There’s been a lot of discussion in the last week on the legal blawgosphere about the truth.
Josh King wrote a post about truth and ethics in attorney advertising. Scott Greenfield discussed truth and numbers on Simple Justice. And the concept led to the most active Lawyerist comment thread I’ve ever seen.
I think it all started with a simple e-mail in my inbox.
But before I begin my story, let me digress: as an attorney, you’ll find that everyone wants your money. The most egregious offenders are legal marketers. They’ll e-mail and call you relentlessly, promising “X new leads” in exchange for the low low price of several hundred dollars per month for a featured profile on their attorney directory website.
So here I was, minding my own business, when I get an e-mail solicitation:
There are over 4810 searches each month for Criminal Defense in Philadelphia County, PA on [attorney marketing website]! Which ad will you choose to drive more potential clients?
— or —
With 200,000+ contacts delivered to attorneys every month, it’s time to drive more of those contacts your way. Take advantage of two proven, high-visibility advertising options from [attorney directory], each designed to help you gain more exposure in front of potential clients.
To activate either listing, simply reply to this email for pricing information.
Seemed like great deal. But there was a teeny problem with the ads — they violate Pennsylvania Rule of Professional Conduct Rule 7.1:
A lawyer can only make objective, measurable comparisons to another lawyer. Formerly associated lawyers who are discontinuing their association must ensure that all communications with clients comply with the requirement of the Rule. Phila. Eth. Ops. 92-8 (undated), 94-30 (1994). A Lawyer may not use inherently subjective terms such as “experienced”, “expert”, “highly qualified” or “competent” to describe his services. See Spencer v. Honorable Justices of the Supreme Court, 579 F. Supp. 880 (E.D. Pa. 1984), aff’d. without op., 760 F.2d 261 (3d. Cir. 1985).
Now, this rule is observed more in its breach than in attorneys’ compliance. Google “Experienced Pennsylvania Attorney” and you’ll see what I mean.
Nevertheless, considering Eric Turkewitz’s mantra “outsourcing marketing = outsourcing ethics“, I declined:
Dear [Legal Marketing CSR]:
It is a violation of the Pennsylvania Rules of Professional Conduct for an attorney to use the word “experienced” to describe himself in advertising. Please do not contact me regarding future sponsored listings, especially if they do not comply with the Pennsylvania Rules of Professional Conduct.
After some online discussion with a few marketers, where Jordan and I pointed out this rule, Avvo’s General Counsel Josh King posted “Are You Experienced” on Avvo’s Lawyernomics Blog. In it, he argues that the rule is “insane” and “paternalistic” — and closes out the article taking the position “[i]t’s highly unlikely that this ban on milquetoast puffery would survive … a challenge today.” These may all be true.
But Josh King loses me when he argues that “…the overall effect [of these rules] is a chilling of all information from lawyers to consumers, and a lessening of transparency in what is already the most opaque of professions.” Bullshit, I say.
And so says the described-by-some-an-inimitable-curmudgeon Scott Greenfield, who took up the banner in favor of real transparency in his piece “Without Dates, You Intentionally Deceive“. You should read it in its entirety, but Scott describes an observation he finds particularly curious:
In the course of checking people out, one particularly disturbing issue keeps cropping up. The claim of “experience.” It has become de rigueur for young lawyers to include bios on their websites that announce their law schools and bar admissions, but omit the dates. Elsewhere, they invariably claim to be “experienced,” sometimes fleshed out with wild claims like having won thousands of cases even before admission to the bar. It’s all part of creating their personal brand.
The reason for these omission is plain. Young lawyers want to promote themselves without disclosing that they are new to the practice of law. Marketing advice is clear: hide the negatives and bang the positives. Create the appearance of qualification and competence without disclosing harmful material facts. The way to do this is to conceal anything that might reflect poorly on you and undermine the free-wheeling use of subjective puffery.
Sam Glover, over at the Lawyerist, also read Greenfield’s piece, and posted the following with an open comment thread:
And if one wants to fix the problem of opaqueness in the legal profession, the solution isn’t deceit, puffery and omission of material facts, but accuracy and honesty.
