In 2014 I published a post that looked at the commoditization of attorneys which looked at ways companies are making money from both lawyers and consumers of legal services. In the post I point out ways in which those practices are making lawyers complicit in the relegation of the legal profession to something less noble. I received several questions from fellow attorneys, along with encouragement to keep writing on the subject, including drilling down and giving specific guidance about various practices and vendors.
I feel it’s necessary to attempt to better frame the issue and my motivations for speaking out. This post attempts to add some clarity of purpose behind my previous post and lay the foundation for future exploration.
The first question that I want to answer is why would the CEO of a legal marketing company speak poorly of an industry to which he belongs?
I am a part of the legal marketing industry because, as a lawyer, I saw what was going on. I saw where the legal profession is heading.
It is the legal marketing industry itself which I believe is the greatest danger to the legal profession, lawyers’ professional integrity, and our ability, as lawyers, to make a good living. It’s the seriousness of this threat I hope attorneys will start to understand and discuss.
The legal profession is in crisis. It’s a slow-moving wreck the progression of which makes it nearly imperceptible to a lawyer busy practicing law, and all-to-easy to ignore for lawyers who are failing at business or experiencing career dissatisfaction. The conditions precedent for bad actors to disrupt the profession have existed for quite some time. And though the disease is not new, the symptoms are newly visible to many. And they are accelerating.
The law firm marketing industry attracts bad actors. It also induces otherwise reputable companies to stoop to the lowest common denominator to compete. Very few of the products and services sold by legal marketing companies benefit lawyers or consumers of legal services in proportion to the benefits received from selling the marketing products and services. The great harm comes from the unfortunate reality that the marketers have set up a system where they, with the cooperation of lawyers in general, obscure information necessary for consumers make wise and informed choices about their legal needs.
Lawyers generally cooperate with marketers against their personal and collective best interests because the marketers know how to push lawyers’ buttons. Ego and fear are regularly exploited by the marketing companies. Once example of this is that lawyers eagerly accept bogus awards created to enslave them. Lawyers proudly display these awards as badges of honor. These awards are usually the digital equivalent of a Trojan Horse, and embedding them in a law firm’s website not only helps the marketing company (not the lawyer) rank their website better in the search engines, but also allows the marketing companies to secretly track all of the law firm’s website traffic (more on this in a future post).
Too many lawyers enter into voluntary servitude to marketers because they don’t know any better. They do it because everybody else does. Because it’s a “necessary evil.” Or because they don’t want to get left behind.
As lawyers we are trained to stand up and fight for others, but when it comes to marketing we too often run with the herd. The marketers know this. Smart non-lawyer legal services companies know this. And so together they lead the herd of lawyers to the professional equivalent of a buffalo jump.
Meriwether Lewis, described the practice of a buffalo jump as follows:
“one of the most active and fleet young men is selected and disguised in a robe of buffalo skin… he places himself at a distance between a herd of buffalo and a precipice proper for the purpose; the other Indians now surround the herd on the back and flanks and at a signal agreed on all show themselves at the same time moving forward towards the buffalo; the disguised Indian or decoy has taken care to place himself sufficiently near the buffalo to be noticed by them when they take to flight and running before them they follow him in full speed to the precipice; the Indian (decoy) in the mean time has taken care to secure himself in some cranny in the cliff… the part of the decoy I am informed is extremely dangerous.” (from Wednesday May 29, 1805, The Journals of the Lewis and Clark Expedition (Volume 4). Gary E. Moulton, Editor)
Lawyers are being driven towards a cliff. That’s why I call this series (where I will attempt to reveal the dirty secrets of the legal marketing industry and lay bare before the bar the realities, warts and all) the “Slippery Slope.”
At the bottom of the slope are the remnants law firms that are taken advantage of by marketers, attorneys who sacrifice their professional integrity for a quick buck, and the legal profession collectively. And if you’re a lawyer swept up in the stampede, I hope these posts help give you the tools to turn your practice around, and in so doing, help steer the herd towards safety.
Being a “legal marketer” carries some of the same burdens and frustrations as being a criminal defense lawyer.
I’ve worn both hats. Both are seen by a large and vocal portion of the population as black hats.
Although I am the leader of a company that builds and profits from legal marketing software and services, I’m saddened that by virtue of my second profession (the first was a 10 year career as a criminal defense lawyer) I’m lumped in with so many bad apples.
Being called a “legal marketer” (although 100% true) sticks in my craw much the same way somebody asking me “how can you defend those people?” did during my years as a criminal defense lawyer. And for much the same reason.
