The opening confused me.

“The State Bars should get out of the business of regulating marketing because it is something they know nothing about.” – Larry Bodine

That jolted me out of my seat at the MyLegal Case for Social Media Conference last month

This was the opening salvo  from Conrad Saam, marketing director at Avvo.  My mind raced.  Was it possible that even Conrad had been pushed too far, pushed beyond the limits of marketing endurance, and forced to confront the absurdity of the marketers’ position that no one and nothing should stand in the way of lawyer marketing.

The rest of his post brought me back to earth.  Nope.  Not only was his jolt not due to the utter insanity of this proposition, but he embraced it, with both arms and at least one leg.

Across the legal industry there is a growing consensus that the regulation of marketing is causing much more harm than good.  While it was appropriate (and brave) to include a counterpoint to social media at the MyLegal conference by including a presentation from a state bar regulator; but I was aghast by the fear mongering put forth . . .

There’s no source for the opposition that there is a growing consensus across the “legal industry,” but I take Conrad’s choice of words to differentiate what he’s talking about from the legal profession.  If so, then he’s absolutely right.  The “legal industry,” those whose fortunes are made by selling from and to lawyers are at enormous risk of losing their lifeblood, and they are scared to death.  With good reason.

Their fear, however, translates to lawyers, as our right to free speech will likely depend on their persuasiveness and sensibility, not going totally nuts as reflected in Bodine’s argument that bar regulators should stay out of lawyer marketing.  Not a little, but completely. 

The problem is that marketers are neither persuasive nor sensible, and their voices (for some darn good financial reasons) will be the loudest, most strident and most persistent to be heard.  While lawyers are busy practicing law, marketers will be busy saving their gravy train.  And it will be lawyers’ right at stake.  If we had to pick a hero to protect us, I’m not sure it would be Larry Bodine.

My concern about the promulgation of rules, and their adoption by state regulators, is obviously self-serving.  I have a blawg.  It’s possible that draconian rules could put an end to Simple Justice, perhaps by requiring that all posts be approved by a committee before posting.  That would be the end of my posting.  So I have some reason to be concerned by what a bunch of ABA official-types who have no connection with social media will think is a great idea.

But then, these ABA guys, one of whom called his brethren “commissioners” during a recent conference call with Carolyn Elefant, which made him come off as pompous and official as possible, can read.  They see the lies being propagated by the marketers.  They know that lawyers with 12 minutes experience claim to have a stellar record .  Neither the marketers, nor the lawyers who love them, have demonstrated the restraint to stay anywhere close to the truth.  Worse still, they so blinded by self-interest that the honestly don’t see a problem. 

The reaction to deceptive lawyer marketing is revealing:

Frequently, ethics rules are brought about in the name of the (apparently extremely stupid) purchaser of legal services.  Do consumers really need to be protected from the opinions of other consumers about the quality of service?  Are they really so stupid that they think an online rating saying “Bill is the best lawyer” means that Bill is absolutely the best lawyer? As Carolyn writes:  “I am not aware of a single complaint by a consumer alleging that he or she was mislead or deceived about a lawyer’s quality due to customer rating sites.” Why does the legal industry, that already has an image trouble among the general populace, quash that same populace from saying nice (even great, wonderful, awesome, stupendous) things about the legal industry?

While Conrad addresses the specific concern at Avvo for consumer endorsements, the “stupid consumer” view, in one form or another is at the core of the marketers’ argument.  Lawyers lying is not, from their perspective, a wrong.

The argument is a strawman from start to finish, and the ABA “commissioners” will see through it in a flash.  The marketers will pound the table with this point, and persuade no one.  Rules will be made because it is unacceptable for lawyers to mislead and deceive about their qualifications, the quality of their services or promises of outcomes. 

My concerns span websites, blogs and other social media.  The content runs from completely non-self-promotional, such as anonymous, lawprof and public defender blogs, to substantive blogs which, despite the absence of any intention to promote, have some degree of inherent self-promotion merely by including a name, to blogs that offer both substantive content combined with intentional self-promotion, to flagrant and outrageous scumblogs that are pure self-promotion.  There’s a broad gamut out there, and they will all be tarred with the same brush if the arguments are left in the hands of marketers.

The argument that the consumers of legal services aren’t “extremely stupid” has the superficial appeal that even the moderately stupid embrace.  We’re not stupid, you know.  We can tell who’s who and what’s what.  Of course, if that was true, then there would be no reason for lawyers to lie, or hire marketers to help them to it better.  But they do because they believe that consumers are stupid enough to believe their lies.  That’s the whole point of marketing.  As marketing philosopher Seth Godin made clear, wine doesn’t taste better from $20 crystal glasses, and nobody with half a brain thinks listening to Baby Einstein tapes will make junior a genius.   We buy the bull.

It’s been my hope that by scrutiny, e-shaming, applauding the good and calling out the bad, those of us with vested online interests could convince lawyers to make the choice to conduct themselves honestly and with dignity.  I’ve been called a fool by the marketers, and shunned by lawyers who feared that their covert self-aggrandizement would be revealed.  What a surprise.  And so we have a bunch of guys who call each other by the pompous title “commissioner” who deign themselves qualified to make rules for a world they don’t know, and the clothiers of streetwalkers doing everything possible to outflank them.

Concerned, ethical lawyers are caught in the middle.  Being in the middle of two battling armies is usually the quickest way to destruction.  This isn’t a great place to be.   While the marketers have made their position clear, that they don’t believe that bar regulators have any business regulating online content, they do not speak for me.  The internet presents monumental issues for legal ethics, and lawyer marketing is an ethical quagmire.  But I do not want to lose my ability to express substantive ideas because lawyer marketers are leading the charge.  And I fear that they will do so badly, and my rights will be lost.

Update:  Kevin O’Keefe, head honco of Lexblogs, posts that the ABA Paper from Ethics Commission has no implications on law blogs.   After discussing the implications, Kevin notes:

Even if new ethics rules are passed regarding blogs, and that’s no sure thing, we’re likely looking at four or five years before we’ll see them.

Unless it takes less time.  But that’s how it looks through the eyes of a guy who sells blogs.  So maybe I’m worried about nothing.