Saturday, June 16, 2012

Attorney Blogging About His Own Cases is a First Amendment Right Says Virginia Court Overturning State Bar Association Finding it was Impermissible Attorney Advertising

Robert Ambrogi's LawSites writes in Court Says 1st Amendment Protects Lawyer’s Blogging that:
"A three-judge panel in Virginia has issued a decision that is important for lawyer-bloggers everywhere. The panel ruled that a lawyer has a First Amendment right to blog about his own cases...."
Read the whole thing here.

Now here is the question. Why did the Virginia State Bar go after Horace F. Hunter (the picture below is linked from Hunter's law firm site), who blogged about his cases in criminal law defense matters:

and why have various State bars not gone after a firm like Robins, Kaplan, Miller & Ciresi L.L.P, which continues to operate under the more-than-advertising slogan that  "We don't just practice law, we make history.®".

Blogging about criminal cases appears tame by comparison, so the answer can only be that State bar associations are essentially antiquated, undemocratic, biased, and totally outdated guilds that serve as economic barriers to professional entry who protect their own or not as they see fit. Whatever the bar allows or not, that is what is allowed or not, unless of course it interferes with Constitutional protections and these are litigated, as in the Hunter case. We do not understand why bar associations are permitted as legal monopolies and why the law should not permit -- indeed DEMAND -- competing bar associations or similar licensing or accreditation institutions. Nothing necessary to law requires State bar monopolies, other than nostalgia.

The Virginia State Bar had reprimanded a lawyer, Horace F. Hunter of Hunter & Lipton PC, for writing online at his blog about his own criminal cases, holding such blog writing to be impermissible "attorney advertising".

The Portsmouth Circuit Court overturned, holding that attorneys could write about "publicly" available information about their cases (of course, not about privileged client information).

Some years ago when I taught FFA Anglo-American Law, Legal Research and Legal Writing at the University of Trier Law School, part of my final written exam for students one year (1998) involved a hypothetical case about "attorney advertising" and an application of the principles elucidated in Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

I designed this as a final exam question because "attorney advertising" was a pragmatic issue that nearly all soon-to-be attorneys were going to be facing somewhere down the road and they had to have a good idea of what was permitted in the new digital era, and what not. Bates was standard fare. The exam question, however, related more-or-less to the "pre-blogging" era, so blogging was not included in the exam, but electronic media was included.

Here is the exam question below, edited immaterially since then:
"YOU are a seasoned practicing lawyer in Phoenix, Arizona, USA, and are advising three young lawyers who are joining together to found the law firm of Baker, Miller & Smith in Scottsdale, Arizona.

Baker, Miller & Smith need to attract new clients and know that YOU are an expert on the Bates case on "attorney advertising". They ask you to advise them in writing concerning a notice they have prepared to announce the opening of their new Baker, Miller & Smith law firm.

The attorneys plan to insert the following notice in the local newspapers and also to send this information as a bulk E-Mail from the law firm to prospective clients in the State of Arizona.

The text of the newspaper ad and e-mail is as follows:
  • We are Pleased to Announce the Opening
    of the new Law Offices of Baker, Miller & Smith. 
  • When it comes to legal services, young dynamic professionals at Baker, Miller & Smith
    can be relied upon to do their best
    to represent your legal interests
    and to solve your legal problems. 
  • Quality in legal representation is our constant objective.
  • You are in good hands with Baker, Miller & Smith. 
  • No legal problem is too large or too small for us. 
  • We make a cost estimate of your legal needs. 
  • Call, write, fax or E-mail us today.
  • Our standard rates (prices) are competitive. 
  • Indeed, for a limited time only,
    the first consultation costs you just $99.
    Why pay more?
  • Baker, Miller & Smith, Attorneys at Law
    "Simply the Bestlaw" Legal Clinic
    Scottsdale Road 7, Phoenix, Arizona
    Fon & Fax: 9991-999-9999.
    Reach us online at:
What is YOUR written advice to Baker, Miller & Smith?  what should they change - and how? and what can they keep? why? 
In writing your answer, assume that Baker, Miller & Smith know NOTHING about the Bates case."
Here are the issues that students should have spotted and discussed:

  1. Distinguish between "newspaper ads" and use of "electronic media".
  2. Bulk E-Mail. Is client solicitation on a large scale allowed?
  3. If so, can solicitation only be made in Arizona? or also elsewhere?
  4. In opening a new law office, what kind of notice is permitted?
  5. What legal services can be offered or touted, or is there no limitation?
  6. Does the phrase "young, dynamic professionals" (or similar words) frame a quality promise or is it in any way misleading in legal context ?
  7. Is the phrase "can be relied upon ... to do their best" a quality promise or a promise of results?
  8. Is the statement "to represent your legal interest and solve your legal problems" a promise of success?
  9. Is the statement "Quality ... in legal representation ... is our constant objective" a permissible allegation of intent?
  10.  Is "You are in good hands" a promise? Is it a conclusion about services?
  11.  Is "No legal problem too large or too small" overly broad in scope?
  12.  Can a lawyer or law firm demand: "call, write, fax or E-Mail us today"?
  13.  Even if true, can one allege that "standard rates are competitive", i.e. according to what standard rate, and competitive to whom?
  14. Can "special offers" be made as in "for a limited time only"?
  15. Can one offer "come on" prices such as "1st consultation costs just $99"?
  16. Is "Why pay more?" misleading? suggesting others charge more?
  17. Can a law firm business be called "Simply the Bestlaw"?
  18. Can a law firm call itself a Legal Clinic? or is this misleading?
  19. What contact details can be featured? and what not?
  20. [NEW, now almost 15 years after the above exam question - What "facts" and "statements" about a law practice or law firm can be made on a lawyer's or law firm blog or website?]
Note in Virginia in 2012 in the Hunter case that the court did hold that the attorney Hunter now had to add a disclaimer to his blog when discussing his previous cases stating that "results could vary in other cases", i.e. no "promises" of future success can be intimated.

See in this regard our 2003 posting at
Attorney Advertising in the USA and the Bates Case
and our 2004 posting at
Money to Burn - Judge Zagel, Robins et al., M. Doyle, Eolas and Microsoft where we wrote:
"Speaking of lawyers, Robins, Kaplan, Miller & Ciresi L.L.P., attorneys at Law (website last visited January 17, 2004), are the litigators for Eolas. We have no doubt that they are a fine law firm and have some very capable lawyers. However, as with many of the disturbing things in this case, we were greatly disturbed by the fact that the home page of the online presence for this firm has the following "registered" trademark for their professional "line of work" prominently displayed:

"We don't just practice law, we make history.®"

We find that to be a strange description of the "fields of practice" of a firm in the legal profession. Should not the bar associations of the jurisdictions in which this firm practices law, require that this particular firm advertising slogan be stricken immediately from all firm publications, online or off? See in this regard Rappaport, Ballard and MSBA. Indeed, the latter link is to the Minnesota State Bar Association's Minnesota Rules of Professional Conduct which set out
Rule 7.4(a) (Communication of Fields of Practice) as follows:

"A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not use any false, fraudulent, misleading or deceptive statement, claim or designation in describing the lawyer's or the lawyer's firm's practice or in indicating its nature or limitations."

Attorney advertising is one of the subjects which the LawPundit often teaches in his law school classes. It is the view of LawPundit that the "advertising claim" that the law firm "makes history" and does not "just practice law" far exceeds the permissible bounds for acceptable advertising by attorneys. Such advertising is normally limited to their "fields of practice". As it stands, the slogan is prima facie misleading, suggesting to a prospective client that this law firm offers something special - "beyond the practice of law", which is simply false.

When we look at the respective law firm link to find out what "history" this relates to, it is nothing more than a list of successfully litigated cases - plus notice of a charitable contribution (discussed later). Many other law firms could present lists of successful litigation - after all, one side generally wins in every litigated case - but this does entitle a law firm to advertise that they "make history" as one of their "fields of practice", i.e. BEYOND "just practicing law". "History", in our view, is something made by the historians and journalistic reporters of events.

If the bar associations in the states in which this law firm is present were on the ball, that online law firm slogan would have to be dropped immediately, and an appropriate reprimand would have to be issued. But perhaps the law firm is too powerful in that state for any action to be taken? As the law firm itself states on its "making history page" at the end of their list of successful litigations:

"The firm donated a gift of $30 million to the Minneapolis Foundation in 1998, one of the nation's largest community foundations and the oldest foundation in Minnesota. The gift is believed to be the largest contribution by a law firm to a community foundation in the United States."

Money talks. But the above statement as part of the law firm's linked "history making page", i.e. a "fields of practice page", also looks like impermissible advertising, having nothing to do with the practice of law. Is the suggestion here that clients should seek out this law firm because part of the fees will be donated to charity? Or is the suggestion here that they retain this firm because the law firm is so successful that they can afford to hand out these kinds of monies to charitable institutions? Ordinarily, in our judgment, perhaps the "news" that a law firm makes charitable contributions in certain amounts is permissible, but certainly not when it is tied by link to a registered slogan stating that:

"We don't just practice law, we make history.®""
We note now at the bottom of the "we make history" page that the law firm noted in the posting above has appended in small script the disclaimer:
"* Past results are reported to provide the reader with an indication of the type of litigation in which we practice and do not and should not be construed to create an expectation of result in any other case as all cases are dependent upon their own unique fact situation and applicable law."
Essentially, that disclaimer is what the Virginia court is also requiring in the Hunter case.

However, can law firms be permitted as a matter of course to use e.g. a trademarked slogan in which they claim to make history or anything else beyond the practice of law? Such a slogan is not simply "backward-descriptive" but also "forward-forecasting" as a quasi "promised" historical service, a professional specialty that allegedly marks the law firm but in fact has nothing to do with the practice of law and so is clearly misleading. They could maybe write "we have made history", but NOT "we make history".

We think it should not be permitted
and that as a general principle throughout the country.

Judge Posner on Judicial Pragmatism at How Appealing

How Appealing's 20 Questions by Howard J. Bashman of How Appealing to Judge Richard A. Posner, December 1, 2003 -- we cite here only Question 5 and have added the material in brackets:
"[Bashman] 5. You have for many years described your judicial philosophy as one of "judicial pragmatism." For those readers of this interview who have not previously encountered your description of what that means, would you please explain the term and how your approach to judging works in practice.

[Posner] ... The essence of judicial pragmatism, or at least my version of it, is recognition that difficult cases--and they are legion in our system--cannot be resolved at the appellate level by a distinctive process of reasoning called "legal reasoning," emphasizing careful parsing of text and scrupulous adherence to precedent and an analytical method that resembles deductive logic. Those methods do not resolve difficult legal cases, but merely conceal the true springs of decision in such a case, which involve a careful examination of the practical consequences of a decision for or against the appellant. The pragmatist emphasizes the continuity of facts and law, and the importance of common sense, experience, values, and yes, ideology in resolving cases when the conventional materials of judicial decision making--authoritative texts, precedent, deduction, and so forth--run out, as they so frequently do. This is not to deny the virtues, which are thoroughly pragmatic, of logic, fidelity to text, and adherence to precedent, techniques that can resolve most cases--only not the most challenging ones. The pretense that they can is particularly threadbare in the Supreme Court, which decides a very high percentage of cases that are in fact indeterminate from the standpoint of orthodox legal analytics. In any split decision by the Supreme Court, to say that one side is "right" and the other "wrong" is usually a naïve reaction."
See Posner's Law, Pragmatism, and Democracy at Google Books.

For the other 19 questions, see How Appealing.

Patent Trolling Madness Hits a Snag in Chicago's Judge Posner in Apple v. Motorola Case

Bravo, Judge Posner!

Dennis Crouch at the Patent Law Blog (Patently-O) headlines Judge Posner: No Damages Despite Infringement in a patent infringement case brought by Apple against Motorola in which Judge Richard Posner is sitting by designation as the trial judge.

Crouch writes:
"Posner canceled the jury trial scheduled for this week and instead opined that the case is moot because there are no damages and therefore, “neither party can establish a right of relief.”"
The reason, as written at FOSS Patents, was that:
"[T]he parties' Daubert motions (motions against unreasonable damages claims) were wildly successful"
Read the order here. An opinion is forthcoming.

We have long thought that Posner should be on the U.S. Supreme Court, but maybe it is important to have him out there "in the field" where he is doing his part to put a stop to the patent trolling madness that is destroying sane patent law.

Philip Elmer-DeWitt in Judge bars Apple from turning court into reality distortion field wrote:
"If you're following the smartphone patent wars and have never run into Judge Richard A. Posner before, you're in for a treat."
FOSS Patents previously wrote about Posner, as follows:
"In January I already wrote about Judge Posner's reputation. He's the most-cited U.S. legal scholar of the 20th century. What makes his Daubert ruling particularly interesting is that legal economics are his favorite subject."
Late Addendum from the Verge reports to the effect that Posner will let parties argue for injunctive relief, but surely only in order to protect his initial order on the damages side in the case of an eventual appeal.

We hope that the judges and Justices in the United States and around the world are following this case to see how to properly handle patent matters in court in the current patent trolling world.

Foreign Investment in U.S. Increases Amid Financial Issues in Europe

Where is all that European money going amid the Eurozone financial troubles?
The big winner is the United States.

Neil Shah has the story at the Wall Street Journal at:

Foreigners Step Up Investment in U.S.

A good share of Europe's investment is the product of European acquisitions of American companies.

Hat tip to CaryGEE.

Energy Harvester Converts Walking Movement Into Gadget Electricity

Gadget of the year?

Hat tip to Chris Sickham at IOIL SciTech in
Device powers gadgets through walking
A new wearable "energy harvester" that converts walking body movement into electricity for gadgets was unveiled in Smart Materials and Structures (Wikipedia), July issue, Smart Materials and Structures Volume 21 Number 7, Michele Pozzi et al 2012 Smart Mater. Struct. 21 075023 doi:10.1088/0964-1726/21/7/075023, The pizzicato knee-joint energy harvester: characterization with biomechanical data and the effect of backpack load. The abstract reads:
"Abstract References


The reduced power requirements of miniaturized electronics offer the opportunity to create devices which rely on energy harvesters for their power supply. In the case of wearable devices, human-based piezoelectric energy harvesting is particularly difficult due to the mismatch between the low frequency of human activities and the high-frequency requirements of piezoelectric transducers. We propose a piezoelectric energy harvester, to be worn on the knee-joint, that relies on the plucking technique to achieve frequency up-conversion. During a plucking action, a piezoelectric bimorph is deflected by a plectrum; when released due to loss of contact, the bimorph is free to vibrate at its resonant frequency, generating electrical energy with the highest efficiency. A prototype, featuring four PZT-5H bimorphs, was built and is here studied in a knee simulator which reproduces the gait of a human subject. Biomechanical data were collected with a marker-based motion capture system while the subject was carrying a selection of backpack loads. The paper focuses on the energy generation of the harvester and how this is affected by the backpack load. By altering the gait, the backpack load has a measurable effect on performance: at the highest load of 24 kg, a minor reduction in energy generation (7%) was observed and the output power is reduced by 10%. Both are so moderate to be practically unimportant. The average power output of the prototype is 2.06 ± 0.3 mW, which can increase significantly with further optimization."
Crossposted at GadgetPundit.

Google Spreadsheet Gadgets Reviewed: e.g. the Organization Chart Gadget for Business Management Structures or even Website Design

Helen Bradley at the PCWorld Business Center has a review of 7 Great Google Spreadsheet Gadgets e.g. as she writes, the Organization Chart gadget:

"can create a hierarchical chart showing the design for your website or the management structure of your business":

Crossposted at Gadget Pundit.

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