Despite CA Court of Appeals Case, Legal Marketing Pays Off
The Recorder published an article today about a 2011 defamation lawsuit San Francisco-based attorney William Gwire brought against a former client that may create new law and possibly will serve as a warning to lawyers: Market yourself enough, and you become an assailable public figure. The lawsuit against Elliot Blumberg, a hedge fund manager, resulted from Blumberg’s “scathing” review of Gwire on the consumer site complaintsboard.com.
Review sites like complaintsboard.com have created a PR nightmare for lawyers and other professionals. It’s tough to get rid of them. I recently dealt with a possible ‘defamation’ situation involving a lawyer and a disgruntled defendant, but was told that the positing on the Internet is considered free speech and there was not much we could do to stop the individual from posting more defamatory comments.
But Gwire’s case raises another question. Could it discourage lawyers from promoting themselves if a judge finds Gwire to be a limited-purpose public figure as a result of his aggressive marketing efforts?
The Recorder quoted several attorneys about the issue including Jason Skaggs of Skaggs Faucette in Palo Alto who wrote in the appeal brief, ”Gwire’s voluntary self-promotion, use of the media for his professional advancement, and purported expertise regarding attorney billing practices and the performance of other attorneys makes his own performance as an attorney fair game for criticisms like those levied by Blumberg.”
Skaggs says the review is protected speech — not just because Blumberg has evidence to back up the claim that Gwire mishandled his case, but because Gwire has lost some protections against public criticism by aggressively marketing himself as a top-flight lawyer.
Kelli Sager, a Davis Wright Tremaine who defends defamation cases, explained that “a lawyer who seeks out opportunities to be in the press, gives speeches, appears publicly, writes articles and does all the things that cause one to be well- known that go beyond being a lawyer may become a public figure.”
Sager added that most lawyers don’t even think about the possibility of becoming public figures by marketing themselves extensively.
Jeremy Rosen, a free-speech expert at Horvitz & Levy, cautioned that First Amendment law is “murky” and that case outcomes vary widely nationwide. The “better reasoned” lines of cases, he said, “is one that would say if you market yourself in the particular area and the lawsuit is about your work in that area then you are a limited public figure.” But not all judges agree, and rulings tend to rely heavily on the specific fact patterns.
“There’s not a consistent bright-line rule,” he said.
Despite what happens in this case, I do not think lawyers should stop promoting themselves. That’s not just because I am active member of the legal marketing community, but because marketing and PR play an important role in doing business, attracting new clients and developing thought leadership. In today’s business climate, an attorney can’t afford not to promote him or herself. I would hate to see that go away as a result of this case.