The Bully Line

Over the past few days, a debate about ghostblawging has been raging (though it was started by David Giacalone in 2004), beginning with Mark Bennett’s Social Media Tyro, through new blawger Jamison Koehler (whose blawg will be an orphan until he gives it a name and tones down the marketing), to Carolyn Elefant at My Shingle.  In the course of the debate, a secondary issue arose, and one that deserves a separate airing.

In the course of discussion, Amy Derby expressed her view that calling out those who promoted the use of ghostbloggers were “cyberbullies”.  Koehler picked up on this, following the suggestion that his failure to see an ethical problem with ghostblogging might be due to his being new to the blawgosphere:

And, yes, I am a newcomer.  But I am against this type of public humiliation, or “cyberbullying” as someone has termed it.  I also do not agree with Bennett and Greenfield that using a ghostwriter is necessarily dishonest or unethical.  For one thing, I think they underestimate the sophistication of most people using the Internet.  Most people visiting a lawyer’s website will be able to distinguish between the canned language of a hired writer and the distinctive voice of a lawyer, such as Bennett or Greenfield, writing for himself.

Thus, the question is squarely raised, where the line is drawn between fair criticism and cyberbullying, or “public humiliation” as Koehler would dubiously define it,   Both Tannebaum and Bennett (and me too) take Koehler to task in the comments to his post, but Bennett said it best:

When you have had people steal your intellectual property to build their own credibility, when you realize that lawyers are paying people to pollute your comments with spam, when you have (most importantly) had clients’ mommas tearfully tell you that they trust you because they have read everything you ever wrote on your blog, I suspect that you may come around to my way of thinking, ethically and aesthetically. Meanwhile, I’m secure in my assessment of the ethics of using a ghostblogger, and unrepentant.

Whether lawyers should publicly call out other lawyers who are cheating (ethical violations) or polluting (aesthetic violations) on line is a question that wouldn’t suffer from public discussion (five-word answer: general deterrence requires hurting feelings). I’m sure that Scott Greenfield, Brian Tannebaum, Eric Turkewitz, and the bloggers named in Eric’s post can easily defend their positions against all comers, as can I.

But Rent-A-Brain is a strange place to start the discussion of whether those funding unethical marketing should be named and shamed. In that post I didn’t name any of the lawyers responsible for the ghostblogging; I merely linked to the page where they unabashedly named themselves as having paid someone to “increase their credibility.” Anyone who thinks linking to a page of testimonials is “cyberbullying” is—with all due respect—a damn fool.
The real problem, I suspect, has far less to do with the definition of cyberbullying than it does with the concept of blawging itself.  For lawyers who believe that the primary purpose of a blawg is marketing, the idea that their effort to enjoy self-promotion, to garner public attention, to achieve business success via a blawg, is a two-way street is deeply disturbing.  They want to be able to gain the benefit without any risk of peer review, or peer criticism.

Jamison Koehler calls is “public humiliation,” which is quite revealing.  Is it humiliation to be questioned, challenged or disputed?  Once you put your voice and reputation online for all to see, you invite others to question your statements and conduct.  No one makes you go public, but having made the choice to do so, you cannot cry foul when you’re subjected to scrutiny.

The question hinges on whether the challenge is a fair one.  It’s not merely a question of right or wrong, meaning that those who disagree with Bennett (or Tannebaum or Turkewitz or me) can claim victim status.  Indeed, we disagree with each other all the time, challenging each other’s positions and questioning everything from paternity to the need for psychotropic drugs. And these challenges are what make for great discussions, and add enormous value to the blawgosphere.

The reason behind this is that our blawgs do not exist to market, and hence we have no fear of being questioned, challenged or disputed.  Our blawgosphere is one of ideas and community, not marketing and self-promotion.  The idea that someone will read what we write, what we put out for public consumption, how we conduct ourselves for the world to see, and call us out if we’ve behaved poorly.  Our ethics, integrity and intelligence is on display, just waiting for some wag to “publicly humiliate” us.  It’s how we keep each other honest.

