McMarketing vs. The Real Deal

For those of you who know me personally, you probably know that I'm not the world's greatest marketer.  If I were, I'd probably have retired from the practice of law and would be blogging here full time.  But I think I have a pretty good eye, a sense of what works and what doesn't, even if my judgment usually works better when I'm evaluating others' work rather than my own.  So with that in mind, here are some of my impressions of some of the large firm, "McMarketing" efforts that I observed at a conference I attended earlier this week as compared with my efforts and those of some of my solo colleagues.

It's pretty clear that law marketing has invaded large firm practice - and guess what?  They're all doing the same thing.  Two large firm attorneys spoke at the conference that I attended; both had the requisite power point presentations which they'd also printed out on paper emblazoned with the firm logo and contact information.  Both attorneys gave polished presentations, explaining just enough, in general terms - but not "giving away the store."  In other words, none of the papers cited the statutory support for the matters discussed or listed references where people might go to learn more.  So, that I gathered is Practice 1 of Biglaw McMarketing - give away enough to make 'em call you, but no more.

As for Practice 2, I'm not sure whether it was intended or not, but I'd entitle it "Be Elusive."  The biglaw attorney from DC didn't stick around for any of the conference, didn't attend any of the technical talks (and some of the technology is pretty interesting) and really, just left right after he spoke.  Another large firm attorney flew in for the day of the talk and hung around a bit, but I didn't see him engaged in much chatter either.  Perhaps the large firm marketers need to tell attorneys that you should stick around and talk to the people you're trying to sell to.

As I said, I don't know that my approach is any better.  My talk was loaded with substance - and in retrospect, too much, because I ran over time.  I think for future talks, I'll pare down the substance for the oral presentation and back it up with web based materials or a handout.  But I'm glad I erred on the side of too much rather than too little, because after my talk, several members in the audience complimented me on "really knowing my stuff."  Whether wise or not, I don't subscribe in McMarketing Practice 1 - because while I want to sell my service, I also want to educate my audience, particularly when all but a handful are nonlawyers.  (And which is why I don't subscribe to McMarketing Practice 3 - Speak to Bar Associations - because other lawyers won't likely become my clients, nor, in my field, are they likely to refer me work)

Finally, here's the beauty of not following marketing rules sometimes and just going with the flow.  By the end of the conference, the rumblings about starting a trade association became a true organized effort and I was drafted as Legislative Director and interviewed for the local TV station.  Because of my blogging background (naturally, I touted my professional blog during my talk), I was able to throw together a website for our fledgling organization while others started the efforts on the Hill.  Had I just waltzed into the conference and left after my talk, this opportunity never would have fallen into my lap.  Only I know it really didn't fall, it's the product of a foundation that I've been laying in this field for at least a decade. 

I know we all read so much about Rules of Marketing.  And it's true, we solos need to market and we need to be disciplined.  But structured biglaw McMarketing isn't the solution, not just because of the presumably exhorbitant cost (I've heard that marketing heads at large firms are paid as much as $250,0000) - but also because it doesn't always work.  Sometimes, the best rule of marketing (as with anything else) is to abandon adherence to strict rules and go with your instinct and see where it lands you.

Loneliness and Isolation: Hazards of Solo Practice

Ironically, one of the greatest benefits of starting a law firm - being able to work alone - may actually be one of the greatest hazards of solo practices, as this Q&A from the Massachusetts Bar Association website points out (thanks to my fellow blogger David Giacalone for sending this article my way).  Here's what the post says in response to a concern from a solo practitioner about a lack of motivation and "practice blahs:"

You are describing a problem very common to sole practitioners, who must be their own primary source of motivation and discipline on a daily, ongoing basis. Persisting in that way is difficult for anyone, maybe more so for lawyers like yourself who may enjoy interacting with others.  The problem that you describe may, in fact, be attributable to the relative isolation common to sole practice. Other practice venues, such as law firms and corporate offices, offer not only accountability but also at least some collegial and social contact[...]In some cases it may also be possible to establish some kind of collegial arrangement to hold each other accountable for timely completion of tasks. Though some work better alone than others, we are all fundamentally interdependent beings, and may derive a boost from such non-adversarial affiliations.

