Losing The Ethics Race

Some guy created a website that allows other people to click some button that says he’s a pretty cool guy and does great at his job. People the guy doesn’t know click on the button to say how great he is at his job. He’s got nothing to do with it, but he knows that the people clicking on his button don’t know him and wouldn’t have a clue whether he was any good or not.

The guy doesn’t care a whole lot about whether people click on his button or not, but doesn’t have a problem with it either. Who gets upset about people they don’t know saying unwarranted nice things about them?  But other people, the ones who regulate what he does for a living, have a rule that says two things: first, that you can’t bullshit people, and second, that you can’t claim to be something you’re not, like an “expert.” The problem with the buttons is that they suggest the guy is an expert.

This is a fictionalization of the issue facing Orlando Gonzalez, an Orlando lawyer, on LinkedIn.  As discussed in Daily Business Review, he was not moved.

Orlando attorney Luis Gonzalez has no intention of following The Florida Bar’s  new social media rules, particularly those relating to LinkedIn.

“Let’s get a little better priorities,” said Gonzalez, a solo attorney who has  been practicing for 36 years. “There’s a lot of unlawful practice of law going  on out there. I get these cases referred when it’s too late. The Bar should be  more involved in that and forget about this absurdity.”

What makes Gonzalez a worthy study is that he at least realizes there are rules and has made a deliberate decision to ignore them.  Many don’t get nearly that far, not considering the intersection of ethical rules with the internet at all.  In the middle are those who have some vague notion that rules exist, but with a wave of their arm, dismiss them as being archaic. Somehow, this means they no longer have to adhere to the rules, which means that knowing them, considering them, isn’t worth their time. They just do as they please, because the rules are only there to oppress them and they won’t be oppressed.

To recap, some tech entrepreneur puts a button on a website that lots of people use that allows people, whether the person profiled or other people, to publicly proclaim an expertise.  And because this tech entrepreneur did so, professional rules disappear. The internet trumps all.

At the Puddle, which is important in this post because it’s where many young, tech-savvy, desperate lawyers who prefer small words and even smaller concepts get their practical information, the local ethics maven, Megan Zavieh, contends that ethics rules shouldn’t try to keep pace with technology.

Ethics regulators have been faced with a difficult task to keep the rules and guidance available to attorneys current in light of massive changes to technology and social media platforms…. Rule changes are also useful when they address technology that is going to last for the long term. The only efforts that seem thus far to have been relatively wasted ones are those intended to regulate a specific function of an individual platform. Those wasted efforts go to prove that the useful ones are those that do not attempt to keep up with technology, but rather those that carefully and thoughtfully regulate for the long term.

Her point, which is sound, is that regulators can’t keep pace with the internet, as websites are created that include things that violate rules to some extent, then change or disappear, or add worse things. Ethics regulators can neither keep pace with the speed of the internet, or have the capacity to go through every lawyer’s website, blog, Facebook, Twitter, LinkedIn, Google+, and whatever comes next, accounts.

The problem with her point is that far too few lawyers care about what ethics regulators have to say generically (don’t deceive, for example) and plow ahead, secure in the knowledge that the chance of being nabbed, unless somebody specifically rats you out, is slightly less than zero.  Only when an opinion is issued that expressly states that lawyers can’t engage in a particular act does anyone take notice.  But that’s a bit of a joke as well.

The Bar defends the social media rules, saying lawyers must comply with ethical guidelines whether their advertising is on Facebook, billboards or TV.  The guidelines warn attorneys to refrain from testimonials, holding themselves out as experts and posting inappropriate and unprofessional photos or videos on  Facebook.

Lawyers and law firms are expressing frustration with the new social media restrictions, saying they are difficult to interpret and overly stringent. Of particular concern are rules requiring law firms to state an office location on each tweet and barring lawyers from allowing third-party endorsements or listing their expertise on LinkedIn.

This explanation is fairly disingenuous. It assumes that every twit is advertising, and thus falls within the regulations for advertising. On the other hand, the lawyers who take issue with it are, indeed, advertising. Even though it’s largely unadulterated nonsense, there are plenty of lawyers who pay someone in Bangalore to twit incessantly about how great these lawyers are, and if you need a lawyer, call…  While it may not get them any business, it’s totally disgraceful and embarrassing. Not that they care.

There is a solution, although it will prove to be particularly unsatisfying to both sides of this drama. As ethics regulators can’t do their job, both in terms of crafting rules for a race they are doomed to perpetually lose and in making any lawyer comply with the rules, they would do better to focus on a more narrow niche of the ethical problems of deception, deal with a handful of lawyers violating the rules, and send a message that there is a chance, even if not much of one, that lawyers will be disciplined.

The other side, the lawyers who feel strongly that the internet is an ethics free zone where they are entitled to hawk their wares in whatever way they can, need to be held accountable for the disrepute they bring on the one percent, and the promoters of ethical violations giving accredited CLE presentations that teach lawyers that the rules don’t apply to them need to be shut down.