Most real blawgers have been told, at one point or another, that we’re mean people for writing negative posts about others.  The others believe that they are entitled to puff themselves and their thoughts free of criticism, whether because they are of the view that lawyers owe each other a free ride or because they never understood that by going public, they opened themselves up. 

As Bennett pointed out in his response to Koehler, there’s a lot of bad stuff happening in the blawgosphere.  It’s a tough place to function, and not for the faint of heart.  To the extent that calling people out, naming names, arguing that it’s wrong to deceive even in the name of marketing, puts the breaks on some of the bad stuff, then it serves the greater good.  To the extent that those who want to be able to promote themselves without peer scrutiny call this public humiliation or cyberbullying, tough nuggies. 

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.  

If you don’t believe you deserve the negative reaction, then engage the criticism, fight back and let your ideas win the day.  That’s how we survive in the blawgosphere.  That’s how we survive as lawyers.  That’s how peer review works. That’s how it should be.

27 thoughts on “The Bully Line

  1. Brian Gurwitz

    Scott: Interesting debate. What would you say about the ethics of a lawyer (e.g., a busy trial lawyer who can’t research or write to save his life) who pays someone (e.g., a cerebral law geek who does both very well) to ghost write a pretrial brief?

  2. SHG

    Blawgs versus briefs is an entirely different situation.  The former is an intentional public representation of its author.  The latter is a mechanism to achieve a specific client’s goal.  The better practice is to let the client know, of course, who is actually performing the work on his behalf, unless it’s a large firm where he understands that there are many laboring oars contributing to his representation.  If the client believes that he’s receiving the services of a particular lawyers, and is paying well for that lawyer’s services, he deserves to either receive what he’s paying for or be informed of any variations to his expectations.

    But I would add, parenthetically, that ethics are implicated when a lawyer takes a fee to represent a client when he knows he lacks the ability to perform the work required.  That’s not quite your question, but I figured I would toss it in, no charge.

  3. Antonin I Pribetic

    “The real problem, I suspect, has far less to do with the definition of cyberbullying than it does with the concept of blawging itself.”

    Defining the terms of reference is vital. There is a distinction between cyberbullying and cyberharassment—the former relates to teenagers; the latter to adults.

    One of the key distinguishing features of a profession is that its members are governed by a code of professional ethics. As Uncle Ben said to Peter Parker: “with great power comes great responsibility.” The public service provided by Bennett, Tannebaum and yourself in exposing “ghostblawging”, “blog scraping” and related unethical online behavior by legal marketeers and their ilk, is laudable. Some apologists may spout: “who shot the internet sheriff and made you the web deputy?”, However, while local bar associations and law societies remain the last stop on the professional discipline express, if “Generation Why?” thinks that they can have a free ride, then they are in for a rough ride on the disinformation superhighway.

  4. Oscar Michelen

    This issue seems pretty clear to me. If you don’t have an opinion and can’t write your own blog,find some other method to market yourself besides having a ghostwriter. Its nothing short of pathetic. And I say this as someone who started a blog just a few months ago and don’t care how many views or comments it gets (hardly any), I do it because I like to write, care about what I am writing about and enjoy the venting even if it only amuses or helps me. But having someone write your blog for you is like cheating on the marathon -What’s the point? And it is not like having someone draft a brief for you because a blog is specifically defined as a space for your own opinion and work product, that’s supposed to be the whole point of the project. Maybe its because I am a litigator, but I also see no problem with “public humiliation” of those that use ghost bloggers. We practice our trade in open court and suffer (actually our clients do) when we fall flat during a bad cross or make no headway against an expert witness. Frankly, the competitive, arena-like nature of trial practice is what drew me to it in the first place. Its the closest I will ever get to professional sports. If you can’t take the heat get out of the kitchen, this is just another extension of our raising a a generation of crybabies.

