Without Dates, You Intentionally Deceive (Update)
When someone expresses an interesting subjective view in the blawgosphere, I regularly check out who they are. It matters to me whether the opinion comes from someone who has been a lawyer for a month or twenty years. It matters whether they are a prosecutor or defense lawyer. Or cop. Or defendant. Or civil lawyer. They may think their opinion matters regardless, but the fact is that the opinion of a knowledgeable person weighs more heavily than someone lacking any basis. That's how opinions work.
In the course of checking people out, one particularly disturbing issue keeps cropping up. The claim of "experience." It has become de rigueur for young lawyers to include bios on their websites that announce their law schools and bar admissions, but omit the dates. Elsewhere, they invariably claim to be "experienced," sometimes fleshed out with wild claims like having won thousands of cases even before admission to the bar. It's all part of creating their personal brand.
The reason for these omission is plain. Young lawyers want to promote themselves without disclosing that they are new to the practice of law. Marketing advice is clear: hide the negatives and bang the positives. Create the appearance of qualification and competence without disclosing harmful material facts. The way to do this is to conceal anything that might reflect poorly on you and undermine the free-wheeling use of subjective puffery.
Experienced, Competent, Aggressive
Any lawyer can put this on his website, and because each reflects a wholly subjective claim, who could dispute it? In a post at Avvo's Lawyernomics, a legal marketing blog, Josh King writes about the Pennsylvania interpretation that precludes use of subjective claims such as "experienced."
There’s a curious little nugget in the Pennsylvania rules governing attorney advertising; under the state’s interpretation of Professional Conduct Rule 7.1(c), attorneys are barred from using “inherently subjective” terms such as “experienced” and “competent” in advertising their services. The fear, such as it goes, is that such terms are difficult for consumers to confirm or measure. (Never mind that we consumers have some passing familiarity with the uses of hype in advertising.)
It's true that consumers are familiar with the use of hype in advertising. Every laundry detergent claims to make white's whiter. Is this the bar by which lawyer's measure their deceit?
This peculiar rule is an anachronism today, and observed in the breach, if a cursory review of Pennsylvania law firm websites, blogs, and internet ads is anything to go on. It’s also inane, paternalistic, and a holdover from the pre- Bates v. Arizona days when attorney advertising was completely banned in most places.
One gets the feeling that Josh doesn't favor this rule. No doubt he's correct to say that it's widely ignored, particularly given that most lawyers consider the internet a truth-free zone where it's fair to make any claim that could potentially get you business. If anything goes, then it is indeed inane and paternalistic for state bars to prohibit subjective claims of greatness. After all, no lawyer is going to persuade clients to knock down his door by writing "I've never handled a family court case, but I would like to and would be very happy if you would be my first, and pay me for the pleasure." Not good marketing.
But here is where it goes completely off the tracks:
Some might say this is okay–that the world hardly needs another attorney advertising their “experienced, competent, aggressive” representation. But the overall effect is a chilling of all information from lawyers to consumers, and a lessening of transparency in what is already the most opaque of professions.
Does a prohibition of deceptive or subjective claims by lawyers produce a chilling effect, "lessening transparency"? Josh's concern is that when lawyers aren't clear where the line is, beyond which they will be subject to discipline, they shy away from the line and provide less information to consumers. Superficially, it makes some sense.
The problem, upon closer scrutiny, is that the line only comes into play when lawyers are being deceptive or using puffery, subjective claims that range from the meaningless to the intentionally false. This isn't transparency. This is dishonest. And if one wants to fix the problem of opaqueness in the legal profession, the solution isn't deceit, puffery and omission of material facts, but accuracy and honesty.
The one thing that stands out above all others are lawyers who omit dates from their websites and blogs. This is wrong, and whenever I see "Harvard Law School" without a date, it tells me that this lawyer is concealing a simple, basic fact. Concealment is hardly transparency.
It's no crime to be a new lawyer, and indeed, many clients will prefer a new lawyer who will likely charge significantly lower fees and perhaps show greater interest and exuberance in their representation. The adage, an old fool is worse than a young fool comes to mind, offering the new lawyer the opportunity to use his lack of experience to his advantage. There is nothing wrong with capitalizing on your strengths, even if those strengths don't involve many years of experience.
What cannot be done is to omit the material information that would allow clients to reach their own conclusion as to whether a lawyer is sufficiently experienced. This is deceptive and unethical. Note that it may not result in discipline, the bogeyman Josh fears, but disciplinary rules provide the absolute minimum level of conduct demanded of a lawyer. That conduct skirts the edge of discipline doesn't make it ethical, but merely not subject to discipline. Is the best that can be truthfully said of you that you haven't been disbarred?
It's time to end the deception. We are not laundry detergent and we can hold ourselves to a higher standard than toilet tissue puffery. If you include your law school and bar admission on your website, include the date. Telling the truth matters. Not omitting the facts you don't want clients to know matters as well.
It's highly unlikely that puffery, deception and material omission on the web will get you disbarred. There is no lack of people who will denigrate honesty and integrity in the name of self-promotion, calling it inane and paternalistic.
So it's entirely up to each lawyer to decide whether they prefer to tell the truth about themselves or puff, deceive and omit. Your call, but understand that some of us do care, and we are watching. If you don't include dates, I then know you intentionally deceive. That's your brand.
Update: At Lawyerist, a wealth of comments by baby lawyers "explaining" why there's nothing wrong with concealing their date of admission. The comments are fascinating if deeply disturbing, and pretty much take a shot at every conceivable way of wiggling out of responsibility.
At at the Unwashed Advocate, a visual illustration of the issue.