Scott Wolfe Jr. and Wolfe Law Group, who practice construction law in New Orleans, Louisiana, challenged the new lawyer advertising regulations as they applied to the Internet. Wolfe argued the regulations failed to consider the differences between television and Internet advertising, and regulated Internet ads without a need.

“Louisiana didn’t have a reason to regulate Internet ads, and they didn’t understand how attorneys actually use the Internet to advertise,” Wolfe said. “As a result, the rules were incompatible with the realities of Internet advertising.”

The United States Louisiana Eastern District Court agreed, stating in its 39-page opinion that “the Internet presents unique issues related to advertising, which the State simply failed to consider in formulating this Rule.”

“This is a very important ruling,” Wolfe adds. “The court not only noted that states must have a reason to regulate Internet speech, but it also recognized that the Internet media is different from broadcast media, and is entitled to unique protection.”

Certain other components of the new Louisiana lawyer advertising regulations were upheld, including restrictions on ads that promise results, portray a judge or jury or contain a celebrity endorsement.

While these regulations were upheld, the court noted that the “same Rules as those developed for television, radio and print ads” could not be simply applied to Internet advertising. Judge Feldman based this on a finding that “Internet advertising differs significantly from advertising in traditional media.”

Wolfe, who advertises exclusively online, argued that if the rules took effect an attorney’s participation in legal blogs and social networking sites would be unreasonably restricted. Further, Wolfe argued that Google ad campaigns could costs thousands in administrative evaluation fees.

Wolfe’s lawsuit was filed in the United States Eastern District Court of Louisiana, docket number 08-4994. Read a copy of Judge Feldman’s order at JDSupra.   The plaintiffs were represented by Ernest Svenson of the Svenson Law Firm, and pro-se by Wolfe Law Group.

For additional information on the news that is the subject of this release, contact Jessica Reiser or visit Wolfe Law Group’s online media center: http://media.wolfelaw.com.

About Wolfe Law Group
Wolfe Law Group is a construction law practice with offices in Seattle, Washington and New Orleans, Louisiana. The firm publishes a blog on Louisiana and Washington construction law titled the Construction Law Montior, and prides itself on thinking different in the legal profession.

Contact
Jessica Hunter, director of public relations
504-894-9653
http://www.wolfelaw.com

The Court presided over arguments related to Motions for Summary Judgment filed by all parties to the action, and a Motion to Dismiss from the Defendants.

Plaintiffs Scott Wolfe Jr. and Wolfe Law Group argued that the Louisiana advertising regulations restricted Internet advertisements without identifying any harm or problem with those advertisements, and without crafting the rules to practically work with how attorneys use the Internet to advertise and communicate.

You can read all of the pleadings set for hearing at our JD Supra page, including Scott Wolfe and Wolfe Law Group’s Summary Judgment Memorandum.

Judge Feldman adjourned court at approximately 12:30 p.m., and took the matter under advisement, promising to release an opinion “without delay.”

While probably good for the politicians and their constituents, those legislatures who are licensed attorneys may need to be concerned about the impending advertising regulations in Louisiana.

Rule 7.6(d) will require that all communications by an attorney, concerning a lawyer’s or law firm’s services, be subject to the advertising rules.   After a constitutional challenge to the provision, the Louisiana legislature added language to 7.6(d) also requiring that the communication be made “when a significant motive” is the lawyer’s pecuniary gain.

When analyzing a similar rule in New York, the A.C.L.U. warned as follows:

Even such fundamental examples of political speech as, for example, a lawyer’s letter to the editor of the New York Times criticizing Attorney General Alberto Gonzalez (a lawyer), or a lawyer candidate’s statement in a televised debate of his qualifications for office would be covered by the plain language of the proposed rules.  These forms of communication are made “by…a laywer…about a lawyer” and thus fall within the rules’ explicit scope.

Granted, the June 4, 2009 amended to Rule 7.6(d) qualifies that only communications where the speaker has a “significant motive” of pecuniary gain apply…but, what does that actually mean?

In the seminal Central Hudson case, Justice Stevens warned about linking financial motivation with the constitutional protection of speech, stating that “even Shakespeare may have been motivated by the prospect of pecuniary gain.”

Some may argue that the application of Rule 7.6 to legislators using Twitter is far-fetched, but is it really?  Could there not be a bar complaint made against a state representative for violating this rule just to muddy the waters during a campaign?   The representative may, by the wording of the rule, been in violation.

