Gutting The Rules: What Could Possibly Go Wrong? (Update)

As every lawyer is well aware from the gazillion solicitations that come via every conceivable means, there is an industry out there dedicated to taking as much of your money as possible whose claim is to make you fabulously wealthy. If it wasn’t for all those damn ethical rules that states impose on legal marketing.

So legal ethics lecturer and Avvo’s general counsel and vice president for marketeering business development, Josh King, urges a radical change:  it’s time to “gut” the ethics rules.

Get rid of most attorney advertising regulation.

Or more specifically, eliminate everything other than restrictions on false advertising and real-time solicitation. Our suggested advertising rules would look like this:

Rule 7.1: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

Rule 7.2:  A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1)  is a lawyer; or

(2)  has a family, close personal, or prior professional relationship with the lawyer.

And over at the Puddle, Sam Glover started twitching and shaking when he saw this, and then screamed “me too, me too.”

While most lawyer marketing is pretty awful, consumers are better off if they can find a lawyer when they need one. Marketing facilitates that, even if it isn’t always pretty. Our only concern ought to be whether legal marketing is misleading. And the in-person solicitation ban just makes sense, because many lawyers would become hard-sell pests without it.

Of course “consumers” (most lawyers call them “clients,” but consumers is certainly better than “leads”) are better off being able to find a lawyer.  And 10,000 lawyer websites proclaiming they’re “aggressive, caring and experienced,” not to mention available 24 hours a day and offer free consultations and easy payment plans, makes the “consumers'” job easy-peasy, right?

And yet, in a weird way, I find myself in agreement with Josh.  But that only scratches the surface of the problem.  Josh is a huge fan of the 5-4 Bates v. Arizona, holding that lawyers were entitled to commercial free speech rights, and that regulations which prohibited those rights were unconstitutional.

While Bates was probably the worst thing that ever happened for maintaining the dignity and professionalism of law, and of dubious constitutional interpretation, commercial free speech won and that genie is never going back in the bottle.  Meet your new marketeering overlords.

Now that marketeering is here to stay, Josh correctly fixes on the big issue: deceptive marketing.  His first rule, prohibiting “false and misleading communications,” already exists.  Problem solved?  Hardly.  It’s just the start of the problem.

When a New York lawyer, Arkady Bukh, proclaimed himself “number 1 ranked criminal law firm in New York” based on Avvo, I put the question to Josh about whether he was cool with Avvo being mixed up in his false and misleading communications.  Josh’s response was, how can I say this nicely, unconvincing.

I wouldn’t call it lying, as he does have our top rating, and he does appear, at least some of the time, in the #1 slot for NY criminal defense searches.  But it is somewhat misleading as we don’t do “rankings.”

So is “somewhat misleading” different than false and misleading?  Is “somewhat misleading” acceptable under Josh’s rule?  And then there is the question of deceptive by omission rather than commission.

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 omissions 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.

This view was highly controversial, because young lawyers who want to market themselves as experienced find it pretty hard to do when they’ve only practiced for a week or two. They were very angry with me for suggesting there was something wrong with being deceptive when it was good for them.

But then, let’s delve even further into the hole of marketing to serve the “consumer’s” interest.  Kevin O’Keefe, a strong advocate of lawyers doing their own work, got into a discussion about ghost-blogging on Linked In, and got an earful from a “content provider” who, for a fee, creates blog posts that lawyers put out to the public as their own:

 I blog for attorneys (personal injury mostly), and I can honestly say the better the quality of the content, the more traffic I see going to the site. I also still see that the more content, and more consistently posted content, drives traffic (of course content needs to also be shared through social media platforms).

I think we are heading to a place where “curating” the best content that is already out these will be very important. Also, taking a very well-written original article and curating it in different ways is a great use of time. It simply takes so much time to constantly be creating new content, and there’s so much out there. Google also likes curated content with opinionated comments added.

