Is Resistance Futile? The Trust Problem in the Legal Profession

Realizing that resistance was futile and that I would inevitably be assimilated, I chose to join the Borg Collective.

What I mean is that I embraced Facebook, Linked-In, blogging, Constant Contact and the digital paraphenalia that we are instructed are essential for marketing a law practice in the 21st Century.   The social media are part of an evolutionary process that will one day result in a “hive mind” where every being will share the same consciousness.  Scientists are already working on direct neural links between the wet computer inside your head and the dry computers outside your body.  Such interfaces will eventually be small enough in implant in your brain.  Individuality and privacy will cease to exist.  We will exist in a world of perfect connectivity only imagined in the fetishistic texting of many a teenager.

But in the meantime, we have to deal with our lingering notions of privacy and individuality in this new cyber world , the cyber world the our economy increasingly requires participation in (lawyers, too, of course.)  Because we cannot yet peer directly into the souls of those we transact business with, we have to rely on the information that they provide us.   In the past, people lived in communities where the information necessary to transact business was largely communicated face to face.   The amount of information that can be transmitted that way is relatively small but the reliability of that information is relatively high because this mode of communication has been evolving for millions of years.  That is one reason that important business (like trials, where credibility is at issue) is still conducted in person.  The problem with digitally mediated information is trust:  there is much more information than ever before but so much of it is unreliable that we don’t know how much of it we can trust.

The implications for legal ethics are huge.  If you can summarize the vast territory covered by that term in one word, it would have to be trust.  It’s hard to think of a legal ethics issue that doesn’t involve trust – confidentiality, marketing, conflicts, screening, non-attorney involvement in law practice, the duty of government lawyers to provide independent judgment, prosecutorial misconduct, you name it.

A good example of how the trust plays out in the new digital world of law business is presented in Carolyn Elefant’s excellent blog on solo practice My Shingle.  She writes about “the ill-conceived and misguided site,”   The intentions are good:  allowing consumers to comparison shop for lawyers based on price in the same way that they would for other kinds of services, like hotel rooms or airfare.   But the execution is flawed, first because an attorney’s services are not uniform in quality like hotel rooms or airfare and because an hourly or flat rates don’t really tell a consumer much about how much a particular legal problem will cost, and second because the hard information on the site seems to be widely inaccurate and composed by folks who don’t really understand law practice.  In fact, the site appears to be deceptively marketed to the lawyers who participate without being told that they are signing up for providing “free consultations.”

Another problem is presented by sites that purport to rate lawyers based on anonymous feedback, such as Avvo.  This week brought the arrival of a small turd on my doorstep, my first evaluation on Avvo, a highly negative one.   Avvo boats that it presents “unbiased” ratings  and only posts reviews that are “clearly” from clients but there is no way to check whether the review really comes from a client.   A perfect vehicle for anyone the lawyer might have pissed off to exact anonymous revenge.   I am completely certain that my Avvo review was not actually written by a former client, in part because they are all lawyers, articulate and not shy about expressing dissatisfaction face to face.  Avvo  bills itself as an attorney marketing service and the presence of a negative review naturally induces the lawyer to ask for positive reviews from his clients.  I have had clients who have participated in similar contests on other ratings sites, countering reviews posted by competitors purporting to be from clients with their own reviews purportedly from clients.  So much for unbiased ratings.  The fact that Avvo bills itself as a marketing solution for lawyers is telling.  The ratings thing is a gimmick; it gives legal consumers the illusion that being dealt with fairly, to establish a feeling of trust that is actually based on the deception that this is place to get the straight scoop on who is good and who isn’t.

The trust problem is a lot bigger than our profession,  It infects our sister realm of governance to such a degree that important work in our society is no longer getting done.  The legal profession is one of the institutions that is charged with maintaining the trust necessary to make both government and society work.  That vast territory might be summed up in one word as well:  “justice”.   My joke about the rules of professional conduct, essentially written in the mid-19th century to address a lack of trust in the legal profession, is that they were ideally suited for a town of 25,000 people with 25 lawyers.  Its not clear how we make rules work effectively now to address the trust problem while acknowledging that lawyers are actors in capitalistic system.

It is a vital question.  The last great wave of change triggered by Bates v. Arizona, the decision that extended commercial speech protection to lawyers, is about to be supplanted by the next great wave of change, non-lawyers involvement in financing of legal service providers.    This change, like the last one, is economics: like Bates, it will be sold, at least in part, in terms of making legal services affordable by encouraging price competition (see Bates at 377-378.)  Think we have a trust problem now?  A few decades from now, joining the Borg might seem quite attractive; at least you would know who to trust.

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