Lawyers, Don't Hire Spammers to Promote Your Law Firms

I understand that some lawyers, probably many or most, simply don't know any better - somebody calls them up promising to generate more traffic to their website. The well-practiced sales pitch makes it sound like a good deal, and then... stuff like this starts getting posted around the Internet under the name of the lawyer or the law firm:

John_P****s_law

It sounds as if you could possibly have a case but it may be a close one. I think it would be worth your time to go and talk to a professional lawyer in Washington State. Be sure to bring all important documents including your medical papers and perhaps an over view from your current doctor that did find the tumor explaining the situation. Hope this helped and good luck.
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Do you think you have a case? The Law Offices of John P****s may be able to help you!

That wasn't the worst example I've seen - just the latest to hit one of my forums. The trick that particular spammer used was to try to paraphrase prior comments (which may be from non-lawyers) in order to try to create something that sounds reasonable.

Usually, the company you hired is either based in or subcontracts with another company in the Philippines, India, Bangladesh, or elsewhere in the developing world and pays somebody in that nation with middling English skills to push your link out to forums and blogs. (That particular spammer was working out of the United States, so the lawyer probably paid a premium for the website promotion services.) I'm sure they will subsequently hand you a nice list, perhaps with pretty charts, showing how many links they generated for your site. What they won't tell you is that most of those links will have little to no value for your website and, in some cases, the rapid volume of new, similar links on sites that allow user-generated conduct will trigger a penalty for your site.

But it's worse than that. You're a lawyer. You have ethical duties that govern your advertising - and make no mistake about it, this is advertising. No, you weren't told that a worker in an overseas phone bank would be posting messages that appear to be from you or from your law firm, but that doesn't mean you're not responsible for their actions. You didn't exercise due diligence when hiring your website promotion firm, you didn't adequately supervise their work, and they could be out there posting wildly incorrect information or giving wildly incorrect advice under your name.

Recall also, you probably have a duty to maintain a copy of all of those posts in your records for a specific period of time in order to comply with the advertising rules for your state.

Because Laywers Are All Delicate Flowers....

Apparently some lawyers are traumatized by the f-word. My, how impolite the practice of law has become.

I'm reminded of an anecdote about a lawyer who retired long before I started to practice. Back in the 1950's and 60's, when everybody was polite as can be and the practice of law was genteel and collegial, he found that many of the polite letters he received from lawyers merited the same polite response, so he had a rubber stamp made to facilitate his prompt reply. Afterward, when he received a letter proposing something he found disagreeable, he would apply the stamp and promptly return the letter to its sender: "F--- You, Detailed Letter to Follow".

Ah, the good old days.

Lawyers, Stop Stealing Content!

Google recently implemented an update to its search engine algorithm. The update, commonly known as "Farmer" but also referred to as "Panda", devalues sites and pages that the revised algorithm deems to have little to no unique content. The search engine community refers to the sites the algorithm was intended to affect as "content farms", hence "Farmer": an algorithm update directed at "farms".

I have maintained legal websites for many years, most notably the website ExpertLaw.com. I compiled a significant collection of articles for that website. I wrote the majority of the articles myself, and for the most part they offer solid content. (Some would benefit from being revised, expanded or updated; but as they say, there are only so many hours in the day.)

There are two issues you will confront if you publish materials on the Internet:

• First, you will encounter people who don't understand that copyright law applies to the Internet, and believe that anything online is theirs for the taking.

• Second, you will encounter many webmasters who don't care about who owns or creates content - the web is theirs for the stealing.

Historically, at least in relation to my site, Google has done a reasonable job of distinguishing the original article from plagiarized copies and slightly modified versions that have been posted around the web. With the "Farmer" update, that is no longer the case. Some of my original articles will no longer appear in the search results unless you go to the last page of the search results and click to "repeat the search with the omitted results included." Afterward they may appear on the first page of search results, but thanks to the extent of plagiarism Google is no longer treating my site as the original publisher. Also, even when my site appears in the regular results, at times it will be outranked by (that is, appear in the list of results below) a page that reproduces my original content.

Here's the kicker: A lot of those websites belong to lawyers and law firms.

And when you look at the lawyer websites that contain plagiarized content, it's rare that it's just the one article. Often they will present, without attribution, may articles or excerpts of articles from my site, other sites, or a combination of sites.

Usually when this happens it's because the law firm hired a web designer who believes that the rest of the Internet is theirs to take or steal. Sometimes the law firm will even pay the designer for hours of time allegedly spent creating the content (when in fact the designer spent only a few minutes stealing it.

