I realize that there are many in the blawgosphere who think Kevin O’Keefe, Lexblog honcho and the Head Cheerleader of Blogging, bears much responsibility for all the really bad blogging that has gummed up the works, cluttered up the blawgosphere and enabled unworthy and incapable lawyers to use the blawgosphere for crass commercialism. I disagree.
While Kevin provides the tools, he also has been a strong advocate for using the tools properly. Granted, he may encourage lawyers to blog for the wrong reason (in my opinion), and perhaps his methodology is a bit over the top (using blog names that tend to grossly exaggerate his customers’ relative merit), but he’s got a business to run. At least he emphasizes that a blog without substance is a failed blog, one that will never bring in business and never receive recognition. I’ve always respected Kevin for this.
But now he’s gone off the reservation, and this isn’t the Kevin O’Keefe I know and love like.
This week the State of Connecticut began hearings on whether five attorneys violated state ethics rules by participating in an Internet advertising program run by Total Attorneys.
Cast in the light of protecting consumers, Connecticut’s action is another step backward for consumers and the lawyers who serve consumers by providing legal services at reasonable prices.
Unlike Carolyn Elefant, whose concern was for the five solo practitioners who have been targeted as the scapegoats for Total Attorneys’ total impropriety, Kevin hops on the marketer bandwagon to back up the business interests whose existence depends on desperate lawyers willing to wear short shorts and walk the streets.
The arguments in favor of Total Attorneys are fairly straightforward. First, the complainant, Zenas Zelotes, is a lawyer, not a consumer, meaning that he’s a bad man for complaining. Second, the fee-splitting arrangement offered by Total Attorneys to any lawyer desperate enough to pay for their services, is just a hop, skip and jump down the road to perdition from Goggle Adwords, as if Google Adwords is the paradigm of legal ethics. And third, all the other really cool marketers are already on the bandwagon.
The arguments in favor of Total Attorneys are fairly straightforward. First, the complainant, Zenas Zelotes, is a lawyer, not a consumer, meaning that he’s a bad man for complaining. Second, the fee-splitting arrangement offered by Total Attorneys to any lawyer desperate enough to pay for their services, is just a hop, skip and jump down the road to perdition from Goggle Adwords, as if Google Adwords is the paradigm of legal ethics. And third, all the other really cool marketers are already on the bandwagon.
Several well-respected, web-savvy legal professionals have chimed in to defend Total Attorneys and the five Connecticut lawyers who stand to face disciplinary action, including Larry Bodine, Carolyn Elefant, and Avvo’s Josh King. Bob Ambrogi has been following this story as well, pointing out that “these complaints point to the lack of clarity and consistency in the rules of conduct governing lawyers.”
Just to avoid the fuzziness of this paragraph, Carolyn Elefant has defended the five scapegoated solos, not Total Attorneys, and Bob Ambrogi has written about it in his capacity as chronicler at Legal Blog watch, not as partisan, and has not taken Total Attorneys side. Kevin does find comfort in the views of Larry Bodine and Josh King, who calls limitations on lawyers walking the streets:
The vestigial remains of the courtly days before lawyer advertising, these rules are typically a mix of picayune detail and over-expansive reach, an attempt at lawyer exceptionalism in our 21st century media landscape.
Bodine just calls the whole thing “zany“, employing the slippery slope argument to suggest that as long as lawyers are already whoring around, why not just let flash a little thigh so that marketers can make a living too.
There isn’t a single argument proffered that holds up to scrutiny. What difference does it make who brought the complaint or how long the complaint is (since everyone mentions that it’s 303 pages long)? Why should the fact that lawyers have stepped onto the slippery slope compel them to slide down to the bottom? But most importantly, the argument that there is no harm to consumers is wrong. Whenever there is a lack of honesty about how and why a consumer is directed from a search to a lawyer, forgetting for the moment that the website gets paid for the referral, there is harm. Dishonest by lawyers is inherently harmful to everyone involved.
Who amongst the marketers is willing to step forward and champion the notion that lying lawyers is fine with them? I know you believe it, but not one of you has the guts to come out in the open and admit it. It wouldn’t blend well with your carefully crafted online warm and fuzzy personas, now would it?
