Playing Fast and Loose With Bar Association “Preferred Vendor” Statuses

shutterstock_247089037smYesterday, I sat for a demo of an online document-sharing platform that hadn’t impressed me much when I tested it two years ago after its initial launch. Still, because I’ve impatiently ditched many products in beta, only to learn of significant upgrades a year later, I agreed to take a second look. While the product has improved considerably (though not enough to lure me from my current provider), the sales pitch disturbed me enough to post about it here and share lessons with readers.

In touting the benefits of the document platform, the sales agent highlighted its “preferred vendor status” with multiple bar associations. That part of the pitch didn’t impress me much, because as I explained to the rep, preferred vendor status has less to do with a product’s merit (presumably, it has to satisfy some base-level criteria) and instead is granted based on the amount of revenue that a company is willing to kickback to the bar. In short, preferred vendor status is pure pay for play.

But the pitch went downhill from there. When the rep showed me the product’s e-signature feature (which was pretty neat, I have to admit), she went on to tell me that this was the only e-signature platform approved for attorney use by the American Bar Association, and therefore, I could be certain that the signatures would be considered legally acceptable. “Excuse me,” I interjected – “The legality of e-signatures is established by statute  – not by the ABA. Got to give the rep credit- she still tried to sell me on the product – but then, we quickly finished up the call.

As aggravated as I was by the sales pitch, I can’t fault the company for making it. Presumably, the company spent big bucks to snag a “preferred vendor” designation from multiple bar associations, and wants to leverage that purchased credibility to the hilt. More power to it.

What infuriates me are the bar associations themselves. When bar associations confer preferred vendor status on the deepest-pocketed vendor, they know that those vendors will use it just as the marketing rep did with me: to claim a superiority and imprimatur of approval by regulators that other companies lack. And indeed, it’s perfectly reasonable for an attorney considering a product to assume that a preferred status from the bar association means that the product has been tested, vetted and deemed superior by the organization. To be fair, some bar associations do post the criteria by which they confer “preferred provider status” – though it’s not particularly easy to locate that information on their website (let’s just say, if a lawyer posted required disclaimers in the same labyrinthian fashion, they wouldn’t pass ethical muster).

As the bar associations continue to accept cash for designation that they know, or surely have reason to know, will be used in a deceptive manner, ethics regulators are silent.  Meanwhile, regulators remain all too willing to crack down on lawyer conduct that by some vast stretch of the imagination might be viewed as deceptive only to the most moronic of consumers – such as  attorneys including a practice area as a Specialty on Linked In  (note: LI no longer has this designation) or listing in a marketing site that lists generic client testimonials without a disclaimer on the lawyer’s own website that the testimonials don’t apply to him specifically.  In short, a double standard.

Since bar regulators won’t call out deceptive communications by their own bar associations, I’ll do it myself.  Here is my warning:

Understand that in almost all cases, referred vendor status does NOT reflect affirmative approval by the bar or a representation that the product is the only one of its type that is ethically acceptable to use. Moreover, most standards – such as legality of e-signatures, privacy and data breach disclosure is governed by state or federal law, and not just the bar associations. In other words, that a bar association may find that an e-signature is “compliant” or that a cloud-based company meets a criteria because of data breach disclosure is all well and good – but it’s also irrelevant because state and federal law establishes those standards, not the bar associations.

Finally, if you receive a call from a sales rep bragging about its company’s preferred vendor status, ask about what types of standards the company had to comply with to obtain that status and to view the results of the bar’s report – otherwise hang up the phone. And after you do, you may want to put in a call to your bar association or regulator, just to let them know how vendors are promoting their “preferred” status. And then, if you belong to a voluntary bar, you might want to cancel your membership. After all, if a bar association is willing to sell its approval to the highest bidder, you ought to wonder about whether it’s working in the best interests of its members, or itself.

 

Image courtesy of Shutterstock