BEN COWGILL QUESTIONS LAW-BLOGGERS' LEGAL ETHICS* . . .  In his role as self-appointed ethicist for law-related bloggers, Ben Cowgill of Ben Cowgill on Legal Ethics warns would-be law-bloggers that if they’re thinking of using the services of Kevin O’Keefe’s LexBlog, they might be treading on ethical thin ice—

There are certain ethics issues which a practicing lawyer needs to consider before deciding to participate in a commercial network of cross-linked blogs like the one LexBlog has created through the inclusion of standard blogrolls on its customer blogs.

If you read Cowgill’s post, you’ll see that this reasoning assumes that a weblog link is the same as an “advertisement” for purposes of ethical rules. Without some additional authority, that seems a bit of a stretch to me. But Cowgill did some further research on the topic--

I decided to look at the issue a bit further myself, and found some things which clearly bear upon the issue.  For example, in Connecticut Informal Ethics Opinion 97-34 (11/21/97), the Connecticut Bar Association opined as follows:

"Lawyers may not enter into agreements whereby a personal injury lawyer would refer non-personal injury matters to another lawyer 'in return for referrals of personal injury matters,' since both lawyers would be paying each other for 'channeling professional work.'

In short, one issue raised by participation in a commercial blogging network is whether the network might be regarded as a mutual referral system by a disciplinary or regulatory authority.

The only problem with this reasoning is that in talking about weblogs, “referrals” is a metaphorical adaptation of an old word to a new technology. It doesn’t mean the same thing as referring legal work. What’s being referred is a web address. And even though Cowgill uses that "for example" construction, no other examples are given.

When someone who touts himself as an expert on legal ethics publicly implies that another lawyer or his organization or his clients might be acting unethically, it’s always good form to have some very solid research to back up the claims. So far, there’s not been very much, in my opinion--and certainly not enough--even though there have now been (as of this moment) eight posts in a row on Cowgill's weblog raising all sorts of sinister implications about Kevin O’Keefe’s LexBlog.

While it seems that O’Keefe has made a few minor changes as the results of Cowgill’s posts (e.g., fixing some blogrolls that mistakenly referred to non-lawyer weblogs as “blawgs,”) the tone of Cowgill’s posts seem so mean-spirited that I find myself wishing that Cowgill had been able to find a way to address the issues privately with O’Keefe in emails, rather than publicly on his weblog.

On the other hand, perhaps this wasn’t possible. As it stands now, however, the lack of any solid research to address the myriad of ethical “issues” Cowgill raises is a huge problem with Cowgill’s series of posts. It also makes them seem more personal than professional. (As it happens, there was some sort of dispute between Cowgill and O’Keefe in the past, as Cowgill summarizes in a comment to this post.)

In one of his posts, Cowgill makes a point of mentioning “Dennis Kennedy, Denise Howell and Ernie Svenson” as early bloggers whose once-happy blogging utopia is now being trashed by upstarts like O’Keefe. Here’s my response as a somewhat-early-blogger: the issues Cowgill has been raising on his weblog are interesting and worthwhile, but until there’s more solid legal reasoning and less flimsy innuendo about supposed breaches of legal ethics, anyone who finds himself fondly wishing for the old days will be wishing for the very old days, that is, the days before there were any legal weblogs at all.

*UPDATE: Ben Cowgill has taken issue with the title of this post, which I mention here as a concession to him. I am not inclined to change the title, however. For the record, I explained why in the 15th comment to this post.

UPDATE II 3/20/06: For whatever reason, some of Cowgill's posts about LexBlog were deleted from his website: "LexBlog does some hasty housecleaning of its customers' blogs"; "Is your blog part of the 'LexBlog network'? (you might be surprised by the answer)"; "Why doesn't LexBlog respond on the merits?"; "Hypocrisy, thy name is . . . "; and "Why do I feel that I am chasing a rabbit around the room?" I mention this in part because some of what I wrote--for example, "eight posts in a row," no longer makes sense after the deletions. The posts that I linked to directly remain.

