Five months back there was a Metro train crash in Washington DC, and I watched from a distance to see who/how/where/when the web would be used by lawyers to find victims. And one of the things we saw was that one of the gazillion attorney search firms that infect the web was soliciting clients. Given that these search firms are agents of the lawyers, that raised the problem of attorneys using the web to solicit.
Thus was born this little formula in June: outsourcing marketing = outsourcing ethics. This wasn’t, by any means, the first time I’d appreciated the problem of outsourcing marketing, having written about the ethics of attorney search services two years ago:
The implications of attorneys outsourcing advertising to a third party that may be acting unethically represents an area of law that is unexplored by many ethics committees.
The implications of being the test case are not pretty, and there after now five lawyers in Connecticut feeling the heat, as the state tries to decide if they violated local ethics laws by paying referral fees to the non-attorneys at a site called TotalBankruptcy.com. Some of the discussion goes to differentiating between a mere advertisement like a Google ad, and a “referral” from a search site after it takes in information from the consumer and then spits out a name.
For more on that, you can read Carolyn Elefant (in defense of the five), Scott Greenfield (calling the search service a cancer in the legal profession), Mark Bennett (suggesting disbarment, not saving), Josh King (the rules are unconstitutional), Larry Bodine (looking at the attorney who filed such complaints in 47 states) with both Bob Ambrogi and Colin Samuals doing extensive analysis of all the commentary.
It sucks to be a test case. It’s one of those things lawyers should aspire to avoid.
It wasn’t my intention to coin a phrase regarding this kind of stuff six months ago when I wrote about the train accident and the solicitation, but several others have now picked up that theme so it’s worth expanding on.
When lawyers outsource their marketing to others — be it a “search engine optimization” company, an attorney search company, or some hybrid — they are hiring agents to do their advertising. Agents. We learned about that stuff in law school. The concept has a long and deep legal history. The web didn’t make it go away.
And when it comes to the web, these are five things that those agents might be doing in your name that can get you in big trouble on the web, because attorney ethics are deeply intertwined now with marketing:
- You are accused of sharing legal fees with non-lawyers (See Connecticut Five, above).
- The agents solicit clients in violation of ethics rules (See Metro train crash incident);
- They could spam blogs with your firm name;
- They could scrape content from other blogs (or news sources) and post it as yours, thereby violating copyright laws in your name,
- They could circumvent rules by engaging in ethics laundering.
It’s interesting to note that simply going out and hiring a high-profile marketing company won’t necessarily help you. For instance, Avvo is one of those find-a-lawyer sites, that also has reviews of attorneys. They’ve made a big splash and are as tech-savvy as anyone. Yet, if you go to their site, which now looks for attorneys to pay $49.95/month for “enhanced” visibility, you will find that they appear to violate one of New York’s ethics rules that went into effect in 2007.
Which rule does Avvo appear to break? The requirement that “attorney advertising” be placed on their home page, a failure that I noted hit many firms at the time it was implemented. Does an attorney search site need to have that mark on it? I would think so, as they are acting as the agents of the lawyers that hired them.
So what’s the downside to all this? Well, the lawyers that hire others to do their marketing might find that company violating copyright law (content scraping) or ethics rules and subject them to litigation and sanctions. This can be long and expensive.
But it’s actually a lot worse than that because litigation takes time and money and many don’t want to do it unless they absolutely have to.
Blogging, however, takes very little time and very little money. And if you piss off just one blogger with ethically and legally dubious behavior, s/he might write about you. And put your name in the headlines. And that blogger might have some readers who are also bloggers….And the effect is felt as soon as Google happens to index those blogs; which is to say if they are active bloggers, immediately. When potential clients Google you, the results can be painful.
Litigation can be so passé.
