Jamison Koehler writes:

Policing the blawgosphere and calling out specific lawyers on what are still debatable ethical issues seems to me, as I wrote on Greenfield’s site, paternalistic and futile.

And Carolyn Elefant (who is clear that ghost blogging is unethical) writes:

I don’t criticize Mark or Scott  for outing the ghostblogging lawyers, since Buchanan’s clients willingly provided testimonials and in doing so, put themselves out there.  Nor do I take issue with Brian Tannebaum’s decision to disclose lawyer marketers with tainted ethics records (in fact I interviewed him about it here) because frankly, that information is public record (even Avvo lists ethics violations).Nevertheless, I’m far less comfortable with criticisms like this one about the lawyers embroiled in the Total Attorneys ethics mess [Never mind that their names are also public record. MB.] or “naming names” of lawyers who advertise [Link missing from original] on what Eric Turkewitz has termed dreck blogs.

Carolyn’s reasoning is that

the lawyers who subscribed to services offered by Findlaw and Total Attorneys, both of which are ABA sponsors,  most likely believed that the ABA had vetted these companies’ practices before accepting their sponsorship dollars.

Any lawyer who holds that particular belief should be barred from the internet until she develops some sense. The ABA is a self-important voluntary tea-and-argument society. That it has any authority is a myth apparently popular among non-lawyers; its endorsement of a particular product (even if accepting advertising dollars constituted an endorsement), though, bears no weight. The ABA knows no more about social media than the average lawyer. It doesn’t vet its advertisers in a meaningful way—as we’ve seen—and shouldn’t be expected to.

Jamison calls the ethics of using ghostblawgers “debatable.” It may well be debatable (on the “people will argue about anything” principle) but, as I’ve commented elsewhere, I’ve yet to see the argument in favor that takes into account lawyers’ unique product and position in society. Ghostblogger Jenni Buchanan makes an effort at Blog for Profit but conveniently glosses over her own prime selling point, which happens also to be the prime argument for the unethicalness of ghostblogging: that lawyers blog to “give themselves credibility.”

There are those who are more comfortable trusting governing bodies to decide what is ethical, and are perhaps not comfortable enough with their own judgment or authority to tell others when they are wrong. Those people should certainly not be calling out others. Let’s take it as a given that those lawyers who are calling out people on ethical and aesthetic issues (beauty is truth, truth beauty) are themselves certain that those issues are not debatable. Either that, or they are willing to be publicly called out for being wrong. Or both.

Also, let’s take it as a given that those lawyers doing so care (not everyone cares about these issues, and that’s okay, Norm Pattis).

Jamison thinks that “policing the blawgosphere and calling out specific lawyers” is paternalistic and futile. I’ll take the adjectives in order.

As to paternalism, nobody is trying to act like the daddy of the blawgosphere. The cheaters are not chastised for their own good, but for the good of the community. So “Sheriff” is probably a more apt metaphor. The internet is largely lawless, a virtual wild west, and there’s nothing wrong with exercising your authority to try to impose a little order on your little corner of it to make it more agreeable to you. If that involves hurting a few feelings, well, you can’t make omelets without breaking eggs.

Maybe Jamison’s “paternalism” objection is that nobody elected Scott or Brian or me Sheriff (or “Top Cop“) of the blawgosphere. That’s true enough. But lots of people read Simple Justice (PR6), and it’s not because Scott Greenfield’s afraid of hurting people’s feelings. Fewer people read Defending People (PR5) and Criminal Defense (PR4), but the numbers are not inconsiderable. Bloggers have authority in proportion to how many people read them (and link to them) and people read and link to those three blogs, none of which is shy about publicly calling a fraud a fraud.

As to futility, consider the numbers. There are over a million lawyers in the U.S. 80% of them (according to a possibly-reliable source, the ABA) are solos or in small firms. Most of them are looking for a way to make more money. Most of them aren’t highly social-media-savvy. Call it at least 200,000 (most of most of 800,000) lawyers who are looking (some desperately) for a way to make more money and are not highly social-media-savvy.

There is a growing industry of people, not all of them disbarred lawyers, pouring poison in the ears of those 200,000 lawyers, trying to sell them on the next great way to find “leads” on the internet: comment spam, ghostblogging, splogging, dreckblogging to name just four.