I obtained the quoted post titles from Bloglines.com, an aggregator that continues to index posts even if deleted on the weblog on which they originally appeared.

Comments

[Ben Cowgill]

Evan, I'm sorry to say that your post has not provided your readers with a fair understanding of what I have said in my posts about LexBlog In particular:

• I did not state or assume "that a weblog link is the same as an 'advertisement' for purposes of ethical rules," as you have stated in your post. Rather, I focused specifically with the situation where mutual links are placed on the blogs of two customers of LexBlog, apparently as part and parcel of what LexBlog provides to each of them when it sets up their blogs. That is distinctly different than a blogroll like the one here on your blog, for all of the reasons I explained in my post. You do not do my post justice when you suggest that I am calling every link an advertisement.
  


• Secondly, I did not say that LexBlog or its customers "might be acting unethically," as you state in your post. Rather, I expressed my concern that "a disciplinary or regulatory agency could conceivably argue that those lawyers and law firms are, in effect, paying LexBlog to place advertisements (in the form of links) on the blogs of its other customers, pursuant to the "mutual linking" strategy used by LexBlog." Like any other field of practice, the field of legal ethics and attorney discipline involves predictions about how regulatory agencies and other decision-makers might think of a situation, not just how the lawyer himself assesses the situation. That is why I said that "[l]awyers and firms who pay to participate in such a 'mutual linking' strategy should consult the rules of their jurisdictions regarding the advertisement of legal services and the compensated recommendation of legal services." In short, I did not express an opinion that the conduct is ethical or unethical; rather, I merely suggested that it would be appropriate for lawyers who are contemplating participation in a blogging network to consider such risks.
  


• Finally, Evan, the last portion of your post suggests that my posts about LexBlog have been focused entirely on the issue of whether the LexBlog "network" might trigger the application of one or more advertising regulations in some jurisdictions. That is simply not the case. In fact, that is the smallest part of what I have blogged about where LexBlog is concerned. Most of my commentary has focused on the fact that LexBlog is now offering (and providing) "ghost-written" content for lawyers who want to have weblogs.

Perhaps you were busy with other matters and focused on one of my posts to the exclusion of the others. But I think you will find that you have incorrectly and unfairly reduced my series of posts to the issue of whether blogroll links constitute a form of advertisement, which does not even begin to cover the scope of the issues I have raised and discussed.

[Evan]

Ben: Thanks for your comment. I believe I stated that you had eight separate posts that raised a "myriad of ethical 'issues'." I also stated "the issues Cowgill has been raising on his weblog are interesting and worthwhile." In both cases, I used the plural--"issues." I also linked to your weblog, where I hope anyone who reads this posts goes to read all of your posts.

[Ben Cowgill]

Ethan, I am writing again because I see that you have changed the title of your post. I appreciate the fact that you have probably done so in order to correct an accidental misspelling of my name, and I appreciate that. But now I must raise another issue because of the title you have chosen.

Specifically, I don't think my series of posts about LexBlog are fairly characterized by the phrase "Ben Cowgill Questions Law-Bloggers' Legal Ethics." Nothing in any of my posts questioned the ethics of any particular "law-blogger", or the ethics of "law-bloggers" in general. Rather, they questioned some of the practices which LexBlog (a corporate entity) is introducing into the "blogosphere".

Those practices include (a) providing LexBlog customers with content written by third parties which is posted on the blog in a manner that may create a false impression about its authorship; and (b) placing a blogroll of LexBlog customers on the blog of each customer, regardless of whether that list bears any relationship to the professional activities, personal interests or relationships of the blogger, apparently as a way of ensuring that each customer receives a number of "inbound" links as part of a "network" of affilliated blogs (a term introduced into the discussion by LexBlog's owner, Kevin O'Keefe).

I do believe there is some risk that lawyers who participate in those practices may find themselves being accused of improper practices. For example, I think there is a risk that a lawyer who posts third-party content without a clear indication of its third-party authorship may find that a disciplinary or regulatory authority regards that as a deceptive practice, regardless of whether the lawyer's motives were entirely honorable.

