Bring a First Aid Kit: Online Damage Control for Lawyers

 Posted on January 23,2014 in Uncategorized

I tried to help the kid. Truly I did. I reached out to him through a mutual friend and told him, "you can salvage this. Apologize." Things got worse for him. I emailed him directly, asked him to call me. I spent an hour on the phone with him. "You can salvage this. Apologize. I understand that you feel unfairly treated. That's a war that you're not going to win. We make our livings helping clients make the right decisions. Show that you have the wisdom to make the right decision for yourself."

He didn't follow my advice. Honor is more important to him, I suppose, than virtue.

I don't need to name him and contribute in a searchable way to his reputational self-destruction. I'll use an ungoogleable "CDC." The articles and images I'll link to name him, and whenever someone googles his name, for the foreseeable future, those unfavorable articles, prompted first by his bad marketing decisions but fueled by his foolish reaction, will pop up.

Lesson 1: The Internet is Important

Why is it important what results pop up when people google CDC's name? Because, more and more, that's how clients choose lawyers. Even when you are referred by another lawyer or a former client, many clients-more every year-will (and, I would argue, should) run your name through Google to see if there are are any red flags. If other lawyers-even those who have never met you or seen you in trial-have a low opinion of you, that's a red flag for the thoughtful potential client.

This is going to hurt for a while:

Lesson 2: Pretending the Internet isn't Important Will Not Help

In his comments, CDC claimed that "I put very little value in worthless blogs." His conduct on the Internet, however, in the name of getting business, puts the lie to that. A blog search for his name takes you down a rabbithole of badly written and dishonest PR drivel. For example, this:

"How should be your DWI lawyer?"

and this:

"CDC, the well known criminal attorney in Texas has reportedly extended his expertise...."

and this:

"CDC, The Defender, is a Dallas Intoxication Manslaughter DWI Defense attorney...."

And, well, more of the same. I guarantee that CDC has spent more on Internet marketing than I have. And if you put that much into touting yourself on the Internet, the last thing you should be doing is claiming that the Internet isn't important. It just ain't credible.

Of course, the young lawyer would say that he didn't post any of this. And I suspect that it's true-the writing in these posts is even worse than the writing he demonstrates in his blog comments. But this brings us to...

Lesson 3: The Buck Stops Here

When a lawyer has someone else doing his marketing for him, the lawyer is responsible and the actions of the marketer are attributable to the lawyer. In the parlance of the blawgosphere, "when you outsource your marketing, you outsource your ethics and your reputation." The young lawyer is responsible for the blog, and the press release, and the video, even if he didn't know exactly what was being done on his behalf. (And, for whatever it's worth, there are a half-dozen DR violations in those three links alone.)

So "my content manager did it for me" is not a defense to an allegation of plagiarism like the one that started CDC's slide. When someone does something bad in your name, you have to fix it yourself.

Lesson 4: Plagiarism is Bad

Presenting someone else's work on your own website without giving them credit is, in the blawgosphere, considered theft. If you don't make it clear that it is someone else's writing, you are stealing from the author.

Even if you do make it clear that it is someone else's writing, quoting someone else's writing in large chunks is generally frowned upon as misappropriation. Content is king, and you don't get to pump your website up with someone else's content. Quote a few lines and link to the original so that your readers can read the rest.

Lesson 5: Writing is Thinking

Lawyers who blog do so because they love to write, and sometimes because they want to display their thought processes to potential clients. Writing is thinking; a lawyer who writes well thinks well. A lawyer whose writing is disordered and rambling probably doesn't.

We aren't selling auto repair, and our clients expect us to write our own content. So when you present someone else's work as your own (for example, republishing it on your website without giving due credit) you are lying to your clients about something material.

Lesson 6: You Will Eventually Be Caught

If you do (or someone else on your behalf does-see Lesson Three) something bad-fraudulent, unethical, or just ugly-in your marketing, eventually someone who cares is going to see it. Someone like Greenfield, or Popehat or that new kid Godfrey or even me. And if someone who cares sees it, they may very well write about it. Which brings us to...

Lesson 7: You Are Not Entitled

If you are caught lying or cheating or stealing (directly or through someone else) you are not entitled to a friendly email asking you to stop lying or cheating or stealing. You may, if the person who caught you is feeling very charitable, get such an email. If that happens, you are extraordinarily lucky, but you will probably ignore it or treat it like the opening of a negotiation.

That's okay: you are not the only lawyer who has ever thought of lying or cheating or stealing on the Internet, and as far as Greenfield or Popehat or Tannebaum or I am concerned you might as well be a lesson-a cautionary tale for others-as a student.