But lawyers have no excuses when it comes to respecting copyright laws. And as lawyers know, they're responsible for the acts of their agents (leaving aside for the moment that sometiemes the theft is by the lawyer, not an agent.) Sometimes, knowing full well that they had nothing to do with the creating of the stolen content, lawyers will actually attach their own bylines to the articles. How is it ethical to claim to have authored something that was cribbed from the Internet by somebody else (or... by you)?

So lawyers should watch out.

1. If your content largely consists of content stolen from other sites, the "Farmer" update may cause your site to plummet in Google's search results;

2. If you or your web designer have stolen content from other sites, and worse if you purport to have authored that content, you are likely running afoul of your state's rules of professional responsibility.

3. There are a bunch of honest webmasters who are losing web traffic and money due to the conduct of people like you, and we're mad as H-E-Double Chopsticks. Some of us will file DMCA requests with search engines or your web host to try to have your plagiarized content removed. Some of us have registered copyrights for our content and can seek statutory damages. Some of us are lawyers.

If you did not personally author your website's content it's time to review it. Enter pages from your site into Copyscape and see if the same content appears on other websites. Copy portions of sentences from your pages and paste them into Google (using quotation marks) - for example, if you have a passage on your website,

This tool will guide you through the process of reporting content that you believe warrants removal from Google's services based on applicable laws. Completing this form will help ensure that we have all of the information necessary to investigate your specific inquiry and resolve it as quickly as possible.

You could copy a relatively unique excerpt such as "based on applicable laws. Completing this form will help ensure" and run a Google search to see where else it appears.

If your site includes plagiarized content, take it down. Immediately. Or, better, yesterday. You have no excuse.

Addendum: The same goes for when you're posting articles or answers to questions on sites like Avvo. Don't steal text from other people's articles and pass it off as your own analysis. That's dishonest and unethical - if you have to steal somebody else's words to make yourself appear proficient, how can you argue but that your intent is anything but to mislead potential clients who read the article about your knowledge and experience?

Fear of Disbarment

Atrios writes,

I've mentioned this before, but my new pet peeve is the regular plot in lawyer and doctor shows in which a relatively minor ethical transgressions cause everyone to panic about likely disbarment/license losing. If these were real concerns, things like this would not happen.

The fastest way to get suspended or disbarred is to get caught stealing from clients, and the second fastest is to neglect client matters and lie to clients about the status of their cases. If you're with a large firm, the firm should have protocols in place to help identify and prevent that type of problem, so if you're caught pilfering funds it's most likely from the firm as opposed to the firm's accounts and, at least in theory, somebody else in the firm can step in when your drug or alcohol problem (the most likely causes of the neglect of cases) gets out of control.

Beyond that, well... let me put it like this. The ethics rules are written to advantage large firms over small. And the system favors those who have the money and resources to keep fighting and fighting and fighting against ethics charges. I've seen small firm lawyers who are willing to do so put up an incredible fight against discipline and, despite having committed offenses far more egregious than those for which others voluntarily accept responsibility and are disciplined, manage to put off the consequence for years or get away with little to no consequence... beyond perhaps five to six figures in legal fees spent fighting the charges. But really, while the small firm practitioner really does have to sweat the small stuff, the rules likely to trip them up are often written or interpreted in a manner favorable to large firms.

Even something as simple as writing a client fee agreement is a potential hornet's nest. Way back when, I worked at a non-profit that collaborated with top practitioners to put together a manual that included instruction on how to draft a retainer agreement, and included a variety of sample agreements. A few years later an attorney with the state's Attorney Grievance Commission (AGC) was flipping through the book at a seminar and stated that any number of clauses weren't acceptable. This caused the book to be removed from the market. We could not get the attorney to agree to help us edit the agreements to be compliant with state ethics rules, nor to provide sample agreements that they deemed compliant.

So if you're a small firm lawyer trying to draft a contract with your client you cannot find a sample retainer agreement that you can be sure will be ethically proper, and even if you do the AGC has turned the rules into a moving target - they may change the interpretation of the rules such that your entirely proper retainer agreement suddenly includes an unethical provision. Please note, I'm not stating that this results from a rules change. This can result from an unpublished, internal change in the way the AGC interprets the rules.

Let's take an example from a few years back. You're a small firm lawyer. You can only handle a certain number of time-intensive cases. So you decide that you're going to charge an engagement fee to clients - a non-refundable fee for taking the case, in order to hold your time. But your clients are hard up for money, so you agree not to start charging them money until after working a certain number of hours on the case. The AGC decided that if the engagement fee is applied to attorney fees, it's a retainer and is thus refundable. Your choice as a small firm practitioner was to risk that the client would change his mind about litigation after you gave up business by sticking with a standard retainer agreement, give no credit for the engagement fee and, perhaps, charge a lower hourly fee, or perhaps negotiate a flat fee for part or all of the case. But working out an agreement that protected you while protecting your client from the fee games resulting from this rule interpretation? Unethical.