I think I know something about that, because I was Chief Bar Counsel for the Kentucky Bar before I launched a practice devoted exclusively to matterrs of legal ethics, attorney discipline and the "law of lawyering."

In that regard, I do not consider myself to be a "self-appointed ethicist for law-related bloggers" as you call me at the beginning of your post. I am blogging about the field of law in which I practice, no differently than an IP lawyer who blogs about legal developments relating to the Internet.

I realize that many lawyers become uneasy when the subject turns to legal ethics, due to the "moral" overtones of a field that concerns "ethics." I also realize that it triggers all sorts of feellngs about who claims to be more "ethical" than someone else. However, for those of us who practice in the field on a regular and continuing basis, the term "legal ethics" is merely a shorthand label for a field of law that involves rules, risks, unresolved questions of law, gradations of conduct, etc., just like any other field.

To be perfectly frank, I think your post (and now your title) reflect a certain amount of uncomfortable bristling (probably unconscious)at blog posts which discuss matters of legal ethics, no matter how carefully they are crafted. Do you think that might be part of what went into your post?

[Evan]

Ben: I didn't change the title of the post. Rather, I added a title right after I posted, when I realized I forgot to title it. That probably happened while you were writing your first comment, which you drafted shortly after I posted. I used "bloggers'" because in my opinion you questioned the practices of many LexBlog clients, hence "bloggers."

As for your last paragraph, you are right that I don't like it when someone publicly questions the legal ethics of a particular (named) lawyer or group of lawyers without extremely good reason. To have one's legal ethics questioned publicly can create huge problems for a lawyer. Given your background, I don't need to tell you that. The Internet creates additional problems because weblog posts don't often go away and are easy to find with search engines.

Your posts, in my opinion, might scare people away from LexBlog. They would certainly scare me away if I was new to weblogs and knew nothing about them or LexBlog other than what you wrote. As I said, I think your posts are short on actual legal analysis. If you think lawyers should really be concerned about the ethical implications of hiring LexBlog, then you owe it to them (even if not to Kevin) to very clearly spell out why that is rather than just spotting issues.

[Anon]

There is likely a very good reason Cowgill didn't discuss this issue privately with O'Keefe. Remember when "Editor" of Blawg Review posed a simple question to Kevin about PubSub? Kevin not only refused to answer a simple question, but then went on to lamblast "Editor" and the Blawg Review project. Rather than answer a question (which was posed constructively), Kevin attacked "Editor." That was not only poor form, but it was also stupid.

If Kevin is your friend (and I don't know if he is), you should tell him that if he weren't such jerk to people who ask simple and legitimate questions of him, this wouldn't have become such a spectacle. And it is spectacle. Kevin is looking really bad in all of this.

[Evan]

Anon: No, Kevin's not my "friend" and I'm not a client. I have emailed him before and talked to him in person and he certainly wasn't a "jerk." Meanwhile, I don't understand what you mean (whoever you are) that Kevin is "looking really bad in all of this." In all of what exactly? The Blawg Review issue, whatever that was, was a separate, unrelated topic. Now we're on the topic of the ethical implication to lawyers of blogrolls. What questions is Kevin refusing to answer, exactly?

[Ben Cowgill]

Evan, please let me respond to three things you said in your last comment. Those are:

• first, your insistence that I have "questioned the practices of many LexBlog bloggers";
  
  
• second, your statement that my postss are "short on actual legal analysis" regarding the issues I have raised; and
  
  
• third, your statement that "if [I] think lawyers should really be concerned about the ethical implications of hiring LexBlog, then [I] owe it to them (even if not to Kevin) to very clearly spell out why that is, rather than just spotting issues."

I will address each of those statements in turn.

• First, you (and your readers) will search in vain for anything in my posts about LexBlog in which I have (in your words) "questioned the practices of many LexBlog bloggers." I guess you're entitled to your perceptions, but it is simply not true that I did what you say I did. Rather, I raised concerns about the corporate practices of LexBlog, which may or may not cause trouble for its lawyer-customers. If anything, I regard the LexBlog bloggers as potential victims of those practices, not as culpable parties. The danger they face is that they, not LexBlog, are the ones who may be held acccountable for any ethical violation, because they are responsible for the content of their blogs and they are under a duty to comply with the rules of their jurisdictions.
  