The one thing that stands out above all others are lawyers who omit dates from their websites and blogs. This is wrong, and whenever I see “Harvard Law School” without a date, it tells me that this lawyer is concealing a simple, basic fact. Concealment is hardly transparency.
The comment thread is now over 100 posts long.
The minor issue: should attorneys post their admission dates on their websites? There’s been slap fights back and forth for days now on this subject — whether on Twitter, in the Lawyerist comments, or otherwise. And it seems there are two camps: old heads saying “post your admission dates to that clients know,” and younger attorneys whining “we can’t because no one will hire us if we do.”
Go to my site right now, and you’ll see that I graduated in 2010 — it’s right there on my bio for everyone to see. Check out my Avvo profile, and it’s there too — Pennsylvania and New Jersey, 2010.
Adam Lilly thinks this is a bad idea, apparently:
But why shouldn’t I get a shot to meet with them and try to show them that I’m competent, though new? The newness is more likely to be a problem before they’ve met me, when they might be imagining some bumbling idiot. If they’re willing to meet with me, the experience is far less likely to be a factor, because I’m candid, confident, and honest with them about their needs and my ability to serve those needs. I don’t see what’s dishonest about it.
I share a “problem” with Adam. there’s no hiding my youth at a client meeting. I guess I’m blessed with a baby face, a full head of hair, and no grays — yet (fingers crossed). But I have a problem with Adam’s approach. You see, even as he claims that his experience won’t be much of a factor because he’s honest and candid, he’s hiding information from his clients.
This brings us the the bigger issue: honesty.
There’s been a lot thrown around in recent discussions about whether we as attorneys must tell the complete truth to non-clients. Or if hiding our admission date is even “lying” at all. Forget the semantics for a second. Your relationship with your clients is one that should be built on trust. When you hide how long you’ve been in practice, you’re already starting off on the wrong foot.
Cue the young attorneys: “but we can’t even get clients to come in when we tell them when we were admitted!” Balderdash. And even it that were true, do you want to begin your relationship with your client by playing hide the ball?
As I posted on Lawyerist:
When I meet criminal defense clients, I often explain it like this: “You can see that I’m young. What you may not see is that I’m a go-getter. If you want that, I’m your man. But if you want an attorney with grey hair — and there are plenty of them in this city — go hire one. I want you to have an attorney you’re comfortable with.
No matter what, understand that I will be 100% committed to your case and honest with you.”
This ensures that I have clients who are 100% on board, and who know that I am not going to fudge the facts. I’d rather that than a bar complaint that I claimed I was an “experienced expert with aggressive trial experience.”
Now, have I lost potential clients because of this? Sure as shit I have. Have I also lost clients because other attorneys undercut my fee? Yup. Or because other attorneys stretched the truth and told them everything was going to be ok, even when it wasn’t? More than likely.
I want a reputation for telling the truth, even if the truth sucks. Or it hurts. Or it’s not what the client wants to hear.
Your reputation is all you have as an attorney. As a young practitioner, you need to guard that reputation fiercely. And if you’re content with getting clients by skirting ethics rules and playing shyster, be my guest. If you’d rather continue to hide information, well, have fun with your insipid spam-twits, your misleading Craigslist ads, annoying online videos, and the “aggressive, experienced representation” you promise on your website — for now.
Just wait until you get that bar complaint — or a malpractice suit — because your promised “experience” was vapid marketing dreck.
Now, I’m not perfect for sure. Have I always lived up to the ideals I’m espousing in this post? Sad to say, no. I know how we new practitioners feel, I’m only two years out myself. When I first started out, I too was afraid that people wouldn’t hire me because I’d never handled a case like theirs before. There were occasions in the past where I wasn’t as explicit as I should have been regarding my “experience.” It took some time, some introspection, and guidance by those wiser than I until I arrived at the positon I hold today.
Consider how you want to be known. I hope you arrive at the same conclusion. Maybe you’ll decide that this entire post is a resounding display of sanctimonious hubris from a young attorney who doesn’t know any better. Maybe you’re right.
Tell the truth. Even if it’s just a number.