Just as there remains a large swathe (overly large in some eyes) of the blawgosphere dedicated to lawyers servicing other lawyers’ needs to “package” and market their online personas and make the “best use” of “social media” on the internet to obtain business, there is a concomitant duty to be responsible and honest when doing so.  (Even law students are consumed by this social media trend, when they would do better spending their waking hours learning how to be lawyers rather than lawyer marketers.)  This duty is constantly being pushed to the edge, and often beyond.

One of the major arteries on this road to ethical perdition is Avvo, with its love/hate relationship with the bar as well as legal marketers.  Those lawyers and marketers who benefit from Avvo’s existence say kind things.  Others castigate it.  Both are wrong from the perspective of a businessperson, since Avvo’s only interest is to draw more eyeballs and monetize them.  Even critics (and I have been known to be critical of Avvo on occasion) help by drawing attention to it, adding to its credibility by posting about it and sending more eyeballs its way, even if only to watch the car wreck.

But as Avvo Marketing man, Conrad Saam, claims now that Avvo is “closing in” on Lawyers,com, a new issue arises that flies in the face of its claims and calls into question its accuracy and vitality.  When New York lawyer, Steven Lever, was outed as the first known child sex offender to retain his law license, Eric Turkewitz put two and two together and noted that Avvo still had Lever listed as being of no disciplinary concern.  Either Avvos idea of concern differs from most of us, or this is a systemic glitch in their system.  I trust the latter.

This glitch reveals, however, and gaping hole in the Avvo process.  In New York, lawyer discipline is a private matter unless and until a departmental disciplinary committee has determined that an attorney has violated the Code of Conduct and determined the proper sanction to be either disbarment or public reprimand.  This is a hole so big that you can drive a Mack truck through it.

The problem is two-fold.  First, an attorney who has been the subject of a few, or dozen, or hundred, disciplinary complaints will continue to be viewed from the outside world as being of “no concern,” to use Avvo’s phrase, to the consumer seeking to determine whether to send in the retainer check.  As investigations can pend for years, these are years of “no concern” when there is plenty of concern, tons of it, and the consumer won’t have the slightest clue.  And the more complaints, the longer the investigation, and the longer the attorney avoids the potential for public consequences that would reveal the problem to the world.

But, you say, since the disciplinary committee has yet to determine that the complaint has merit, and there are certainly many complaints filed that are utterly meritless and, worse still, used for the improper purpose of trying to extort the return of fees from lawyers, so it would be unfair to taint lawyers with unproven accusations.  There is no doubt this is true, and the rationale for keeping unproven complaints private is strong.

On top of this, the range of sanctions available for disciplinary violations includes censure and private reprimand, as well as fee dispute arbitration, which comprises the vast majority of sanctions imposed and never sees the light of day.  This means that an attorney could well have been determined to violate the Code many times, but there is no public record available.  This too is an appropriate tool, as some violations are anomalies, trivial or so highly unlikely to ever happen again that any public disclosure would result in a strong possibility of unnecessary and inappropriate taint.  Of course, that’s in the judgment of the disciplinary committee, but the alternative would be the judgment of the public/marketplace, which isn’t always capable of assessing the relative significance of a minor disciplinary violation.

The problem doesn’t arise because the departmental disciplinary committees don’t reveal mere allegations, but from one additional fact that is totally outside its control.  Businesses like Avvo take the initiative to assert an affirmative position on an attorney’s ethics and disciplinary record by its “no concern” statement.  They intentionally state this to an unsuspecting public as part of their business model of being the “source” for accurate information about lawyers. 

The combination of these two things, private proceedings and sanction, and Avvo’s public affirmative claim that an attorney poses no concern of disciplinary or ethical issues is what creates the dilemma.  It promotes a belief in the public that an attorney has been given a clean bill of health when the truth is the opposite.  It promotes a lie.

Now some Avvo wag might respond, so how do we do better if the state’s won’t tell us that there are complaints or sanctions against an attorney unless they go public?  Hey, this is your business model to make you money, not mine.  I’m not getting the big bucks from Avvo to figure out how they can run their shop without running into trouble, so don’t ask me how to fix your problems.  I don’t have an answer on the tip of my fingers, and have no plans on spending the time it would take to try to come up with one on the cuff.  But since this is your business model, and you’re the ones depositing those advertising checks, deal with it.

And as long as I’m thinking about Avvo and the lawyers who love it, allow me one more beef: One of the newer come-ons is Avvo’s Legal Guides.  These are lists or short essays by lawyers that purport to provide “how-to” information about the law to non-lawyers.  The lawyers who post these guides do so as a promotional tool, to further their facetime before potential clients and build a reputation as a Helpful Lawyer, Thought Leader and Maven.  It’s free to the public, and the public gets their money’s worth.

I’ve read through a few of these guides.  Some aren’t terrible.  Some are downright dangerous.  None are appropriate.  I realize that the public hates the fact that competent lawyers actually do serve a purpose, since that means they would actually have to pay for competent counsel, but that’s just the way it is.  There’s no “how-to” list for do-it-yourself brain surgery for a reason.  Some things are better left to people with a clue.

These legal guides are no doubt popular with members of the public who would prefer not to shell out bucks to a lawyer.  They are similarly popular with lawyers who, after 12 minutes of strenuous effort, can produce a “guide” that smells like it should be helpful to someone who knows nothing about the legal system, and just happens to simultaneously allow the lawyer to become a hero to the great unwashed.  And the great unwashed, once they have employed the guide to defend their own federal prosecution, will most assuredly need a lawyer to clean up with horrible mess left behind, hopefully turning to their hero for solace and defense.  For a fee.

Some may
claim that this is what we don in blawgs all the time, and it’s true.  However, blawgs are subject to peer review and scrutiny, and when we discuss a subject and miss the mark, there are a few hundred thousand lawyers out there who can gently explain why the advice may be wrong.  Or how it differs in another jurisdiction, a whole different problem that pervades Avvo’s simplistic approach.  Avvo’s guides have places for comments, but why would any lawyer read them?  I only know they exist because Avvo CEO Mark Britton promotes them on twitter (thanks Mark).

The marketing mantra is that all of this empowers the public by providing access to information.  Information is one of those loaded words that is perceived as invariably good.  The problem is that false or inaccurate information can be a killer.  Literally.  When it’s Avvo that’s spreading misinformation, then it’s Avvo that’s responsible.  And when it’s lawyers who, in the name of self-promotion, are providing the misinformation that Avvo spreads, they’re complicit.  

Is the price of self-promotion worth it?  For Avvo, it doesn’t matter.  Avvo is a business, and it will take its eyeballs and deposit its advertising checks from wherever they come.  For Avvo, it’s truly “no concern.”