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Why the Legal Profession Needs Us
There has been some omphaloskepsis lately among legal bloggers about the propriety of calling public attention to the lawyers who are responsible for the ethical and aesthetic mess created by online marketers.
Jamison Koehler writes:
Policing the blawgosphere and calling out specific lawyers on what are still debatable ethical issues seems to me, as I wrote on Greenfield’s site, paternalistic and futile.
And Carolyn Elefant (who is clear that ghost blogging is unethical) writes:
I don’t criticize Mark or Scott for outing the ghostblogging lawyers, since Buchanan’s clients willingly provided testimonials and in doing so, put themselves out there. Nor do I take issue with Brian Tannebaum’s decision to disclose lawyer marketers with tainted ethics records (in fact I interviewed him about it here) because frankly, that information is public record (even Avvo lists ethics violations).Nevertheless, I’m far less comfortable with criticisms like this one about the lawyers embroiled in the Total Attorneys ethics mess [Never mind that their names are also public record. MB.] or “naming names” of lawyers who advertise [Link missing from original] on what Eric Turkewitz has termed dreck blogs.
Carolyn’s reasoning is that
the lawyers who subscribed to services offered by Findlaw and Total Attorneys, both of which are ABA sponsors, most likely believed that the ABA had vetted these companies’ practices before accepting their sponsorship dollars.
Any lawyer who holds that particular belief should be barred from the internet until she develops some sense. The ABA is a self-important voluntary tea-and-argument society. That it has any authority is a myth apparently popular among non-lawyers; its endorsement of a particular product (even if accepting advertising dollars constituted an endorsement), though, bears no weight. The ABA knows no more about social media than the average lawyer. It doesn’t vet its advertisers in a meaningful way—as we’ve seen—and shouldn’t be expected to.
Jamison calls the ethics of using ghostblawgers “debatable.” It may well be debatable (on the “people will argue about anything” principle) but, as I’ve commented elsewhere, I’ve yet to see the argument in favor that takes into account lawyers’ unique product and position in society. Ghostblogger Jenni Buchanan makes an effort at Blog for Profit but conveniently glosses over her own prime selling point, which happens also to be the prime argument for the unethicalness of ghostblogging: that lawyers blog to “give themselves credibility.”
There are those who are more comfortable trusting governing bodies to decide what is ethical, and are perhaps not comfortable enough with their own judgment or authority to tell others when they are wrong. Those people should certainly not be calling out others. Let’s take it as a given that those lawyers who are calling out people on ethical and aesthetic issues (beauty is truth, truth beauty) are themselves certain that those issues are not debatable. Either that, or they are willing to be publicly called out for being wrong. Or both.
Also, let’s take it as a given that those lawyers doing so care (not everyone cares about these issues, and that’s okay, Norm Pattis).
Jamison thinks that “policing the blawgosphere and calling out specific lawyers” is paternalistic and futile. I’ll take the adjectives in order.
As to paternalism, nobody is trying to act like the daddy of the blawgosphere. The cheaters are not chastised for their own good, but for the good of the community. So “Sheriff” is probably a more apt metaphor. The internet is largely lawless, a virtual wild west, and there’s nothing wrong with exercising your authority to try to impose a little order on your little corner of it to make it more agreeable to you. If that involves hurting a few feelings, well, you can’t make omelets without breaking eggs.
Maybe Jamison’s “paternalism” objection is that nobody elected Scott or Brian or me Sheriff (or “Top Cop“) of the blawgosphere. That’s true enough. But lots of people read Simple Justice (PR6), and it’s not because Scott Greenfield’s afraid of hurting people’s feelings. Fewer people read Defending People (PR5) and Criminal Defense (PR4), but the numbers are not inconsiderable. Bloggers have authority in proportion to how many people read them (and link to them) and people read and link to those three blogs, none of which is shy about publicly calling a fraud a fraud.
As to futility, consider the numbers. There are over a million lawyers in the U.S. 80% of them (according to a possibly-reliable source, the ABA) are solos or in small firms. Most of them are looking for a way to make more money. Most of them aren’t highly social-media-savvy. Call it at least 200,000 (most of most of 800,000) lawyers who are looking (some desperately) for a way to make more money and are not highly social-media-savvy.
There is a growing industry of people, not all of them disbarred lawyers, pouring poison in the ears of those 200,000 lawyers, trying to sell them on the next great way to find “leads” on the internet: comment spam, ghostblogging, splogging, dreckblogging to name just four.
