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.

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).