  5. SHG

    One of the recurrent lawyer distinctions, Oscar, is that between litigator and non-litigator.  We don’t get our panties in a twist every time someone looks at us funny.  Non-litigators tend to get all twisted up when people aren’t nice to them.  But hey, that’s why we do what we do.

  6. Jamison

    “E-shaming,” the term used by Carolyn Elefant, may describe it more accurately than “public humiliation.” Whichever term you use, I think you are conflating two things.

    I don’t think anyone objects to having the ideas he or she posts on a blog challenged. In fact, I think it is pretty safe to say that people welcome this. You guys thrive on it. I like it too.

    But that’s not the harm I was trying to describe in using the term “public humiliation.” In calling out the lawyers who use ghostwriters for their blogs, you are not criticizing the content of their blog entries but the method they use to create the entries. By singling out individual lawyers who post inane and out-of-state responses to questions on Avvo, again, you are focusing your attacks on the person and not on the content of their message. Do I agree that both practices are regrettable? Well, with respect to Avvo, yes, absolutely. But I don’t think that is cause for, I’ll say it again, “public humiliation,” no matter how noble or just the cause may be.

    Since you seem to feel you have some insight into my psyche, I should say that I don’t hire a ghostwriter to my blog. Nor do I answer any questions on Avvo that are not within my area of expertise or within the jurisdictions I practice.

    But, were I a lawyer who for whatever reason decided to hire a writer to help me with a blog and then agreed to provide a testimonial to the company who helped me and then were called out on that publlcly, yeah, I would find that pretty humiliating.

    It’s not that I don’t agree with you on spamming and so forth. I’m sick of all the comments I get related to viagra and Russian brides. But that’s different than complaining about the rise of lawyers marketing themselves on the internet and the resulting spread of mediocre sites. Who cares if there are tons of lousy blogs out there? Let the market decide. People will gravitate toward the quality sites.

    I also think, as I’ve said a couple of times, that the whole effort — though it may be the right and just thing to do — is kind of futile. Yes, people have been complaining about this since 2004. Unless we put this behind us and move on, we’ll be complaining about it in 2014 as well.

  7. SHG

    I thought it was clear that I didn’t have any insight into your psyche, which was why I was constrained to speculate about your purposes.  But that said, we aren’t conflating anything.  Whether substantive statements or conduct, whether dumb or deceptive, when you put it out there, it’s fair game.  Here’s where you miss an important point:  If a lawyer does it, and does it publicly, and is called out for doing precisely what he is doing, why should that be public humiliation?  If you aren’t proud of yourself for doing it, why do you think you’re owed some conspiracy of silence to cover up your misdeed?

    The gist of your ambivalence (as you obviously aren’t arguing in support of this conduct, but rather against public humiliation for it) is that you think marketing is the way to go, the unstoppable wave of the future, and that public humiliation is the antithesis of marketing.  We don’t share that sensibility, and we aren’t inclined to forgive and forget so as not to impede a carefully crafted marketing effort.  Consequently, individuals who are engaged in improper conduct are singled out.  

    Again, if they aren’t proud of being called out for what they’re doing, then why are they doing it?  But what do we know? 

  8. SHG

    Litigator is broader than trial lawyer, used purposefully in this instance to distinguish from transactional lawyers.

  9. Jamison

    You say public accountability. I say public humiliation. Both terms are probably pretty accurate. The question is: Do you need one to have the other?

    I have not been part of the discussions on this issue that have been apparently been going on since 2004. Maybe people have decided that the polite approach didn’t work so let’s try the direct action approach. Maybe it’s the difference between a mainstream environmental organization like the Natural Resources Defense Council and the more radical elements of Greenpeace. How do you achieve results? And what actions can you justify?

    I for one have serious problems with Greenpeace’s former practice of killing or maiming a couple of loggers to save a whole forest. It’s not that I don’t believe the forest should be saved.

    Maybe you think people deserve the ridicule (because, come on, that’s what it is.) That’s where my ambivalence comes in.

