The lying that has become marketing was brought to light in the story of an "experienced" criminal defense lawyer. He took on a murder case a week after his admission to the bar, and got a mistrial. His internet marketing was good enough to convince those looking for experienced criminal defense lawyers that he was the one, but the judge was not convinced.
The mistrial was granted out of disgust with the lawyer's conduct, and so in true millenial marketers fashion, the lawyer posted on his Facebook page "MISTRIAL!," congratulating himself, as his fans joined in the chorus.
The sordid story began over the weekend, but exploded in the blawgosphere yesterday, right in the middle of the 2011 Legal Marketers Association Annual Conference.
The National Association of Criminal Defense Lawyer's email listserv buzzed all throughout the day on the topic. From one member:
The conduct of this person, I cannot bring myself to call him a lawyer, is without doubt reprehensible. But I am forced to a much larger question. How did he get to this point? Measuring my professional life now in decades, I cannot comprehend his apparent lack of comprehension of his situation. To be told by a judge that you are not competent to the extent you are being dismissed from a case would be mortifying (an old dinosaur term) to me.
Is there some fundamental flaw which is afflicting our profession by which young lawyers are unable to see such clear problems, whether it is a Murder I as your first trial or representing two defendants with conflicting needs?
We need to do something. I tell my clerks and interns this is not law school. "We deal with real people whose lives and freedom are on the line by what we do or don't do. If you cannot commit to the level of effort required, then go do something else.
From another fellow criminal defense lawyer:
And, all the while, he ends up screwing his client by, first, stealing his money and, then, by guaranteeing that his client spends ANOTHER year in jail before he can have his days in court. Yeah, it's just great that the judge called a mistrial. A gross miscarriage of justice was averted, but all justice will continue to be averted for another year. I have a better idea than bringing this charlatan up on ethics charges: Let the client out of jail and let the lawyer (if he is, in fact, a lawyer) go pull the time until the trial actually concludes. After that, he can get out and go back to his several offices and face the music for what he did to this client. But, of course, that will not happen.
You know, we joke about this and laugh and shake our heads and wonder just how this can happen. We speculate that the defendant was taken in by the web site for this huckster. We are hopeful that some bar association or supreme court will do something to stop this insanity before someone pays for a bad decision (of whom to hire for legal representation) with his or her life. But, all good criminal defense lawyers are tarnished by this sort of gross misconduct. It is no wonder the general public, and the producers/writers/directors/actors of movies and TV shows think so little of who we are and what we do. It is no wonder we all get painted with the same brush that is going to be used to tar (before feathering) this incompetent. We should be outraged at this and demand that New York or New Jersey or Connecticut take some action to stop this train wreck.
At the legal marketers conference, one of the speakers had this to say:
Today I came here to discuss what you all want to hear - that we need to better educate lawyers on the power of the internet, that social media marketing is the future and that marketing, and you as a marketer, is the greatest friend a lawyer can have. But I cannot do that today, because today it has all exploded in our face. We look like scam artists. We look like hucksters. So today, as I talk to you about this lawyer who lied his way to clients pocketbooks, I am going to talk about why this is not where we want to be and why we need to temper our marketing zeal with more ethics than flash.
Actually, that never happened. The talk of the internet yesterday, the unethical marketing that caused a mistrial in a murder case, never came up. It never-came-up.
Instead the marketers said:
Enjoying my beer and the conversation at #LMA11
Dinner at Emeril's. Amazing food, ridiculous wine and fantastic company. BAM!! #LMA11
Relaxing at the yacht club bar #LMA11
You can't make everybody happy. Somebody will be mad at you everyday. #lma11
Yes, the marketers took the opportunity, on a day where their advice and strategies were the talk of the internet, to say nothing.
Everything about marketing must remain positive, nothing critical, nothing negative, just pay the cash and get clients. They don't worry about your ethics, and don't want you worried about theirs.
But I hear the candy at booth 32 is yummy.
Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.
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Perhaps less obvious, the comment quoted from the NACDL Listserv shows an unfortunate detachment of many lawyers as to what's happening to those young lawyers, digital natives that they are.
ReplyDeleteThe majority of seasoned lawyers remain aloof from the internet, and are unaware of the influence it has on younger/newer lawyers. When something like this happens, they're shocked. In the meantime, you (and others) have been waving the flag about these problems and the seasoned lawyers, the ones who can't be bothered with social media or blawgs, don't see the problem. It's only when something this extreme happens that it's picked up on their radar. Even so, they still can't appreciate the pervasiveness of the problem.
The Rikosfky debacle should serve as a clarion call to all lawyers that there are terrible things happening on the internet that need to be addressed, whether they recognize them or prefer to pretend that the internet is inconsequential to the future of the profession.
