Will Legal Ethics Rules Hobble Lawyers From Educating Clients on the Meaning of Data-driven Legal Marketing?

Call it the fantasy lawyering league.

Just as sports aficionados rely on past seasons’ statistics to put together a fantasy football team, soon, consumers now have ready access to lawyers’ track records at their fingertips courtesy of big data — and can draft a dream team lawyer based on objective facts rather than subjective referrals or astroturfed testimonials.

Of course, none of this is truly new. After all, lawsuits and other legal filings have always been a matter of public record and hence, discoverable by anyone who knew where to find the records and cared to take the time to look.  But now, the veil of practical obscurity that shrouded lawyers’ public filings has been pierced by big data which several enterprising companies are packaging for easy public consumption.

Take for example, 27Legal, a Maryland-based company that created the Injury Lawyer Database that provides up to date statistics on lawyers and defendants culled directly from the Maryland judiciary databases. The company also released the CompPinkbook, which compiles data on payouts in workers’ comp cases in Maryland.

Meanwhile, on the opposite coast, another company, Habeas  aims to help clients make “data-driven decisions” about their lawyers. The site, which appears to be gearing up to launch in California, will allow users access to information on 22,900 transactions and the lawyers connected to them along with 7500 cases.

Finally, there are a couple of tools, here and here listing the top 100 attorneys with the most trademark applications filed in 2012.

From my perspective, more information is always a good thing, so I welcome these new analytic services.  Like Avvo numerical ranking, statistical data on a lawyer’s cases and results are simply another metric for a client to consider when hiring a lawyer or for a lawyer to take into account when referring a case to a colleague. In any event, at the end of the day, lawyers’ opinions of legal data analytics are irrelevant because neither the state disciplinary committees, the ABA nor the courts have any jurisdiction to prohibit companies from mining and analyzing publicly available data.

Except – these same regulatory bodies have authority over lawyers. And I could very easily envision a scenario where they may try to prohibit lawyers from linking to analytics results for fear of misleading or confusing clients.  Trouble is, in the absence lawyers explaining data, clients will be mislead far worse because they won’t have anyone to explain the meaning of the data – except for the companies promoting the analytics services. 

Instead of ignoring or reflexively rejecting use of big data analytics, lawyers should embrace it. For starters, big data analytics can help lawyers more accurately select cases and also manage client expectations. Even where data depicts a lawyer with a winning record, he or she will want to remind clients that a past track record is not a guarantee of future results (indeed, some bars already require such a disclaimer.

Even where a lawyer’s record is less than favorable, data can open a dialogue with clients about the process (and I say this as one who has more losses than wins simply because I’m often representing underdogs). The lawyer could explain that sometimes data is skewed because stronger cases usually settle or because the firm focuses on novel issues. Likewise, a young lawyer who hasn’t filed many cases at all could share other relevant experience with the client, such as participation on a law school clinic or second-chairing several cases with a mentor.  In short, the best and most effective antidote to data is more data.

As big data analytics emerge, bars should be gearing up campaigns to help the public understand what it means. Instead, I’m betting that most states will devote their limited resources again drafting unnecessary case-specific ethics opinions on lawyer use of data-driven analytics in marketing instead of just reminding lawyers to avoid using data in a deceptive manner (and include disclaimers where required under existing rules). 

More importantly, in the long run, state ethics committees — and the legal profession in general — needs to think long and hard about whether the profession remains up to the task of self-regulation of advertising in today’s fast-moving, freewheeling, data driven world.  The writing – or in this case, the data – is on the wall.