Since Larry Bodine put out his Red Alert post that the sky is falling because of the ABA’s Ethics 20/20 commission. there’s been a flurry of posts by legal marketers.  Some merely adopt the assumptions for lack of any actual knowledge, a defect that rarely concerns a marketer, while others try to counterprogram their message, eating their own to fill the void.  There’s no honor among thieves.

In the meantime, I received an email from my Houston buddy Mark Bennett  last night with a Google search that blew me away.  He searched for the phrase, “I founded this firm on a commitment to set the standard.”  The search returned 22,500 hits.  Lawyer websites all, using the same words to promote themselves.  By the end of the day, there may be more.

I feel a sense of guilt about all of this.  On page 12 of the ABA’s missive, three cases are cited.  The first, Stern v. Bluestone, was mine.  The point of the case was that a substantive writing by lawyers, which contains the lawyers name and identifying information such as office address, telephone number and website, is protected First Amendment speech and not a commercial solicitation.  It’s rather amazing that I, of all people, take ownership of one piece of the law upon which the marketers rely.

As becomes painfully obvious when a lawyer tries to prepare a website, there is only so much to be said about us.  I’ve ridiculed this in the past, noting that we are all “caring, experienced and aggressive.”  It’s a big inside joke.  The marketers, even the ones who have JDs after their name, which by definition means they either failed in the law or were caught doing the dirty and disbarred, spout formulaic rhetoric. 

They don’t want their buyers to know that they have nothing to offer.  They don’t want you to do a Google search.  Even accounting for variations on the phraseology, not to mention the occasional misspelling, there is absolutely nothing to be said that won’t be said by thousands of others.  No, you won’t be special.  Not at their hand, at least.  And these are the legitimate marketers, the ones imploring lawyers to be “authentic” and “genuine,” as meaningless and nonsensical as these words may be.

The problem isn’t that the vast majority of lawyers who employ the services of marketers to create their websites and blogs are receiving worthless, cookie-cutter services at significance expense, as if they are getting bespoke efforts.  They don’t do a Google search, as Bennett did, to see whether there are tens of thousand of other lawyers whose websites say the exact same thing.  The marketers anticipate that any lawyer foolish enough to hire them are similarly too lacking in technological savvy to realize they’ve been had.

The problem is that fraud is pervasive.  Online marketing has become a cesspool of lies, lawyers claiming to be something they aren’t.  There are the wiggle words, like “experienced,” the claims that take advantage of consumer ignorance and play on hope and fear, such as “we get over 90% of our cases dismissed,” or the absurd hyperbole, like the “leading trial lawyer in America.”  And it gets worse, with honors bestowed by non-existent organizations, or testimonials by first name only “clients” who rent the next desk in the rent-by-the-hour office space.

Lawyers are doing all these things.  Lots of lawyers.  They need business and do what they have to. 

The latest spin in the online juggernaut amongst those marketing to the legal profession relates to return on investment.  There is none, which presents a real problem when a lawyer asks the marketer what he gets in return for the marketers’ fee.  The best response thus far is that the ROI is intangible, and anyone asking is missing the whole point of the glory of internet marketing.  Let all the other lawyers make their millions while you stand on the sidelines asking stupid questions:

I mean, why not hold back when you know it will allow your competitors to gain a foothold in the relationship-building spaces we call Social Media?  Also, don’t go to any of those networking events you were intending to go to.  Leave those for your competitors too.

Networking and meeting people?

Leaving an impression with people?

Helping people understand what you’re like as a person?

Helping people see what a great listener and conversationalist you are?

No, no, no…don’t you dare do those things until you can measure every inch of them because it’s much wiser to let your competitors do it first.

Buy now! Don’t wait!  Don’t be left behind!!!  Some lawyers think they’re reasonably intelligent, yet they fall for such nonsense.  Sadly, far too many lawyers aren’t very smart and fall easily for every half-baked bit of silliness that makes them think they can make a buck.  And will allow, if not encourage, marketers to manufacture a completely false online persona if it brings them a case.  It may not be that the want to be a liar, but that everybody’s doing it and they don’t want to be the only lawyer who stands on principle.  You know, the lawyer out on the street selling apples while all lawyers with websites are rolling in dough.