If our non-lawyer citizens don’t understand and respect our system of justice and Constitution, we’re in danger as a nation of free people. And if lawyers don’t understand the dangers to the legal profession (and therefore the system of justice) that have evolved since Bates v. State Bar of Arizona, then we’re also endangered, endangered as a profession and as a society. The lawyers will be disempowered because they will continue to remove themselves from the status of influence that they once had. The justice system will be imperiled because the lawyers will no longer have the influence and standing to honor the tradition of a steady and just judicial branch.
To the people at cocktail parties who asked me “how can you defend those people,” I could always answer “read the Constitution and Bill of Rights.” It was exhausting to have those conversations, which often trailed off with “but if you know they’re guilty…” when they realized it was not I point that I would ever concede.
To solve a problem we have to collectively understand it.
For lawyers who don’t take the time to understand how legal marketing works and understand it’s influence, there is simply no excuse for grumbling that “hacks” are taking over the industry, getting the good cases, and dragging good lawyers down the slippery slope with them. But for those who understand it, speaking out, grumbling loudly, is possibly our most effective weapon.
So for the lawyers who see what’s going on, and who are not participating in the commoditization of the legal profession, but who are not talking about what the bad lawyers and the bad marketers are doing either, I’m talking to you. Hate the game. Hate the player. But if you don’t do something about it, all of your hating won’t amount to squat.
The people at cocktail parties who don’t understand the Constitution, and don’t respect the presumption of innocence and due process are lawyers’ problems. As lawyers we shouldn’t walk away from those conversations. We need to educate the public. It’s our duty to educate society about what we do, and about the law that we serve. In much the same way, we must have conversations about the business of law, and where the profession is going.
What dairy farmers and lawyers have in common (it’s not about the milk).
To better frame how the collective consciousness affects the legal profession, let’s look at an example outside of the law. Individual dairy farmers in a state may compete against each other in the market. When somebody needs milk, a purchase from one dairy deprives competing dairies of that revenue. But dairies face a larger problem that affects them collectively. Dairy consumption faces erosion from social causes, health concerns and competition by purveyors of non-dairy alternatives. That is why competing dairies form associations and co-produce public awareness campaigns, including paid advertising, together. They first must compete against outside forces together if they are ever to get the chance to compete against each other. Without understanding the outside forces that will bring them down, and forming coalitions to fight those forces, their opportunities to compete against each-other diminish. Or dairy products become marginalized and commoditized to the point where only the farmers with the worst ethics (more on that in a moment), the cheapest products and lowest prices will survive.
It’s the same for lawyers. There are outside forces eroding the legal profession while lawyers sit idly by, or attack each other. As lawyers, collectively we face an existential threat to the legal profession, and the first step is acknowledging that it’s there.
Why are some lawyers rewarded by the market for behaving badly?
People in need of legal information and services increasingly turn to the internet. The market (desire) for information is there. When good lawyers don’t attempt to fill it with useful information, a vacuum forms. It is quickly filled by less desirable content from opportunists and profiteers.
In absence of quality information, consumers (potential clients), unable to discern what is good advice and what is not, rely on the best accessible information. Unfortunately, that information may not be reliable at all.
The internet has trained consumers to expect two things:
- Instant gratification; and
- Information parity with sellers.
While the first is self-explanatory, the second may require a bit of explanation.
Does the expectation of information equilibrium hurt consumers of legal services?
The internet is a great equalizer. Buyers now expect to have as much information as sellers have. As consumers, we can read dozens of reviews about nearly any product before buying. Every citizen can now become a restaurant and movie critic with a voice that matters online. And we can see the menus, make reservations and even order ahead online. We shop for cars differently now too, and the car salesman of old is now more of a test driving companion than a provider of information. The factory invoice for new vehicles is now at our fingertips, and the power in the transaction is now distributed equally between dealer and buyer. It can be said that, because of the internet, the information that the buyer has, and the information that the seller has are in equilibrium in most situations.
New paradigm. New questions.
But is information equilibrium possible about complex legal topics? Should consumers expect the same access to information about subjects typically handled and understood by only professionals as consumers expect to have for commodities such as vehicles? Is it in their best interest to have (or expect to have) such information? Is it in the legal profession’s collective best interest to provide the information.
Before the internet, sellers of goods and services had a significant advantage over consumers of those goods and services. Consumers depended on sellers to educate them about a product or service, while consumers lacked a meaningful way to compare quality and price without a lot of effort. Today, if a consumer can’t instantly find everything they want to know about whatever they are considering buying, it’s suspicious and the consumer may give up without making a purchase.
The internet is an open system. It provides equal opportunity for signal and noise. Because of the complexity of even the most basic legal problems, it may be impossible for the average consumer to discern good information from bad. And even if they could, making sense of unfiltered good information is a tall order.
