Category Archives: First Amendment

New CLE Courses Added!!!

At Attorney Credits, we recognize that we live in a fast paced, ever-changing world.  Every new day brings new inventions, new fads and emerging trends in the practice of law – from utilizing cloud technology to drone law.

New CLE Courses:

  • A Practical Approach to 1031 Exchanges
  • A Sneak Peek at the Possible New Rules of Professional Conduct
  • Appellate Oral Arguments: Nuts and Bolts and “Do’s and Don’ts”
  • But I Only Had Two Beers!!
  • Civility and Professionalism: Gender and Culture Bias in the Legal Profession
  • Counseling Your Business Clients on Trademarks
  • Crafting a Simple and Effective Closing Argument
  • Dealing with Cognitive Bias in Trial from Voir Dire to Deliberations
  • Don’t Give Up 5 Minutes Before the Miracle
  • Estate Planning 101
  • Evidence: Advocacy and Artistry in the Courtroom
  • From Harry Ellis to Trump: The Ethics of Federal Disqualification Motions
  • How to Negotiate with the IRS in Collections and For Audits
  • Prosecuting Trademark Applications
  • Representing Disabled Veterans Before the Department of Veterans Affairs
  • The Phone Knows All: Cell Phones, CDR Reports and GPS Tracking for Attorneys

For that reason, we are constantly adding new CLE courses to keep up with new changes and developments in the law.  Our goal is to keep you as current as possible so you can best serve your clients!  For more information about Illinois CLE please click here: IL CLE.

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Digital Citizenship in Schools: From Policy to Practice

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The schools of today are very different than the schools of our youth. Students today are faced with cyberbullying, sexting, Facebook and all the novel problems that our new digital world has created over the last decade. Schools and school districts must know how to address and respond to these new issues created by digital technologies so they can best help students and avoid potential liability.

In an era of sexting, cyberbullying, and Facebook, school administrators walk a fine line in trying to provide a safe school environment and at the same time, trying not to infringe on student first amendment rights. – Gretchen Shipley

If you would like to learn more about emerging legal issues in schools created by technology please join Gretchen Shipley as she uses a hypothetical fact pattern to discuss these emerging issues. The main topics covered by Mrs. Shipley include search & seizure, mandatory reporting of abuse & neglect, sexting, social networking, teacher-student online communication, teachers’ cyber conduct, student discipline for online speech, bring your own device & equal access, cyberbullying, student privacy rights and potential breaches of privacy law.  To access the course please click here: Digital Citizenship in Schools: From Policy to Practice.

Further issues discussed include:

  • eMatters
  • Klump v. Nazareth
  • Sexting by students
  • Freedom of association
  • “Fitness to teach”
  • The “related to school activity” standard
  • The substantial disruption standard
  • S. v. Blue Mountain
  • FERPA
  • CIPA
  • J.C. v. Beverly Hills
  • The Fourth Amendment
  • COPPA
  • GeoLocation & iPad tracking
  • School video cameras
  • Pictures on school websites
  • Data mining by technology vendors
  • Social media monitoring (GeoListening)
  • Device search & seizure

Gretchen Shipley is a partner in the San Diego office of Fagen Friedman & Fulfrost and co-chair of the firm’s eMatters Practice Group. A respected legal leader in education law and technology, Mrs. Shipley advises school districts and delivers workshops to students, employees and district leaders nationwide on the promotion of cyber-citizenship in the school community and the implications of cyber-misconduct in the classroom and workplace. She has also collaborated with the Association of California School Administrators to co-produce the popular “Logged On” seminars, created to offer guidance on employee and student issues that stem from embedding technology into public education.

This CLE course on digital citizenship in schools is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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Who Wants to Pay Bar Dues Anyway???

Senator Scott Lautenbaugh of Omaha took his ongoing fight with the Nebraska State Bar Association to federal court on Wednesday. Senator Lautenbaugh is suing the Nebraska State Bar Association in order to challenge the constitutionality of the mandatory annual dues that lawyers pay to the association.[1]

The class action lawsuit seeks to prevent the Nebraska State Bar Association from collecting mandatory bar dues from members who object to their dues being spent on “political, ideological and other non-germane activities” until the association has established procedures to properly safeguard its members’ civil rights.

 “The First Amendment protects not only the freedom to associate, but the freedom not to associate; and it protects not only the freedom of speech, but the freedom to avoid subsidizing group speech with which an individual disagrees.”[2]

Lautenbaugh cites Keller v. State Bar of California, a 1990 U.S. Supreme Court case written by Chief Justice Williman Rehnquist. In Keller, the Court stated that although attorneys could be required to be members of a state bar association, their dues could be used only for regulating the legal profession and improving the quality of legal services.  According to the Court, lawyers who are required to be members of a state bar association have a First Amendment right to opt out of paying dues for political or ideological activities of the association.[3]

Nebraska State Bar Association President Warren Whitted Jr. has previously stated that the bar is operating within the law.

What do you think about a portion of your bar dues going to political causes that you don’t support?

In addition to paying bar dues, many state bars also require attorneys to complete a minimum continuing legal education (MCLE) requirement.  While many attorneys are not happy with bar dues and MCLE, they are sort of like death and taxes … inescapeable.  For example, attorneys in Illinois (IL) must complete 30 CLE units every two years to remain compliant with the state bar, attorneys in New York (NY) must take 24 CLE units every two years, and attorneys in Florida (FL) must take 30 units every 2 years.  For more information about CLE in Illinois, New York and Florida, please click the links below:

Illinois CLE 

New  York CLE 

Florida CLE


[1] The association has some 9,300 members. Dues are $275 a year. Each member also must pay a $60 assessment to support the Counsel for Discipline, which investigates complaints against lawyers.

[2] This language is included in Lautenbaugh’s complaint.  See Lawmaker Sues State Bar Over Lobbying 

Should One Facebook Post Merit a New Trial?

By Jason Castillo, Director of Legal Education

Do you think that this Facebook post violates a criminal defendant’s Constitutional right to a fair trial?  And should the juror’s Facebook postings protected under the federal Stored Communications Act (SCA)?[1]  An appellate court in California has been asked to decide these novel electronic issues.[2]

In June, 2010, shortly after the jury convicted the parties involved in a brutal gang beating in Sacramento, a juror became concerned that the jury foreman’s Facebook postings may have violated the defendant’s right to a fair trial.  She reported this conduct to the defendant’s counsel who began the process of obtaining the electronic records.  Since the defense attorneys didn’t have legal access to the juror’s Facebook page, they were forced to subpoena Facebook for the records.

Facebook then moved to quash the subpoenas and to be relieved from the court orders.  They argued that the federal Stored Communications Act (SCA) prohibited the social network from divulging the contents of petitioner’s communications.  Facebook did state, however, that the jury foreman has the discretion to turn over the electronic postings to the attorneys of the criminal defendants.  Of course the jury foreman –  A.R. – has refused to turn over the posts.

“The case involves the significant and novel issue of whether a trial court’s power to investigate a claim of juror misconduct includes the power to compel an accused juror to forfeit the protections the juror would otherwise enjoy under the federal Stored Communications Act.”

The attorney representing A.R. claims that the subpoena is a violation of his client’s First and Fourth Amendment rights to free speech and privacy.  However, A.R.’s Constitutionally protected speech and privacy rights must be weighed against a criminal defendant’s Sixth Amendment right to an impartial jury and fair trial.  Attorneys for the defendants believe that A.R.’s Facebook posts will prove that the juror was either biased or improperly contacted by outside third parties.

Should this rather innocuous electronic post rise to the level of ordering a new trial?  While it is true that A.R. did violate the court’s instruction to not share or communicate information about the trial, this does not seem like the type of conduct that would merit a new trial.[3]  The jury foreman –  A.R. – merely stated that the evidence was boring.