There are soooooo many ways to blog for attorneys. I will say, though, that social media marketing done the right way is a full-time job. There is a lot more to it than merely writing, and I have to constantly study to stay on top of it.

So all that really cool stuff that appears under the lawyer’s name turns out to be written by some hired gun, because actually writing stuff is too hard and time-consuming for lawyers?  Is that deceptive?  If you read it and say to yourself, “that’s the kind of lawyer I want to represent me,” is it a lie to learn that the lawyer bought some flack’s content to put out as if it was his own?

If you read through most lawyer marketing, what you quickly realize is that it’s almost all puffery, “false and misleading,” beyond the fact that the person is a lawyer.  It’s the nature of marketing. It’s the nature of commercial speech.  On paper, there is almost nothing to be said that’s objective and meaningful, and so we characterize ourselves as superstars because we’ve got something to sell and we want “consumers” to buy.  Like laundry detergent.

So, yeah, I’m totally on board to Josh King’s view that it’s time to gut the rules.  And even with Sam:

I’d rather see ethics boards aggressively police false and misleading marketing than waste time cracking down on lawyers who forget to include ATTORNEY ADVERTISING disclaimers on their Twitter profiles.

Because if this happened, and if the legal profession really got down on false and misleading marketing, and all the puffery, the omissions, the deceptions, the crap that lawyers spew to get unwitting clients to spend money on them because some hired-gun flack wrote the words that brought in eyeballs, or bought up their competition’s name on Google, or did any of the million schemes to make money at the expense of integrity, Bates v. Arizona wouldn’t matter and lawyer advertising would die a painful, brutal death.  As well it should.

Update: Not all lawyer marketing, however, is misleading:

21 thoughts on “Gutting The Rules: What Could Possibly Go Wrong? (Update)

      1. Regret

        Sorry for the lack of clarity. I was just wondering if you thought the arguments that the legal profession uses to call for laws and rules protecting the consumer are similar to the arguments made by trade unions and guilds. Historically, trade unions and guilds argued that consumers needed protection from unscrupulous agents, and that their organizations provided this protection. Personally, I think the trade unions and guilds were more concerned with political power and restricted competition to benefit their members. I wonder whether the expressed concerns about the ethics of solicitation and misleading marketing in the legal field are the real issue.

        1. SHG Post author

          While there are similarities (more so to guilds and trade unions, as in protectionism), there are also differences. To a large extent, non-lawyers wouldn’t know quality lawyering if it bit them in the ass. They know who they like. They know who they trust. They don’t know whether the lawyer is competent and honest. Lawyers can pretty much tell a non-lawyer any line of bullshit they want, and most non-lawyers wouldn’t have a clue. Not all, but most.

          With guilds and unions, you get an end product, which you can tell is good or bad, right or wrong, works or doesn’t. That can’t be said of the law. So you may be deceived up front, but you will ultimately learn one way or the other. In law, even the best lawyer can’t win every case, and even the worst lawyer will win occasionally. The outcome doesn’t reflect the input.

          So does the public need protection from unscrupulous and incompetent lawyers? You bet. The better question is what happened to lawyers, that they’ve gone from a learned profession to marketeering hucksters. And yet, many (most?) lawyers will vehemently deny this.

  1. Alex Bunin

    If Fiumara can do that for talking dolls, just think what he can do for actual humans. Is your Barbie charged with fraud? Call him.

    1. SHG Post author

      When I first saw that video, I couldn’t figure out what purpose was being served other than Fiumara demonstrating that he was mentally ill. Need a mentally ill lawyer, call NOW!!!

      1. lawrence kaplan

        Actually aside from being very funny I think Fiumara made his point very effectively. His firm accepts very difficult clients and gets good results for them. In one case, he noted, he won a million dollar verdict for his client, in another he worked out a multi-million dollar settlement on behalf of a client .

        1. SHG Post author

          Well, no doubt Fiumara will be happy to learn he has at least one person who thought this funny rather than batshit crazy. That’s the nature of taste, I guess.

