This morning I sat down with my coffee and did the old school newspaper read, no wires, no streaming ads, just plain black and white print on newspaper. Today’s inky delight was the Florida Bar News, a fine publication full of short blurbs about the pseudo relevant. The article that caught my eye, however, was the Florida Supreme Court’s allowance of a stay on the implementation of the new rules for websites. The original rule was approved by the Court back in November of 2009. However, since then there has some maneuvering by the Bar and the Court which has resulted in a somewhat confusing version of the rule and a never ending stay of implementation. While I think it is a noble effort by the Bar and the Court to take on the internet and web advertising, I believe that the end result will simply leave us scratching our heads some more.
The problem with the Bar’s rule can really be boiled down to one key issue, how the new rule addresses online presence. Under Rule 4-7.6 Computer Accessed Communications
a) Definition. For purposes of this subchapter, “computer-accessed communications” are defined as information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer. Computer-accessed communications include, but are not limited
to, Internet presences such as websites, unsolicited electronic mail communications, and information concerning a lawyer’s or law firm’s services that appears on Internet search engine screens and elsewhere.
(b) Internet Presence. All websites accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer’s or law firm’s services . . .
What is striking here is the “internet presence” concept. Although this serves to prove Mark Britton correct in Avvo’s alleged efforts with the Florida Bar. I mean from where else would they get such social media based language? But just as web presence is hard to define with its very broad strokes, so shall be the parameters of the rule. Strangely, in an attempt to clarify advertising rules on the internet, the Bar has effectively done nothing to clear up the questions. To keep things short, I am just going to address some scenarios that are questionable under the new rule to me.
The blogosphere abound has celebrated Scott Greenfield’s victory in New York regarding the 1st Amendment free speech and attorney newsletters and therefore the implications of attorney blogs. It truly was a great victory for bloggers who are trying to “just blog.” However, that was New York and to boot this new all encompassing rule is much broader and yet more precise than the New York rules. For example, I have no question that I will probably have to do some rearranging with my blog, perhaps even move it to a different domain because it so closely tied to the firms site. Since my readership is low unless feathers are ruffled, this shouldn’t be an issue 😉 However, what about people like Brian Tannebaum or other attorneys blogging outside of the confines of their law office pages. As the definition suggests “. . . information concerning the lawyer’s . . . services . . . that appears on Internet search engine screens and elsewhere.” would certainly include blogs like Brian’s. Is that what is intended behind the rule? I don’t think so, but a blog is an integral part of one’s web presence. In fact, Mark Britton and other social media peddlers point to the blog as the core of one’s online presence. So how will we separate sections of our web presence?
Further down in the rule, there is the requirement that a user makes an “affirmative acceptance” of disclaimers before being directed to certain information, namely testimonials, past results, etc. This hits on two points. Firstly, comments on blogs, Facebook pages, in twitter responses and so on. Secondly, which I’ll discuss below, links to outside, third party controlled sites. As for comments, we generally see these as rambling disagreements or praise for the particular post. However, there are at times comments that resemble a testimonial or recommendation. This leaves a blog publisher in a precarious position. Do you moderate based on some subjective standard of testimonial intent or do you put a disclaimer with affirmative acceptance as a requirement for leaving a comment. One thing about social media is the abundance of options for commenting. What if a blog post of praise is written by a third party, but the post trackbacks as a comment on the attorney in question’s blog post?
Third Party Sites
When dealing with one’s online presence there are two version of information being disseminated. First there is the classic, personally or firm controlled online presence. This includes the firm’s webpage, the person’s or firm’s blog, the person’s facebook page, their twitter feed, their LinkedIn profile, etc. These are services used by the actual person who is building said presence. However, the internet is a deep sea of information. There are tons of services that provide information about you, whether you like it or not. Companies like Avvo.com, Yelp!, and even LinkedIn with its recommendation services provide clients/customers with reviews, recommendation, and general grading scales for attorneys. As I posed the question to Mark Britton and Brian Tannembaum at a Online Marketing CLE several months ago, what are the ethical implications of directing clients to your profiles on these third party sites? There is no real good answer. But it would seem that you or I have the right to control some of the flow of traffic to sites that make use of our names and our practices. So, under the new rule, should we be required to place disclosures for affirmative acceptance as detour if we are going to link people to our Avvo profile? In a strict reading, of the rule, I would have to say yes.
Twitter has been called many things, micro blogging, status update, a waste of time. The thing about twitter is that in encompasses the coolest, purest beauty of social media. It doesn’t fit into a single definition. It is used to generate links. It is used to converse. It is used to debate and to update. It is used to network. Twitter is another “backbone” services of social media, and maybe the most pervasive expression of online presence. However, splicing its many uses down to a regulated product under the Rules of Professional Conduct is a difficult job. Do we limit what can be tweeted or twitted?
My point in this is not to suggest an answer because I think it is still an unwieldy mess. I respect the efforts and the decision of the Court as I assume they are doing there best. That being said, I feel that taking the internet presence line of thought is very bizarre way of taking this on. Social media and the internet have brought forth a very personal aspect of “marketing” or putting yourself out there. The lines of professional life and personal life are very gray when we talk about a web presence. No matter what we claim our intent to be, it is hard to argue that our activities online are not attributable to us as professionals. To complicate matters even more, social media and web 2.5 is designed to be a web of interaction. Blogs refer to twitter accounts that refer to LinkedIn pages, that refer to eBooks, that refer to resumes, that refer to testimonials. Anyone with a minimal sense of web presence is rich in self promoting links, if at the very least between their blog and their twitter account. Even more problematic is the potential for change in a space that has new service providers everyday. This doesn’t even begin to address mobile devices and good ol’ ads that are nearly impossible to police. In this tangle, I feel that the Bar has been led astray with the new language of social media and put themselves in a very odd position. The broad stroke may have been better replaced with stringent categorical rules that anticipate change. However, the rules are what the are, and come July 1 I think we begin to see the emergence of new trends in legal web presence. What that will look like, I have no idea.