And if that’s not a good enough reason, how about this. Consumers are mislead by websites that use their wham, bam, spam and search engine optimization to steer clients away from competent, reasonably priced, honest lawyers and into the hands of lawyers who are happy to fee-split for the privilege.
Houston criminal defense lawyer Mark Bennett spelled out the issue as clearly as can be:
There isn’t a single argument proffered that holds up to scrutiny. What difference does it make who brought the complaint or how long the complaint is (since everyone mentions that it’s 303 pages long)? Why should the fact that lawyers have stepped onto the slippery slope compel them to slide down to the bottom? But most importantly, the argument that there is no harm to consumers is wrong. Whenever there is a lack of honesty about how and why a consumer is directed from a search to a lawyer, forgetting for the moment that the website gets paid for the referral, there is harm. Dishonest by lawyers is inherently harmful to everyone involved.
Who amongst the marketers is willing to step forward and champion the notion that lying lawyers is fine with them? I know you believe it, but not one of you has the guts to come out in the open and admit it. It wouldn’t blend well with your carefully crafted online warm and fuzzy personas, now would it?
And if that’s not a good enough reason, how about this. Consumers are mislead by websites that use their wham, bam, spam and search engine optimization to steer clients away from competent, reasonably priced, honest lawyers and into the hands of lawyers who are happy to fee-split for the privilege.
Houston criminal defense lawyer Mark Bennett spelled out the issue as clearly as can be:
Am I engaged in “an attempt at lawyer exceptionalism”? Absolutely. 21st Century media landscape or no, lawyers are, and should be, exceptional. We have been given gifts—above-average intelligence, the opportunity to receive an advanced education—that the vast majority of people could never hope to receive. Further, society has given us a protected franchise: if an ordinary person tries to practice our art, he can go to prison. People entrust us daily with their lives, their fortunes, and their freedom.I see that Kevin neglected to make note of Bennett’s post before jumping on the marketer bandwagon. Maybe Kevin missed it. Did you miss Bennett’s post, Kevin? Is that where you went wrong? Maybe you should forget about adding the twinkie contingent to your blogroll and spend more time listening to real lawyers? Exceptional lawyers.
Surely, in light of the exceptional advantages and responsibilities we’ve been given, it’s appropriate that higher rules be applied to lawyers than to those hawking Ginsu knives?
No. The marketers think that the same rules should apply to advertising lawyers as to used-car salesman. Law, to them, is a business governed by the rules of business, rather than a profession governed by its own higher rules. In the minds of the marketers that’s just peachy, since law-as-profession is just another way of saying “lawyer exceptionalism.”
Of course, it’s true that the elimination of ethical proscriptions on all the things that make it harder for the least competent, least ethical, least worthy lawyer to get clients would benefit the lowest echelon of the legal business. And why not, marketers implore, since the competent, ethical and worthy don’t need their services, instead having clients seek out their services because of their reputation for excellence.
Kevin used to tell lawyers who used Lexblog to be excellent. He used to tell them that the way to success was to demonstrate the finest qualities that a lawyer could possess on their blogs. That was the sort of advice, if not command, that flowed from the brain of the Kevin O’Keefe I knew.
Who stole Kevin’s brain? Please give it back. Immediately. He needs it. And so do the rest of us.
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Scott,
Thank you for reading my post accurately. You are right, that I do feel badly for the attorneys, but I also must confess that I don’t think that Total Attorneys’ service, as currently devised, violates Connecticut’s ethics rules, though I admit it’s a close call.
However, unlike you, I do not fear that these kinds of “aggregator” companies will dominate the market and steer clients away from exceptional attorneys to mediocre ones who are willing to “pay to play.” If you search “criminal defense lawyer” and “New York” your blog (which links to your law firm website) comes up on page 1 of Google, right near the top. Same with Mark Bennett for “criminal defense lawyer” and Houston. I know that neither one of you blogs to market your practice, yet by educating the public and sharing your views and analysis, you are beating the marketers at their own game.
Bar grievances against companies like Total Attorneys are problematic because they have a chilling effect, and deter many lawyers from engaging in ethical conduct that might help to education clients. I would much prefer to see online businesses falter through market forces – if marketing companies don’t deliver the goods, then lawyers won’t use them and they’ll go out of business. To me, this is always a preferable option to regulation, unless an activity puts consumers directly at risk.
