Deception, Once Removed

Once a week, an email comes in announcing the greatest way to get new “leads” ever. All I have to do is hitch my reputation to some internet scheme that blatantly lies to the public, and clients will flock to me.  One of my favorites is this:

So what if the scheme is deceptive, since it’s not me saying these things, right?  After all, some non-lawyer (or new lawyer) decided to dwell in the gutter of entrepreneurship, and they’re the ones running the scheme. The lawyer just signs up to get cases. He has no say about what the scammers are doing.

Well, thankfully, the Indiana Supreme Court held that the lawyer is responsible for the deceptive and unethical practices of the lead-gen website scheme to which he lends his name, his reputation and support.  In the case, it was a website called “Law Tigers,” and as these schemes go, it was remarkably mild.  The basic hype.

The Law Tigers website contained examples of previous results obtained by “Law Tigers Motorcycle Accident Lawyers,” boasting “Exceptional Results: Settlements and Verdicts.” A tab led to “Client Testimonials” from persons who claim to have utilized Law Tigers in seeking advice and/or representation regarding a motorcycle-related legal matter. Such testimonials included: “Law Tigers changed my life in a big way and my family received our fair share of justice.” “Law Tigers went above and beyond! The settlement was more than expected!” “The legal services were fast and painless and the best experience I have ever had with lawyers and lawsuits.” Although none of the settlements, verdicts, or testimonials related to Respondent, the website did not disclose that they did not relate to Respondent.

At My Shingle, Carolyn Elefant saw the sky falling, asking whether this spells the death of legal start up matchmaker websites.  While Carolyn doesn’t question that the content is deceptive, she challenges its impact:

It is difficult to imagine a client so stupid as to associate a generic testimonial with Respondent’s service or so passive as to not inquire about the “Exceptional Verdicts and Settlements” advertised. In today’s internet world, clients have never been more savvy or educated, but to the court, they’re treated like a bunch of morons.

This argument not only fails for its multitude of false assumptions and logical fallacies, but because it’s irrelevant. Whether or not lying is effective (and it is, as most of us are unfortunately well aware), it’s still lying.  And lest this not go unsaid, lies aren’t necessarily framed to appeal to the “stupid,” but the unsophisticated.

Lawyers do not get to free-ride on the backs of entrepreneurs to avoid their ethical duty to not deceive.  Sign on to benefit from a lie, and the lie is yours. That this should be controversial at all is rather shocking.  More to the point, few lawyers fear being caught, because of the perpetuation of the internet as an ethics-free zone, where anything goes if it brings in a buck.

But Carolyn goes on to offer a far more Machiavellian concern.

Because while the Indiana Court’s ruling may scare off solos and smalls, it won’t deter Venture Capital. (If you don’t believe me, ask the taxi cab regulators who were forced to come along  for the de-regulation ride by Uber). If venture capital firms sees regulatory barriers blocking emergence of  potentially lucrative legal services market, they won’t turn tail and run.

Instead, VCs and other legal futurists will push even harder for non-lawyer ownership – which means that instead of platforms that match lawyers to clients, we’ll see the rise of non-lawyer owned sites that aren’t subject to Indiana disciplinary rules and can advertise anyway they feel like.  Those sites will cut lawyers out of the equation as much as possible by simply selling legal services outright, collecting the fee and then hiring the cheapest lawyer on some internal roster to handle the work at a fixed prices.

There are two deeply troubling pieces to this point: the first is that if the regulatory barriers for lawyers, prohibiting such banal stuff as lying, stand in the way of venture capitalists making money, they will not invest in entrepreneurial enterprises by lawyers.

The second point is even more disturbing: that if VCs can’t grab a slice of the legal economy through lawyers willing to sell their ethics, they will accomplish the same thing by circumventing legal ethics altogether, by “simply selling legal services outright.”  So the solution is to allow lawyers to lie so that VCs don’t commit the crime of the unauthorized practice of law and cut lawyers out of the deal.

The rationale does an excellent job of showing how the race to the bottom, the death of a profession, can make perfect sense if one is willing to let go of a little detail like integrity.  If VCs are only too happy to commit a crime (or ethical violation in some jurisdictions), then why shouldn’t lawyers be allowed to lie?

Or, there is an alternative approach. Hold lawyers accountable for their signing on to these schemes that promote them through deception and prosecute alt-law businesses that are engaging in the criminal enterprise of the unlawful practice of law.  The internet can be a cesspool, but no one forces us to wallow in it.

7 thoughts on “Deception, Once Removed

  1. Carolyn Elefant

    I didn’t think the site was deceptive and to the extent it might have been, the participating lawyer’s site, with appropriate disclaimers mitigated the harm. The participating lawyer practiced 41 years without incident and did due diligence on the ethics of the site prior to participating. To me, this suggests that reasonable minds could differ about impacts to clients. By contrast, if a LawTigers runner was showing up at accident sites to gather victims’ names and sell them to lawyers, yes, that would be a clear cut ethics problem and yes, lawyers involved in this scheme – whether directly or through an intermediary — should be held accountable.
    Is the LawTiger site stupid and cheesy? yes. Probably pricey and ineffective too as are most lead gen sites. I would just rather see them die because of market forces and not regulation.

    1. SHG Post author

      What’s wrong with lawyers just being truthful and accurate? Why is it necessary to parse deception and impose our normative views on just how “stupid” people are? Why is it okay to write “best lawyers ever” at the top in 24 point font, and “disclaimer, we don’t mean anything we say” at the bottom in 8 point font?

      Lawyers who “practiced 41 years without incident” may be the most susceptible to these schemes. They tend to be the least internet savvy, and rely on the representations of marketeers, like this suit against Findlaw. They are the ones who believe that “everybody is doing it” and the internet is an ethics free zone.

      Instead of arguing for the rights of solos and smalls to wallow in the cesspool, we would do far better to call out the lies and save them from the schemes. Waiting for market forces to do the job for us is passive-aggressive when we can fight affirmatively to preserve the integrity of the profession.

      1. John Neff

        It seems to me that there are terabytes of data that support the view that the Internet is an ethics free zone

          1. John Neff

            Obviously I think it is a bad thing. People have been falsely predicting that the internet will collapse because of unethical practices for many years. It turns out it is more robust than we thought but temporary disruptions have happened and are likely to become more frequent. It is not too big to fail.

            1. SHG Post author

              Then you need to complete the thought rather than let it hang there.

              I don’t know that anyone has been “falsely predicting that the internet will collapse,” but many (myself included) have predicted that the race to the bottom caused by the quest to be on page 1 of Google will compel lawyers to increasingly ignore their ethical responsibility not to deceive.

        1. Patrick Maupin

          If you really believe that, and live your online life as if ethics don’t matter, then at some point the reality of the matrix is going to bite you in the ass. Hard.

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