If I run into a lawyer—one of the 200,000—who is funding comment spam, and I send him a gentle email, one of two things will happen: he will stop funding comment spam, or he will not. The latter outcome is more likely: since he doesn’t know that he will be named, he has little incentive to stop (the Bradley Johnson Rule)—comment spamming is probably not a violation of the DRs, and even if it were the State Bar wouldn’t do anything about it.
If he stops, that’s great: one down, 199,999 to go. (Woo hoo!) If he doesn’t, and if calling out the cheaters is wrong on principle, then I’ve done all I can. Talk about futility!
On the other hand, if I am willing to put the cheater’s name up in lights, he will eventually get the message:
[L]aw bloggers can do something about the law field spammers. Because unlike the other sites, these folks generally have very little Google juice and should actually care about their reputations. So if a few blogs decide to out the spammers, this could have a pretty big effect on the firms. When their names are Googled by potential clients, the potential clients will see that they are spammers. And it will no doubt cause them to stop.
Eric Turkewitz, New Spam Comment Policy for Law Firms (You Will Be Exposed)
That’s specific deterrence at work.
Not only will the specific cheater get the message, but some other lawyers in his position will get the message as well. That’s general deterrence.
People market themselves online to manipulate their reputations. One way or another—whether they pay FindLaw or Total Attorneys, hire a disgraced-former-lawyer “social media expert,” or do it themselves, they are putting themselves (as Carolyn might say) out there. The guys financing FindLaw to post dreckbloggen (Goldberg Sager & Associates; Arye Lustig & Sassower; Kahn, Gordon, Timko & Rodriquez to name but three) are reaping whatever (probably slight) benefit the dreck accumulates. They pay (lots of money) for their names to be publicly associated with the dreck; it’s appropriate for their names to be publicly associated with the opprobrium that dreck generates. As Scott writes:
There’s no right to enjoy the benefits of public self-promotion, assuming there are any, with impunity. When you put yourself out there, you invite scrutiny. If you can’t take it, then you’ve come to the wrong place. Your peers may adore you or think you’re dumb as dirt, not to mention unethical, deceptive and scummy. That’s the risk of going public.
Finally: I, for one, would just as soon not see more attempts by the state bars to regulate the internet: they will screw it up.
Our only hope of having rational rules for lawyer marketing online is to make and enforce them ourselves. And the only tool we have in any effort to enforce rational rules for lawyer marketing online is the credible threat of reputational harm resulting from misconduct. So even if you would never ever call out a lawyer who is (directly or indirectly) lying, cheating, or polluting, you should be glad that there are those of us who will.
9 responses to “Why the Legal Profession Needs Us”
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One of the many reasons I love to read your blogs-you challenge, you infuriate, you stimulate. And I occasionally learn new words! (omphaloskepsis-can’t wait to use it-just have to figure out how to properly pronounce it.)
Thank you for the effort you make. Writing a blog is my idea of hell but you and others, Greenfield, Pattis, Tannebaum, and many others who write thoughtful challenging pieces are a true inspiration and a joy to read.-
Me, I’m just glad to know that there’s a person other than me who actually knows and uses the word “omphaloskpesis.” Especially one who isn’t an omphalopsychite.
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I’m no fan of the ABA or the state bars, but I don’t think it’s unreasonable for lawyers to assume that the ABA or state bar associations do some vetting when it comes to sponsorship.
Years ago, I made the mistake of relying on a bar’s recommended provider. When I first purchased malpractice insurance, I went with the bar’s preferred provider at the advice of a trusted (and ethical) colleague who had done the same thing. I didn’t price the other services or looking at the company’s record. I learned my lesson several months later after 9-11, when my insurer went bankrupt and left me without coverage. After shopping around, I replaced that company with another one that gave me more coverage, lower deductible at half the cost. I had foolishly assumed that a “preferred provider” meant that the Bar had selected the best company, when in reality, it simply picked the company that paid it the biggest kickback. I’ve since learned my lesson — that Bar sponsorship is meaningless — and I should do more to get the message out about this.
But many lawyers don’t realize this and it doesn’t mean that they are stupid or deserve to be banned from the Internet. In fact, they themselves may vet sponsors or affiliates and reasonably assume that the bars do the same thing. In my own case, I vet sponsors at my blog. I vet the lawyers and service providers who I work with and only recommend those whom I view as credible. So when a bar designates a provider as “preferred,” it seems reasonable to expect that the bar is doing the same thing.
The other point about bar approved conduct is that many lawyers actually do consult with bar counsel and the rules of professional responsibility before undertaking a specific activity. I’m a member of Solosez and not a week passes without a lawyer inquiring about whether a particular service or scheme constitutes fee splitting or for-fee referral or some other unethical conduct. In most cases, after gathering feedback, most of these lawyers will report back that they’ve declined to participate in the activity. I know that there are plenty of greedy lawyers, but I also believe that there are plenty of lawyers who do want to do the right thing and they look to bar rules for guidance.
Of course, the rules don’t provide guidance on everything. For example, with regard to comment spam on blogs there aren’t any rules, but at least one bar initiated an investigation of Canter & Siegel, the husband and wife lawyer pair responsible for the birth of modern day email spam. http://tinyurl.com/mxutxa In addition, your blog is your property, so if someone commits an action against it, you and your colleagues can do whatever you want. I may not agree with the approach, but then again, it’s not my blog so my opinion doesn’t count.
Finally, I do not support the concept of bar regulation either. If you read my blog, I have long believed that market forces are a more effective tool to kill a service rather than the bars. For example, the numerous posts that Eric Turkewitz has done about the high cost and low value of Findlaw websites and SEO services will, in my view, do much more to stop people from using them (and in turn, shut it down) than calling out the lawyers who use those services. In short, I prefer to attack the company or criticize the service rather than the lawyers who use it. If enough people see that a service doesn’t provide value, it will go out of business.
However, while I don’t like bar rules, they are what they are. “Rules” of blogging created and enforced by a group of bloggers do not provide a clear standard. For example, take the case of Total Attorneys. To you, it is for fee referral, as if a lawyer were using a runner service. I don’t think the rules are that clear. I visited the site (which is prominently labeled as lawyer advertising) , viewed the rules for participation and ran through a demonstration. To me, the set up is very similar to how Google Ads (and much Internet advertising) operates – payment for leads that come through. Indeed, none of those leads may pan out, which makes TA a potentially expensive and ineffective advertising proposition. I have no problem debating the ethics of a service like TA – I think it is educational. But to call out the lawyers who participate in the service are unethical or should be disbarred goes too far in my view.
To be fair, I am pretty sure that you did not name the names of the Connecticut 5 in your blog posts on this topic, so I am not assigning blame here. Rather, I’m just using this situation as an example of one where there is bonafide disagreement over the ethics of a particular practice, but where lawyers’ reputations could be ruined simply because the amorphous “rules of the blogosphere” condemn the conduct.
As for your remark that:
Any lawyer who holds that particular belief [that ABA sponsorship confers credibility] should be barred from the internet until she develops some sense –
I’ll address that comment at my site.
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I see that you thought I was referring to you.
I was not. I didn’t think that you put yourself in the category of lawyers who thought that the ABA vetted its advertisers, and I wasn’t putting you in that category.
My attempt at nonsexist usage (I often use “she” to describe a lawyer of nonspecific gender), I’m sure, conveyed the impression that I was taking a shot at you.
My apologies for communicating poorly.
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Mark – I posted on my blog but for those who are reading these comments, my apologies to you for misinterpreting what you wrote and improperly jumping to conclusions. I was wrong. Carolyn
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Thanks, Carolyn.
When I miscommunicate, it’s my responsibility.
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Many non-attorneys think membership in the ABA is the same as membership in the bar. When I told some non-legal friends engaged in other professions (discussing our respective professional organizations) some actually thought that if I didn’t re-join the ABA I wouldn’t be allowed to practice. Sad, but true. It’s an unfortunate confusion, but one that is perpetuated by facts like the ABA accreditation of law schools.
I certainly think it’s _naive_ of any attorney to assume that an organization like the ABA vets their sponsors, but I think you’re wrong that they shouldn’t be expected to. I don’t think it’s that far fetched for an attorney to hold one of their professional organizations to some ethical standards and to not take sponsorship money from organizations pimping unethical services. No substitute for doing your own due diligence, but I can see how young, inexperienced, or just naively optimistic attorneys might make that leap. The ABA is an organization of attorneys; it should uphold the same ethical standards that each individual attorney member is expected to uphold.
Stop laughing–I really mean that.
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I’ll concede that you’re right about the ABA upholding higher standards, but in the “I expect you kids to stay off my lawn” desirous sense of the word “expect,” rather than the “I expect the sun to rise tomorrow” anticipatory sense.
HTML tags work here, by the way.
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Not just the ABA. People believe it about their local bar associations and even about their practice associations.
Do a poll of NACDL’s lawyer members and I’d wager that 25% believe that the advertisers are somehow vetted by more than just a checkbook. And I think (there’s data on this, I’m sure, though I don’t have it) that only a very small percentage of NACDL lawyer members have been in practice under five years.
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[...] Elefant, Mark Bennett, Brian Tannebaum, and Eric Turkewitz each have done very thoughtful posts on the topic, and the [...]
Pam Lakatos February 2nd, 2010 at 20:41