If lawyers don't take seriously the influence of shameless marketing and ethical avoidance that's become a cottage industry online, then the trenches will be filled with Rikofskys. This is the future of the profession unless lawyers stop denying it exists or presents a problem, and crush this plague.
I’d like to say that I think the ethical conduct of Rikosfky only arises in a small part of my generation but I’m not too sure. Part of the problem is the nature of the medium - specifically Facebook (although the problem exists on Twitter, LinkedIn, etc). Facebook allows users to project an idealized, curated version of their lives. I have no clue if you two even have FB accounts (I assume not) but people tend to post updates that are exciting/narcissistic. Some actual, recent examples from my “friends” on FB:
ReplyDelete“Ohhh what to wear to the Masters?”
“Headed to Boston/NYC/LA/insert city here!”
“Full from a great dinner of crab legs at Chez Fon!”
“Headed to the river for a kayaking run.”
“[Person] is at [insert hotspot bar/club]!”
People don’t put up updates that say: “Filling out standard work order 10b,” “Doing my taxes,” “Vacuuming the den,”etc.
Plus users selectively choose photos that put them in the best light (no comment on you two) and what information to share. A Facebook profile, by it’s very nature, is a false projection of a person’s life. So for the Gen Y/digital native set, bending the truth to fit the idealized projection is just common practice. Nothing else about their online persona is real, so what does it matter if he bends the truth a little more? I’m not saying this is right or ethical, but it’s how Facebook works.
It’s all part of the trend of having “followers,” and the like. Gen Y, being raised in a torrent of mass media, is keenly aware of PR, branding, celebrity, etc. And conduct themselves accordingly. We’re way past the “15 minutes fo fame” concept and into the era of the microcelebrity: being famous to 1000 people or less. See ( http://www.wired.com/techbiz/people/magazine/15-12/st_thompson )For a quick primer.
Unfortunately, I don’t expect it to change. But Bar Associations and the like need to jump on it quick if they want to change the behavior of new and future lawyers.
Thanks for highlighting this terrible incident.
ReplyDeleteThe lies and "creative marketing" to get the case in the door are despicable. But in my view, the truly bad action and lapse in professional judgment was in accepting the case.
Maybe that's worst part of self-promotion. You convince yourself that you actually have the skills you merely say you have and harm your clients in the process.
In the early 90's I took a criminal case. Had never taken one before. I needed the money It was a indecent exposure case. I figured, how hard could it be. The case had some humorous facts. I figured everyone would find it funny, give the kid deferred and a job well done for me. At the pre-trial conference the ADA told me that he would not take any plea that did not involve registration as a sex offender. He was of course bluffing but I did not have the experience to know that. It hit me right there that as funny as the facts were, it was no joke and there was a lot at stake. I gave the kid his 500 bucks back and told him to get a real criminal lawyer
ReplyDeleteshg,
ReplyDeleteInteresting you mention the detachment of lawyers from what is going on in cyberspace. I saw this over and over again yesterday in comments on the NACDL listserv. "How can this happen?" A couple responded that it was the internet, but there was still shock.
This is the problem. Those who are aware of what goes on in social media always ask why we keep harping on this issue - the issue of lawyers lying on the internet about their qualifications and experience. They ask because they "know." What they don't realize is that the hucksters, the ones we write about, rely on the naivity of lawyers that arent on the internet.
What duty does the potential client have, if any, to research an attorney. Yeah, the client may have been duped to some degree, but don't they have the right to hire a lawyer of their choosing, even if you would not approve of their choice???
ReplyDeleteJackie,
ReplyDeleteThe potential client has no duty to research an attorney. Just like a consumer of any product or service has no duty. If they don't their only penalty arises if the product or service is not what it was purported to be, and that negative information was readily available through a cursory look on Google or somewhere else.
Yes, a client can hire anyone they want, subject to certain states that require death penalty counsel to be "qualified," and of course subject to a future determination of ineffective counsel.
It's not about whether I, or you as a fellow CDL approve of their choice, it's about our obligations as lawyers to be honest with clients about our experience and qualifications.
What a hack. If people like him are able to pass the bar, then maybe we should be rethinking the process. At least for the defense procedures where someones life is on the line.
ReplyDeleteI once spoke with a law student (a 3l) who told me that law school doesn't actually prepare you to practice law the way medical school teaches you how to be a doctor. He told me you can graduate law school without knowing how draft a motion, argue a case, file an appeal, interview a client, or do any of the bread and butter aspects of what should be taught. If that is accurate, then it is pretty damning considering what law school costs.
ReplyDelete