If I run into a lawyer—one of the 200,000—who is funding comment spam, and I send him a gentle email, one of two things will happen: he will stop funding comment spam, or he will not. The latter outcome is more likely: since he doesn’t know that he will be named, he has little incentive to stop (the Bradley Johnson Rule)—comment spamming is probably not a violation of the DRs, and even if it were the State Bar wouldn’t do anything about it.

If he stops, that’s great: one down, 199,999 to go. (Woo hoo!) If he doesn’t, and if calling out the cheaters is wrong on principle, then I’ve done all I can. Talk about futility!

On the other hand, if I am willing to put the cheater’s name up in lights, he will eventually get the message:

[L]aw bloggers can do something about the law field spammers. Because unlike the other sites, these folks generally have very little Google juice and should actually care about their reputations. So if a few blogs decide to out the spammers, this could have a pretty big effect on the firms. When their names are Googled by potential clients, the potential clients will see that they are spammers. And it will no doubt cause them to stop.

Eric Turkewitz, New Spam Comment Policy for Law Firms (You Will Be Exposed)

That’s specific deterrence at work.

Not only will the specific cheater get the message, but some other lawyers in his position will get the message as well. That’s general deterrence.

People market themselves online to manipulate their reputations. One way or another—whether they pay FindLaw or Total Attorneys, hire a disgraced-former-lawyer “social media expert,” or do it themselves, they are putting themselves (as Carolyn might say) out there. The guys financing FindLaw to post dreckbloggen (Goldberg Sager & Associates; Arye Lustig & Sassower; Kahn, Gordon, Timko & Rodriquez to name but three) are reaping whatever (probably slight) benefit the dreck accumulates. They pay (lots of money) for their names to be publicly associated with the dreck; it’s appropriate for their names to be publicly associated with the opprobrium that dreck generates. As Scott writes:

There’s no right to enjoy the benefits of public self-promotion, assuming there are any, with impunity.  When you put yourself out there, you invite scrutiny.  If you can’t take it, then you’ve come to the wrong place.  Your peers may adore you or think you’re dumb as dirt, not to mention unethical, deceptive and scummy.  That’s the risk of going public.

Finally: I, for one, would just as soon not see more attempts by the state bars to regulate the internet: they will screw it up.

Our only hope of having rational rules for lawyer marketing online is to make and enforce them ourselves. And the only tool we have in any effort to enforce rational rules for lawyer marketing online is the credible threat of reputational harm resulting from misconduct. So even if you would never ever call out a lawyer who is (directly or indirectly) lying, cheating, or polluting, you should be glad that there are those of us who will.

Dear Mr. Bennett,

Thank you for including my company in your blog post yesterday about the ethics of legal ghostblogging.  As a (relatively) new form of communication, blogging is still in many ways going through its growing pains, and as more and more professionals and businesses begin to see the value of blogging I know that there will be many more debates about various aspects of it, including continuing ethical debates.  Like you, I think these debates are important, and I look forward to seeing (and perhaps being a part of) how the field evolves.

The ethics of having a ghostwriter in a field that is still in many ways expected to be transparent is something that I discuss with each and every one of my clients; that is why some of my clients choose to have my tagline at the bottom of each post that I write for them, and every client of mine knows that I expect them to read and approve every post that appears on their blog. Personal and professional responsibility is not something I neglect or take lightly.  As you might expect, I have many of my own opinions about this subject and would be happy to engage in conversation with you if you are interested in discussion.

The reason I am writing you today is because–although I have no desire to censor the debate–I would like to ask you, as a professional courtesy, to remove your reference and link to my client testimonials page.  You are welcome to leave your reference to my business and my home page (your readers can find my client testimonials page from there if they are so inclined.) As I said above, professional responsibility is not something I take lightly, and I feel it is my professional responsibility to be the “front man” in this debate, and bear the brunt of this particular criticism. I realize that in the end this is your forum and your decision, and I appreciate your consideration of my clients and of my request.

If you would like to discuss this topic further I invite you to e-mail me privately at any time.

Best Regards,
Jenni Buchanan

www.LegalGhostblogger.com
My blog: http://blogprofs.typepad.com/

Dear Ms. Buchanan:

Thank you for your email.

