In Legal Blogging vs Advertising & Marketing we examined the Horace Hunter blog debacle. In that example the Virgninia Bar took issue with Mr. Hunter's omission of disclaimer on his "blog". They claimed that at least one purpose of his website to market the firm and attract business.

Which raised the question of whether there true distinctions between blogs, other forms of electronic communications, marketing materials, and advertisements.

As I've written before, at least with regard to lawyer ethics rules, the issue shouldn't be whether the intent of the communication was editorial, solely social, or used to promote.

As Professor Goldman puts it:

"The law doesn’t handle editorial-content-as-marketing overlaps very well, unfortunately.”

In my humble opinion, even The U.S. Supreme Court has trouble making the distinction between "pure speech" and "commercial speech" (much this trouble created by the Court).

And so, in the end, lawyers, at least those in Florida, in order to comply with the silly and child-like rules of their State Bar, must regulate their communications to fit neatly into one of two boxes. Those that are solely for social purposes and those that are used to promote.

I challenge you to answer the hypothetical examples listed here.

Double Ad Serving for Lawyers

Posted by on August 19, 2011

As anyone with experience running paid search ads on Google should know, Google doesn't allow for double ad serving. Unfortunately, businesses, including law firms, get away with it more often than Google would like to admit.

What is Double Ad Serving?

Double ad serving happens when one advertiser tries to show more than one ad on a given search result page. Here is what Google says about it:

To protect the value and diversity of the ads running on Google, we don't generally permit advertisers to manage multiple accounts featuring the same business or keywords except in certain limited exceptions. Furthermore, Google doesn't permit multiple ads from the same or an affiliated company or person to appear on the same results page. We've found that pages with multiple text ads from the same company provide less relevant results and a lower quality experience for users. Over time, multiple ads from the same source also reduce overall advertiser performance and lower their return on investment.

Whether it's because Google isn't very good at enforcing this policy, or really doesn't care as much about protecting the value and diversity of the ads running on the platform as they claim, double ad serving occurs much more frequently than Google would like to let on.

Recently, while performing some competitive analysis for medical malpractice terms in Washington, DC, I noticed yet another example of double ad serving. In this case, it was being done on behalf of a local DC malpractice lawyer.

By setting the search results to the Washington, DC area, and performing a search for medical malpractice, I was served this page:

medicalmalpracticesearch.png

As you can see, the number one paid search ad is for wilsonlaw.com:

drwilson1.png

You will also notice another ad a little further down the page for the website: http://www.medical-malpractice-lawfirm.info/. Curiously, that ad appears to be another advertisement for the same lawyer:

drwilson2.pngHmmm... That's interesting. The same advertiser, serving the same looking website on two separate domains, on the same results page. Looks to me like a clear violation of Google's double serving policy.

Should I Do This?

Like other issues involving lawyers and online marketing, many readers will look at this example and contemplate, whether this is something that they should be doing. My short answer is no, as it could jeopardize your ability to advertise on Google altogether.

But some will argue that this is an excellent way to "dominate" search engine results pages. In fact, it's my guess that the lawyer doesn't even realize that he's advertising in violation of Google Adword's policy.

In my humble opinion, each advertiser, whether doctor, lawyer, or plumber, needs to make an informed decision about how they advertise and market themselves. Further, specifically for lawyers, there are rules of professional conduct with which lawyers should comply.

Who is to Blame?

So who is to blame for non-compliant advertising? There appear to be three probably suspects: The lawyer-advertiser, the advertising/marketing company, and Google.

Unfortunately, in most cases, lawyers don't have the time, desire, or knowledge, to be able to make informed decisions about their online advertising and marketing. Obviously, this is no excuse for "bad advertising" practices and they are the ones ultimately accountable for their reputation and license. However, it seems that at least some blame must be attributed to their advertising/marketing agency.

As you've probably experienced elsewhere, many advertising and marketing companies aren't in the business of adhering to advertising rules, or lawyer rules of professional responsibility. And in fact, there are some lawyers who insist on gaming the system. So not all blame can be attributed to them either.

Finally, there's Google. Google's incentive is for their users to click on ads. That's how they make money. Do they have incentize to police violations of their policies? Sort of. They contend that if they don't maintain the integrity of the engine and the ad platform, people will search elsewhere. But since Google has become synonymous with search, it isn't realistic to think that people will abandon Google for these types of infractions. In fact, most users wouldn't even notice this form of double ad serving.

Does it Matter?

Undoubtedly, some readers will ask whether it even matters that advertisers participate in double ad serving. Which is a fair question. It's almost a victimless crime. The only groups that may suffer are users, who my be misled that there are more options on search result page than there actually are, and other advertisers who comply with the ad policies.

On the other hand, perhaps the advertiser is taking some risks too. There's a chance that they are penalized for double ad serving by Google. Additionally, they may take a reputational hit or even face ethical issues with their state bar.