Perhaps this is why the US Supreme Court has ruled that even the potential application of a rule in such wide-ranging contexts risks a chill on protected speech, and is unconstitutional.  NAACP v. Button, 371 US 415, 432-33 (1963).

From the WWL TV article, it appears that Representative Walter Leger (D-New Orleans) started the Twitter movement at the state capital.    Mr. Leger is an attorney.   Let’s hope he either doesn’t talk about other attorneys on Twitter, or he has taken a vow of poverty.  Otherwise, Rule 7.6(d) may technically be problematic.

On February 27, 2009, something quite humorous came out of the Supreme Court of Florida.   It reminded me to Senator Ted Steven’s infamous “Series of Tubes” comments, except that the comments went largely unnoticed and was not ridiculed (Stephen Colbert – please take a look at what is going on in the South with attorneys!).

So the Florida Bar has gone back and forth about Internet “advertisement” by attorneys.  Originally, a task force recommended that it not be regulated, and then a second task force recommended regulation.

The Florida Bar regulated (and Louisiana copied), and then immediately set up a “Special Committee on Website Advertising Rules” to examine how the rules can be changed to make more sense.

Rules were recommend to FL, and in February 2009, the Florida Supreme Court refused to adopt the proposed amendments because it saw a number of flaws with the rules.

In steps Justice Barbara J. Pariente to offer her concurring opinion, and explain how she feels the Florida Bar should regulate the “vast flow of information through the Internet.”

Here is part of her opinion:

The Court, through its rejection of the Florida Bar’s proposed rule, does not believe that the rule provides sufficient protection for the public and suggests ways in which a rule could be fashioned to more fully vindicate the necessity for regulation of attorney advertising.  Instead, the Court has set forth alternatives that could be acceptable, beginning with requiring that any individual accessing material beyond the homepage must complete at least two steps (or two clicks of the mouse) until information appears that would be deemed the equivalent of “information upon request.”

…

I agree that this is a reasonable compromise and one that makes sense…

Two clicks of the mouse?

Of course, search engines will search for website content despite their layer within a website, and if a web user is searching for information on a page ten pages deep to a website, a search engine will bring them directly there (without “two clicks of the mouse”).

The reasoning also ignores the fact that much of lawyer web content is on pages that is not owned or largely controlled by lawyers.  Sites like Avvo.com, web blog services, Twitter, Facebook, LinkedIn, etc.

The Florida Supreme Court’s attempt to regulate false or misleading advertising is not necessarily offensive, but a problem arises when they attempt to regulate the world’s most complicated medium without an elementary understanding of it.

Even if they had the resources to commit millions and millions to understanding the Internet, they would encounter problems because of the medium’s nature.   See China.

My challenge to Florida Justice J. Pariente:  Get a better understanding of the Net, how the medium is self-regulating, and how information online only gets seen when it’s relevant and true.   Understand how it can benefit the bar, before having a knee-jerk reaction and trying to suffocate it.

The justification behind this question is simply this:  Your LinkedIn profile likely states that you offer certain services, and therefore, would be considered an “advertisement” by most states’ ethics rules.

The query should not stop with the LinkedIn service.  Similar social networks and internet websites will raise the same questions.  For example, Facebook wall-posts, Avvo.com’s peer and client “endorsements,” and even GoogleMaps’ ratings.

Some of these services allow you to control and edit recommendations (such as LinkedIn), but there are less controls with others (such as Google Maps).

A component of Wolfe Law Group’s lawsuit against the new Louisiana lawyer regulations speaks to exactly this problem with how the old advertising rules relate to modern day internet communicating and networking.

After reading through Mr. Cornelius’ blog post this morning, I submitted the following comment to his post:

Good post, Doug – and I think you are exactly right with your analysis.  Recommendations on LinkedIn, however, is really just the tip of the iceberg.   What about wall postings that “recommend” a service on a company’s facebook page?  How about client and peer endorsements on Avvo.com?  What about “ratings” on GoogleMaps.

The fact is, those of us who are regulated by bar associations and other organizations are going to have a very difficult time turning all of this free speech off.   In fact, in many instances, our only option would be to not use the service.

This issue is front and center in our lawsuit against the Louisiana State Bar Association (Scott Wolfe Jr. v. Louisiana Attorney Disciplinary Board, et al., USDC ED 08-4994).   You can keep up with this suit at http://www.protectspeech.com.

Of course, advertisements by attorneys will still be regulated online.   The old rules just don’t fit any longer.