Consumers are trained to expect what the market provides. Living in the real world, lawyers need to be aware that their clients and potential clients expect ample information to fill their attention spans, and that the information will mostly be consumed haphazardly. The wrong information, from the wrong sources will hurt the consumers, and therefore the public’s perception of the legal system and lawyers.
We, as lawyers, are the guardians of legal information. We are teachers of the law. We are communicators. Just because the means of communication have shifted to the internet does not absolve us of our obligation (and opportunity) to ensure that the information the public consumes will be signal rather than noise.
I can’t argue that having access to accurate and useful information could be anything but helpful to the clients and potential clients of lawyers. Some issues may be too complicated for consumers to handle themselves. And the more information that is made available to them, the easier it will be for them to realize that they need professional help to understand and deal with the issue. The converse, a lack of adequate information, is what gives consumers the false confidence needed to make the foolish choice to not hire a lawyer when one is needed, or to engage the wrong lawyer.
Some argue that the more information readily available to the layman, the more rope he has with which to hang himself. But correct information is not harmful. It’s the absence of access to correct information that is the precondition for consumers of legal services to be taken advantage of and sold unnecessary or inadequate services. The same can be said of lawyers who purchase marketing products and services. Their lack of access to accurate information is jeopardizing the profession.
The grave consequences of information equality on the legal profession.
According to Nobel Prize Winning economist George Akerlof:
Dishonest dealings tend to drive honest dealings out of the market.
Legal marketing itself is not inherently dishonest or misleading, but in far too many cases those who participate in it, lawyers included, make it so. And as more dishonest actors enter the market, according to Akerlof, more honest actors will exit the market. Unfortunately, over the past decade, the status quo has drifted towards dishonesty.
The worst thing that could happen to the legal profession, and the business of legal marketing, would be to blindly continue with business as usual. The status quo is not acceptable, as it’s not consistent with the preservation of the legal profession as most lawyers would like to see it preserved. And any lawyer or legal marketer who thinks the status quo is acceptable should not be surprised as the legal system and the stature of attorneys is eroded.
Attorneys are complicit in the decline of our profession. There are more than 500,000 solo practitioners and small private practice law firms in the US alone. Competition is fierce. And it is all the little lies that lawyers and legal marketers tell the public, and the little lies that attorneys tell themselves to justify participation in the marketplace of corruption that are bringing our profession close to the point of no return.
According to Akerlof:
Consider a market in which goods are sold honestly or dishonestly; quality may be represented, or it may be misrepresented. The purchaser’s problem, of course, is to identify quality. The presence of people in the market who are willing to offer inferior goods tends to drive the market out of existence -as in the case of our automobile “lemons.” It is this possibility that represents the major costs of dishonesty -for dishonest dealings tend to drive honest dealings out of the market. There may be potential buyers of good quality products and there may be potential sellers of such products in the appropriate price range; however, the presence of people who wish to pawn bad wares as good wares tends to drive out the legitimate business. The cost of dishonesty, therefore, lies not only in the amount by which the purchaser is cheated; the cost also must include the loss incurred from driving legitimate business out of existence.
There will always be lawyers who sell clients out for a quick buck. If there weren’t, the answer to the joke “what do you call 10,000 lawyers at the bottom of the sea” would not be universally known. Lawyer jokes predate attorney advertising and the Bates decision. Assuming that lawyer jokes like the one mentioned above, with the punchline “a good start” are at least a partial reflection of the truth, and jokes usually are, then we can’t possibly blame the newcomer on the scene, the internet, if bad actors in the market make it increasingly difficult for good actors to operate, right?
Not so fast.
The internet did not invent the problem, but it is responsible for the acceleration of the problem beyond the tipping point. Without the internet and the temptation that it brings for lawyers to compete by actively lowering their ethical standards or by passively looking away, the percentage of bad actors actively practicing law would be much lower. The internet, as a technology for mass communication, is the tool that, unfortunately, creates the conditions where dishonest dealings are able to drive honest dealings out of the market. Akerlof’s argument, applies to lawyers in 2014 and beyond just as it applied to automobiles in 1970. And it certainly applied to legal marketing companies.
There are dishonest actors in any business. There were dishonest lawyers before the internet. But the opportunities for lawyers to market dishonestly were limited. The internet, with all of it’s wild-west capital darwinism is speeding the evolution of bad behavior on the part of lawyers, whether directly or through 3rd party marketers that lawyers empower and then turn a blind eye to.
Before there internet there were few references and rating systems by which to compare lawyers. Martindale Hubbell was the most prominent. Today, superlatives such as “best lawyers” are not only plentiful, but protected by the United States Patent and Trademark Office. And Internet Brands owns the the AV rating, among other labels that lawyers feel compelled to brand themselves with.
Different rules. Different values. Different consequences.
