This post is a bit outside my normal range of writing. I usually leave this sort of thing to others, like Scott Greenfield, who frequently complains about things like this, saying:
[O]ne need not worry about legal competence when, with a few bold keystrokes, one can appear to be the most competent lawyer ever on the internet.
And, of course, Mark W. Bennett.
I have neither as much knowledge, nor as much experience, as the two of them. My posts therefore generally stay limited to the area where I’ve so far been able to learn enough, and spend enough time thinking about what I’ve learned, to feel confident talking about it.
Attorney marketing is just not something to which I’ve paid much attention.
Yesterday, however, I saw this…
I’ve blurred the names primarily because one thing that’s different about this post than what Scott Greenfield, Mark W. Bennett, Brian Tannebaum, and others have already dealt with is that this doesn’t appear to be a n00b of an attorney.1 I’m not going to get into details, but I did some digging on him, and he’s definitely not some young inexperienced, punk attorney just out of law school. Depending on your point of view, that might make what he did worse, but I don’t want my post to devolve into some discussion about the ethics of this particular lawyer, who may very well be a good advocate who is merely clueless about the ethics of marketing himself, who has the highest Avvo rating, and comes with such ringing endorsements as this:
Note that this “fellow lawyer in the community” is from New York. The attorney being endorsed is from Southern California. Talk about urban sprawl.
At least this Wisconsin lawyer’s relationship to our “perp” is “Other,” which apparently means, “I don’t really know him, except through his request for an endorsement via the Internet”:
But I would be remiss if I failed to point out that he has equally impressed the hell out of other attorneys, as well, who actually live somewhere in the state actually represented on maps as being California.
As you can see, they love the guy!
The attorney being endorsed has a large number of endorsements. A fair number of his endorsements are from people from other states. Not bad for a guy whose website seems to show that he practices exclusively in Southern California!2 Nearly all of them read exactly the same as these. But lest you think these endorsements are totally without merit, consider that he has more substantive endorsements, as well.
There! Take that, you Unbelievers! This man is “believe[d]” to have “the highest standard of dedication to his work and clients.” How does this criminal defense attorney from Canton, Georgia, a mere 2,250 miles (that’s only about 30 hours driving time, without traffic, or 36 hours by plane!) know?
Because it’s been “touted by his client’s reviews.”
Wow. Now that’s an endorsement with some meat on it!
I’m not at all opposed to the idea of endorsements. If you look at my Avvo profile, you will find a number of them. Twenty-eight come from lawyers who know me, while 38 have been placed there by former clients. It has happened — twice now, if I recall correctly — that attorneys who do not know me, and have not worked with me, have placed unsolicited reviews on my Avvo profile. (And they were far more glowing reviews than those shown above!) My reaction was to remove those reviews, and send a scathing email to the individuals who posted them. I probably lost a couple potential wannabe friends. And a thousand referrals.
Why should I care about this? Why should you care? Why should the attorney above — who, for other reasons, I think probably is a pretty good advocate for his clients — care?
And noise. The noise that overpowers not only any justified and well-earned endorsements he might have actually deserved, but which just generally contributes to the noise on the Internet.
After blasting through so many pages with false endorsements — and make no mistake, soliciting endorsements from people who don’t know you results in an accumulation of false endorsements, by definition — how are potential clients to know when they’ve found someone who can really help them?3 Besides, the solicitation of endorsements from people you don’t know by an attorney who may very well be a good and experienced attorney4 encourages younger, even less ethical, and less deserving attorneys to do the same.
I’ve been reading a book recently — Misleading DNA Evidence: Reasons for Miscarriages of Justice — which notes that DNA is pretty much everywhere.5 As the book notes, “every contact leaves a trace.” But “contact,” is meaningless without context. You can have a “contact” by breathing; even more obviously, to those who know what happens when you talk, by talking. You sneeze, and you spray the world with DNA. Because of this, combined with what are believed to be the increased ability to properly analyze trace amounts of DNA, it becomes difficult to know when DNA present at a crime scene is relevant to the crime; i.e., it might be DNA belonging to someone completely unconnected with the crime, perhaps someone who was there before the crime was committed, or someone who came into contact with an investigator who accidentally transferred their DNA to the evidence taken from the scene.
So, lately, mathematical formulas such as the “Likelihood Ratio” have been developed to help make sense of what normal people might consider as ambiguous bits of DNA “evidence.” Because math makes everything more certain and clear, however uncertain it may actually be.
