At My Shingle, Carolyn Elefant takes note of a website, Docracy, that has the technology to track changes to terms of service at sites such as Facebook and Twitter, so that they can’t slip something in there (like use of their service permits them to seize your first born at will) without you knowing. Cool, right?
But the TOS Tracker also got me wondering about another lawyer-related question: should bar regulators employ technology to monitor or audit law firm websites?
Docracy’s TOS tracker makes fairly clear that the technology needed to track changes on websites is readily available and not all that difficult to develop or implement. Presumably, designing a site crawler for lawyer websites would be even easier for a bar regulator since it could require lawyers to pre-register their sites, and therefore, the tool would not even have to locate the sites, but simply monitor and ping any changes. Eventually, states might refine a tracking tool so that it would not simply report changes and updates for review by a regulator, but could evaluate compliance and highlight violations.
Carolyn wonders whether lawyers will think this is a good idea. I would expect a great many lawyers will hate the idea, which is why it’s a great idea.
One of the aspects of internet marketing for lawyers that safeguards the sleaziest, most deceitful of tactics is that there are far too many websites and flawgs for any disciplinary authority to track and review. Let’s face it, the handful of people who are charged with keeping lawyers relatively honest are busy with defalcations and sexual liaisons, and don’t have the time to spend their day surfing the internet to look at page after page of lawyer fluffery. Even if they did, there aren’t enough days in the week, weeks in the year, to make a dent.
On top of that, websites and flawgs are dynamic. What may be fine one day descends into the gutter with the next post. It’s a constantly moving target, and would require constant vigilance. It’s more than anyone can expect of disciplinary staff.
But if there was a program that sent webcrawling bots around the internet, with magic bot eyes to look for keywords and phrases, inclusions or omissions, that would trigger a red flag, these bots could do what human eyes never could.
While Carolyn is intrigued by the notion, she’s hardly ready to commit.
Still – even though the concept of techno-driven ethics enforcement intrigues me, don’t think for a minute that I would ever endorse it. Putting technology tools in the hands of a state enforcement agency is risky business. One need look no further than the way that municipalities have converted red light cameras into cash cows to fill their coffers to get a sense of where technology-enabled ethics enforcement might lead if applied to lawyers. Plus, I can’t think of anything other than a 6 month stint in Antarctica that would chill lawyers’ First Amendment protected speech as much as a techno-driven ethics oversight program.
This concern is certainly valid, but seems fairly easy to address. While Carolyn is thinking of the bots as not only identifying potential ethical violations, but evaluating compliance on their own, it seems to me that the role could be far more limited, just raising red flags of potential violations, which would then be kicked to the disciplinary staff for review. In other words, the red-light camera issue wouldn’t arise because there would never be a violation found based solely on a bot’s say-so. Indeed, without a due process component, which is wholly missing from red-light camera violations, nobody should be found to be in violation of anything.
Of course, this may still prove to be too onerous for disciplinary staff, given the ubiquitous nature of dubious marketing content from lawyers. That raises a different problem, whether ethical violations (and bear in mind that ethical violations are the bare minimum demanded of a lawyer, reflecting such low ethics as to require sanction) are so numerous as to defy evaluation. That doesn’t speak well of us, kids. The question is whether it’s too late, whether there are too many violators out there in the ether, to undo the damage now.
My thought is that it’s going to be hard to change the course of internet marketing as it’s been deemed an ethics-free zone for so long, and so many new websites and flawgs are popping up daily, as to make it extremely difficult, if not overwhelming, to clean up the mess. But we’ve got to try, and if handled both adeptly and with clarity, and results in either sanctions or shaming of sufficient severity as to make lawyers fear being the next one caught so that they go back and straighten out their own house, we may be able to right this ship.
On the other side, the internet could be viewed as freshman year away at college, where all the children get wild and crazy because they’re on their own for the first time in their life. By the middle of sophomore year, they’ve gotten much of it out of their system and are ready to hunker down, eat properly, get a good night’s sleep and stop binge drinking. Maybe lawyers will mature and grow beyond the wild, undisciplined nature of internet marketing. Maybe lawyers will embrace a culture online of honesty and integrity, making the personal choice not to walk the streets in hotpants in the hope of a $20 retainer. Maybe?
As President Reagan said, hope for the best but prepare for the worst. While I hope that lawyers grow up and stop binge marketing, having the bots around to keep them honest won’t hurt. Marketing lawyers will hate the prospect of being outed by techno-school marms, but others will welcome the return of a little integrity and something to stop the race to the bottom. I certainly will.