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.

Brian’s target, it seems, pled guilty to mortgage fraud in state court in New York, and while awaiting sentencing and delinquent with the bar continued to “network” as a real estate lawyer on Twitter. When Brian inquired, she responded. There was some back-and-forth, and then she deleted her own replies to Brian and claimed not to have (“I don’t know why my replies are not showing up . . . what did I delete??? are you insane?” Then she changed her bio on Twitter—three times. (Tannebaum twitted, “I want to apologize to everyone for turning @kasesq94 into a “Social Media Consultant.”)

I sympathize with Scanlon, trying to make the best of the very bad situation she’s gotten herself into. She may well have a partner and employees (if you believe her website, she has a staff of beautiful people in expensive suits) who are depending on her to make a smooth transition to what she calls her “hiatus,” and a family depending on her to bring food home during that break.

I also understand the appeal of “Social Media Consultant.” It is a title that any idiot can give himself; it requires no sort of expertise whatsoever, and no equipment but a computer with an internet connection (which the former lawyer won’t be using to practice law). Barriers to entry in this specialty are very low. Scanlon will not be the first lawyer who, forced out of the practice of law, has redefined herself as a blog or other social media expert.

In fact, it follows from the basic premise of online marketing—that, as self-proclaimed expert Adrianos Facchetti writes, “You are what Google says you are”—that by merely marketing yourself online as an expert you become an expert qualified to take people’s money to tell them how to become experts by marketing themselves online as experts. It’s turtles all the way down.

So what’s wrong with that? If some naive lawyer, not having the first clue about online social media, wants to pay a convicted, disbarred, or otherwise disgraced ex-lawyer to show her the ropes, what harm is done?

None, if the naif knows what she is getting and the consultant doesn’t lead her to do anything untoward or deceptive. But when the disgraced lawyer is deliberately concealing the fact that he is a disgraced lawyer, these questions are raised: is the naif getting what she thinks she is getting (or is she trusting someone whom she would not trust if the truth were revealed); and will the consultant, for whom deception has worked, teach the naif to be open and honest (or will he teach her what worked for him: concealment and deception)?

I appreciate that it might be difficult for the social media expert to get hired if the world knows that he has been disbarred for raiding minors’ trust funds or convicted of mortgage fraud, and I believe strongly in redemption, but holding oneself out as something one is not seems to me an unlikely path to redemption.

So what did disgraced lawyers do before there was such a thing as a social media consultant?

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.

Anyway, even though you disagree that my free online participation is a positive thing, isn’t it a lot more civil to have a dialogue such as this as opposed to your name calling blog [avvo-answhores.html]. One of the things I teach in ethics and professional responsibility to young lawyers is that civility assists lawyers to make a point more rationally, peacefully, and powerfully than name calling.

And here’s Bennett Michaels (Brilliant Business Borrowing! Adoptions! Suspension Lift Kits! Rifle Scopes! Spam Spammity Spam!), on Popehat in response to the calling-out of Seattle Lawyer Spammer Bradley Johnson:

Patrick you are a real a-hole. Why not grow up a little and just not approve the comment like the rest of the world?

Why, when they discover spam, don’t blogs like (list via Eric Turkewitz):

• Eric Turkewitz’s New York Personal Injury Law Blog;
• Scott Greenfield’s Simple Justice;
• Popehat;
• Ronald Miller’s Maryland Injury Lawyer Blog (re: Denver Motorcycle Lawyer Comment—Scott Sullivan);
• Mike’s Crime and Federalism (re: Bradley Johnson, Seattle Spam Lawyer);
• South Florida Lawyers (Let’s Meet Jason Diamond, Ticket Attorney!); and
• Roy Mura’s Coverage Counsel (Outing Blog Content Spammers, Starting with All States Public Adjusters)

just send a quiet email to the spammers? Wouldn’t that be much more . . . civil? In other words, “Why can’t we just have a quiet little talk about this, ending in me promising never to do it again, instead of you outing me and my clients as spammers to the whole world?”

It’s a fair question. The answer: If the problem were simply one lawyer causing one blog to be spammed, then a quiet little talk would probably suffice, but it’s not all about you, Alan Brinkmeier, or Bradley Johnson, or Jason Diamond, or Scott Sullivan, or All States Public Adjusters.

Nobody ever spams just once. When Scott Sullivan’s agent spammed Ronald Miller’s Maryland Injury Lawyer Blog, he also spammed honolulu.injuryboard.com, washingtoninjuryattorneyblog.com, michiganautolaw.com, and probably many others. That’s the point of spam—trying to make worthless or unwanted content valuable by distributing it widely. If Ronald had had a quiet word with Scott Sullivan about his comment spam (which doesn’t work, by the way), it would have stopped the comment spam to Ronald’s blog. But it wouldn’t have kept that particular spammer from spamming everyone else. Bradley Johnson is a case in point: even after promising to stop leaving comment spam, he continued.

It also wouldn’t have made an impression on any other potential spammer. But calling these spammers out publicly might not only get them to change their ways, but also discourage other people from following in their path. A reaslawyer, reading about Scott Sullivan and Bradley Johnson, and Jason Diamond, would be extra-careful who he hires to do his marketing for him (outsource your marketing, outsource your reputation).

Why does that matter? I can’t speak for Turkewitz, Greenfield, Hat, Miller, Mike, SFL, and Mura, but for me it’s mostly a matter of aesthetics. I don’t see the internet as a place to turn a quick buck—a flea market—but as a place to educate and entertain, and to be educated and entertained. Spammers and marketers and everyone else trying to make a quick buck clutter up the internet with their bullshit, obscuring the work of those who actually apply talent and effort to educate and entertain.

It is also a matter (though this is secondary to me) of ethics. The Bradley Johnsons, Jason Diamonds, and Scott Sullivans of the world are trying to commercialize the creative work of others. Rather than try to earn attention by producing interesting and informative content (which they may well be incapable of, as are most people), they are trying to coopt a little of the authority that others have earned.

Even if I don’t write for money, I can fairly object to others trying to make money off my writing. While there is no law on the internet, that doesn’t mean there can be no order. And if those bloggers with some authority (by dint of their readership, which comes because of their talent) want to step up and impose order on their little corner of the internet, then order there will be.

Don’t do it again (like—you guessed it—Bradley Johnson did).