Now, if instead A.R. had posted on Facebook that he had done hours of outside research on Google about the crime scene and defendant, this would start encroaching into the defendant’s right to an ‘impartial’ trial. However, in the case at hand, I doubt the Court of Appeal will order the defendant to turn over the posts and the question of whether the juror’s Facebook postings are protected under the federal Stored Communications Act (SCA) will have to wait for another day.  There are two cases on point in other states where the courts issued an order compelling consent under the SCA for the disclosure of Facebook postings and text messages as part of civil discovery.[4]

What do you think?  Should the Court of Appeal order a new trial for the defendants?


[1]  Stored Communications Act (SCA) 18 U.S.C. § 2701 et seq.

[2] The case is Juror Number One (A.R.) v. Honorable Michael P. Kenny Judge of the Sacramento County Superior Court.

[3] See CALCRIM No. 101

[4] See Romano v. Steelcase Inc. (2010) 907 N.Y.S.2d 650 and Flagg v. City of Detroit (E.D.Mich. 2008) 252 F.R.D. 346.

Are Bloggers Journalists?

‘Investigative Blogger’ Crystal Cox was ordered to pay $2.5 million this week for defaming the owner of Oregon investment firm Obsidian Financial. Cox runs various law related blogs like industrywhistleblower.com, judicialhellhole.com, and obsidianfinancesucks.com.

The distinction between “journalist” and “blogger” made a very large difference in the case. Because U.S. District Court Judge Marco A. Hernandez found that Cox was not a journalist she was not entitled to the protections of the Oregon media shield statute. The Oregon media law reads:

No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]

Judge Hernandez’s finding that Cox was not a journalist mainly hinged on the fact that Cox was not employed by an official media establishment and failed to produce evidence of her status as a journalist. The judge found that there was no evidence of:

  1. Any education in journalism;
  2. Any credentials or proof of any affiliation with any recognized news entity;
  3. Proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest;
  4. Keeping notes of conversations and interviews conducted;
  5. Mutual understanding or agreement of confidentiality between the defendant and his/her sources;
  6. Creation of an independent product rather than assembling writings and postings of others; or
  7. Contacting “the other side” to get both sides of a story.

However, bloggers don’t be alarmed. There are two main points that seem to limit the application of this case.

First, this case was decided on the Oregon media shield statute. This may not be the law in your state. For example, some commentators feel that the outcome would not have been the same in Washington State.[1] Also, blogs are not defined in Oregon’s laws as “media.” This may not be the case in your state.

Second, it appears as though Cox does not have the cleanest of hands. According to Forbes staff writer Kashmir Hill many of Cox’s blog posts were ‘unhinged.’ Further, according to the Forbes article Cox allegedly contacted Obsidian Financial earlier in 2011 and offered to provide them with “reputation services” for $2500 a month.

I will leave it to Ms. Kasmir Hill of Forbes for the lesson in all of this:[2]

Yes, there are bloggers who are journalists. But just because you have a blog doesn’t mean that what you do is journalism.

Click here to read the PDF of the case.


[1] See: Unlike Oregon, Bloggers Are Journalists in Washington State, Do Qualify for Legal Protections

http://blogs.seattleweekly.com/dailyweekly/2011/12/unlike_oregon_bloggers_are_jou.php

[2] Why An Investment Firm Was Awarded $2.5 Million After Being Defamed By Blogger

http://www.forbes.com/sites/kashmirhill/2011/12/07/investment-firm-awarded-2-5-million-after-being-defamed-by-blogger/

Blogging: Advertisement or Journalism?

Advertising has been a vexing problem for the legal profession for years now.  Before legal advertising was deemed legal with the 1977 Supreme Court decision in Bates v. Arizona, the fear was that advertising would erode notions of professionalism. And since advertising become legal for attorneys, we have had to suffer though the late night ‘Larry Parker got me $2.1 million’ commercials.

This tension between professionalism and advertising has followed into the online realms as well.  Chat rooms, websites and Internet Referral Services have all been fertile ground for attorney advertising – and unethical conduct.

Now blogs are at issue … once again.  The questions becomes, how big is the threat?

Attorney Horace Hunter, who maintains the Richmond Criminal Defense News blog has been charged with misconduct by the Virginia State Bar (PDF here). The Washington Post‘s Capital Business blog recently stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry.[1]

However, the Washington Post‘s Capitol Business blog could be way off base here. The main issue in the case is whether a blog should be treated as advertising or as news & commentary.