  
• Let me now turn to your comment that my posts "seem to be short on legal analysis." The field of legal ethics is unlike some other areas of law, in the sense that it is not characterized by extensive statutes, codes or regulations. Rather, it is characterized by general principles which must bee applied to particular situations on a case-by-case basis, according to the principles that can be discerned from other cases (and also with an eye to the customs and standards of the jurisdiction). One of those principles is that a lawyer must not engage in any conduct which involves elements of dishonesty, fraud, deceit or misrepresentation. In the arena of advertising and marketing activities, that means that a lawyer must not engage in conduct which misrepresents the lawyer's knowledge, experience or expertise. As I explained repeatedly in my posts, the danger I see in the use of third-party content on a blog is that it may be regarded by a disciplinary or regulatory authority as a violation of that general principle, because some visitors to the blog may be led to believe that the third-party content is a reflection of the lawyer's understanding of the subject matter and his ability to talk about the subject matter in a way which the visitor finds to be clear and helpful, when in fact it is text which someone else has written. The issue then becomes whether the blog sufficiently discloses the fact that someone else wrote the material, in order to protect the lawyer against an allegation that the material is used in a deceptive way.
  
  That's the basic nature of the analysis. From there, it is a mostly a matter of argument and extrapolation from analogous case law, and I surely don't think you are suggesting that I am under some obligation to do that in order to blog about issues of this nature.
  
  That brings me to your last comment, which was that I "owe it to [my readers] to very clearly spell out" why they should be concerned about the ethical implications, "rather than just spotting issues." First, I would respectfully submit to you that I am in a position to spot the issues and raise them appropriately in my blog, because of my unique background in this field. I am one of very few former Bar Counsel who are now in private practice, helping lawyers avoid or overcome ethical probblems.
  
  Moreover, I think I perform a service for my readers by helping them recognize that issues of this sort are triggered by certain circumstances. It helps them develop a more refined ability to spot situations which may involve risks of ethical violations, and also helps them know when it would be appropriate for them to seek counsel before pursuing a particular course of conduct.
  
  Stated another way, I don't think any of us can blog in a serious and meaningful way about a field of law if the standard is whether we provide enough case authority to conclusively address any issue we raise.
  
  Finally, I would not undertake to express such a definite and formal opinion in any event, because I would run thereby the risk of offering legal advice on which a reader might rely. For that very reason, I am careful to express myself in terms of raising issues for my readers to consider themselves and, if they deem necessary, to discuss with counsel of their selection in their own jurisdictions.
  
  

In summary, it appears that you and I must "agree to disagree" because your original post and your subsequent comments suggest to me that you embrace an "all or nothing" philosophy toward the discusson of ethics issues in a public forum -- that a person like me must refrain from raising any issue whatsoever about ethical matters, so as not to run the risk of suggesting, even obliquely, that someone else might be violating an ethical prohibition; or, if I do presume to raise any such issue, that doing so makes it incumbent upon me to prove conclusively and decisively that, indeed, any person who falls within the scope of my commentary is guilty of professional misconduct and ought to be disbarred, if not beheaded, so that we can all sleep well at night in the comfort of knowing that the situaton was a "no-brainer" and that my commentary was therefore appropriate.

I think there is a third alternative, which is to open a discussion about issues as they arise and encourage others to participate in an intelligent discourse.

That is what I endeavored to do in my posts about LexBlog's practices. If I seemed to become strident over the course of those posts, it is probably because I have little patience with dissembling conduct, and I believe the record of the past week shows that LexBlog has, in fact, engaged in conduct of that nature.

[Evan]

Ben: I don't think you should "refrain from raising any issue whatsoever about ethical matters." I just think that if you are going to criticize a particular lawyer of potential ethical violations, you should have all your ducks in a row. I think that's what I said in my post. If all you can do is reason from generalities without giving citations to legal decisions or status or rules, that's fine, but then I think you should leave personalities out of it.