It doesn't hurt the large firms, of course, that the AGC's leadership typically comes out of the large firm environment. So large firms get sympathetic rule interpretation while small firms are treated as suspect, have to deal with a game of "hide the ethics ball", and are apt to make the "mistake" of taking early responsibility for their errors instead of fighting tooth-and-nail and getting a better outcome. But you know what? That's not much different from how the legal system, at large, functions... so perhaps its an object lesson for small firm lawyers.

But I Unwrapped So Many Wonka Bars!

According to the New York Times, Law School no longer provides a "golden ticket". Do you find it surprising that the author seems to believe that there's no practice of law outside of Biglaw, and that everybody coming out of law school was getting six figure salaries until the recent crash? If you aren't aware of the two worlds of legal practice, check out the graph provided here, showing lawyer starting salaries from 2007.

While 16% of starting salaries were $160,000, far more, 38%, were $55,000 or less. The first peak in the graph reflects salaries of $40,000 to $60,000, with salaries of $40,000 and $50,000 each accounting for about 10% of salaries. Collectively, salaries in the $40,000 - $60,000 range (approximately the total area reflected under the left peak) accounted for 42% of salaries. Salaries reflected under the right peak, including the smaller bulge over $145,000, accounted for 22% of salaries.

The article observes some trends in law firms - smaller starting salaries, smaller bonuses, promotion based upon merit. The sort of things that weren't part of the picture when larger law firms were able to effectively charge their clients for their training costs, or when the labor market for appropriately pedigreed lawyers is tight. The article notes the trade-off involved - the ridiculous hours that associates at the top-paying law firms typically worked to earn those salaries. And it notes the changes in the attitudes of clients - desire for alternative billing arrangements, such as flat fees, and an unwillingness to pay $300/hour for an associate who is learning on the job. No mention of outsourcing, but that's on the horizon even for biglaw - set up a branch office in India where English-speaking law grads can do grunt work for a fraction of the cost of an associate in the U.S.

One 2008 graduate of a top-10 law school, who worked at a large Chicago firm for a year, said she spent days trying to look busy as business dried up while not billing a single hour, before being laid off last fall along with a quarter of the other first-year hires.

“We used to gather in someone’s office, close the door, and say, ‘I hate my life, why are we doing this?’ ” she said. Like most other young associates interviewed for this article, she asked that her name not be used for fear of jeopardizing her climb up the already rickety ladder of a law career.

It's a rhetorical question - they stay because of the golden handcuffs. Even when they're worried about layoffs, they're staying for the predictability of having a job and a (big) paycheck, not to mention the "prestige and self-identity of being a [Biglaw] lawyer". No surprises there. Another complains,

The worst thing about the field’s contraction, she said in an interview, is that it has walled off the traditional escape route — suffering at a law firm for a few years until you pay off your education loans, then moving onto a lower-paying but comfortable gig as in-house lawyer for a company.

The author of the article actually interviewed a lawyer who, after a relatively short tenure at a large law firm, started her own firm. The author also interviewed a former lawyer who became a psychiatrist about the stress created by the current legal job market. Yet there it is, ingrained into the theme of the article and the minds of many bright young lawyers, that you have to have a job that somebody else gives you.

I found this to be a bit amusing:

It is harder to maintain that sense of esteem now that your contract work is being farmed out to low-cost lawyers in Bangalore, and your client who is splitting up with her spouse can handle it herself with a $31.99 do-it-yourself divorce kit from Office Depot, said David Lat, the managing editor of Above the Law, a well-read blog about the legal industry

The outsourcing affecting larger law firms is interesting to me, given that I have done quite well over the years being the guy to whom smaller firms have outsourced difficult work - premium, not discount, services. There's a difference between writing a brief on a complex legal issue and writing a typical contract, but one thing that remains the same is that you must trust the person to whom you outsource legal work. Betray the trust, and you've lost a client. Do substandard work and it may take your client as long to review or fix it than it would have taken to do the work in-house. That's one of the factors that has slowed down legal outsourcing, but it has long seemed inevitable that some amount of legal outsourcing would occur.

But that second part really caught my eye. The loss of small divorce cases, of course, is much less of a concern to Biglaw than it is to smaller law firms. But really, if your client has so simple a divorce that she "can handle it herself with a $31.99 do-it-yourself divorce kit", shouldn't you raise that possibility with her before she pays you a lot of money for unneeded legal representation?

Isn't This Called... Blackmail?

Celebrity lawyer Gloria Allred has insinuated her way into the Tiger Woods saga:

High-profile attorney Gloria Allred, who was to make a statement about Uchitel's relationship with golf's No. 1 player, said it was called off because of “unforeseen circumstances.” Allred said she would have no further comment.

