Be careful what you wish for. Lawyers have long argued that law is a business, not a profession – and if these recent events are any indication, lawyers may have gotten their wish. Only turns out, the real world has even less tolerance for deceptive marketing practice than ye old bar association.
Gregory Turza, a Chicago-based lawyer learned this lesson the hard way when he hired a marketing shop that spammed local accounting firms with an unsolicited, canned newsletter — and ran afoul of junk fax laws to the tune of $4 million dollars. Like the district court, the Seventh Circuit found that “promotion or marketing was the reason [the] faxes were transmitted and as such, was an “advertisement” within the meaning of the statute. (To be fair, the newsletter wasn’t totally ineffective; as Judge Easterbrook hilariously points out, “The faxes produced more business — but not for Turza.”).
Meanwhile, via Scott Greenfield, Kevin O’Keefe and Gyi Tsakalakis at Lawyerist, Internet ratings site Yelp has brought suit against a San Diego law firm for posting fake positive reviews prepared by the firm’s staff and colleagues in violation of California advertising law and the site’s Terms of Service. And while Scott Greenfield questions whether a breach of TOS is actionable, what’s significant here is that the firm’s fake reviews are being dealt with in a court room rather than a disciplinary hearing room.
As they should be. While its crystal clear that lawyers have an ethical obligation to avoid deceptive practices in advertising, and that they can’t blame their marketers for unethical conduct, the state disciplinary bodies simply lack the both the resources and frankly, the savvy, to police this space. As I pointed out here, it took the NYSBA more than a year to rule on an inquiry over whether a lawyer could ethically list practice areas under the “specialties” categories on LinkedIn – and by the time the ruling issued, LinkedIn had already eliminated that category. But the other problem with bars chiming in on a topic like this is that, frankly, they’re out of touch – and fail to recognize that Joe Consumer isn’t likely to think that a bonafide trial attorney listing “litigation” under “Skills and Expertise” is a certified specialist anymore than they would think that a web designer listing “graphics” under that category received some special training. In the social media sphere, certain conventions take on distinct meaning – and most consumers realize that categories like Specialties or Skills – or more hipster-ish terms like Guru or Sherpa are essentially shorthand for competency, focus or concentration.
Moreover, the bars lack the kinds of sophisticated compliance tools to enable them to maintain oversight and ferret out deceptive conduct with the kind of consistency necessary to assure deterrence. Though I mused about techno-powered ethics oversight partly tongue in cheek, the truth is that this level of oversight is becoming more common in regulated finance and energy markets because the analytics tools are there. Likewise, review sites like Yelp have a profit motive for ensuring the accuracy of reviews and have invested in tech tools and sting operations to ferret out falsies.
If lawyers choose to engage in commerce online, then they ought to be subject to the same rules as everyone else. Doing so won’t diminish our ethical obligations to avoid deceptive, either. But you tell me – which is more likely to deter lawyers from engaging in bad acts? An untimely and copyrighted bar association advisory opinion on what constitutes deceptive practices or a statute and associated court cases that interpret it? And let’s face it, at the end of the day, nothing says deterrence like a $4 million fine.