At the end of your last comment, you said you have little patience with "dissembling conduct," which you said "the record of the past week" demonstrates LexBlog has done. That's a little vague, but I think you're complaining about the way Kevin O'Keefe as a blogger has responded to your weblog posts. If you want to complain about that, that's fine, but I don't think you should mix up those complaints with anything having to do with legal ethics. It's especially troublesome when you do it on your weblog, given its title and your background--readers likely give your opinions on legal ethics more weight and authority that those of other lawyers. Meanwhile, even if Kevin did "dissemble" and you want to complain about it, that's just a complaint of one private-citizen blogger about the blogging practices of another private-citizen blogger. People with weblogs do that all the time. In my mind, however, in mixing up your complaints as a private-citizen webloggers(or even as a member of the weblogging community) with highly-generalized accusations of breaches of legal ethics, you are giving the appearance that you are using your position as an expert on legal ethics to bully someone who has irritated you as a private citizen. I don't think that's right.

[Aaron]

I find this discussion very interesting, not so much because of the possibility that weblog publishers might offer their clients boilerplate content, but because of the reality that pretty much every major legal website publisher does so. I am sure there is an exception, but I have seen countless sites by major legal publishers which present the same articles, often with little or no indication that they are boilerplate, let alone that they are not authored by one of the firm's lawyers. (Am I reading too much into these search results?)

I have also had various law firms (or their web designers) copy articles from my websites without any attribution, presenting them as their own work product. In one case, when asked about some large-scale copying, the lawyer indicated that he had contracted out the content creation for his site to a web design firm based in India.

Would an appropriately qualified title be "BEN COWGILL SUGGESTS THAT SOME MAY QUESTION CERTAIN LAW-BLOGGERS' LEGAL ETHICS ..." I don't wish to step on anybody's toes, but if I were the subject of the original post I certainly would have felt that the post questioned my ethics.

[Ben Cowgill]

Evan, it's beginning to seem that we are going around in circles. Could you please point out where I have "criticized a particular lawyer for potential ethical violations"? And could you please point out where I have made "accusations of breaches of legal ethics"?

[Dave!]

Actually, Ben, I took your post in almost the same light as Evan. The title of your post, "Is the LexBlog 'network' of law firm blogs a mutual referral agreement?" directly addresses the ethical conduct of another attorney (Kevin O'Keefe) and in fact, go on to say that by your understanding of his service and your initial research, "He apparently concedes that LexBlog customers are ... in fact members of a network of blogs which pursues a mutual linking strategy ... provid[ing] canon fodder to any disciplinary or regulatory agency that sees the situation as a mutual referral network to which one or more ethical limitations may apply."

That said, I think you raise a good point. Since many regulatory agencies lag seriously behind the curve understanding technology, I think it's an issue that "blawgers" would be wise to consider--although in the end I think Evan is right--considering a blogroll any kind of "referral" system borders on ridiculous.

However, you did single out O'Keefe and his service to use as an example and called the ethics of one of his features into question. At least, that's how I read the post. Perhaps an abstracted post about blogrolls and their possible ethical implications would have raised the issue without seeming like an attack on a particular service?

[Editor of Blawg Review]

This is to make clear that the Editor of Blawg Review did not make the comment above by Anon.

[Ben Cowgill]

I need to make an important point in response to the comment by Dave Gulbransen ("Dave" above).

All of my remarks about Mr. O'Keefe have been addressed to his role as the owner, operator and chief spokesman of a corporate entity, LexBlog. I have not said anything about him as a lawyer.

I realize that it is easy to forget that distinction here in the "blogosphere" because Mr. O'Keefe is known to many of us as a "fellow blawger." But where the issues addressed in my recent posts are concerned, there is a critical difference between a practicing member of the bar and a person with a legal background who is now in the business of selling services to lawyers and law firms.

Please understand that I am not making that distinction to denigrate Mr. O'Keefe in any way. I realize that he possesses a legal education and that he practiced law for some 17 years before he started PrairieLaw.com, the predecessor of Law.com. My point is not to suggest that he lacks legal knowledge or experience. Rather, my point is that he not presently engaged in the practice of law. He has left the practice of law to become a business person and sell services to a legal market.