However, Allred's daughter, Lisa Bloom, said the only conclusion is that her mother struck a deal with the Woods camp. Bloom, an attorney who worked with her mother for nine years and now is as a legal analyst for CBS, said Friday on The Early Show that she has never known Allred to cancel a news conference.

Bloom said that can only mean a confidential settlement was struck, which she estimated at being worth “at least a million dollars.”

“I know exactly how she operates,” Bloom said.

I don't say "celebrity lawyer" as a compliment. Most "celebrity lawyers" are interested principally in their own fame and fortune, shying away from anything that would resemble actual legal practice (let alone legal ethics). About the best thing a client of a typical "celebrity lawyer" can do for herself is to change lawyers.

Call it negotiations leading to a "confidential settlement", if you will. But what's described sounds to me like a classic shakedown.

Nice Ethics....

What am I supposed to think about this statement attributed to Alan Dershowitz?

I have been in touch with Claus repeatedly. I have not been in touch with OJ Simpson since his trial.

I'm sure it hurts OJ to have been dropped from the Christmas Card list but, whether or not he paid his bill,¹ I don't think his former lawyer should be publicly insinuating that he was guilty. Anybody else, opine away, but not the defense attorney.
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1. And we know that Dershowitz and the rest of OJ's legal team "got paid".

Unethical, Money-Grubbing Opportunists, Or....

Well, take a look at this story about a Manhattan law firm Graubard Miller's legal fees and conduct toward its client, and tell me what the alternative interpretation is.

(I'm willing to assume that the article doesn't tell the whole story - news stories rarely do. But I'm at a bit of a loss to figure out what part of a theoretical "rest of the story" might make me sympathize with the law firm.)

How's This For Brain-Dead, Anti-Client Policy

I spoke with a lawyer today who is having a problem with the Michigan Attorney Grievance Commission. It isn't that he has done anything unethical - he has a client who wants money back, and sometimes clients use the AGC has a hammer to try to coerce a refund.

The attorney took a client for a custody matter on the eve of a complicated hearing, and thus requested an engagement fee. The client agreed to the fee, and does not dispute that he knew it was a non-refundable fee. Past ethics rulings indicate that under certain circumstances an engagement fee is acceptable, due to the nature and circumstances of the engagement and work to be performed. If a lawyer has to turn away work or block of a substantial amount of time in order to assist a client, and has to decline work to keep that time free, an engagement fee protects the attorney in the event that the client "changes his mind".

According to the attorney, the AGC is pressing him to refund part of the money he charged and that, if he does so, the matter will be dropped. They are taking the position that because he did not charge the engagement fee on top of his hourly rate, but instead credited the engagement fee against the total final bill, it wasn't truly an engagement fee. There is nothing in the Michigan Rules of Professional Conduct which would support that interpretation, and Michigan's contract law would support the attorney's desire to enforce the contract as written.

In essence, attorney indicates that the AGC is stating that in the future the lawyer should charge a flat engagement fee - likely thousands of dollars, not refundable under any circumstance, and not extend any credit to the client for work performed. That's what corporate law firms do. From the first minute the client is billed for any work performed above and beyond the engagement fee.

That is an absurd position to take, though, in relation to individual clients who may not be able to afford to effectively gift a lawyer thousands of dollars simply for agreeing to take a case. A lawyer who tries to structure an engagement fee to the maximum benefit of the client, offering such credit, should not be punished for doing so. How is it more fair or more ethical, and less an "excessive fee" for the lawyer to double-dip?

More on Work Ethic

Coming from a profession which can demand arduous hours, with billable hour demands having increased substantially in recent decades for most of the nation's associate lawyers, some of my fellow lawyers may question whether my comments on work ethic also apply to our shared profession. They do.

Here, I'm not just speaking of the absolutely substandard work product that some lawyers and firms consistently produce - they are, in my opinion, the exception. I'm also not speaking of partners who complain about declining associate work ethic, even while imposing billing expectations on those associates that are substantially higher than those they had to meet at a similar stage in their careers.

I'm speaking of a different type of work ethic. Sure, lots of lawyers slave away at the office, six or seven days a week, and barely see their families. But what about their clients? When law firms take a "wink wink, nudge nudge" attitude toward creative and padded hourly billing, or pretend that a caffeine-stoked late-night hour at the office is just as productive as an hour of work after a solid night of sleep, they are not encouraging an atmosphere which is conducive to achieving the best value and best outcomes for their clients. The worst part is, they don't seem to want to do so - for fear of losing income.

No matter how many hours you work, if at the end of the day you put the firm's finances ahead of client welfare and accurate billing, there is a deficit in your work ethic.

Some predict the demise of the billable hour. Others question whether alternatives to hourly billing will primarily serve to add to law firm profits. One way or another, hourly or alternative, a bill should be honest.