Online legal marketing is currently monopolized by those who don’t have to play by the same rules as lawyers. There is no governing body regulating what the marketers are doing in law versus in any other industry. As far as non-lawyer marketers are concerned, literally the same rules apply to promoting a lawyer as to promoting a microwave, a handyman or a burger franchise. And many marketing companies treat lawyers no differently than businesses that are more trades than professions.
Not only are marketers not bound to play by the same ethics rules, and they are highly incentivized to produce results. In today’s world, where potential clients of law firms are referred to as “leads” and are bought and sold as commodities by legal marketing companies and attorneys alike, there is no reason for the marketers to stop. There is no incentive for ensuring ethics compliance, accurate depiction of a lawyer’s services or abilities, or any level of truthfulness whatsoever. In short, marketers see themselves as hired mercenaries. To them, the end may justify the means, but they don’t have to live with the consequences. Lawyers do. And when lawyers are indifferent to the consequences, there is simply no reason for marketers to pay the consequences any mind at all.
Indifferent as some lawyers may be (as long as they are getting theirs), the legal profession is paying the price for the imbalance of incentives, risks and rewards for lawyers compared to legal marketers. This imbalance of incentives and accountabilities leads to a greater opportunity than anytime in history for unethical lawyers (and lawyers who might otherwise behave ethically but who participate in shenanigans because they are afraid of losing business) to profit from the misuse of information.
The collective body of bad information by, about, and written on behalf of lawyers has, I fear, reached a tipping point. There is so much of it out there, and it’s so difficult to trace its origin, that state bars, charged with the responsibility of policing ethics in legal marketing, face a hopelessly big mess. The bad actors are years ahead of the regulators, and outnumber them decisively. Therefore meaningful change through attorney discipline is not possible. The best the bar can hope for is selective prosecution of example cases, which, at best, would have a slight deterrent effect.
The real problem is that most lawyers empower the wrong people to speak on their behalf online. Even if regulation became ubiquitous tomorrow, and all lawyers who engaged in misleading marketing faced certain discipline if their bad practices continued, most lawyers who are currently empowering non-lawyers to publish and market on their behalf would find a hopeless task in attempting to clean up the messes made of their names by marketers they have been paying for months or years.
Even if you don’t have to market your practice at all and get all of your cases by word of mouth (good for you!), this Slippery Slope is still going to adversely impact your practice. It’s imperative that you too pay attention to the devolution of the legal profession made possible by the internet.
What can lawyers do?
So what can lawyers do to help slow or reverse the damage? Understanding that this can’t be solved in a day or a blog post, here are some things that, if enough lawyers do, can make a difference:
Talk about the problem: The worst thing that we can do, as lawyers, is to remain silent. As a profession, lawyers can no longer afford to excuse the bad behavior of some of us as business as usual or life in the big city. There is a new generation of lawyers who emerged from law school while the problem was already in full bloom. If the problem is not clearly identified and often spoken about by senior lawyers who remember how things used to be, the compass that guides lawyers may become forever recalibrated. Unless you plan to retire in the next couple of years, the problem will affect your practice more each year, so speaking about it is imperative.
Contribute good information: The only way to make sure that useful legal information makes into the hands of consumers is to actively produce it. Become a contributor of good information. That means producing quality content that elevates the discussion about legal topics for layman and lawyer alike. It also means starting with the interest of the public and the profession as your primary goal, not search engine optimization or lead generation. In future posts we’ll go into detail about how to do this.
Share good information: The internet rewards social proof. If you see other lawyers contributing good content, share that content with your social networks, especially Google +, LinkedIn, Twitter and Facebook. As lawyers, let’s make sure that our colleagues are praised for creating good content. There is nothing better than the reward of social affirmation, so take a second to press the “like” or “+” or “retweet” button to support those who are making positive contributions.
Correct bad information: See some bad information posted by a lawyer (or by a marketer on behalf of a lawyer)? Use the publication of that bad information to call that lawyer out and publicly correct it. The best way to do this is to have your own blog (so you own and control the fruits of your efforts), although you can also use social media. Explain why the lawyer is wrong, provide meaningful citation to accurate information sources. Explain the information correctly and well. Then share it through your networks and ask your friends and colleagues to do the same.
Until lawyers who are susceptible to working with dishonest marketers feel consequences for their choices, the problem will continue to get worse. The lawyers who are still able to make good livings without resorting to internet tricks and dishonest measures must step up and educate those who aren’t able to, or don’t choose to put the same thought into their public communications about their practices as they would into an important appellate brief.
This is a systemic problem that will require leadership, effort and sacrifice to correct. The legal profession will survive, and may even emerge strengthened, when enough lawyers start to notice and care.