The likelihood ratio (LR) is the ratio of two probabilities of the Evidence (E) that are evaluated under different hypotheses. The evidence (E) is a DNA profile in this example. The two different alternative hypotheses (propositions) that are evaluated are as follows….6
The hypotheses are usually diametrically opposed and represent the prosecution’s proposed explanation for the evidence versus the defense explanation.
And don’t expect Schrödinger’s Cat to figure this particular uncertainty principle out for you, even though it’s the same principle at play here: until you observe the result, you can’t know whether the prosecution wins, or the conclusion is invalid.7
The challenge is to distinguish between the crime-event DNA vs. the naturally occurring [sic] background DNA–it may not be possible to distinguish between them. [...] A number of common fallacies/errors that are primary causes of miscarriages of justice are… “the association fallacy,” “the hidden perpetrator effect,” the naïve investigator effect,” “the serial error effect,” “the compounded error effect,” and confirmation bias.8
You see, the problem here is that the formula depends upon presumptions and assumptions. Why are these two hypotheses the only ones compared? How do you decide on a particular hypothesis? How do you weight the data — even if you really do understand it, as opposed to merely “believe” that you understand it? It’s becoming like modern jurisprudence, where vague words allow us to feel comfortable with whatever outcome is desired by those with the power to decide.9 And when things work out the way you “want,” how do you know it’s not because that’s how you wanted things to work out?10 The more “noise,” the more complicated it becomes to determine what “information” really counts.
Lately, it’s even worse than that with attorney marketing. Or, more appropriately, the lack of ethics of attorney marketing.
I have longed for attorneys local to me to start blogging — I mean really blogging; not hiring ghostbloggers (see below) — because blogging is a good way to get actual discussions going. Or, at least, it was “back in the old days.” Where there is no functional defense bar (that would be Fresno) — a few serious blogging lawyers can help fill the gap.
In the “old days” — we’re talking roughly 2003 through 2008, maybe 2010, or so11 bloggers blogged because they felt they had something important to say. We frequently cross-linked to one another’s articles. Even when I started using WordPress in April 2008, and I didn’t yet know any other law bloggers, there was already a healthy discussion going on (without me, since I was a n00b) in what was called the “blawgosphere.”
I was still busy learning to keep my pants on while in prison.
Hmmm…somehow that doesn’t seem to have come out quite right.
Anyway, the old days are gone. These days, every Tom, Dick, and Lawprof is wrapped in his (or her) own cocoon, busily making the world a stupider place, writing drivel about subjects on which they are completely clueless, and their only interaction with others is in comments, to tell them to stop trying to kill their marketing buzz with stupid concerns about ethics.
You have lawyers “posting” blog articles they may never have read, let alone written.12 The result? Abdication of ethics, and the creation of Flawgs. They don’t understand why most of us think ghostwritten blogs are unethical, and if they did, they don’t seem to care. As O’Keefe noted,
Lawyers who have little idea what blogs really are just want one to keep up with their competitors.
Some of these lawyers are good lawyers. I know because, while I don’t know the guy from Southern California whose solicitation for my endorsement inspired this post, I do know a number of attorneys who have ghostwritten flawgs. It pains me to see them.13 I don’t link to them because they’re flawgs. I don’t read them because they’re flawgs. They’re noise. They’re also a sign, however small, of potential dishonesty, and it embarrasses me that some of my friends, for whom I otherwise have respect, don’t get that.14
Scott, Mark, and probably also Brian Tannebaum, who when he blogged was vicious (I didn’t say “wrongly vicious”) in his attacks, would probably ask, “Why are you saying potential dishonesty?” And the answer is that, again, I know some of the people with flawgs; I do not believe them to be dishonest people. But the problem is, as Eric Turkewitz says,
outsourcing marketing = outsourcing ethics
I don’t think these people, even the guy who inspired this post, intend to be dishonest. I just think they don’t get it. They don’t understand that what they’re doing contributes to what Scott refers to as “the race to the bottom.” They don’t recognize the harm that comes from flawging; they may even actually believe that “putting up some legal content,” in addition to helping them market themselves, helps people.
Call it “trace legal blogging.” And like trace-DNA it can confuse things, and trace legal blogging helps even less than trace-DNA.