In fact, if I am not mistaken, Mr. O'Keefe is not maintaining an active license to practice law in any jurisdiction. Rather, I believe he is on the rolls of the Wisconsin Bar Association as a lawyer who is no longer engaged in active practice and is therefore not required to comply with the same requirements as active practitioners. But even if he is an "active" member of the Bar in Wisconsin or elsewhere (and please note that the term "active" is a term of art which relates to licensure status, not attendance at cocktail parties), the fact remains that he is not engaged in the "practice of law" (another term of art) in his work with LexBlog.

That fact has important ramifications for the matters I have discussed in my posts. Specifically, if -- and I underscore the word "if" -- a regulatory or disciplinary agency found that there is a problem with a blog of a lawyer which was designed or hosted by LexBlog (for example, a concern that the lawyer might be inadvertantly engaged in a mutual "referral network", for purposes of lawyer advertising regulations, by virtue of LexBlog's regular and continuing practice of cross-linking the blogs of its customers), the problem of dealing with that issue will be a problem for the lawyer who is using the blog to market his or her services in that jurisdiction. Yes, it may also cause a business problem for LexBlog if bad publicity ensues, but the problem of compliance with the rules of professional conduct is a problem for the lawyer, not the vendor of services chosen by the lawyer.

That's also the reason why discussing LexBlog's practices here in the "blogosphere" is fundamentally different than discussing the conduct of a particular lawyer (which Carolyn Elefant does entirely too often, in my opinion). Again, LexBlog is a corporate entity, not a law firm, and Mr. O'Keefe is active in the blogosphere as a representative of that corporate entity, not as a practicing lawyer. For those reasons, I think it is entirely appropriate to open a discussion about whether any of the marketing practices of LexBlog (e.g., the use of third-party content) may be something that could cause problems for a participating lawyer.

There's also another reason why it is an appropriate subject of discussion, which is well-known to me and some other bloggers who have followed these issues for several years. When LexBlog first arrived on the scene in 2004, it unabashedly offered to provide lawyers with blogs which were loaded up with posts written by LexBlog's own staff. Many blawgers objected to that idea and blogged about it in the Spring of 2004. In response, Mr. O'Keefe made various statements, representations and assurances which can still be discovered rather easily by running a search on the term "LexBlog" at David Giacalone's blog, f/k/a (EthicalEsq.). What LexBlog is now doing is (arguably, at least) a reversal from the position which Mr. O'Keefe expressed at that time, and therefore raises all the same concerns again. That is why David Giacalone blogged about the issue this week in a blog post that began with a humorous reference to "exhuming" the Frankenstein of ghost-written content.

In closing, I am sorry that Dave feels that I "singled out" Mr. O'Keefe or the LexBlog company. I am not aware of any other blog design or hosting company that has begun doing the same things. If there is another company doing those things, I think the same concerns apply.

[Dave!]

Ben-

I was aware that Kevin wasn't currently practicing and just to make it clear: I don't mean to imply that you singled out LexBlog/Kevin for a personal attack or to cast aspersions. LexBlog's practices are clearly an example of the kind of reciprocal linking you were discussing in your post.

However, I just wanted to point out that since apparently you and Kevin have a history of words (which I was not aware of previously and frankly don't really care about one way or another) the post could easily be interpreted that you were singling out him and/or his services and that perhaps an abstract hypo might better illustrate your points without the controversy. I do think it was an interesting point though, again, because as "Bulldog advertising" has illustrated, the world of legal ethics committees can be a bit challenging to notions of common sense. :)

I'm just glad that bloggers like you and Evan not only raise issues, but take the time to engage in discussion about them. Active participation in discussion is what makes blogs a valuable resource to me.