    You are more restrained than Mark Bennett. And Mark Bennett is much more restrained than whoever puts out the Avvo Pimp thing. Do you think the Avvo Pimp thing is justified? Because for me, regardless of the ends, the Avvo Pimp thing just leaves a terrible taste in my mouth. For all sorts of reasons. The question then becomes where you draw the line. And that’s probably where we differ.

  10. Amy Derby

    Interesting the way my cyberbulling comment was construed. Perhaps it isn’t evident from the context of my comment. I’ll clarify.

    My point was that a lot of people aren’t able to differentiate between someone who is challenging this mess with good intentions and someone who is just doing it to be cruel. I can easily see how someone landing on Bennett’s original post could have viewed it as the latter, and therefore dismissed the issue entirely based on the assumption that this is just some lawyer who gets his jollies off on being mean. Should Mark care what I think? Probably not. I don’t matter. I was just offering an opinion — one I know others share but are too afraid to speak up, because they think these guys are too mean and scary.

    I see what folks like Scott, Mark and Brian do for what it is. I don’t always agree with how it’s done, but I appreciate that there are lawyers out there who aren’t too afraid to speak up and do something. I do think it’s a shame that some people will miss out on the big picture because of the approach but, as Mark has suggested, maybe no other way would be effective. Hence my ending that comment with “Maybe I’m wrong.” It’s happened before.

  11. Carolyn Elefant

    As I said in my post at MyShingle, I don’t take issue with e-shaming when lawyers put themselves out there (as with the lawyers who hired the ghost blogger) or where an ethics infraction is on the record (as when Brian linked to various lawyers’ suspensions or disbarments).

    My problem arises in gray areas – where individual lawyers are e-shamed for conduct that is not unethical under bar rules but where the e-shamer finds the conduct unseemly or distasteful. For example, lawyers who advertise with Findlaw or Total Attorneys don’t necessarily realize that their conduct is unethical – and indeed, it is not under existing bar rules. So I don’t think it is fair to call these lawyers out, particularly in blogs that have high visibility on search engines and can potentially harm these lawyers reputations. Criticize the conduct, just don’t name names publicly.
    Moreover, I think e-shaming individual lawyers in the gray area cases is gratuitous because it doesn’t accomplish anything. Most of the lawyers advertising on Findlaw or TA probably aren’t reading blogs, so it’s not as if they’re going to change their ways. And even if those lawyers stop using those services, other lawyers will step in and take their place – and they’ll do so long as the ABA and other bar associations take money from these companies and implicitly endorse the propriety of their services.

    If the bar rules allow the conduct, then it seems that it’s the bar rules that should be criticized before the individual lawyers are.

    As for your other posts- what do you mean about newcomers to the blogosphere, young man? I’ve been blogging since your blog was in diapers!

  12. Antonin I. Pribetic

    Dear Amy,

    Yes, you are wrong. Although you didn’t solicit my opinion, I will offer it, nonetheless. There are 3 reasons why exposing deceptive online legal marketing is necessary. First, blogging is a public, not private, endeavor. Blogging is not writing your innermost thoughts in a diary: “Can you hear me, God, it’s me, Amy”, is not the blogging platform, although a sequel to the novel may be a worthy goal to pursue. Hence, the “public” includes non-lawyers, whom I presume—rightly I might add—are the benefactors of public outing of unscrupulous or wilfully blind lawyers by Greenfield et al. Second, as a legal assistant and writer, you do not have an ethical duty hoisted upon you by the legal profession; albeit you are certainly subject to the rules of professional conduct (e.g. attorney-client privilege) from an employment context when working in a law firm or for a lawyer. Any unethical conduct, however trivial in an objective sense, still calls out for cyber-denunciation (awkward phrasing, but you get the gist). Finally, the residual effect of critiquing “ghostblawging” serves an educational function to lawyers who are otherwise blissfully ignorant or, more worrisome, without a moral compass to distinguish between “good intentions” and someone “just doing it to be cruel.” After all, even if they don’t get the point initially, one can hope, against all hope, that they have a modicum of critical thinking skills to understand that letting someone else write their blawg for them is, at its highest, intellectually insolvent, and at its lowest, ethically bankrupt.