Hunter asserts that the blog is not an advertisement, but rather consists of news and commentary. Since his blog falls into a ‘news and commentary’ category, no disclaimer is required and the blog is protected by the First Amendment.  The Virginia State Bar contends that Hunter’s blog is advertising and as such, under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on his website.  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins, the Bar claims this is unethical.

However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts.[2]

The Viriginia State Bar claims may ultimately hold merit. Carolyn Elefant seems to think that Hunter’s blog is a thinly veiled newsfeed of his firm’s triumphs and successes. You can see for yourself by visiting the blog here.

We will have to see what the Virginia Bar decides, the hearing is set for October 18th.  Even if the Bar succeeds, attorneys will merely have to place some small text reading “Attorney Advertising” on the footer of the main blog page – not even at the bottom of each post. This is not a major issue.  Further, as Kevin O’keefe of RLHB points out there is no record of disciplinary action against Virginia attorneys regarding blogging dating back to 1999.

Brief summary of Advertising rules & issues:

  • Lawyers cannot state anything false or misleading
  • Lawyers cannot state they are a specialists, unless so certified by their respective State Bar
  • Lawyers cannot use testimonials in some states with the implication that past performance will dictate future results
  • It’s smart to include a disclaimer on your website that you practice in a certain geographic region to avoid unauthorized practice of law claims
  • Use common sense – if you can’t do it on the T.V. or the radio, you can’t state it in your website, blog, Twitter, or Facebook (remember Rakofsky!)

Further Resources:


[1] Washington Posts’s Catherine Ho (@WapoCat on Twitter) warns that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent fo other states bar’s limiting legal blogs.

[2] One thing that I have found in years of tracking these ethics and technologies issues is that each case must be decided on a case-by-case basis. Because each case involves specific electronic conduct by the attorney or firm at issue, it’s tough to make blanket statements on the merits of one case. There are numerous firms – especially P.I. firms – whose blogs are thinly veiled advertisements or direct solicitations. And that may be the case here.

The Digital Age Brings New Legal Challenges For Schools

Guest post by Gretchen Shipley

With fewer resources than ever before, school district administrators are overwhelmed with trying to keep up with and respond to on-line misconduct by students and teachers. In an era of sexting, cyberbullying, and Facebook, school administrators walk a fine line in trying to provide a safe school environment and at the same time, trying not to infringe on student first amendment rights. Unless on-line misconduct by a student causes a “substantial disruption” on campus, school districts may not actually have jurisdiction to intervene.  Three recent federal court decisions have all sided with student first amendment rights when school districts took action to discipline students for cyberbullying, posting sexual images on-line, and a MySpace parody of a principal, where the defendant school districts were unable to cite to substantial disruption on campus to warrant school district intervention.

Teachers, however, are typically held to a higher standard for on-line conduct. There has been a surge of teacher misconduct and inappropriate relationships created as a result of teachers and students “friending” via social networking sites. One recent case upheld the dismissal of a teacher for lewd on-line conduct that was not viewed or known to students.  The content of the on-line text and photos that were anonymously reported to the school principal caused the principal to lose confidence in the teachers ability to serve as a role model to students. The court found this nexus sufficient to warrant school district discipline for immoral and unprofessional conduct.

Finally, everyone in the school community should be educated on the dangers of sexting. Not only has sexting lead to a sharp increase in bullying and student suicide, sexting may be grounds for criminal charges for child pornography. The unusual result is that the student who took the sexting self-portraits may be the victim and perpetrator of their own crime. In many jurisdictions, the transmission of a nude, sexual or lewd photo of a minor qualifies as the distribution of child pornography, which carries harsh penalties, including possible lifetime registration as a sex offender.  Therefore, it is important that anyone who comes across a sexting image of a minor, not show the picture to anyone, but rather, seal up the phone and report the incident to the authorities.