Like you, I’m against any chilling effect. I’m hoping for a freezing effect. I realize that you want a viable way for solos to find business and succeed. This just isn’t the way.
The problem I have with allowing market forces to prevail is that market forces have no relation to ethics. It’s appropriate for businesses, but not professionals, where ethical precepts come before facile marketing practices. Day by day, we become less of a profession, all in the name of making it easier to sell our wares.
We stepped off the slippery slope already, and with each new step, we get further away from professionalism. I’m arguing for a conceptual ledge, a place to stop the slide. That marketers, those who have no concern for lawyer ethics though they may try to couch their arguments in those terms, have anything to say in this discussion at all is absurd. And someone as smart as Kevin should know this.
Where is the dishonesty being condoned if we don’t stop Total Attorneys and the lawyers who use their service? Is it that consumers don’t know what the terms of the lawyer’s deal with Total Attorneys is or that lawyers pay Total Attorneys to get work?
If that’s it, I’m not sure where that’s damaging our legal profession or the public we’re called upon to serve.
Don’t get me wrong, I’m not endorsing Total Attorneys service, Google Adwords, or some of the other Internet services where lawyers advertise to get work anymore than I would champion yellow page ads, billboards, and TV ads from lawyers brokering cases to other lawyers.
There’s far better, and usually more tasteful ways, to get legal work that focus on helping people and highlight the skill and experience of a lawyer.
But if some lawyers want to use these services, and maybe I am dumb as a rock, I don’t see the harm to consumers and the legal profession.
My problem is that you are most definitely not dumb as a rock. In fact, you’re one of the smartest guys around, which is why I have such respect for you and have gone out on a limb to help you find that stolen brain of yours. Damn thieves.
Do the customers via TA know that the lawyers do nothing more than split a fee for service? Do they know that someone who has never done a bankruptcy before could pay the tare and get referrals? Do they know that the better quality attorneys don’t use TA as a referral source? Do they know that the attorneys to whom TA refers cases might increase their fees to cover the split they kick back to TA? Do they know that they could get better, less expensive lawyers by not using the TA referral base? Do they know any of this?
I know you don’t condone lawyers who lie, cheat and steal. I know that you care about ethics. I know that you are all about substance and competence. So what the hell are you thinking?
I agree with all of what you’re saying as to what consumers don’t know about finding the best lawyers. I wish more lawyers gave a dam, weren’t so lazy, and did something about it.
When I came on the Internet in ’96 I used AOL. I answered 1,000’s of consumers questions on injury law related matters. Much of my effort was related to helping consumers know they could see the best and brighest lawyers in their town for free and that they could often get the best lawyer at the same cost as a much inferior lawyer. Consumers had not a clue.
I wish to hell we could get more lawyers using the power of the Internet to help educate consumers as to what’s really going on. But my fear is most lawyers don’t care and are just concerned with making a buck, no matter how they can get it.
I’ve gotten to know the principals of TA and some of the lawyers who use them. Though they are all out to make a buck (you and I are too) they appear to be stand up people who have the support of other people who I respect a good deal.
State bar associations all have referral services by which lawyers pay to get cases. The only requirement the state bar’s have is that the lawyer is alive, they have a license, and that their money is green. Lawyers without the ad budget of the big boys get work this way. I did when I was starting out almost 30 years ago.
Though I may not use TA if I were practicing, I do not see the harm in their succeeding that you do. I see more harm in states stopping services which may allow lawyers who don’t have long established reputations and large ad budgets from getting work.
Your stuck on the notion that lawyers need to roll in the mud to survive. We don’t. Get rid of the ad budgets and represent your clients. The better lawyers will get more clients and higher fees. There’s a reason for it. The less experienced will get fewer clients and lower fees, but they will have the opportunity to prove their worth by providing excellent representation. The clients and fees will come once they earn them.
Or, they can pay TA to get them clients. Like a pimp.
If a lawyer is too lazy to represent his client well, then maybe he shouldn’t have clients. Maybe he shouldn’t be a lawyer.