Scott Greenfield’s post today, Simple Justice: Bodine to Tannebaum: Man Up, highlights the deontological vs. teleological debate between Brian Tannebaum and Larry Bodine over the ABA’s recently formed commission called “Ethics20/20“. One assumes that the “20/20” refers to the ABA’s belated response to the ethically regressive aspect of online lawyer marketing.
Anyone familiar with the blawgosphere will know that Greenfield, Tannebaum and Mark Bennett are ruining it for the shysters, snake oil salesmen, and social media pseudo-experts. What I find truly alarming is the ABA’s hypocritical stance in first evangelizing social media for lawyers and only now casting a sober, second look at the ethical quagmire it helped foster. This goes beyond the oxymoronic “Legal Rebels” beauty contest, and countless, banal “social media for lawyers” programs.
If we are to believe the lawyer marketing legion, ethics are an unnecessary evil: In his “call to arms”, Bodine writes,
“In my opinion, the ethics boards should keep their hands off the internet. We don’t need more regulation, we need less. It is sufficient for the ethics rules to state that a lawyer may not make a false or misleading statement online; that’s enough. The commission’s activities are a waste of time and a threat to the public and the profession. The ethics police should focus on lawyers who steal from client trust accounts, not bring disciplinary actions against lawyers for their Facebook pages or what a lawyer said in a Twitter message. “
If enacted, rules outlined in the “Issues Paper” will have many deleterious effects:
- The ABA’s proposed actions will cause a chilling effect on a lawyer’s right to commercial free speech, first established in In Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
- The public will suffer because there will be less information to find about attorneys, FAQs and articles about the law, and how lawyers can help them.
- Ethics burdens on marketing will unfairly hurt solos, GPs and lawyers in small and mid-sized firms, which heavily use online marketing. The ethics rules will not affect BigLaw firms that have hundreds of thousands of dollars to spend on costly offline marketing initiatives.
The fallacies jumble and tumble over each other. Commercial free speech is the reddest of herrings. The only chilling effect to lawyer’s free speech, commercial or otherwise, is that those who lie, prevaricate, obfuscate, exaggerate, or otherwise mislead the public about their credentials, experience or ability will be subject to scrutiny and censure by their respective state bar associations. Public confidence in the integrity of the legal profession is anathema only to those who place greed over good.
Quite frankly, I am most astounded by Bodine’s phrasing, “ethics burdens on marketing”. Ethics are not a burden, they are a blessing to those who value honesty, integrity and professionalism. These are the hallmarks of what it means to be a lawyer. Whether you are a practicing or non-practicing lawyer, unless you have voluntarily withdrawn or resigned from the legal profession, you are bound by your duty to your clients, duty to the court, duty to the profession generally, and duty to the public. If you’re a “former lawyer qua legal marketer”, until legal marketing actually becomes a recognized profession—subject to licensure, a code of professional conduct and regulation—ethics will remain elusive, unknowable and inconvenient.