Lesson 8: Leave Well Enough Alone

When CDC found Greenfield's first post, he didn't react well. He left several rambling, repetitive comments that showcased an utter lack of writing ability. But Greenfield's post at that point was six weeks old and hadn't received any traction. CDC's responses called attention to the post, bringing it back to life; now it has 108 comments and climbing (it turns out that people on the Internet don't like plagiarism). CDC's responses also gave Greenfield material for two more posts.

Lesson 9: Do Not Declare War

In addition to calling Greenfield out, CDC threatened to rubbish his reputation in comments on every blog he could find and to sue for libel. This will never work. The Streisand Effect describes the results of such threats-the more you try to suppress information on the Internet, the more it spreads. Here, CDC's threats caught the attention of Ken White at Popehat, whose post caught the attention of William Peacock ("Esq.") at FindLaw. So now, thanks to CDC's censorious threats, about a zillion people have seen his name in connection with this story. Greenfield's post comes up first in a search for CDC's name, but Popehat's post is working its way to the top.

CDC thinks that potential clients will be favorably impressed by the way he fights for his own honor. I think it more likely that they will either see in his response a lack of good judgment (he bought trouble for himself in a way that he should never do for a client) or not understand but simply get the gist that CDC somehow screwed up and is widely criticized by his fellow lawyers.

Lesson 10: Apologizing is Free

There was a point at which CDC's reputation could have been salvaged. Here's what CDC should have written then:

I deeply regret how I responded when I saw Scott Greenfield's post about the publication on my website of Dan Hull's 12 Rules without attribution. I was shocked by what I perceived as an attack on my character. My reputation is very important to me, as I'm sure you understand. I let my emotions dictate my actions, rather than perhaps ruminate over how I should respond to what I perceived as a very major slight against my character.Having taken some time to cool down, I now understand my error: as a lawyer, I am responsible for what people do in my name, and when someone steals content for use in my blog, I am no less responsible than if I had done it myself. In mitigation, I did not know that it was being done until Scott Greenfield's blog post called it to my attention. I didn't then have control over my content, so I couldn't immediately take it down. Out of frustration and anger, I blustered instead of responding coolly. As soon as I was able after Dan Hull asked, I removed Hull's content from my website, and spent almost the entire night writing another.I truly believe that being a lawyer means more than what is written on any webpage, and I hope to get past this and build my online reputation the old-fashioned way: with solid work for clients in the real world. I don't really know how to rectify this situation, other than be the best attorney I can be in the courts I frequently work in, because I feel that is of the utmost concern to me as an Attorney – to zealously and competently represent my clients.Meanwhile, I still have a web presence. I will take ownership of it. I will never let anyone post anything in my name without my permission, and will never publish anyone else's work as my own.I understand that Scott will be in Houston in March to teach at the TCDLA federal seminar. I plan to be there as well, and I hope that he will allow me to buy him a beer to try to make amends. I promise that he won't need a first aid kit.With respect,CDC

That's an apology: it contains an acknowledgement of wrongdoing, an expression of regret, and an assurance that the wrongdoing will not recur. What it doesn't contain is threat, bluster, rationalization, or blame.

Lesson 11: Suck it Up

CDC feels that he has been done wrong. Maybe he has been. The culture of the practical blawgosphere can be very rough at times; maybe even brutal. But CDC brought the roughness on himself. Had he responded to Greenfield's first post with "Thank you for bringing this to my attention. Hull's post was stolen without my knowledge, but I am responsible for it. I will be careful in the future to make sure that those working for me don't break the rules," he would have been met with praise. Instead he told Greenfield to "bring a first aid kit," and things got worse from there.

To have fixed things, CDC would have had to gotten over his hurt feelings and accepted that he was in the wrong from the beginning.

Lesson 12: Time is of the Essence

When I first reached out to CDC to try to make things right, I think he could have. I think it's probably too late now. I'm not sure about this, because nobody in CDC's position has ever tried to make things right so late in the day. But it's going to be difficult not only because the story has spread from Greenfield to Godfrey to Popehat to Peacock and all over Twitter (and if you think the practical blawgosphere is rough, you should see Twitter), but also because when people discover someone violating the norms of the internet, they go looking for other violations, and in the course of doing so someone has found this treasure of CDC's marketing campaign:

In conclusion, when you run into reputational damage online-when someone says something mean about you or is about to-put your ego aside and respond coolly. Do not type in anger. Consider first whether you need to fix it or are better off letting sleeping dogs lie-it may be that you can't make things any better, but can make things much worse. Before responding in any way, consult with someone you trust who knows the culture (otherwise you have a fool for a client). But don't delay. If you can take the wind out of the complaint with a well-timed and self-effacing response, you'll be much better off than if you try to club (or sue) the Internet into submission.