So the ABA is now going to help.  In a sense, Bodine has the better part of the argument, as they will throw the baby away with the bathwater.  I have a blog.  I don’t intend it to be self-promotional, but it can certainly be spun in such a way as to make a credible argument that it is.  Whatever the mandarins at the ABA come up with will likely apply to me, constrain my speech.

I will suffer because others lie.  My speech will be constrained because marketers can’t control themselves.

Brian Tannebaum is willing to pay the price, and Antonin Pribetic decries the marketers’ complaints:

Quite frankly, I am most astounded by Bodine’s phrasing, “ethics burdens on marketing”. Ethics are not a burden, they are a blessing to those who value honesty, integrity and professionalism. These are the hallmarks of what it means to be a lawyer. Whether you are a practicing or non-practicing lawyer, unless you have voluntarily withdrawn or resigned from the legal profession, you are bound by your duty to your clients, duty to the court, duty to the profession generally, and duty to the public. If you’re a “former lawyer qua legal marketer”, until legal marketing actually becomes a recognized profession—subject to licensure, a code of professional conduct and regulation—ethics will remain elusive, unknowable and inconvenient.

I’m less sanguine about the end result.  The ABA group lacks anyone with any in-depth knowledge or understanding of the digital world as far as I can tell.  They will see it from a distance, seeing only the superficial.  There will be the entreaties from the marketers, which will be immediately recognized as vapid rhetoric, the sort that marketing lawyers eat up and then spit out.  Even inchoate lawyers, the babes in law school who think they are cutting edge, are being indoctrinated into this nasty world.

My expectation is that the ABA will address this very real problem with a very big bludgeon.  Not because they don’t realize that a scalpel would work better, even if they don’t know quite where to cut, but because it would be impossible to vet every website, every blog, every twit, for the nature of its content.  The volume renders it impossible to do otherwise.

As Brian notes, the marketers have brought this upon themselves.  They have brought this upon all of us, whether we’re intentionally marketing or not.  I am angry about it.  I don’t want my speech constrained because they’ve had a free hand in crafting an internet filled with lies and deception, but something has to be done about the ethical cesspool.

There will likely be proposed that a bunch of disclaimers to be placed on everything internet.  There may even be some submission and approval process, that will tie things up for long enough to make it impossible for blogs to stay current.  Heck, it may make it impossible to do anything unless the blog is truly anonymous, thus eliminating any conceivable claim that it’s self-promotional.  And yet it probably won’t fix the false claims and misleading innuendo that comprise the bulk of lawyer marketing based upon sufficiently vague claims.  Whatever the rules, those inclined to skirt them will do so.  The effort to circumvent ethics will never go away.

The crux of commercial speech is that it addresses the availability and/or quality of goods or services.  The argument that a blog showcases the quality of a lawyer’s thought is sound, regardless of whether it serves to market (despite the absence of any ROI) the lawyer’s services.  No one, including me, is going to be able to get away from that spin.

For a few years, some of us tried very hard to keep the lid on the self-promotional aspect of the internet, the race to the bottom, the next worst effort to score a case at any price.  During that time, I’ve watched once proud bloggers fall into the abyss, new bloggers by the score put on their hot pants and strut down the boulevard and well-intended but lost lawyers do what they think they must to survive.

Larry Bodine is right about one thing.  I can’t blame the marketers and ignore the lawyers.  Granted, they have been sold a pack of lies, but they are big boys and girls, theoretically capable of knowing better and making a choice to uphold the ethics and dignity of their profession.  No one forces a lawyer to lie.  And yet they do.  We will all pay the price for it.

Update:  Via Nino, marketer   twits (of course, even though she ) her reaction to this post: