The Sausage Maker's Dilemma

In a public reprimand, the Virginia state bar smacks a lawyer for the internet advertising and marketing of his virtual law practice.  Bob Ambrogi, no enemy of marketing he, provides a shorthand list of the evils:

• Represented his firm as a practice of multiple lawyers in multiple cities throughout the United States, when in actuality his firm consisted of just him, “with his so-called associates being independent contractor attorneys paid on a commission basis.” His marketing described the practice as a “national law firm” with offices in Virginia, Maryland, Massachusetts and India.
• Represented each of the attorneys in his firm as focusing primarily in one area of law, when in fact each of the attorneys handled several areas of practice. “Each attorney in our law firm primarily focuses his or her practice in only one area of law,” the website said. “Our … lawyers … don’t attempt to dabble in unrelated areas of law.”
• Represented that his firm had at least six offices within Virginia, when in fact he had a single office, with the other five addresses being unstaffed spaces, some in executive office suites shared with other entities on as as-needed reservation basis.

While Bob's sense is that the lawyer's willingness to correct his "errors" justifies the sanction of a mere public reprimand, he adds:

But I hope the bar’s leniency doesn’t lead other lawyers to jump on the bandwagon of obfuscation. “Virtual” should not mean presenting yourself as something other than what you are. Above all else, lawyers have a duty of honesty. Their marketing should conform to that.

It's really a pretty simple thing: tell the truth.  How hard can that be?  Well, apparently harder than some might assume. 

Virtual practice princess Stephanie Kimbro similarly condemns the rampant dishonesty of a solo virtual practitioners claiming the world is his oyster (and all the pearls his staff), but then add this perplexing paragraph (in bold face in the original):

But “misleading” is one thing and “giving them more info than they need to know” is another. Where do we draw the line in notifying the public about our business decisions and the business structures of our law firms?  How do we measure the potential harm to a public that is empowered to search online for alternative sources for legal assistance? [For the record, I am not disagreeing with the Virginia decision referenced above. I am merely posing a general question about the nuances of the term "misleading" in MR 7.1.]

Rather than guess at what Stephanie meant by this, I asked whether she thought being honest was really such a difficult thing. She explained:

For the record, I do not have a single problem with anything about the way that the Virginia case was handled. I found that attorney's practices in advertising to be objectionable and they should have been reprimanded. 

No, I don't believe lawyers should mislead clients about what services they can and cannot provide. My questions in the post were just that - me thinking out loud about where the nuances might be. Some of these are issues that came from my work advising the ethics subcommittee here in NC where a lawyer asked if he could put Regus office addresses in his advertising.

During that process the question came up about whether the lawyer then needed to put on his website all of the details about that office location, such as the fact that several businesses at those offices shared the same receptionist or that his mail was forwarded to his permanent office address. If it's important to the prospective client that the lawyer actually has a physical permanent office and reputation in a specific city, then do they have other ways of finding this out before retaining the lawyer or does the lawyer's website need to go into the exact details of their presence in each location?

The nuance that's unspoken in this response is, "what if the truth about my law practice sucks, and if I told the truth, no one would ever retain me to walk their dog, no less represent them?"   In other words, what if a lawyer wants to do what they want to do, such as practice law in a bathrobe in their mother's basement, but wants to market themselves as a mere half-step below Sullivan & Cromwell?  How much truth do they have to tell?

The short answer is truth is truth, and if your connection to Baltimore is the ability to rent a Regus office for an hour, but otherwise no one there has a clue who you are, you can't market yourself as having a Baltimore office.  Stephanie's "thinking out loud" is, but if you do it anyway, how much truth do you have to tell.

This provides a great reflection of the problem with internet marketing when you stray from the truth to begin with.  It's easy to start a pretend law practice, but not as easy to make anyone want to retain you, so you need to fudge the details lie to get clients. You need to.  It only becomes an issue when you try to claim something that simply isn't true, and then see how far you can push the deception envelope before you go over the edge. 

When seeking to market a solo practice as if it's a group or a firm of multiple lawyers, or when seeking to market a virtual practice as if it's a brick and mortar practice, you're stuck in the sausage maker's dilemma. You may believe that your product is just as good as anybody else's (though whether this is accurate is a separate issue), but you know that nobody who knows how you make it will ever give it a try.

So, what I was wondering in my post was where the line is drawn in advertising and what the harm to a prospective client is if they don't know all the details, such as if you use a virtual receptionist versus a person sitting a few feet away from you. I was just posing questions to think about - not trying to start anything controversial. I was going beyond the specific Virginia case and thinking about other examples where it might not be as clear how much information in the advertising the lawyer needs to include. 

The question isn't whether prospective clients know all the details, but whether the details you've provided are false, or calculated to give a false impression.  If you claim to be an experienced trial lawyer but have never tried a case, there isn't any issue about what additional details you should provide. You're a liar.  If you claim to have 30 offices in cities around the country but have none, it doesn't matter if the Regus office in Des Moines has a shared receptionist, you're a liar. 

There is a perpetual easy way to avoid the dilemma of deception in internet marketing. Don't deceive. When you need to ask the question of how much detail you have to provide to avoid sanction, you have already strayed too far from the truth.

And if the root of your problem is that the truth embarrasses you, maybe the answer is to change your reality rather than to determine how far from the truth you're allowed to stray.  And maybe the reason this is a problem is that your sausage doesn't taste nearly as good as you claim it does.







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