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The list of blogs that have agreed to expose the lawyers that engage in comment spam has been moved to this link: New Spam Comment Policy for Law Firms (You Will Be Exposed)
Links to this post:
I’ll Take Turkewitz on Ethics Over Jack Marshall Any Day of the Week
Over at his sparsely populated and impossible to navigate blog Ethics Alarm, American University Washington College of Law adjunct ethics professor Jack Marshall accuses wildly popular New York Personal Injury Law Attorney Law blogger …posted by Carolyn Elefant @ April 05, 2010 12:36 PM
This Seattle DUI lawyer is not a douchebag
Remember that stupid post I wrote about some article on some site that suggested that defendants were better off with private lawyers (a particular private lawyer, actually) than public defenders because pd’s are …posted by Gideon @ December 16, 2009 8:28 PM
Martindale-Hubbell now spamming lawyers’ blogs? Are lawyers to blame?
A marketing company doing work on behalf of the legal directory Martindale-Hubbell has acknowledged spamming the comment field on New York Attorney Eric Turkewitz’ blog. Turkewitz blogged about the Martindale spamming. …posted by [email protected] (Kevin) @ December 01, 2009 11:24 AM
Martindale-Hubbell now spamming lawyers’ blogs? Are lawyers to blame?
A marketing company doing work on behalf of the legal directory Martindale-Hubbell has acknowledged spamming the comment field on New York Attorney Eric Turkewitz’ blog. Turkewitz blogged about the Martindale spamming. …posted by [email protected] (Kevin) @ December 01, 2009 11:24 AM
Sixteen Rules for Lawyers Who (Think They) Want to Market Online
1. If you’re looking for The Promised Land, you’re in the wrong place. This is the Wild West, Pilgrim. 2. There are clients online—sophisticated, moneyed clients—but they don’t find lawyers the way you think they do. …posted by Mark Bennett @ November 16, 2009 10:15 PM
I attended (and spoke) at one of Avvo’s seminars here in DC. Mark Britton gave a CLE on ethics of online advertising and I thought it was pretty good (he had clearly done a bit of research). During the presentation, Mark cited an NY rule that said something like “websites are not a solicitation.” Could this be why some websites don’t have disclaimers? Though I am licensed in NY (in good standing), I don’t track the rules closely because I don’t actively handle cases there.
The point about Avvo profiles being advertising themselves is something that I had not considered. I realize that lawyers have to comply with ethics rules in putting information on these sites (e.g., lying about a case or guaranteeing results would violate ethics rules).
But where is the line between directory services like Avvo, Justia or Linked-In where lawyers can include a profile and advertising? Does the directory become advertising when lawyers are more descriptive in listing information? Or are all directories inherently advertising? This is something I must give more thought to, though I’d also be interested in hearing your perspective.
Read expansively, attorney advertising rules would apply to just about any communications an attorney makes. States, like FL & NY, sometimes try to read them that way.
The problem is that a very long line of Supreme Court cases hold that states can only regulate advertising if certain criteria are met. And even that regulation is limited to communications “that do no more than propose a commercial transaction.”
Unsurprisingly, this is why a number of NY’s new advertising rules are been permanently enjoined (a decision that is currently on appeal).
Turk is right about agency, and right that attorneys need to pay attention to what those they hire for marketing help are doing. But it doesn’t do consumers or lawyers any good to interpret advertising rules beyond their constitutional constraints.
With respect to Avvo, we don’t believe that our site itself or our directory profiles require an “attorney advertising” tag. We also don’t believe that such requirements are enforceable in any case unless there is proven potential for consumer harm.
You may end out being right, but do you want to be the test case?
(Likely answer: Yes if someone else is paying the legal bills and no if you are paying them yourself.)
There are a million shades of gray when it comes to advertising, some of which I tried to tackle in this post:
New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified
You forgot to mention your post on SueEasy and WhoCanISue?, which was directly on point.
I have no sympathy for the web equivalent of tv ad referral networks, but I wonder if these sorts recognize how closely they themselves skirt the prohibition against unauthorized practice of law? And whether the attorneys who use them understand that, depending on their state and the service, how close they are to a complaint for enabling UPL themselves?
These services don’t do the clients any favors. In my state, cross examination about the “attorney help line” or “WhoCanISue” will likely come into evidence in a personal injury case. Jurors don’t like hearing about that.
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