  2. Turk

    I think we are heading to a place where “curating” the best content that is already out these will be very important.

    Hey, I got an idea, since we are not just heading to this place: Maybe once a week someone should do a round-up of the best of the legal blogosphere.

    My favorite quote on legal marketing/advertising comes from a footnote Judge Frederick Scullen dropped into his opinion (Alexander v. Cahill) on the constitutionality of New York’s “new” code of professional responsibility in 2007:

    Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished.

    1. SHG Post author

      Not that we were so beloved before, yet this comes to mind:

      Better to remain silent and be thought a fool than to speak out and remove all doubt.

      Same with being greedy sleazebags.

      1. Neil

        If you’re going to paraphrase Mark Twain, he had some observations regarding the problems lawyers have in communicating with lay people in his novel Pudd’nhead Wilson.

        “I wish I owned half of that dog.”
        “Why?” somebody asked.
        “Because I would kill my half.”
        The group searched his face with curiosity, with anxiety even, but found no light there, no expression that they could read. They fell away from him as from something uncanny, and went into privacy to discuss him. One said:
        “‘Pears to be a fool.”
        “‘Pears?” said another. “Is, I reckon you better say.”
        “Said he wished he owned half of the dog, the idiot,” said a third. “What did he reckon would become of the other half if he killed his half? Do you reckon he thought it would live?”

        Although Pudd’nhead Wilson was probably the first American CDL to use fingerprint evidence to exonerate his client, in typical fashion real justice ended up getting sold down the river.

  3. EH

    The amazing thing about Josh King is that he has managed to get an aura that he is watching out for attorneys, when it is clear from his actions that he’s just watching out for the interests of Avvo.

    I don’t mind the guy–I’ve spoken to him by phone–but it is really bizarre that any publication would drink the “Josh knows what is best for attorneys and is trying to help them” Kool-Aid.

    1. SHG Post author

      I like Josh a lot, but he has a job to do, and that job is Avvo. Anyone who doesn’t realize this deserves what he gets. What amazes me is that he’s invited to speak to ethics (?!?) by bar groups. But then, having seen some of the, ahem, “unaccomplished” people invited to speak to bar groups, I really shouldn’t be surprised at all.

  4. [email protected]

    No matter the rules, we are going to have lawyers who have no problem being deceitful, misleading or whatever you want to call it in getting clients. No pride, no professionalism and no moral compass.

    Hell, we have ghostwriters telling lawyers and lawyers telling me it’s more ethical for a lawyer to have ghostwriters masquerading as lawyers on the blogosphere because lawyers would be neglecting client affairs by blogging.

    Knowing this I wonder how we crack down on what is false and misleading. The volume is overwhelming. And what was once clearly misleading is becoming gray to a lot of lawyers.

    1. SHG Post author

      I used to joke that the internet was the ethics-free zone. I wonder where Josh draws the misleading line? Or if he has a misleading line?

  5. John

    “And 10,000 lawyer websites proclaiming they’re “aggressive, caring and experienced,” not to mention available 24 hours a day and offer free consultations and easy payment plans, makes the “consumers’” job easy-peasy, right?”

    And none of them answer the question “Are you any good?” Someone who has never worked in law has no way of knowing until they learn far too late that their settlement was awful, there contract screwed them, their plea deal was worse than anyone else got, etc.

    1. SHG Post author

      Why yes. That’s the point. But if a lawyer put on his website, “I’m the bestest lawyer ever,” would that help?

      1. John

        Heh, what an ad…

        Nope, it would not help at all. Even if they give their record, it leaves questions open. One criminal defense lawyer in my area boasts of his high acquittal rate (something like 2/3rds of felony trials). Does that mean he is good or he cannot get weak cases thrown out before trial? His web site assures prospective clients he is a great attorney.

        I know! Internet reviews from former clients! There is never a problem with internet reviews, right? [/sarcasm]

        I do like that Flumara ad.

Comments are closed.