For more information about legal issues related to technology in schools, board policies aimed at promoting responsible use of technology, and school campaigns to educate the school community on cyber citizenship, please do not hesitate to contact me at gshipley@fagenfriedman.com.  As co-chair of Fagen Friedman & Fulfrost’s eMatters Practice Group dedicated to education technology, we represent over 400 school districts and community colleges and regularly conduct workshops and presentations throughout the country on cybercitizenship.

About the author: Gretchen M. Shipley is a partner in the San Diego area office and co-chair of the firm’s eMatters Practice Group.  In this leadership role, she keeps the firm and its clients in front of the legal issues that stem from technology in today’s education environment.  A respected legal leader in education law and technology, Ms. Shipley advises school districts and delivers workshops to students, employees and district leaders nationwide on the promotion of cyber-citizenship in the school community and the implications of cyber-misconduct in the classroom and workplace.  Ms. Shipley has collaborated with the Association of California School Administrators to co-produce the popular “Logged On” seminars, created to offer guidance on employee and student issues that stem from embedding technology into public education.  Ms. Shipley also advises clients on the acquisition process of new technology, online instruction, E-Rate compliance and the business aspects of school technology.

If you need further information please view Gretchen’s CLE course on the AttorneyCredits.com website:  Sexting, Texting & Facebook: First Amendment Issues in Schools.

#mistrial

California jurors that just can’t resist tweeting about that ‘whacked out defense lawyer’ may now end up behind bars for six months.

Last week California officially banned jurors from tweeting, texting, or using smartphones to discuss or research details of their case.[1] Authored by Assemblyman Felipe Fuentes and signed by Governor Jerry  Brown, AB 141 tries to combat a growing problem. Judges across the country have been forced to declare mistrials and overturn jury verdicts in numerous cases after learning of jurors electronic misconduct.  The enactment of the new law shows the ill effects of technology on the law as every juror with a smartphone that Facebooks, blogs, tweets, and Googles threatens the sanctity of our legal system.

Many are questioning whether the new law will actually deter jurors – but at least it’s a step in the right direction.  Some have gone as far as to propose digital sequestration for jurors in high profile cases, although at least now California judges will have a little more power to persuade jurors to act responsibly when it comes to their social media activity.

Specifically, the new California law augments existing jury instructions and requires trial judges to inform jurors of the new ban on sharing information electronically and outside research. The California courts system’s Judicial Council has noted that jurors’ use of electronic devices has become “an increasingly significant threat to the integrity of the justice system.”[2] Facebooking jurors will now face charges of criminal contempt for up to six months if they are found guilty of using electronic and their iPads and Androids to conduct research or disseminate information about the trial.

AB 141 “requires the court, when admonishing the jury against conversation pursuant to these provisions, to clearly explain, as part of the admonishment, that the prohibition of the use of electronic or wireless devices applies to all forms of communication, electronic research, or dissemination of information about a case. The bill would require the officer in charge of a jury to prevent any use of an electronic or wireless device to communicate, research, or disseminate information about a case.” (see: California bans jurors from utilizing social media to discuss their cases)

While technology has been quite beneficial for attorneys and the practice of law, it has also had its downside – especially on the courtroom, a place where information is highly monitored and guarded by the judge and attorneys.  While the law looks to protect information, technology has made it increasingly easy to disseminate information rapidly to wide groups of people.

A juror with a smartphone can be a dangerous threat to a criminal defendant’s six amendment right to a fair trial and the equity of civil proceedings.

Consider these examples of electronic misdeeds:[3]

  • A Michigan judge fined a juror $250 last fall and ordered her to write an essay on the Sixth Amendment.  The defendant commented online that she thought the defendant was guilty – before the defense had even presented its case.
  • In the corruption trial of former Baltimore Mayor Sheila Dixon, five jurors ‘friended’ each other and then posted comments about their jury experience on Facebook, even after the judge admonished them to stop their electronic communications.
  • Jurors have also used their phones to look up criminal records and investigate crime scenes through Google Maps.  Because this information was not presented at trial it could be considered prejudicial.
  • During deliberations a jury foreman in a murder case used his camera phone to take a picture of the alleged murder weapon. He later posted the photo of the a 15-inch saw-toothed knife to his blog. The juror also used his blog as a platform to broadcast information and research about the trial.
  • Even television weatherman Al Roker found himself in hot water after tweeting photos of his jury duty experience back in May 2009. Roker used his phone to post pictures of the New York State Supreme Court jury lounge in Manhattan County.  Although the pictures were taken in the jury lounge, the pictures included shots of his fellow jurors.

