UPDATED: Some Ole Fashioned Reference Checking

© Peter Steiner, The New Yorker

“You are what Google says you are.” Adrian Fachetti

“I read it on the internet, so it must be true.” Anonymous

In “How to Fix (0r Kill) Web Data About You“, Riva Richmond of the New York Times writes,

As more of our social lives, shopping sprees and dating misadventures take place online, we leave behind, purposely or not, a growing supply of personal information.

Marketers, employers, suitors and even thieves and stalkers are piecing together mosaics of who we are. Even when it is accurate, it may not present a pretty picture.

The harder part is masking the information. It’s often possible to remove information yourself, though it will probably be a time consuming ordeal.

The “right to be forgotten” movement is less about personal privacy and more about reputation management (although Google and Facebook have each trampled on users’ personal privacy until legislated or sued into compliance). For some, the “right to be forgotten”  is the virtual hangover felt by those who crave attention without  merit;  fame without talent;  success without hard work;  respect without achievement.

Richmond is right when she says “removing information about yourself is a time consuming ordeal”, but it is possible. There are always risk takers who hope that no one will bother to check their references. Most people, particularly lawyers, are too busy with the distractions of daily life and often take what other say on the Web at face value. This complacency is counter-intuitive, particularly given that among the various common personality traits referenced in the Hildebrandt Baker Robbins study,  lawyers tended to be “self-critical and temperamental” and “resistant to authority and skeptical of others.” I suppose all it takes is a social media strategy: start with a friendly, smiling avatar, then create a website or blog, join Twitter and slowly amass followers, retweet others with positive feedback and no one will be the wiser.

The foregoing foreshadows a comment left on a post by Omar Ha-Redeye at slaw.ca entitled,  “Avvo’s Top Legal Blogs ”  , which caught my attention:

Mark C. Robins says:

Clearly there is an inherent problem with any kind of Rating.
In all such cases it is very subjective. At Lawyerlocate.ca we looked at this some years ago and found that it was far to difficult to Rate a lawyer outside of any bar disciplinary actions.
I am certainly not surprised to see litigation against the services that offer online Ratings.

In the end nothing is better than ole fashioned Reference checking! [emphasis added]

So I took Robins’ advice to heart. Here’s what I found.

By way of background,  Mark Charles Robins, is the CEO of lawyerlocate.ca (which he operates along with the President his wife, Natalie Waddell) both of whom were the subject of previous posts here and here.

Apparently, Robins  is not satisfied with simply collecting advertising revenue from lawyers who sign up for his lawyer directory service;  he now thinks that non-lawyers should be allowed to receive referral fees:

Of course, Robins’ motives are purely philanthropic:

The pseudo-debate over whether law is a  “business” or a “profession” is a false dichotomy: it has always been combination of the two. Lawyers are governed by rules of professional conduct and ethical duties arising from the lawyer-client relationship which is fiduciary in nature. The legal profession is self-regulated by professional bodies, such as state bar associations and law societies, governing and disciplining lawyers’ conduct through a mandate of protecting the public interest. But if unregulated social media law marketers like Robins have their druthers, lawyers will be offering unbundled legal services in a supermarket, or as in reported in the Financial Post, in your local bookstore where  “Customers are also eligible for a loyalty card program for legal services.”

As the saying goes, “All that glitters is not gold.” All the hype surrounding legal tech, cloud computing, unbundling of services, virtual law offices, iPads, TrialPads, etc., belies a more troubling trend. It is a lack of interest among lawyers in addressing serious challenges to the traditional values and principles upon which the legal profession was founded:  ethics,  integrity, honesty and loyalty.  Many have written about legal ethics and duties owed to clients, the court and the public. However, less attention has been paid to the duties lawyers owe to each other.

The legal marketing industry is not to solely to blame for lawyers jumping on the social media bandwagon. There are many who are eager to scramble and buy into the carpet-bombing flawging snake-oil sales pitches: “blogging about blogging” or “how to blog” or “top ten ways to get clients to visit your blog” or “iPad2 vs. Playbook: Why you should buy both” and so on. You get the picture.

How much longer must we endure the social media gurus invoking the Unholy Trinity of building a successful law practice?

“In the name of Twitter, Facebook and LinkedIn profile, Amen.”

Why should anyone care, right?

Here’s why.

Have any of the lawyers on Robins’ lawyer directory or, for that matter, anyone who follows him on Twitter or LinkedIn,  actually taken the time to check his references?

According to the lawyerlocate.ca website, Robins also runs an “investigative consultant” firm called “M.C.R. Investigative Consultants”:

Here is M.C.R.’s website with a creative disclaimer:

Here’s where the story takes a strange turn.

Originally, this post was going to be about Robins’ creative use of the word “investigative consultant” instead of “private investigator”, the latter of which would make him subject to the Private Security and Investigative Services Act, 2005 and  O.Reg 363/07 “Code of Conduct”.   

Robins also fancies himself a legal expert and dispenses legal advice at allexperts.ca. In response to a question about online harassment by a “private investigator” Robins replied:

Answer
Really no, unless you have evidence that this person has in fact breached the “Criminal Harassement Law” then you would contact the police.
As to the court appearance, you only need responde to a court issued Supoena.
It is doubtful that any individual could get one issued wthout some foundation.
Are you sure this person claimed to be a
“Lic. Private Investigator” or in fact has this person held themselves out as a “Investigative Consultant”?