I have to admit that I'm a little bit of a recluse by nature - you know, the kid on the playground reading a book in the corner instead of socializing, the person who likes seeing movies alone and can't stand attending the firm Christmas party.  But even I need interaction every once in a while.   My own personal boost comes from the monthly solosez lunches we have here in D.C.  (though Lex Think was a great rejuvenator too).  The solosez lunches are held at a restaurant rather than a sterile bar conference space and everyone pays their own way, so if it's a slow month, you can still attend for the price of a cup of coffee.   Though I only get around to the lunches every few months, there are always old friends to catch up with and new people to meet.  We trade gossip, war stories and practice tips and we go around with introductions at the beginning so everyone knows who everyone else is without the awkwardness of asking.  But sometimes, even if I'm swamped with work and tired of being alone in my office, it helps to work at the library or a coffee house (I know of several with free wireless) just for a change of scenery.  These are just some of the tips that I discussed in my chapter "How Not to Be Lonely" for the upcoming edition of the ABA's Book, Flying Solo,



Go Ask A Blogger - It Works!

The greatest thing about blogs is that they give small lawyers like you and me access to resources that were once completely out of our grasp.  The reason is that at least now, most bloggers still blog because they're completely enthusiastic about their field or enjoy sharing information. 

Tom Lincoln at the Trial Prep blog has this great post about his positive experience in seeking help from a fellow blogger:

I can recall only last summer when I was working on an important Blakely issue, and had done an enormous amount of research, drafting and redrafting, but still felt somewhat uncertain on whether my planned approach was the best.  I had seen a few comments posted by noted attorney Peter Goldberger over at Sentencing Law and Policy, as well as having seen a few postings to a listserv from him. Although I had never met Peter, I decided that he was the person I should ask for help, and had the nerve to send him an email one evening. A few minutes later I was pleasantly surprised to receive an email from Peter and after a few more exchanged emails, felt very much assured of what path to take.  I grant you that not every lawyer approaches Peter in having both great knowledge and a willingness to share, but I can assure you that many more than you might think do have plenty of knowledge and that same willingness to help others.  Moreover, at times the things we are uncertain of have nothing to do with substantive aspects, but "dumb" things such as (I recall these from my first oral argument before the First Circuit) where are the lights?, where do I sit?  So, please, don't be afraid to ask for help.

I really hope that the free discussion of information continues in the blog world.  And I hope that years from now, we don't look back at the nascent days of blogging and reminisce about how so many law bloggers used to answer questions, willingly and freely and wonder why they don't do it anymore.

Lawyer Rainmaker-Trainers Becoming More Popular

This article, Deluge of Clients the Goal for Legal Field Rainmakers (Philadelphia Biz Journal 4/20/05) reports on two Philadelphia rainmaking firms that provide rainmaking training to lawyers.  From what I've seen, I'm not impressed.  One of the training firms does have positive testimonials at its site, but it doesn't specialize in lawyer rainmaking, nor is the company president an attorney.  The other firm is headed by an attorney, but the site is sparse, hardly any articles or tips that would enable me to evaluate the individual's advice.

Perhaps my readers can correct me if I'm wrong, but it seems to me that in order to coach lawyers on marketing, a law marketer has had to have "been there, done that."  Maybe not so much at a large firm, where a good deal of the work involves more traditional P.R..  But for a solo or small firm lawyer, prior experience in building a law practice integral to knowing what works and what doesn't.   Several years ago, I had a bad experience with a so-called lawyer-marketer-coach who was not a lawyer - and if I ever decide to hire another such person, I will be sure to use a former attorney (or even a J.D. who has never practiced).   So what do you think - can a non-lawyer successfully train lawyers to market?

Dealing With Difficult Clients

This month's issue (April 2005) of Law Practice Today is devoted to malpractice - or rather, how to avoid malpractice.  All of the articles are pretty interesting; one in particular that stood out was Carole Curtis' Dealing With Difficult Clients.  Tips include saving copies of all correspondence, being patient and clear about expectations.  Carole doesn't quote any statistics.  But I'm willing to bet that at a huge percentage of the malpractice actions brought against solo and small firm lawyers result not so much from lawyer incompetence as from demanding clients who either get less than what they thought was coming or who make life so difficult that lawyers begin to avoid them and let their cases slide, to the lawyers' eventual detriment. 