Personally, I can’t wait for the first juror to get locked up for tweeting. I could imagine that jailhouse conversation when the first inmate walks up to him and asks, “what are you in for?”  Tweeting.


[1] I have been tracking the negative effects of technology on the courtroom for quite a while now. See Ethics (still applies) in a Web 2.0, World, Social Media: Positive or negative affect on the law?, Social Media Creates New Quandaries, Trick or Tweet? How About a Mistrial?

[2] New California Law Prevents Tweeting, Texting by Jurors

[3] Some examples taken from Jurors Gone Wild.

That’s Why It’s the FIRST Amendment …

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The last few months have seen a number of revolutions and governments topple in the Middle East. These Pro-Jasmine’ movements started in Tunisia and quickly spread like wildfire to other North African countries, including Iran, Algeria, and Egypt.  Even Chinese citizens have tried to organize, although the government has had more success at stomping out any dissent.

The number one weapon employed by these dictators and governments was to try to stifle their citizen’s voices to suppress information to the greatest extent possible. It’s a pretty simple formula – if you limit information, you limit the ability of people to organize and mobilize against the government. In a move that still baffles technical experts, the Egyptian government even went as far as shutting the Internet down!

At a time when many governments around the world are trampling on free speech rights, our own Supreme Court was working hard to protect them last week. Last Wednesday, by an 8-1 vote, the Supreme Court correctly upheld the rights of Westboro Baptist Church members to picket military funerals. Having a Grandfather that fought in the Korean War, I was initially repulsed and shocked that this conduct was found Constitutional and that future military families will be forced to endure this ‘Church’s’ demonstrations at their loved ones funerals.

I thought to myself that there has to be some way around this decision. How can we let these people spread their vicious message of hate when we are laying soldiers to rest? Surely, there must be some way for nine Supreme Court justices to find an alternative to calling this conduct Constitutional?

But after having a great conversation with my Dad and reflecting on the Westboro decision for the past week, this case is the exact reason why our Founding Fathers set to protect the right to free speech in the First Amendment of the Bill of Rights – this obviously must have been one of the most important rights that they wanted to protect in our fledgling country.  In a government that is truly ‘for the people, made by the people’ this is the only result.   The government cannot censor your message simply because they do not agree with it. As Chief Justice Roberts aptly puts it:[1]

“Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

In essence, the Bill of Rights represents a series of limitations on the power of the United States federal government, and establishes certain fundamental rights by protecting the rights of liberty and property – this includes the freedom of speech, a free press, free assembly, and freedom of association.

The Founding Fathers felt that in a truly free society, the citizens should be free to speak their minds and should not worry about retribution from the government. Thomas Jefferson once claimed, “A democracy cannot be both ignorant and free.” The framers of the Constitution believed that if our citizens were unable to fully share and discuss information completely, our country would be worse off than the British monarchy they revolted from. In a free society the marketplace of ideas determines what is good and bad policy – not the government.[2]

The First Amendment is distinctly American. As repulsive as it sounds, the Westboro Baptist case only vindicates our country as a bastion of liberty at a time while many people across the world are still fighting and dying for fundamental rights.


[1] http://www.npr.org/2011/03/05/134287458/westboro-case-strengthens-free-speech-rights-for-all

[2] The “marketplace of ideas” belief holds that the truth or the best policy arises out of the competition of widely various ideas in free, transparent public discourse, an important part of liberal democracy. http://en.wikipedia.org/wiki/Marketplace_of_ideas

Law Firm Websites: Still A Long Way To Go

As Director of Legal Education with Attorney Credits I spend quite a bit of time cruising through cyberspace.  Whether it’s looking up attorney information on the Cal Bar website or researching a new potential topic, I have become something of an ‘Internet rat’ in the respect that I have gotten quite good at finding very useful, credible legal information online about continuing legal education and other pertinent legal topics.