[Evan]

Ben: You have asked me to explain the title of this post, i.e., "Ben Cowgill Questions Law-Bloggers' Legal Ethics." I think what follows the title explains it pretty clearly, but here is one example from a post on your weblog--

In a related post yesterday, I mentioned that there are certain ethics issues which a practicing lawyer needs to consider before deciding to participate in a commercial network of cross-linked blogs like the one LexBlog has created through the inclusion of standard blogrolls on its customer blogs. In particular, I noted that:

"A disciplinary or regulatory agency could conceivably argue that those lawyers and law firms are, in effect, paying LexBlog to place advertisements (in the form of links) on the blogs of its other customers, pursuant to the "mutual linking" strategy [used by LexBlog].

This is a post of yours I linked to in my post. In this passage, aren't you questioning bloggers' legal ethics? Aren't you questioning whether certain practices of legal bloggers are ethical? I'd sure think so if I was was one of the many lawyers who have a LexBlog weblog. As someone who doesn't have a LexBlog weblog, I still think so. I'll explain a little further. In the passage I just quoted, you set out a way that a "disciplinary or regulatory agency" could "conceivably" argue that "lawyers and law firms" have used a "mutual linking strategy" that (as you explain later in the same post) might be prohibited by ethical rules. Is this not questioning whether certain practices of legal bloggers are ethical? Is this not questioning law-bloggers' legal ethics?

Here's how that same post of yours concludes: "That would certainly seem to provide canon fodder to any disciplinary or regulatory agency that sees the situation as a mutual referral network to which one or more ethical limitations may apply." That's another example, and it raises another point. I probably would have felt differently about your posts if you had spent as much time setting forth counter-arguments to the issues you raised as you did providing disciplinary agencies with "cannon fodder." In reading your series of posts, it really seems to me you are advocating certain positions rather than just pointing out possible ethical issues for the welfare of all.

[Ben Cowgill]

Well, Evan, I guess it is now clear that you and I cannot possible agree on this because we are operating out of two fundamentally different systems of logic. In your system, I am questioning the ethics of a particular practice merely because someone else (in particular, a disciplinary or regulatory agency) might question the ethics of that practice. In my system of logic, I am questioning the ethics of a particular practice when -- you guessed it -- I am the one who is actually questioning the practice!

Tell me something, Evan. In your litigatin practice, have you ever had occasion to tell a client that a judge might rule against you on a particular point, regardless of whether you thought the judge would be right or wrong in doing so? Did you think it was appropriate to help the client understand that he faced a risk of an adverse ruling under the facts as you knew them, regardless of whether you believed he was entitled to prevail? Have you ever told a client that there was a risk of suffering an adverse verdict at the hands of a jury, because of certain aspects of the case which might influence the jury's view, regardless of whether you believed that your client was entitled to win?

Of course you have. You have done all of those things. But now you are trying to defend the title of your post on the absurd logic that I have criticized the ethics of fellow law-bloggers merely because I have tried to call their attention to the fact that someone else might do so if they participate in some of LexBlog's practices. I think you have done me, and them, a disservice by mischaracterizing my posts in that way in the title of your blog post.

[Aaron]

If an ethics decision came down against the LexBlog members, would you believe that the decision was correct or incorrect?

[Evan]

Ben: Are you now saying as an expert on legal ethics, you aren't questioning the ethical practices of LexBlog and its clients? Someone else might, but not you personally? As far as you're concerned, the practices you write about are all okay from an ethical point of view, just as long as existing and future LexBlog clients remember to get some other expert on legal ethics to check out the practices first?

If this is correct--if you don't have a good sense one way or the other about how a disciplinary agency might rule on the issues you raise--then you should say so on your weblog. Right now your posts make it seem pretty certain that you, personally, are in fact taking a position on LexBlog's practices. It's also pretty clear that you're not overly concerned with how existing or future LexBlog clients might respond to the ethical issues which you raise (sorry, which you say others might raise). Despite saying you're doing them a favor, you don't really make any counter-arguments. Instead, you merely seem to want to scare them away from LexBlog.