Blogging is not so novel that there are no precedents. In the original post I drew analogies to claiming other lawyers’ results and résumés; in the non-legal world it’s like putting a picture of one thing on the outside of a can filled with another. I note that, of the five “bloggers” with testimonials on your testimonial page, only two use your tagline; Gene Osofsky, Rick Law, and Kimberly T. Lee do not. Why do you suppose that is?

It is very important for the discussion of the ethics of lawyers using ghostbloggers to be conducted publicly, in full view of those who might be affected by lawyers’ marketing choices—not only the clients whose fortunes and futures might be at stake, but also the lawyers whose reputations are at stake. You take professional responsibility seriously, but your clients are the ones with their licenses and their reputations on the line.

It is crucial that those with ultimate legal and ethical responsibility for online marketing (the lawyers) realize that they have some skin in the game. Some lawyers feeling that it is okay to have a “front man” causes many of the problems with unethical online marketing: they trust a non-lawyer to do it for them, and wind up paying for spam, splogging, or ghostblogging. I suspect that when lawyers realize that they might be called to public account for the things they delegate to others (Outsourcing Marketing = Outsourcing Ethics), they give a lot more thought to their marketing choices.

I’d be happy to hear your arguments that hiring a legal ghostblogger is ethical, but I don’t think your clients should be insulated from the effects of this particular decision.

Mark

Do you look like John Edwards? No, I thought not. Yet everyone knows that success is tied to physical attractiveness. So you might be interested in GhostMug.com. GhostMug.com works on the same principles as GhostWins.com: you pay a small monthly fee, and we provide you with pictures of a trustworthy person who fits your basic demographics—just like you but much better looking. As long as you continue your subscription, you can continue using the pictures as a substitute for your own—let’s face it—homely mug in your online marketing. We’ll even send you weekly updates of “your” face in law-related poses. $250 a month gets you a syndicated face, which other subscribers might also use (we can’t guarantee that someone in your field of law and geographical area will not use the same face as you) or $500 a month gets you a personalized face, which only you will have permission to use.

Since you’re still reading this, odds are that you didn’t graduate from a Tier-One law school. You know that it doesn’t make any difference to the results you get (or lease, through GhostWins.com), but some paying clients might be more likely to hire you if your resume were a little more impressive. GhostResume.com can fix that problem. On the same model as GhostWins.com and GhostMug.com, GhostResume.com allows you to contract out your credentials. For a nominal fee, you get to use the guaranteed-to-impress bona fides of an actual lawyer in your marketing materials. Your clients will never know the difference.

To maximize your online marketing potential, sign up for TheWholeGhostPackage.com. You’ll get weekly GhostWins, a GhostMug, and a matching GhostResume for a discounted monthly $700 (syndicated) or $1,400 (personalized).

So how is it okay for a lawyer to hire a ghostwriter to write his blog?

When a client hires a lawyer, more than the results or the face or the résumé, he’s paying for the lawyer’s knowledge, intellect and heart—attributes that good writing reveals and ghostwriting falsifies. Hiring a ghostwriter to write your blog (like some of the people here using a ghostwriter “to enhance their credibility”) is no more ethical than subscribing to TheWholeGhostPackage.com.

In 2009, Simple Justice rightfully owns the category of “Criminal Justice.” Here, though, are the five latest posts from the frontrunner in that category, which is shamelessly begging for votes from its readers:

• Baucus Gave Girlfriend Raise:

At the least, a serious ethics investigation is in order.

• E For Effort:

Right now I am prepared to give the Democrats in Congress an E for Effort on their Health Insurance Premium Assistance Bill, but I still want a favor — forget the pipe dream of 60 votes in the Senate and figure out what you can pass through R for Reconciliation.

• The “Reform” In the Health Bill: If Only It Were So:

In the real world, one program HAS worked. Only one. Medicare.

• The World’s Worst “Greatest Deliberative Body”:

A couple of days ago, I asked Senator Spector about our dysfunctional Senate:

• Quote of the Day:

Wow. People should not care about issues because that might hurt someone’s electoral chances? Wow.