This is because, for one, much flawg content is flawed. It is frequently written by non-lawyers. Even when written by lawyers, these are generally not going to be lawyers who have any actual experience in the trenches. And even if it were written by lawyers who had actual experience in the trenches, it is not written by the lawyer whose website presents it. In some (if not many, or most) cases, I think it’s probably fair to say that the attorneys don’t even bother to read the articles.
And so it’s not helpful, at a minimum, in that it does not allow the person visiting a website to know anything about the lawyer whose website contains the article. If it contains a false understanding of the law — is your ghostwriter even from your jurisdiction? — it could be worse than that.
In any event, it’s a lie. You didn’t write it. You’re putting it out there on your blog, as if you did. That’s dishonest. That’s unethical. Even if you think it’s harmless, it’s not because — since it says nothing about you (other than that you’re dishonest by putting it out there) — it doesn’t help clients who are trying to decide if you are the attorney for them.
After all, they aren’t hiring your ghostwriter, or marketer. They’re looking for a lawyer they feel they can trust. It just muddies the picture, making it even harder for potential clients to determine who is, and who isn’t, the best choice.
In the case of the potentially-good lawyer above requesting the bogus endorsements, it appears that he’s trying to fool potential clients into thinking that more attorneys endorse him than actually do. Based on what I’ve found out about him, he’s probably a pretty decent lawyer. But he’s been fishing for trace-endorsements from people who don’t really know anything about him except what they can find on the Internet. He’s introduced a bunch of useless noise — “I endorse this lawyer” — with a few real endorsements. In the process, he probably hasn’t really gained anything. “I endorse this lawyer” is almost “damning by faint praise.” It’s like the joke about the employment recommendation that says, “You would be lucky to get this guy to work for you.” Which way do you read that?
What he has done is to commit — how shall I put this politely? — an ethical faux pas. One that hurts him, and, as I noted above, potentially encourages other, less experienced and less ethical, young attorneys to do the same.
And the best “Likelihood Ratio” for finding a good attorney via the Internet gets reduced to a coin toss.
- As far as I know, most of the anti-marketing posts they’ve put up deal with young, inexperienced, newly-initiated lawyers trying to build a quick reputation without putting in the work that normally goes with such a thing. This attorney may be different in that regard. Also, maybe I’m a weenie: I don’t actually like criticizing other attorneys. I’ll do it when, as now, it seems necessary, but I don’t like it, and naming this guy doesn’t seem necessary to my points. [↩]
- I say “seems,” because I didn’t bother to go through his whole website. [↩]
- Set aside, for the moment, the whole question of finding a lawyer on the Internet. The reality is that not everyone getting into trouble in a nation whose system has gone off the tracks knows someone who knows a criminal defense attorney when they need one. [↩]
- I do not know the person, so I can’t say. I only know he sent a blanket request for endorsements to a group to which I belong. [↩]
- A point the book doesn’t make, since it focuses on human DNA, is that bacteria are pretty much everywhere. And I’m pretty sure they have DNA. Do we know that doesn’t account for some of the background noise? I don’t know. I’m not that knowledgeable about DNA. Yet. [↩]
- Peter Gill, Misleading DNA Evidence: Reasons for Miscarriages of Justice, location 684 of 4575 on my iPad Kindle app (2014). Please do not ask me why “Evidence (E)” is capitalized the first time, but not the second time. I didn’t write the book. [↩]
- To be totally fair, Peter Gill himself argues for fairness. After all, the book is about misleading DNA evidence. So he would say, “the prosecution wins, or the defense does.” Truth is, the defense never does. But that’s a whole nuther blog post. [↩]
- Gill, supra, at location 303 of 4675. [↩]
- As to the weighting of the data, there are computer programs that weight the data using one algorithm, and others which use an entirely different algorithm. Which is right? Flip your coin. Then ask the DA, or the judge, or the jury, to flip theirs. [↩]
- That is, how do you know it’s not just confirmation bias? [↩]
- And, yes, I was blogging before WordPress was invented. I was blogging before blogging software was invented. I was blogging before the term “blogging” was invented. [↩]
- Hell, they may not have anything to do with their own website. Maybe they don’t even know the password to log on to post an article; maybe they don’t know the article is posted. [↩]
- Their flawgs, that is. [↩]
- Yes, G — whose name is not given because I like him very much, and he is a good advocate — I’m looking at you. [↩]