If you call a tail a leg, how many legs does a horse have? Four, calling a tail a leg does not make it a leg.

— Abraham Lincoln, 16th President of the United States of America (1861-65)
[email protected], @AbrahamLincoln

Almost two weeks ago, I learned the fate of Virginia criminal defense lawyer Horace Hunter, who became a center of attention for getting into trouble for self-promotional posting on the interwebz.  My old pal and former TV soap opera star, Ken Lammers at CrimLaw announced the decision, reversing the Virginia state bar’s finding of misconduct. 

It was the right decision in a matter where pretty much everything that happened, both from Horace’s side as well as the state bar’s, left the rest of us stupider for having learned of it.  You see, the issue arose from Horace’s posting as “news” his glorious wins in order to market himself to potential clients. 

Horace defended his conduct as blogging.  The state bar disciplined him for blogging.  The blogosphere was atwitter over this decision about blogging. Except none of this had anything whatsoever to do with blogging.

The only reason this was of interest before was because Horace, being monumentally disingenuous, chose to call his flagrant marketing a blog, and the Virginia bar folks, proving the old axiom that anyone who serves on a disciplinary committee looks like a prune and smells funny, didn’t have a clue what Horace was talking about, so perpetuated the error.  Out comes a ruling relating to “blogs” which could just as easily have been issued if “blog” was the name of Horace’s pet iguana.

While I have chosen to read select blawg that further my knowledge and keep me abreast of vital information, which is why I read Ken’s blawg and how I knew almost two weeks ago about Horace’s win (and the decision, by the way, was quite correct, even though Horace is too smarmy for my taste), it became clear yesterday that neither civil lawyers nor social media gurus have nearly as firm a grip on the internet as they think.  Nor, for that matter, do they read Ken Lammer’s blawg.

Instead, the old news of Horace Hunter’s win hit the fan, with Bob Ambrogi, Kevin O’Keefe,  Will Hornsby and  Max Kennerly having a Pavlovian response to the word “blog.”  It was like a bloodbath, where critical thinking was unmercifully slaughtered, thus compelling me to clean up the mess left behind by those who not only stumble upon a bit of mildly curious news, but then announce that they’ve discovered a five legged horse.

As a fan of the First Amendment, with the reservation that lawyer advertising is slimy and has caused the race to the bottom, this ought to be cleared up lest the stupidity spread and infect the dialogue further.  Horace Hunter was not a blogger. Horace Hunter did not have a blog. Horace Hunter was engaged in commercial speech to market himself, and nothing about his speech bore any connection to blogging.

In a comment to Kevin’s post, Will Hornsby, whose blog, Boundaries of Legal Marketing, purports to be the arbiter of legal marketing ethics, left this comment :

The problem with Hunter is that if you focus on the content of the communication that was the subject of the discipline, i.e. This Week in Richmond Criminal Defense, it would appear to be political discourse and not commercial speech, as opposed to the rest of his website. Hopefully Hunter appeals this and the outcome will be a determination that a blog is simply a neutral platform that could be used for advertising, but doesn’t need to be, and that it depends on the content. 

Rarely does a comment go so bizarrely wrong to quickly. The title of a webpage is not content, and the content is not “political discourse” because the title suggests it should be, any more than a marketing website is a blog because it’s owner calls it that.  

Hornsby’s argument, that a “blog is simply a neutral platform” is nonsensical. A blog is a blog; a web log, a platform for substantive communication. It’s appalling that Hornsby, who works for the ABA, promotes the idea that blogs ought to be unadulterated self-promotional garbage.  Yet he does, and can be found playing blogging ethics guru at almost every legal marketing conference around.

Kennerly takes a more aggressive posture, ignoring the fact that commercial speech is already defined and railing against the Hunter decision’s requirement of disclaimers. Arguing that no one pays any attention to disclaimers (which is likely true), Max argues that no one is stupid enough to be fooled by the sort of insipid marketing used by Hunter. 

What he means by that is he isn’t fooled, and therefore no one else could be. The argument has superficial appeal, given Max holding himself out as the barometer of stupidity, and yet in the criminal defense niche, we see defendants constantly believing that some other defendant’s win means they should win too.  There is no bottom limit to how stupid a criminal defendant is allowed to be.

Kennerly calls this “ethics theater,” which is a good name for it, and argues:

To which I say: so what? What hypothetical client out there didn’t know that cases were different but now realizes there’s no guarantee of success in any legal matter? And what’s to stop the lawyer from later implying or outright stating to the client some form of promise or assurance or guarantee of a particular outcome?

His answer is to do away with disclaimers and instead…do nothing? He complains that biglaw does the same thing and nobody says “boo.” He complains that disclaimers don’t work and so why bother. He complains that the prohibition on deception should cover it all anyway.

It’s ethics theater, it’s not a real solution to the problem of unrealistic client expectations (or of deceptive advertising).

So  ban marketing altogether? Max says, please lord, not that :