  13. Carolyn Elefant

    One last remark – I wanted to make clear that ghost blogging is unethical. It’s advertising (after all that’s why lawyers ghost blog- to advertise. Why would they do it otherwise?) and it’s deceptive so it violates Model Rule 7.1 (I think that’s the right rule). If a lawyer violates a bar rule, public critique is also appropriate. I would stop short of individual naming in the gray areas. And also where there’s possibility for honest mistake.

  14. SHG

    The shame is that the newbies, even good ones like Jamison, really have no context to understand how we reached this point and the things we went through to get here.  They find this wonderful blawgosphere, all ready for their marketing and self-promotion, as if it was created today just for them. 

    Given the opportunities to “name names,” we’ve been remarkably circumspect.  Maybe we could have been kinder to some, but there are many who deserved far worse than they received.  But without those of us who have tried to keep this place honest, our new friends who’ve arrived yesterday to market themselves would have found only a cesspool had people like Mark Bennett not had the guts to stand up to the unethical.

  15. Mark Bennett

    How about avaricious mistake? Ignorance is so easy to falsely claim (with people like the ghostblogger eager to be the frontman) that the only workable culpable mental state for ugliness and lies in lawyer marketing is strict liability. The lawyer is responsible for whatever he has done on his behalf.

  16. Jamison

    It is true that lawyers like myself do not have the same perspective as those of you who have been doing this a while. At the same time, you all may not fully appreciate the challenges of being a lawyer who is setting up a new practice in these different and very trying times. Things are a lot different than they were when you were setting up your now fully established practices.

    And, Scott, if you are going to blame anyone for my entry into this world, you can look no farther than to Carolyn. I have been using her book as I feel my way through this.

    But the fact is, we are going to make mistakes. All I ask is for a little patience until I get there. In return, I’ll promise not to opine on things of which I know little.

  17. SHG

    Feel free to opine as much, and on as many subjects, as you like.  But please bear in mind, Carolyn, Giacalone, Bennett, Tannebaum and many others, including me, who’ve fought the battles to keep this place relatively clean and honest aren’t total idiots.  We’ve learned a lot along the way.  It may help to give you context and perspective.

  18. Ken

    Is anyone else reminded of that lawprof who asserted that it was “bullying” to write something on the internet criticizing someone else’s blog post without informing them that you would be doing so?

    I really despise such rhetoric.

  19. SHG

    That was Ann Bartow, feminist lawprof, who was always great at calling other people names.  I’m also reminded of lawprof Danielle Citron, who tried to redefine cyberbullying as sexism so it would trump free speech, and included anything that upset the delicate sensibilities of women.  It was the rhetoric of victimization.

  20. Dan

    I think I agree, but I come at it from a different perspective. I freely admit that my blog is for marketing purposes. So what? Having said that doesn’t change a thing, which is that the only criterian I use in determining what I will write about is whether my readers will find it interesting. And what they find interesting is not going to be someone else rehashing the same old crap in a neutral voice.

    And that gets at the heart of why I find the ghostblogging bizarre. Not unethical, but bizarre. I find it bizarre because it is a complete waste of money in that it is just about the worst way I can think of to market. My blog markets me and my practice and I sure as hell am not going to let someone else stand in as me.

    And Scott, you may not try to market with your blog, but as an international lawyer all the way across the country, I can say that if someone were to ask me for a recommendation of an NY state criminal lawyer, I would give them your name. I would give them your name because your blog has told me who you are and I have liked what I see and I have to believe I am not alone on that.

    So instead of our getting all up in arms about those using ghostblogging, I say we just pity them and laugh at them instead.

    But of course there is nothing wrong with exposing them because they would say there is nothing wrong with what they are doing.

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