Someone posed a question a while back, if you could be absolutely guaranteed that you could commit a crime with impunity, what crime would you commit? It was a great question, not because it provided the opportunity for people to opine on their favorite crime, but because it offered the opportunity for people to decide whether the only thing that stopped them from doing wrong, from causing harm, was the threat of punishment.
Just because we can get away with it isn’t a reason to do wrong.
Yet the lawyer who successfully won the right of a law firm, Cannon & Dunphy, to buy up adwords in the name of a competitive Wisconsin firm, Habush Habush & Rottier, has volunteer to argue otherwise at Kevin O’Keefe’s Real Lawyers Have Blogs. Kevin has earlier argued that regardless of the legality of this scheme, it was unseemly. The lawyer, Ric Gass, wanted the chance to make his pitch, and he got it.
The purpose of my post isn’t to argue their position (that has been done in the briefs and submissions in both the trial and appellate court) but rather to comment personally and more generally on the issues.
Kevin’s objection to sponsored link marketing is essentially an objection based on its style and that to his taste it is “unseemly” to bid on a word that is another’s last name. Others, such as Eric Goldman at Forbes recently and Will Hornsby of the ABA (whom Kevin has dubbed “the king of ethics and lawyer marketing on the Internet”) disagree.
Lawyers will view the bounds of marketing and “taste” differently, oftentimes influenced by their area of practice. What may be seen as acceptable marketing to the general counsel of a major corporation is assuredly different from marketing in a personal injury litigation or a domestic relations practice. We each have and are entitled to our own “tastes” in the marketing of legal services, and we each have different marketing strengths.
Despite his claim that the post wouldn’t be a reargument of the legal points, that’s exactly what it was aside from his point about “tastes.” It’s a smart argument to make, and leads me to agree with Kevin that Ric Gass must be a damn fine lawyer. You really can’t argue with “tastes,” any more than you can debate whether vanilla or chocolate is the better flavor.
The problem is that an argument over tastes skips over the primary question, whether we would commit a crime at all before deciding which crime it would be. After being bombarded with some of the most insipid rhetoric I’ve been forced to endure in a couple of recent posts challenging marketing and futurists, it’s hard, no impossible, to be sympathetic to an argument that leads inevitably to the race to the bottom.
This may come as a surprise to many non-lawyers, but most of us don’t use the limits of the law, or the resources available to us, as a substitute for our moral or professional conscience. We do what we believe to be right simply because it’s right, not because we can’t get away with more. We could sue over every slight, no matter how inconsequential, because it’s easy to draft a summons and complaint, yet we don’t. And we can fashion our “tastes” to suit the greatest latitude that serves our pecuniary interest, yet we don’t.
This goes back to the two professions, both calling themselves lawyers issue, that there will be a group of lawyers who, after learning of Ric Gass’ success, will rush out and purchase the names of their competitors to gain a marketing advantage. Their taste is money, or at least the hope of it. They will do whatever the law allows to get it. Maybe some will do a bit more and see if they can get away with it.
To lawyers inclined to seize every marketing advantage, Kevin’s point, that it’s unseemly, is meaningless. To say it’s about tastes is convenient, but not really accurate. They have no taste. If they can get away with it, they will. Their taste is to take advantage of every opportunity to get business any way they can.
They know that the public is still years away from realizing that nobody knows you’re a dog on the internet, so they create carefully crafted personas, omit any information that might cause a potential client to pause before calling them, make themselves look like Clarence Darrow incarnate, and then buy up every keyword or competitors name they can think of so that anyone Googling for a lawyer will see them first. This is their taste.
And it can’t be too wrong, given that such staunch defenders of the seemly, the ABA, backs them up with posts that advise lawyers to forget about such archaic notions as client service and instead “invent the future.”
Inventing the future is great advice. The problem is that most lawyers are not predisposed to this kind of activity. With the possible exception of negotiation strategy, have you ever heard a lawyer say, “I’m not sure how this will turn out, but let’s give it a try and see what happens”?
More often than not, you see lawyers clinging to certainties rather than reaching for possibilities.
Some of us prefer not to blindly court failure when it’s a client’s life or fortune on the line, Few technologists have had to tell a client that they will spend the rest of their life in prison because we gave it a try and it didn’t work out. It’s not a matter of “taste,” but a matter of duty. The law is not a profession of free-wheelers for a reason; other people pay the price for our failures, and we do not have the right to condemn them on a whim.
But the law says that the low road is available to lawyers, and those with a sufficient lack of taste will take it. They will buy into the rhetoric of anything goes, and will tailor their tastes to suit their desire for money. Once the limits of our professional conduct become a matter of individual taste, there are no limits.
So if you are guaranteed that you can get away with it, what crime would you commit? My answer is none. Your tastes may differ.