Many have heard about the recent mistrial in the Dontrell Deaner D.C. murder trial due to the egregious incompetence of Deaner’s now former criminal defense lawyer, Joseph Rakofsky (Washington Post story). I commend readers to the following posts:
- Jamison Koehler’s, Koehler Law Blog: Inexperienced Lawyer Dismissed in D.C. Murder Trial
- Scott H. Greenfield’s, Simple Justice: The Truth Free Zone Eats One Its Own
- Mark W. Bennett’s, Defending People: The Object Lesson of Joseph Rakofsky
- Brian L. Tannebaum’s, My Law License: Unethical Marketing Stings Two Criminal Defense Lawyers
- Eric L. Mayer’s, Military Underdog: Lying Piece of $%^&. With Screenshot as Evidence and Of Nuclear Bombs and Fallout (or Crap is King)
- Elie Mystal at Above The Law: Mistrial After Judge Is ‘Astonished’ By Touro Grad’s Incompetence
- Carolyn Elefant’s, My Shingle: From tiny ethics mishaps, do major missteps grow?
- Eric Turkewitz’s, New York Personal Injury Law Blog: Lawyers and Advertising (The New Frontier)
- Debra Cassens Weiss at ABA Journal: Lawyer Who Never Tried a Case Proud of Murder Mistrial on Facebook, Humiliated in Interview
Scott Greenfield’s follow-up post, Six Steps Backward, at Simple Justice is also a must read for lawyers—both new and experienced—on the pitfalls of social media self-promotion as a “legal expert”. Here is an excerpt of Greenfield’s excoriating critique:
The last sentence is the killer. Everything up to that point, assuming Shepherd’s self-assessment that he eventually became an expert, is relatively accurate, was a lie. One big old scam to garner attention. This is the modern path to success in the law, just lie your butt off to everybody who will listen, feign expertise you don’t have and see how many fools will let you slide in along the way. Cover up the dead bodies of your incompetence and when you get lucky, promote the hell out of yourself as if you’re the real thing.
What further troubles me is how some lawyers continue to self-promote their “legal expertise” in a variety of areas of practice, when objectively they have little or none. Frankly, stating that one is a “legal expert” on Twitter, Facebook, blog or website is perilously close to false advertising. The reality is that no professional bar association qualifies any lawyer as an “expert”. While there are specialist accreditations and certifications available in many jurisdictions (eg. see the Law Society of Upper Canada’s Directory of Certified Specialists), this does not equate with expert status.
In a Report to Convocation dated April 30 2009, the Law Society of Upper Canada Professional Regulation Committee considered the use of the word “expert” in relation to Rule 3.03(1) of the Rules of Professional Conduct . At the October 2008 Convocation, bencher Bob Aaron had raised an issue about the word “expert” and how it would be misleading for a lawyer to use that term to advertise services in an area of law unless the lawyer was a certified specialist in that area.
The current rule and commentary read as follows:
3.03 ADVERTISING NATURE OF PRACTICE
3.03 (1) A lawyer may advertise that the lawyer is a specialist in a specified field only if the lawyer has been so certified by the Society.
Lawyer’s advertisements may be designed to provide information to assist a potential client to choose a lawyer who has the appropriate skills and knowledge for the client’s particular legal matter.
In accordance with s. 27(1) of the Society’s By-law 15 on Certified Specialists, the lawyer who is not a certified specialist is not permitted to use any designation from which a person might reasonably conclude that the lawyer is a certified specialist. In a case where a firm practises in more than one jurisdiction, some of which certify or recognize specialization, an advertisement by such a firm which makes reference to the status of a firm member as a specialist, in media circulated concurrently in the other jurisdiction(s) and the certifying jurisdiction, shall not be considered as offending this rule if the certifying authority or organization is identified.
A lawyer may advertise areas of practice, including preferred areas of practice or that his or her practice is restricted to a certain area of law. An advertisement may also include a description of the lawyer’s or law firm’s proficiency or experience in an area of law. In all cases, the representations made must be accurate (that is, demonstrably true) and must not be misleading.
The Report to Convocation includes an amusing footnote of the Chair of the Committee’s views on the use of the word “expert”:
The Chair of the Committee advised Convocation of the Committee’s views on the issue, as it had had a discussion about the issue at a previous Committee meeting. The Chair said: “We weren’t persuaded that we should include a per se prohibition on the use of the word expert…The lawyer who really is every day working as a mail carrier and maintains…that he or she is an expert in securities legislation or securities litigation…would…very much be offside…these proposed rules…which would be marketing that is not demonstrably true, accurate or verifiable.”
I suppose “going postal” has a new meaning in the era of part-time/ Starbucks/iPad lawyering.
The Committee provides some furtive examples of law firms using the word “expert” in their social media marketing strategy, including:
a. The website of a large Toronto law firm states that one of its senior partners, who is not a certified specialist, practicing corporate and securities law is “an internationally recognized expert in corporate governance”;
b. A large Toronto firm offers an online newsletter on employment law issues and states “Read our labour and employment law experts’ case commentary”, which is written by two lawyers who are not certified specialists;
c. Information on the website of a large Toronto firm about a senior business law lawyer (not a certified specialist) includes “Named by Law Business Research’s International Who’s Who of Banking Lawyers and Who’s Who Legal Series as a leading expert in Canadian banking law, corporate governance and mergers and acquisitions”.
Subrule 3.02(2) of the Rules of Professional Conduct currently reads:
(2) A lawyer may market legal services if the marketing
(a) is demonstrably true, accurate and verifiable,
(b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive, and
(c) is in the best interests of the public and is consistent with a high standard of professionalism.
The Committee recommended against making further amendments to the marketing rules, concluding that “the current rules and commentary, which prohibit false or misleading advertising, are sufficient to address any issues that might arise from use of the word “expert” in lawyer advertising.”
Compare the Court of Appeal for Ontario’s decision in R. v. Abbey, 2009 ONCA 624 (CanLII) where Justice Doherty outlined various factors for verifying an expert to give evidence in court (in that case, expertise in gang membership based upon teardrop tattoos):
• To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training?
• To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field?
• What are the particular expert’s qualifications within that discipline, profession or area of specialized training?
• To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available?
• To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury?
• To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced?
• To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert?
• To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises?
• To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process?
Clearly, stating “Lawyer X is a widely recognized expert in the area of Y” is not subject to any level of scientific rigour. Perhaps the only area where a lawyer has expertise is as a court-qualified witness in a professional negligence lawsuit.
Most lawyers are competent, others not. For the incompetent, a professional negligence lawsuit and/or suspension or disbarment is a possibility, but by no means a certainty.
The traditional legal news media is not helping matters. The April edition of The Lawyers Weekly, contains an article entitled “The Social Network” showcasing the rising stars of Canadian law and social media, where the words “expert” or “expertise” are bandied about a half-dozen times.
Then there’s this sage advice from Mark C. Robins of LawyerLocate.ca:
“Nobody looks in the Yellow Pages for lawyers,” says Mark Robins, a former private investigator in Toronto who serves as the company’s chief executive officer. His wife, Natalie Waddell, established LawyerLocate.ca Inc. because of her own frustrations over finding a lawyer when her first marriage was breaking down about 15 years ago. She currently serves as the company’s president.
“Relying on the old standby method of personal referrals through which lawyers attracted clients was rapidly disappearing 10 years ago — and it’s gone today,” says Robins.
Personal referrals are gone today? Is that your expert opinion, Mr. Robins?
Finally, is anyone persuaded that the Committee’s recommendation sufficiently protects the public from false advertising claims made by unqualified, incompetent or “resume padding” lawyers?