I am also amazed at the amount of pure crap that’s out there – especially from lawyers and legal sites (I even ran into an Asshat lawyers blog, no kidding!).  I guess at the top of the list would be PI websites and blogs.  This is something that social media guru Kevin O’Keefe at LexBlog rails on quite frequently because many PI blogs aren’t blogs at all – they are thinly veiled direct solicitations to accident victims and their families.

While attorneys have finally begun to foray into social media and Cyberspace, and legal websites have improved dramatically over the last few years, there are still a few times a week where I think out loud to myself, “What was this guy thinking?” Like this week for example when I came across this attorney website when I was looking for some information.  This Florida attorney has a billboard size picture of himself on his website, why would you ever post a picture of yourself anywhere, let alone on your business website?  A small headshot to personalize your site is great – but that is just taking it to the extreme.

Spend about an hour looking at law firm and lawyer websites and you will soon realize that it runs the gamut out there – from finely crafted websites to the “billboard” websites of the solo practitioners with everything in between.  And just because you are a large mega-firm doesn’t mean you are going to have a great website, I have seen plenty of websites from big law firms who simply got ripped off for the money they paid.

It’s also very important to remain ethical when crafting your website.  From the pictures that you choose to including links and online submission forms for potential clients online, there are a number of ethical landmines that can take you from simply being tasteless to being downright unethical.  This also poses a number of problems for state regulators as well. Florida and New York updated their state ethics codes to address online advertising – much to the chagrin of the FTC and many lawyers who practice in those jurisdictions. Texas lawyers beware – you are next!  The Texas Bar has got into the act and they will be the next State Bar to over-regulate causing confusion and headache amongst attorneys who want to advertise online.

One of the main problems recently addressed by New York and Florida was the content of legal websites and the use of testimonials, nicknames and monikers.  Many attorneys in these states called the new regulations draconian and felt that they went way to far in regulating online legal speech and trampled on their First Amendment rights.  However, legal advertising must be truthful and regulators in these states felt that nicknames, monikers, and guarantees posted on some legal websites were somehow untruthful and false.  In some states you aren’t even allowed to post your past results from previous cases because this ‘misleading’ tactic creates an unjustified exception in the mind of the potential legal consumer.

Aside from the content that you post on your site there are also two other main issues. First, maintaining a legal website can get you an unauthorized practice of law claim. If you are a licensed attorney in New York, you can’t stop legal consumers from California, Texas, Illinois or any other state from accessing your website and think that you are offering them legal service.  I even read a few months ago that the Virginia Bar was sending letters to California attorneys informing them to change their website or risk fines and sanctions.  Here, it is key to include the appropriate language on your website that geographically limits your practice and the clients that you wish to serve.  Listing where you are licensed to practice and that you only wish to serve clients in these jurisdictions.

Second, a legal website could possible get you disqualified from representing clients.  Many firms include email submission forms for potential clients to submit information about their possible claim.  One could imagine a scenario where a firm was already retained to represent one part and the adverse party could easily submit information about the same claim through the law firm website.  Just about all law firm websites try to disclaim the confidential nature of the information – but this just doesn’t fly with courts and regulators.

Especially with the recent advent of Twitter, Facebook and social media, attorneys may forget about the importance of their websites – but you cannot because it is the bedrock of your online reputation.  Even if it is just a ‘billboard’ site, this is how clients, colleagues, and peers are going to get their first impression of you – and it’s also how you can run into trouble with your state regulatory regime.

If you need a little help revamping your website, Attorney Credits has some great resources for you. First, we worked with Jose Rosa of WebJuris in November to put a great course together on selecting the right web development firm that fits with you and your firm.  We also have a really great 3-hour course on law, ethics, and technology that focuses on advertising and legal websites.  And if you just don’t have the time to sit through a one hour or three hour course, then you might want to check out one of our most popular MicroSeminars on the legal ethics of attorney websites.

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