Why is an “investigative consultant” answering “legal questions” on a website?

Next, a 2007  Globe & Mail online article written by Dakshana  Bascaramurty called “Details on ‘bad date’ website challenged” which didn’t garner much if any attention when it was first reported. According to the story,

An advocacy group trying to alert prostitutes about “bad dates” is posting personal information about men accused of abusive behaviour – but some of that information appears to be questionable.

Dozens of reports of alleged assault and other undesirable behaviour have been posted on the Sex Professionals of Canada’s website since 2003, alongside the personal information of clients, including their phone numbers and addresses.

Some of those phone numbers led to men who said they were wrongly implicated. They said they were unhappy to learn of allegations that they not only hired prostitutes, but mistreated them.

The report then quotes Robins who claimed to have been a victim of mistaken identity:

Mark Robins, an investigative consultant, said he e-mailed Sex Professionals of Canada immediately after he found his name listed on the group’s “undesirable clients” list more than two years ago.

“When I contacted them, I was kind of dumbfounded. I have never used those kind of professional services before,” he said.

The listing said Mr. Robins refused to refund the money of the prostitute who hired him, lost a small claims court case over the matter and then posted the prostitute’s name online to ruin her business.

The website lists his name and links to his company’s website.

“I said, ‘You can’t put this stuff up there without supporting proof.’ I was assured that it would be removed, but apparently that hasn’t happened,” he said.

Mr. Robins said he didn’t take legal action against Sex Professionals of Canada because the organization “probably didn’t have the funding” to handle a legal battle and Canada’s Internet privacy laws “are full of loopholes.”

At this point, I  started to sympathize and began having second thoughts about my poor first impression of Robins. Then my skepticism kicked in.  Something just didn’t add up. Why didn’t Robins take action to protect his reputation? If someone fraudulently put his name up some sex worker forum “bad date” list, the natural reaction would be anger and frustration.  His explanation that they “probably didn’t have the funding” or that Canada’s Internet privacy laws were “full of loopholes” just seemed to ring hollow.  Anyone involved in the legal industry, including legal marketing , would be loath to be associated with escort service websites and would probably threaten to sue and demand a public retraction and apology.

The ironic twist in this story is that someone did sue and got an apology, but it wasn’t Robins.

Some more Googling  turned up this post on the” Sex Professionals of Canada” forum:

Sure, anyone can post anything on a website forum.  It doesn’t mean it’s true, right?

So I did some fact-checking and obtained a copy of the small claims court file from the Toronto Small Claims Court office. Here are [redacted] links to the pleadings and court documents which are public record and are not subject to a sealing/confidentiality order:

Suffice it to say that the plaintiff, an Ottawa-based escort known as “Fun Valerie”, has a tremendous amount of courage in standing up for her legal rights and vindicating her reputation. For those who are unfamiliar with Canadian law, prostitution-the buying and selling of sexual service- is not illegal, although most of the related activities (public communication, keeping a common bawdy house and procuring are illegal).

Also, everyone is entitled to vindicate their reputation if damaged by untrue, defamatory statements. On the defence that a plaintiff’s “bad reputation” makes him or her incapable of further defamation,  this defence only goes to mitigation of damages. As Creaghan J. in Ross v. New Brunswick Teachers’ Assoc., 1998 CanLII 9142 (NB Q.B.) held:

“The issue does go to the assessment of damages, however, evidence that the Plaintiff had a bad reputation which could be made worse is not an answer to an action for defamation. Hobbs v. Tinling and Co. Ltd., [1929] 2 K.B. 1.”

See also, Warman v. National Post Company, 2010 ONSC 3670 (CanLII) at paras. 148-152.

The plaintiff sued a number of defendants, including the owners of http://www.gterb.com, a website consisting of various messaging boards containing customer reviews of various service providers, including escort services. The plaintiff further alleged that Robins, using the pseudonym or online alias “John Q“, published numerous defamatory statements about her online and damaged her reputation, which according to the Amended Statement of Claim (at paragraph 17) are summarized as follows:

“a. That the Plaintiff is very dangerous to her clientele

b. That the Plaintiff has in the recent past blackmailed her clientele

c. That the Plaintiff has sued her clientele for no good reason

d. That the Plaintiff has misrepresented that she is a female, whereas in fact she had gender-transfer surgery and is in fact a male.

e. That it is very dangerous to be the Plaintiff’s client.”

The particulars of the defamatory statements made by Robins and some other pseudonymous posters runs from paragraphs 16 to 79 of the pleading. Also, the plaintiff claimed harassment involving mystery telephone calls, fake bookings from blocked telephone numbers, anonymous, repetitive harassing calls, strangers showing up at her residence, individuals conducting surveillance on her residence, witness intimidation and republication of the defamatory expressions on craiglist.org and internatinoalsexguide.infor and merc.ca. (at paragraph 84).

The posting of the terms of the settlement online and public disclosure of an apology confirms that Robins not only admitted that he made the defamatory statements using the alias “John Q”,  it also resulted in Robins getting banned from the sex worker website forum and added to the national blacklist on 1/19/10.

There you have it: Some Ole Fashioned Reference Checking.


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One Response to “UPDATED: Some Ole Fashioned Reference Checking”

  1. blabwise Says:

    blabwise…

    […]UPDATED: Some Ole Fashioned Reference Checking « THE TRIAL WARRIOR BLOG[…]…

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