If this is really your goal, that's fine with me. If you as a weblogger or an Internet expert thinks that LexBlog has business practices that are troubling to you, it's quite all right in my opinion to say so, assuming your opinions are based in fact. What I object to--as I stated in my original post--is injecting into the mix the issue of legal ethics without a solid foundation for doing so. As a scare tactic, bringing up disciplinary agencies and, by extension, disciplinary proceedings works pretty damn well, even if you are only talking about hypotheticals. But what if the talk of disciplinary agencies is premature? That's the position I took in my post. If it's really just some guy who's had some past disagreement with Kevin O'Keefe standing behind the curtain of the "legal ethics" weblog--well, that's something I'd want to know.

[Ben Cowgill]

Evan, it is apparent that you and I will have to agree to disagree about the propriety of discussing the ethical issues raised by new and emergent technologies. You are saying the same thing over and over, and I suppose that I am as well.

About six omments back, I asked you to answer two polite but pointed questions, as follows:

• Could you please point out where I have "criticized a particular lawyer for potential ethical violations"? and
  
  
• Could you please point out where I have made "accusations of breaches of legal ethics"?
  

You never answered those questions. Instead, you are now taking a completely different tack, like shifting offense in some kind of sporting contest. First you were criticizing me for allegedly making accusations of unethical conduct; then you found that you could not defend that characterizaton, so now you are taking me to task for raising any issue at all for the benefit of my readers.

You seem to think that raising any issue in the field of ethics constitutes a "scare tactic" unless reasonable minds cannot possibly disagree about how the issue should be resolved. That's not very helpful to anyone.

Finally, regarding your parting shot, I have gone to considerable pains to keep my discussion of these issues on a professional level, despite the ad hominen attacks which Mr. O'Keefe has repeatedly launched against me. Now you are doing the same, by suggesting that my discussion of these issues is motivated by a past disagreement and that I am using my blog to grind an axe. That's not fair; it's not justified by the care and attention that I have given these issues; and, quite frankly, I think it represents the about the worst kind of blogging because of its ad hominen nature.

And for that reason, I am now done with my comments on your ill-considered post. Best regards.

[Evan]

Ben: I did answer your questions in a comment at 8:51 a.m. I'm not saying that I answered it to your satisfaction, but I did answer it. Also, as I have pointed out many times, I have no problem with "discussing the ethical issues raised by new and emergent technologies." Instead I'm objecting to the way you chose to do it in this case. I think I've made that pretty clear, although you're now stating on your weblog that I "seem to think" that people "should refrain from raising any issue whatsoever about ethical matters." For what it's worth, that's just not true. Take a look around this weblog, for example. I've written many times about legal ethics. And in my original post, I stated that "the issues Cowgill has been raising on his weblog are interesting and worthwhile." In any case, if you want to withdraw from the conversation, that's fine with me.

[Ben Cowgill]

I am not withdrawing. The conversation has completely exhausted itself, and is no longer a conversation at all.

Incidentally, you did not answer those two questions of mine. You recast the question as a request that you explain the title of your post, and then proceeded to do so. That reflects well on your skills as a litigator, but it doesn't mean you ever answered the questions I posed, to my satisfaction or otherwise. And that is evidence of the fact that this conversation no longer possesses the necessary elements to be a conversation at all.

[Evan]

Ben: Good enough. You can have the last word.

[Mark]

Happy St. Patty's Day!!!

[mobar]

Mr. Cowgill asked: "Tell me something, Evan. In your litigatin practice, have you ever had occasion to tell a client that a judge might rule against you on a particular point, regardless of whether you thought the judge would be right or wrong in doing so? Did you think it was appropriate to help the client understand that he faced a risk of an adverse ruling under the facts as you knew them, regardless of whether you believed he was entitled to prevail? Have you ever told a client that there was a risk of suffering an adverse verdict at the hands of a jury, because of certain aspects of the case which might influence the jury's view, regardless of whether you believed that your client was entitled to win?"

If I may add a question... Evan, when you're giving this kind of advice to clients, do you do it in private or do you generally publish it on your blog?

[moke]

Holy cow, did Ben do any work at all today or did he spend it on this blog ?

By the timing of the blogs, seems like a blawg version of an email war.

some of the posts ... wow, when does the mini-series come out? Who will play Ben? Keifer Sutherland?