The New Louisiana Regulations

The proposed advertising rules from Louisiana would certainly speak to “recommendations” made on LinkedIn. Proposed Rule 7.2(c)(D) states:

(1) A laywer shall not make or permit to be made a false, misleading or deceptive communication about the lawyer, the lawyer’s services, or the law firm’s services.  A communication violates this Rule if it:  (d) contains a reference or testimonial to pass successes or results obtained…”

The communication of a “testimonial” through electronic mediums (such as the Internet) is regulated by Rule 7.6(d), which provides that those communications are subject to the requirements of Rule 7.2.  This would even require the attorney to submit the “recommendation” to the bar association, with a $150.00 fee, for the bar’s review of its contents.

What do you think?

In essence, the bar association is making attorneys responsible for what other people are saying about them and their work.

While the regulation over “testimonials” make a bit of sense (not constitutionally, but at least sense)with respect to comments used in television or print advertisements…the acquisition of those testimonials are a completely different experience from the acquisition of a ‘recommendation’ on LinkedIn, or a favorable endorsement from a peer or client on Avvo.com.

Should attorneys and other regulated professionals be in charge of telling others to shut up online?

Thereafter, the defendants in Wolfe Jr. et al v. Louisiana Attorney Disciplinary Board, et al. moved to continue the hearing on the Motion for Summary Judgment set for March 4, 2009, as well as the trial set for March 23, 2009.

Judge Feldman granted the continuance on February 27, 2009, and the hearings and trial will be rescheduled at a later date – likely the scheduled April 7th conference.

NEW ORLEANS, LA (WolfeLaw) February 19, 2009 — Yesterday, the Louisiana Supreme Court announced that the new lawyer advertising regulations would take effect on October 1, 2009, rather than the previously announced effective date of April 1, 2009.

According to the press release, “the Court has decided to defer implementation of the new rules until October 1, 2009, in order to allow the LSBA and the Court to further study certain rules in light of the constitutional challenges that have been raised.”

As many of our clients and friends know, Scott Wolfe Jr. and Wolfe Law Group filed a federal lawsuit against the Louisiana Attorney Disciplinary Board in November 2008 to challenge the new lawyer advertising regulations as unconstitutionally restricting a lawyer’s right to free speech.

On the evening before the Louisiana Supreme Court press release, Wolfe Law Group, along with consolidated Plaintiffs Public Citizen, Inc., William Gee, and Morris Bart, had filed Motions seeking Summary Judgment.   The Motion of Scott Wolfe Jr. and Wolfe Law Group is available for viewing on our JDSupra page, here.

Notwithstanding the Louisiana Supreme Court’s postponement of the advertising regulations, the Summary Judgment motions are currently set for hearing on March 4, 2009 at 10:00 A.M.

To continue commenting upon the progress of the action, the firm launched a blog titled “Blogging is Speaking,” at the web address http://www.protectspeech.com.  The blog was updated this morning with a new look, and more user-friendly layout.

For a copy of the lawsuit, click here.

Find the cause on Facebook here.

The lawsuit was filed in the United States District Court of the Eastern District of Louisiana, Case No. 08-4994, Section F, Magistrate 2.

The Initial Disclosures can be downloaded and/or viewed at the Blog No Evil JD Supra page by clicking here.

Discovery is now on-going, and we’ll be updating the site soon with additional pleadings and updates.

A post on the Legal Profession Blog provides some revealing excerpts of the attorney’s web post. Further, it also has this quote from the sanctioning judge, concerning the web post:

Irrespective of the respondent’s sincerity in his beliefs, his overzealous behavior which took the form of disparaging remarks on the court, false accusations about Judge Amodeo disseminated in a public forum as part of a campaign to pressure the court into changing its rulings, and noncompliance with multiple court orders, truly constituted conduct prejudicial to the administration of justice.

While the attorney’s non-speech behavior may have qualified him for sanctions, its unfortunate that the NY Court even contemplates this web post criticizing a judge in determining whether to suspend a person from the practice of law.

Are courts and bar associations using ethical violations to control attorney speech?

The Consolidation Motion, which will likely be granted, would combine both suits for the purposes of scheduling and discovery. If the consolidation is in fact ordered, the Wolfe Jr. suit would be set for trial on March 23, 2009.

You can view the Consolidation Motion online at the Blog No Evil, Inc. JD Supra profile page.

We added that motion just a few hours ago. This morning, we also added the Scheduling Order applicable to the action post-consolidation, as well as Louisiana Attorney Disciplinary Board’s Rule 26(a) Initial Disclosures.

More to come…