So hire me, EthicalShutdownLawyer.com, because I have 37 expert clicks on LinkedIn, which means it must be true. Tasteful, right?



7 comments on “Losing The Ethics Race

  1. TomH

    Maybe I misunderstand LinkedIn’s scheme. I’m not here to defend it, but to analyze it, or play devil’s advocate.

    Anyway, the LinkedIn lawyer user, checks off boxes for things the user “specializes” in, i.e. practice areas for the user’s office. We all have areas we practice in, CDL, wills and estates etc. Then, other people, for good or bad reasons, check a box “endorsing” you in a practice area. The display shows that the endorsements are the feeling of the other people.

    Apart from the persistence of the website as opposed to ephemeral conversation, what is the difference between this and a person asking other people they know who to recommend for an attorney for a particular problem, and all of them recommending the same attorney.

    My perspective may be biased since I am discriminate in the people I link to. I don’t link people I don’t know, and those I do are people trust enough to refer work to.

    1. SHG Post author

      I think there are two things at stake: first, that there was a place in LinkedIn (I think it’s gone now, but since I haven’t been to LinkedIn in a very long time, I’m not sure) where someone could put their “specialties and expertise.” That’s not allowed for a lawyer unless he has been certified as a specialist or expert by the licensing authority. Notably, it is very close to a statement of one’s area of practice, but it’s different to claim “expertise” if one isn’t an expert.

      As for endorsements, it’s one thing to be endorsed by someone who knows you (or thinks they know you) and another to have blind endorsements. One huge and growing problem is endorsement trading, where someone endorses you and asks for an endorsement in return. Like astroturfing, it’s just a scam, and it happens constantly.

  2. rafiv

    I never before considered the possible ethical implications of the “skills and expertise” section on LinkedIn. Foolish, I admit; especially since most of what is listed in that section is left by former clients or colleagues. (He who outsources his advertising…). Part of the reason for my disconnect is that I don’t consider LinkedIn advertising the same way a web page or Facebook would be. It is neither fish nor fowl and I use it to network and as opposition research when I have question about opposing counsel’s real or purported knowledge base. Sometimes group discussion threads on LinkedIn can be informative -no really stop laughing-, and past clients -as well as, sadly, ex’s – have found my contact information there. I just may have to reconsider my profile.

  3. Jordan

    I’m okay with the idea, just not the application. I find it repulsive when lawyers hire some firm in Bangladesh to leave spam comments on my blog. I also think it’s good that the Florida bar recognizes that it shouldn’t be okay for lawyers to manufacture a reputation on the internet, which is completely unregulated. It’s especially bad when lawyers who don’t even know each other endorse each other in order to get a higher Avvo score in an attempt to mislead the public. At least the bar recognizes that there is a problem – the internet has become the truth free zone for lawyers. Perhaps this will even cause some entities like Avvo and LinkedIn to rethink their models. (probably not).

    This is where I take issue…

    “Bible has privately talked to some lawyers about inappropriate Facebook photos.

    “One lawyer had pictures of his staff with skirts too short,” she said. “He kindly removed them when we asked.”

    How can the bar regulate “professionalism” in a person’s private life? If I’ve learned one thing from doing First Amendment law, it’s this – different people have different sensibilities. For instance, if someone were to make an anti-gay marriage comment, I’m sure someone would find it offensive and an example of bigotry. While I personally find anti-gay comments offensive, I think people are entitled to their opinions, even when stupid, and they certainly shouldn’t be regulated by the state bar.

    What crosses the line? A blog post that says “snort my taint?” Sharing a video that has cuss words in it? What about content with pornography in it? (hint: there are lawyers who represent porn companies). Pictures of guns? Comments that are too political in a way that I don’t like?

    We start to get into dangerous 1st Amendment territory when a state bar association tries to dictate what lawyers can share in their personal lives.

    What I find ironic is there is absolutely no push to regulate professionalism when it actually matters. Every single day I deal with “Give this to me immediately or I will move to sanction you!” or “No, you can’t have a one week extension, I don’t care if your grandmother just died.” Lawyers can act like a giant pieces of gutter sucking trash in the profession (even more so if you work for a large law firm), but share a picture of girl in short mini-skirts on Facebook and the state bar might give you a call.

    If the bar wants to regulate professionalism, why not start where it matters?

    1. SHG Post author

      When it’s marketing, 1st Amendment protection is limited and subject to regulation. When it’s not advertising, then it receives full 1st Amendment protection. As it should.

  4. Todd Erickson

    linkedin seems to provide specialties for people to vote on without actually letting the individual who has the profile directly control those options. I get constant notifications that people have endorsed me as having a particular skill that I’ve never had, and I can’t prevent them from voting on it, or displaying that I am a supposed expert at it. At some point, the entire Linkedin experience has become horrifyingly passive, just watching to see what the site will do next in my name.

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