Despite the competitive advantage it might provide, I strongly recommend that you don't double ad serve. It is one more reason to learn about online marketing and advertising before you dive in head first.

UPDATED: Was it an Accident?

It was suggested to me that this might have been an accident. For example, the firm might have been handling their paid search in-house and then subsequently decided to outsource to an agency and forgot to turn off their in house campaign.

I think that's a fair possibility in this case. However, I've seen several other instances where an advertiser is working with multiple agencies. In those cases, the "accident" card isn't as easy to play.

To The Trusted Go The Spoils

Posted by on March 25, 2011

As the world becomes more connected, the value of trust, authenticity, and credibility is rising sharply.  But who can you trust?

A recent Travelzoo study in the UK seems to indicate that 81% of vacation planners base choice of hotel on web reviews. However, it's been very well-known, for quite some time, that a significant number of online review sites contain fake reviews.

The truth is, the web provides an excellent platform for the unscrupulous.  At least for now. However, this trend is rapidly changing. And in the end, to the trusted, go the spoils.

So, what does this mean for legal professionals? First, in my humble opinion, publishing or paying for, fake online reviews and testimonials is a clear violation of ethics rules (false and misleading statements). Second, even if you escape your state bar unscathed, the moment that your scheme is revealed, you have lost all credibility with your audience, your colleagues, and Google.

Google?  While perhaps not nearly as important to many of us (despite the fact that an overwhelming number of lawyers sacrifice professional reputation to "get rankings") as our reputation to prospective clients, current clients, and peers, breaking trust online will eventually hurt your reputation with Google. Which means, you guessed it, lower rankings and less visibility.

Legal blog meister Kevin O'Keefe writes:

But as social media evolves -- as people learn to follow people they trust and more people share information via social media -- we're going to go with people we trust over search. Google knows this. As I blogged last month, social media is receiving higher priority in Google search results. LinkedIn knows this. That's why they're launching LinkedIn Today.

And so, for even those that "pray at the alter of Google", building trust remains of critical importance.  Don't believe me? Ask Google.

And trust is one of those things that takes a very long time to build and a very short time to destroy.

So, while the allure to engage in practices that break trust may be enticing, it's simply not worth it. It's not worth your credibility, it's not worth your reputation, and it's not worth your law license.

Be Careful Who You Work With: A Google Maps Horror Story

Posted by on January 07, 2011

scream.jpgOne of our current clients had hired a company to perform Google Maps search optimization prior to coming on board with AttorneySync.  The company had been working with our client for 6 months or so prior to the start of our relationship.

According to the firm, the results from the local campaign hadn't been very impressive.  Since the firm's contract with the local search agency was expiring at the end of the year, we advised them to finish out the term and then we would take over the local optimization.  However, when Google made a change towards the end of October to how they displayed local search results, the importance of the firm's Google Places listing took on a more prominent role.  We advised the firm to let us take control of the local campaign in November and we would perform the additional work as a component of our service.

This is when the trouble began.

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Law Firm Testimonials And Law Firm SEO

Posted by on January 04, 2011

Fotolia_23632873_XS.jpgLaw firm testimonials are becoming much more important to effective law firm seo. As search engines and the web become more and more local and social, client ratings, reviews, and testimonials play an increasingly important role in terms of building visibility online. But how can legal professionals increase the quality and quantity of online reviews?

 

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Legal Ethics Regulations: It's The Content, Not The Method

Posted by on December 19, 2010

Now that the deadline for the ABA's call for legal marketing ethics comments has come and gone, we have had the opportunity to see many perspectives on this important issue. We have maintained that the Constitution requires that, "Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all."

I recently had the opportunity to read the comment submitted by Hellerman Baretz Communications LLC. I found their comment to be particularly insightful on this issue, which in summary states:

(a) content triggers ethics restrictions not channel (e.g., telephone, fax, Skype, email, Facebook, etc.); (b) existing rules, therefore, already cover the "new" online communication tools; but (c) by issuing Comments to its existing rules, the ABA can clarify that the mere act of communicating online does not trigger any special or enhanced restrictions and thereby encourage fearful lawyers to use the tools.

To me, this comment really strikes at the core of the issue. Regulations have always been designed to regulate the content of communications and not the method through which they are communicated. While, on the one hand, this may seem like an overly simplified concept, it is all to often overlooked.

While there is no doubt that legal professionals need to make conscientious decisions about communicating in compliance with the ethics rules, they should not be made to feel terrified about using new social media and networking technologies.

Thanks to John Hellerman for bringing this comment to my attention.

Social Judges Allowed In Ohio

Posted by on December 10, 2010

As reported by Larry Bodine on Law Marketing Portal, in a very thorough analysis of a judge's use of social media, the Supreme Court of Ohio's disciplinary board has issued an advisory opinion outlining some of the ethical implications involved.

  • To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site. 
  • To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making. 
  • To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone. 
  • To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge. 
  • To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court. 
  • To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification. 
  • To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.