TalkLeft is not a bad blog; it is, I’m sure, the sort of thing I would enjoy if I enjoyed that sort of thing. It’s just not (despite its subtitle, “the politics of crime”) a criminal justice blog; it is, instead, a political blog (or, in the ABA’s taxonomy, maybe a News Blog). The problem with it being in the same category as Simple Justice is that as a news/politics blog TalkLeft has thousands of news/politics readers who know nothing, and care less, about criminal justice blogs. It would make as much sense to put Above The Law in some category other than News—it will kill in whatever category it’s in.

But the ABA Journal’s voting would be a joke even without its slaphappy categorization of blogs. The ABA Journal’s process is designed to determine nothing more than which blog has the most readers who are willing to register with the ABA Journal to vote for it.

Popularity is no indicator of quality. If you want to find the best law blogs, you don’t ask the masses. You ask the people who have given some thought to what makes a good blog: you ask bloggers.

So here’s the First Annual Social Media Tyro Best Law Blogs Contest.

If you blog regularly (at least once a week), even outside the field of law, you are entitled to vote. To vote, write a post listing what you think is the best blog in each of these categories:

• Best Personal Injury Law Blog:
• Best Business Law Blog:
• Best Criminal Law Blog:
• Best Family Law Blog:
• Best General Law Blog:
• Best Intellectual Property Law Blog
• Best Legal News or Politics Blog:
• Best Legal Humor Blog:
• Best Legal Criticism or Opinion Blog:
• Best Law Practice Management Blog:
• Best Legal Tech Blog:
• Best Courtwatching Blog:
• Best Law Prof Blog:
• Best Law Blog Based Outside the U.S.
• Best Law Blog in a Category SMT forgot:

Post before the end of this year, with a link to this post so I’ll be sure to see your post.

Each blog gets one ballot. If you don’t have an opinion in any category, feel free to leave it blank. Please don’t try to game the voting (koff koff Lexblog koff)—it will backfire.

On the first of the year I will collate and report the results.

Sometimes we know a law blog is doomed to fail. We know it because its title is keyword-rich, or because the titles of most of its posts are keyword-rich, or because it has calls to action at the bottom of posts (incidentally, I would argue that a call to action at the bottom of a blog post renders that post an advertisement, which in most states must be approved by the State Bar)—all signs that the author is looking for commercial return on his blogging investment. We know it because it refers to its author in the third person, or because the writing is stilted and lacking in passion.

We know it because it is boring.

A blog doesn’t have to be funny, but if it doesn’t either educate or entertain, it’s boring. The best legal blogs do both.

What is failure? It’s not having fewer readers than someone else—a blog may be a success with an audience of one. It’s not making less money than someone else—most blogs have no dream of making a buck. It’s not even getting linked to less than the next blog—while incoming links may be a metric of success, a blog may succeed without ever being cited.

Failure is stopping. Not writing any more. Giving up.

Failure is quitting.

Boring law bloggers will quit because it’s no fun being boring. And some nonboring law bloggers will quit because . . . well, because other things take higher priority.

So we see a boring law blog, and we don’t subscribe to it or blogroll it or link to it. And eventually the blogger will find that he’s talking to himself, shouting his boring commercial thoughts out into a vacuum. And eventually he’ll quit.

Many LexBlog blogs don’t suck (Vickie Pynchon, Jamie Spencer); maybe most LexBlog blogs don’t suck—there’s a huge well of writing talent in the legal community. But Kevin is selling blogs to lawyers as a marketing scheme—blog to get business—and some of Kevin’s customers wouldn’t be blogging if they didn’t think they could make a buck, so it’s not hard to find blogs in Kevin’s blogroll that do suck. Kevin says, “Most of our clients tell us their blogging is a lot of fun.” I’m willing to bet that there is a high inverse correlation between fun and suckiness.

Like a good kindergarten teacher, Kevin’s job is to encourage the slow kids and leave the smart kids alone. LexBlog props up its blogs with an in-house blogroll so that even those that suck get links from those blogs that don’t, and whose authors really should know better. So even those bloggers who are not having fun, and whose blogs therefore suck, get a little bit of traffic to keep them going.

I’m going to be the mean kindergarten teacher, and direct my comments to the law bloggers who don’t think blogging is a lot of fun: it’s not a lot of fun because your blog sucks. I’m sure there is something you’re good at, but it’s not blogging. You’re wasting your time. If you don’t enjoy writing it, nobody wants to read it.

Quit now.