November 18th, 2009
Last month, Kevin Pho, M.D., of Kevin, MD fame, had an op-ed in USA Today on potential solutions to medical malpractice litigation issues.
I’ve responded to that piece, and he has it as a guest blog today:
How a personal injury lawyer views the medical malpractice system
Dr. Pho runs the most widely followed doctor’s blog in the medical blogosphere, and he appears frequently on op-ed pages.
November 16th, 2009
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:
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
November 13th, 2009
New York’s legislature overwhelmingly passed new laws that stop most insurers from jamming their feet into personal injury settlements seeking repayment of funds they used for medical care. (Plaintiffs were not entitled to receive these monies in verdicts, but that didn’t stop insurers from trying to grab it anyway.) The bill awaits Gov. Paterson’s signature. This is one bill that I’ve lobbied for in the past with the New York State Trial Lawyer’s Association and hope to blog on in more depth in the future. For now, see Roy Mura’s New York State Legislature Passes New Anti-Subrogation Law;
The number and amount of medical malpractice payments is down. Justinian Lane asks, What Medical Malpractice Crisis?
Of course, doctor’s still want more immunity from law suits (Walter Olson @ Point of Law);
Perhaps reducing medical errors would be a better idea;
And maybe putting video cameras in the OR would be one way to do that, since this hospital seems to have problems with things like wrong site surgery;
You can find a ton of statistics on personal injury litigation at Ron Miller’s blog. Do those stats conform to your notions of what is really happening? Like, for instance, who decides cases more favorably for plaintiffs? Judges or juries?
Blawg Review #237 is up at Christian Metcalfe’s property law blog, with its theme of The Putney Debates. No, I won’t explain then, he will.
Some other web carnivals to explore that often have legal links: Health Wonk Review; Grand Rounds from the world of medicine; and Cavalcade of Risk from the world of insurance.
Here are 50 great blogs by and for law professors. But precious few seem to be written by actual legal practitioners. Maybe the real world isn’t all that important?
Another list of 50…free resources to create your own website;
Lastly, MarineTraffic.com is one really cool site (via Volokh). You can track tankers, cruise ships and the Staten Island Ferry.
Links to this post:
Around the web, December 3
All-New York edition: New York “ranks dead last in 18 of 28 legal categories” on litigation cost, per new Pacific Research Institute report [Lawrence McQuillan, “An Empire Disaster: Why New York’s Tort System is Broken and How to Fix …posted by Walter Olson @ December 03, 2009 12:09 AM
November 10th, 2009
Traditional lawyer advertising may be branching out in very nontraditional ways. The Buffalo-based personal injury firm of Cellino & Barnes is known for its very extensive advertising campaign in western New York, with billboards and TV commercials galore (as well as ethics troubles, Matter of Cellino).
But in trying to make inroads downstate, they’ve invaded one of the local hockey arenas: The Nassau Coliseum. And they’ve done it by sponsoring a welcome home message for an Iraqi war veteran, not the type of advertising NY metro area residents are accustomed to, since we usually see subway ads, radio and TV.
My Nassau County Bureau Chief, a personal injury guy, reported to me last week to me that he saw this at a recent Islanders game:
Last night at the Islander game — best personal injury lawyer advertising I’ve ever seen. Between the second and third period. Flashed on the screen is “Home from Iraq.” White army style jagged edge lettering with a couple of army stripes on a military green background. Announcer announces back from Iraq is the American hero. The soldier, at the game, is flashed on the screen and waves to the crowd. The screen pans back to the Home from Iraq lettering and in smaller letters in the lower right hand corner is “Cellino & Barnes.”
Was the advertisement effective? Well, this was the response:
This got a bigger round of applause than the Islanders on their way to their fourth straight win of the season. Those guys know what they’re doing.
I have mixed thoughts on this. We start with the premise that the vast majority of ads for personal injury attorneys suck, and consist of “If you or someone you know has been injured…” types of blather. It’s damaging to the profession and damaging to the clients, a fact that can only be appreciated when picking a jury and watching eyes roll when you tell them it’s a personal injury case. So any ad that doesn’t come within that wretched format is, by definition, a better ad. The bar for quality is set very low.
From there you move on to the issue of whether this is a cynical exploitation of our troops. But this type of tribute doesn’t appear to be any different in concept from the Super Bowl ads run by Anheuser Busch in 2002 with Clydesdales walking across the Brooklyn Bridge and going down on one knee before the skyline of New York, or its 2005 ad of troops moving through the airport to the applause of bystanders.
On the whole, even with the cynicism in my mind regarding exploitation, I’d have to say that this is effective advertising. It doesn’t say anything about the skills of the attorneys, of course, but nor do the Anheuser Busch ads tell you what Bud tastes like.
November 9th, 2009
Houston criminal defense attorney and blogger Mark Bennett is live-twittering while his protege picks a jury.
And Eugene Volokh reports on the federal rules prohibiting tweets from the courtroom.
While Twitter pretty much stinks as a means of carrying on conversations, it obviously can be used effectively to transmit small snippets of a story. Now the courts will have to wrestle with how to handle it.