To me, this is a opinion represents a core understanding that social media and social networking tools are just that, tools. While they provide a new means by which to communicate, they do not require an entirely new set of regulations dedicated specifically to social media.

I have always thought that attempts to create new regulations for the legal profession's use of social media and other online marketing techniques is analogous to creating a separate set of rules for television, radio, phone, email, etc. The truth is, that the existing ethical rules are applicable to all forms of communication including social media and other online marketing and networking sites.

The idea of creating a separate set of rules for social media, to me, reflects a lack of understanding of the nature of these new technologies. While there is no doubt that the use of social media by judges and lawyers should be subject to ethical regulations (just as every other form of communication should be), developing a unique set of new rules for each form of communication is likely to lead to confusion, unnecessary compliance difficulties, and is more likely to restrict the public's access to legal information rather than protect it from false of misleading information.

Blogging & The Constitution

Posted by on November 12, 2010

In the wake of the ABA's recent call for comments on lawyers' use of internet based client development tools, the legal blogosphere has been buzzing with discussions of the future of web technologies for legal professionals:

Just to name a few... (Please feel free to add yours)

And there are concerns that the risks and benefits of lawyers' uses of web technologies, including social media, are not being fairly portrayed. Which prompted this comment by Scott Greenfield:

By the way, one aspect of this discussion that requires some serious refinement is that we talk about blogs as if they're all the same, knowing full well that their not. Some are completely non-commcercial speech, while others are flagrantly commercial, and there's a full spectrum in between. Any discussion of whether blogs are covered by ethical regulations (and they are, as is everything lawyers do, which doesn't make them prohibited but merely covered) needs to specify what we're talking about. What we really need is a more precise choice of words to describe the spectrum of blogs.

Maybe, with better definition, we might find that we have greater agreement than it appears.

Which caused me to start thinking about the nebulous world or commercial and non-commercial speech. 

Now, I am not a constitutional law scholar. I am not a practicing lawyer. I am certainly not qualified (nor interested in) writing usable and effective rules to govern how legal professionals use the web. It is my opinion that each legal professional should make an informed decision about how they choose to interact online. That being said, I am very interested (both financially and intellectually) in some of the issues related to the use of the web by lawyers. So here are some observations and opinions.

In my VERY limited understanding of Supreme Court speech jurisprudence and classifications, it is my opinion that the Court has been vague at best and contradictory at worst on these issues.

First, it is my view that James Madison never intended that the degree of protection afforded speech be subject matter dependent. Second, it seems rare that an expression is "related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY, 447 US 557 - Supreme Court 1980, citing Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 762 (1976); Bates v. State Bar of Arizona 433 U. S. 350, 363-364 (1977); Friedman v. Rogers, 440 U. S. 1, 11 (1979). While the cynic in me cries, "all expression relates to the economic interests of the speaker", my experience tells me that most cases include a mixture of both.

On the other hand, I agree that, "Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY, 447 US 557 - Supreme Court 1980, citing Bates v. State Bar of Arizona, supra, at 374.

Nonetheless, even working within the Court's framework, it seems to me that as long as lawyers aren't making misleading statements on their websites and blog, even their most unbecoming "ad blogs" are protected:

The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U. S. 765, 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn., supra, at 464-465, or 564*564 commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 388 (1973).[6]

If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

And so, it would seem to me, that so long as bloggers, including lawyer bloggers, including lawyer bloggers that advertise their services (even those that do it distastefully), do not mislead their audience, any restrictions on what they write must be crafted to directly advance the state's purpose (protecting the public from misleading lawyer advertising) and must do so in a way that is as least restrictive as is conceivable.

In the end, the discussion always returns to a very difficult question: Is the article, web page, or blog post, likely to mislead a reasonable reader? Good luck with that one.

I have yet to witness the flood of complaints by legal services consumers of the harms they suffered by being misled by their lawyer's website or blog (although with all those creative lawyers out there, I have no doubt that they will eventually arrive). Most of the legal malpractice cases, with which I am familiar, involve careless, or downright criminal, activities.

On the other hand, there should be, and there are, several protections against lawyers misleading the public. And they apply with equal force whether the speech is in person, on the radio, on TV, or on the Internet.

In my experience working with lawyers, I have reviewed a lot of law firm websites and legal blogs. I have seen the good, the bad, the ugly, and the deplorable. Despite my personal perspective on such advertising, as well as, my disagreement with much of the Supreme Court's jurisprudence on "levels of protected speech", even under the Court's framework, lawyers have a right to blog, even commercially. Whether that is effective or not is an entirely different matter.

Should bar associations choose to invest the resources necessary to promulgate the least restrictive proportionate rules to prevent lawyers from publishing misleading information online, as well as, an efficient and effective enforcement mechanism, I wish them luck.

So far, most of the recent and proposed changes that I have seen, are unlikely to pass muster. But then again, I'm just a slimy legal marketer.

Here are some additional resources related to the Internet and commercial speech: