Infographics for Lawyers: a Great Addition to Your Law Firm Web Site or Blawg

Infographics (informational graphics) are so much fun, and sure they are getting to be pretty darn trendy right now.  (Just go over to Pinterest and search for "infographics" to find all sorts of wonderfully creative infographics on all sorts of topics.

Thing is:  infographics are great tools for lawyers to use to educate readers about all sorts of issues.  Law firms can place infographics into their websites, their blogs (blawgs), their newsletters, even in client emails.  (I'm not sure about using them in motions or briefs yet - but if I were a judge, I'd welcome the innovation.)  

Here, for example, is a great infographic from DailyInfographic that provides details on the impact of the Family and Medical Leave Act (FMLA) upon employers (click on it or hit Ctrl + a couple of times to enlarge the image):

For more information on infographics, check out these online sources:

Daily Infographics 

To learn more about creating original infographics for your site, for free, see:


Prenda Law Facing Federal Sanctions as Pirated Porn Copyright Infringement Practice Blows Up in a Big Way

Prenda Law, have you heard about them yet?  After three different clients asked me if I had heard about Prenda Law and was this the same as Righthaven, I thought I'd corral some information here in one post with lots of links to more detailed coverage in various other posts and news coverage.  And there's a court case or two to follow, as well, if you'd like.

Prenda Law: a Law Firm Targeting a Specific Niche

Prenda Law is a boutique law firm based in Chicago that in a manner akin to Righthaven has sought to dig for gold in federal copyright infringement law; however, unlike Righthaven, Prenda Law has much more of a TMZ twist to things.

There's porn involved.

That's right: pornography; specifically, pornography copyright rights.

Seems this group of lawyers got the idea of going after copyright infringement cases by filing federal lawsuits based upon federal copyright laws seeking damages from those defendants who downloaded porn from websites illegally.

Pirated Porn as a practice area.

Initially, the law firm had to file complaints with "John Does" as defendants until they could get federal court subpoenas to obtain names from the Internet Service Providers of their porn-downloading clients.  The Internet companies were asked to open their files, reveal the names associated with specific IP addresses whose download histories showed the computer at that address had grabbed  porn from sites without permission or payment.

The problem is that Prenda Law doesn't seem to have real live clients in all this.  

Prenda Law's clients seem to be lacking substance: what will Judge Wright do?

Federal Judges Not So Happy With Prenda Law's Plan

Defendants and ISPs in these cases didn't set idly by, and things exploded earlier this month when a federal judge set a show cause hearing for sanctions against Prenda Law asking that the defendants show cause why they shouldn't be sanctioned by the federal court for filing sham pleadings.

Elsewhere in the country, two men have challenged Prenda Law so far, alleging that they never gave their permission for their names to be used in these lawsuits and as a result, the law firm has committed identity theft.  In Florida, a Prenda Law case was dismissed by a federal judge after no one could point to lawyer and client in the courtroom (link to that hearing transcript shown below).

(After reading that transcript, am I the only one thinking of Chinatown and "she's my daughter ... she's my sister" here?)

Prenda Law faced off with U.S. District Court Judge Otis Wright in a Los Angeles courtroom earlier this month; it wasn't pretty -- and lots of lawyers all over the country are talking about what happened in that courtroom back on March 11 - and what will happen when that show cause hearing resumes on April 2, 2013.

April 2013 Order to Show Cause - Federal Judge Gets Specific

Here is what Judge Wright has ordered for the April hearing (excerpted from the order as signed by the Judge):

Thus, the Court amends its February 7, 2013 Order to Show Cause (ECF No. 48) to include sanctions against the persons and entities in subparagraphs a–m below:
a) John Steele, of Steele Hansmeier PLLC, Prenda Law, Inc., and/or Livewire Holdings LLC;
b) Paul Hansmeier, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;
c) Paul Duffy, of Prenda Law, Inc.;
d) Angela Van Den Hemel, of Prenda Law, Inc.;
e) Mark Lutz, of Prenda Law, Inc., AF Holdings LLC and/or Ingenuity 13 LLC;
f) Alan Cooper, of AF Holdings LLC;
g) Peter Hansemeier, of 6881 Forensics, LLC;
h) Prenda Law, Inc.;
i) Livewire Holdings LLC;
j) Steele Hansmeier PLLC;
k) AF Holdings LLC;
l) Ingenuity 13 LLC; and
m) 6881 Forensics, LLC.
These persons and entities are ORDERED to appear on March 29, 2013, at 10:30 a.m., TO SHOW CAUSE for the following:
1) Why they should not be sanctioned for their participation, direction, and execution of the acts described in the Court’s February 7, 2013 Order to Show Cause;
2) Why they should not be sanctioned for failing to notify the Court of all parties that have a financial interest in the outcome of litigation;
3) Why they should not be sanctioned for defrauding the Court by misrepresenting the nature and relationship of the individuals and entities in subparagraphs a–m above;
4) Why John Steele and Paul Hansmeier should not be sanctioned for failing to make a pro hac vice appearance before the Court, given their involvement as “senior attorneys” in the cases; and
5) Why the individuals in subparagraphs a–g above should not be sanctioned for contravening the Court’s March 5, 2013 Order (ECF No. 66) and failing to appear on March 11, 2013.
For more: 

  1. read the transcript of an earlier Florida judge dismissing a similar case filed by Prenda Law which we can assume that Judge Wright has read -- and one which TechDirt describes as worthy of a movie script.
  2. read Popehat's continuing summary of events here (Ken of Popehat was present in the California courtroom on March 11). 
  3. read ArsTechnica's continuing coverage of things here: it's good, too.
Image:  Wikimedia Commons, public domain


Commercial Speech vs Political Speech and the Law Firm's Blog - Is Your Blawg Protected Free Speech or Not? What Would Your State Bar Answer Here?

Free speech isn't without its limitations, lawyers know this, and when it comes to "commercial speech" the United States Supreme Court has been happy to allow limitations on the free speech of attorneys and law firms when "commercial speech" is involved.  Lawyers don't like being regulated, however, and there are attorneys blogging today who may think that their blog (blawg) isn't subject to state bar review when in fact, it is.  Those bloggers (blawgers) are at risk of bar discipline.

Free speech protections provided by the federal constitution are not as broad for commercial speech as they are for other forms of free speech.  Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976).  Advertisements are subject to governmental regulation.

This distinction between different kinds of speech is very important for lawyers who write blogs to remember.

Consider, for example, the concerns of the High Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) where things like (1) the adverse effect on professionalism; (2) the inherently misleading nature of attorney advertising; (3) the adverse effect on the administration of justice; (4) the undesirable economic effects of advertising; (5) the adverse effect of advertising on the quality of service; and (6) the difficulties of enforcement were determined to be sound bases for regulating attorney advertising even though "advertising by attorneys may not be subjected to blanket suppression."  Bates, 433 U.S. at 368- 379, 383.

Of course, the Bates opinion came down long before blogs popped up everywhere.  Lawyer blogs are tricky things.  There are firm-blogs, and individual lawyer blogs.  Ones written for specific practice areas (e.g., appellate, real estate, or environmental law) are popular these days.  You will find some blogs attached to law firm web sites (where they may be tools to boost the search result rankings of the firm's site) or you may find blogs as stand-alone publications (where they have their own separate domain).

Blogs and Free Speech:  Commercial vs Political Speech

Twisted into all this complexity of law blogs ("blawgs") are the legal protections afforded to the particular blog under constitutional free speech protections.  Not all blogs (blawgs) are the same, and not all blogs will be policed in the same way.

Commercial speech in a blog will allow the Bar to regulate and police that publication, just as the Bar regulates advertisements in the Yellow Pages, on the television screen, or in a standard firm web site.

If the blog basically serves an advertising purpose, then the state bar association that has jurisdiction over the lawyer or law firm responsible for that blog will argue it has a right to regulate that blog.  Period.

When does a blog not have to conform to Bar regulation?  When the blog publishes content that is protected as political free speech.

Political free speech isn't trying to sell the reader on hiring the lawyer or the law firm.  Political speech essentially involves any “... interactive communication concerning political change.” Meyer v. Grant, 486 U.S. 414 (1988).  It's not trying to sell the reader on paying the author of the content for the author's goods or services, in other words.

What happens if there's a mishmash of the two within the blog?

Blogs published by lawyers may offer political speech, but all too often they are intertwined with commercial speech -- especially if the blog is attached to the firm web site.  Whether or not the speech will be given free speech protection isn't as easy of a question to answer.

If one of the motivations for the blog is marketing the lawyer or law firm but it's not the only reason for the blog's publication, then what?

In Bolger v.Youngs Drug Products Corp., 463 U.S. 60 (1983),  the problem of mixed commercial and political speech in advertising was addressed.  Lawyers cannot use political free speech posts to protect themselves from regulation:
Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.
Bolger, 463 U.S. at 68.
If the blog combines commercial speech with political speech, then it will not automatically achieve the constitutional protections that a blog devoted solely to political speech will have.  Nevertheless, that combination of commercial speech with political speech may still rise to that level of constitutional protection if certain characteristics exist.  See, Bigelow v. Virginia, 421 U.S. 809, 818 (1975); Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 474 (1989).

According to other precedent, we have a test:
....For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980); Adams Outdoor Advertising v. City of Newport News, 236 Va. 370, 383, 373 S.E.2d 917, 923 (1988).
Whether or not the reader may be misled means looking at the unsophisticated reader (Bates) and the assumption is going to fall in favor of the potential that someone out there reading the blog posts may be misled -- think Jethro Bodine as your potential reader when you're evaluating your publications.

The Bar Is Focused on Lawyers Misleading their Readers

The reason for bar regulation of lawyer advertising is to protect the public from being manipulated by lawyers marketing themselves in various formats: newspapers, television commercials, internet marketing, etc.  It's true that there's a profit motive in lots of web sites that enjoy protected free speech: the local newspaper's web site, for example, is published by a company operating for a profit and yet its site content is under the First Amendment free speech umbrella.

State bars, however, are going to come down on the side of regulation of the site or blog.  Consider your blog content and the design carefully.

Ask yourself this:

Would Jethro Bodine think you're selling yourself to him, even if your posts are careful not to market your practice or your firm directly?  Does having your blog attached to your law firm web site suggest that the blog is a commercial tool to get him to call the firm for a free initial consultation?  Does the design itself suggest commercial intent with things like 1-800 numbers in huge fontfaces in headings, footers, or margins?

If so, then you need to make sure that your blog (blawg) conforms to your state's advertising requirements (disclaimers, etc.) even if the majority of your content is political in nature.