Lawyer Successfully Challenges NC Bar's Comity Rules

This article, A Break from the Comity Routine, Cynthia Lane, ABA e-report (4/22/05) reports on lawyer Steven Morrison's successful challenge to North Carolina's rules on comity admissions.  Under the rule declared overly restrictive by the federal court, North Carolina allowed an attorney in a state with which North Carolina has a comity agreement to gain admission to the North Carolina bar without an exam, provided that the attorney had practiced four of the past six years in a comity jurisdiction.  Morrison was admitted to several comity jurisdictions, but for the six years prior to seeking admission in North Carolina he practiced in California, a non-comity state.  The federal court found that bar membership in a comity jurisdiction should suffice to gain admission to the North Carolina Bar and that the prior practice requirement was overly restrictive.

The article goes on to discuss how comity provisions like North Carolina's are outdated given the amount of mobility in the legal profession.  But that mobility doesn't just extend to movement by practicing attorneys from one state to another, but also movement in and out of the profession.  For example, women (or men) might leave the practice of law for several years to spend time with family - and if they moved during that period and then sought admission in North Carolina, they too would flunk the comity test.

Finally, the North Carolina rule adversely impacts solo practitioners most of all.  An attorney who doesn't meet the comity rules and has to take another bar exam can work at a large firm while studying for and awaiting a decision on the test results.  Solos can't do that - without bar admission, they're basically out of work unless they can do research for other attorneys. 

It's true that North Carolina - and other states - could do away with comity entirely and require all attorneys to take a bar exam every time they want to practice in the state.  But I can't think of a larger waste of resources.  As it is, even waiving into another bar is a costly endeavor, with new admissions fees, paying for character investigations and possibly even taking a practitioners' exam.  I can't see the rationale for making the process even more difficult.

Solo Stories from the Front

Here are a couple of first hand accounts on going solo:  The First Year, a short blog post by patent attorney Russ Kraject (4/17/05) and Hanging Out A Shingle:  Following the Dream of Starting Your Own Firm, Jaime Levy Pessin reprinted from Law Bulletin at the Legal Match Weblog (3/16/05).

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Former Biglaw African American Associates Hang A Shingle

If you're a biglaw associate, do you stay at your firm and let the partners get rich off your work and credentials?  Or leave and take advantage of that market yourself?  The latter approach is the one taken by five young African American attorneys and former associates at prominent large law firms who struck out on their own to fill a niche for an African American firm to serve both Fortune 500 companies and black owned businesses in Atlanta.   (full story in Lawyers Form New Practice (2/21/05).

Almost a year ago, this article Courting Shell (American Lawyer/law.com 6/24/04) reported on how large corporations are now demanding more diversity of the lawyers who serve them.  Thus, corporations are turning to firms with female and minority attorneys - and firms are scrambling to respond by increasing diversity in the ranks.  But isn't this just a little too late?  After all, there have always been talented female and minority attorneys - but law firms never wanted them until their clients did.  And now that there's a demand for sophisticated female and minority attorneys, why should they go to large firms at all? 

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Federal Judges Honor Pro Bono - But Exclude Solos

According to this Press Release, the Chief Judges of the D.C. Circuit will be honoring eight Washington D.C. law firms for commitment to pro bono as evidenced by meeting a benchmark of 40 percent of lawyers performing 50 hours or more of pro bono service.  But sadly, though I'm a member of the DC Bar, neither I nor any of my solo colleagues qualify for such honor despite the fact that many of us have met or exceeded the fifty hour pro bono commitment for which the large firms are being honored.  And the reason we're excluded is because we're solo; according to the press release, only firms of 25 attorneys or more are eligible to enter the so-called "40 for 50" Competition to begin with.

Seems a little inconsistent with what this type of event is supposed to accomplish.  According to this quote from Chief Judge Hogan in the Press Release:

"To realize the idea of 'justice for all' we must realize that all must play their part. Although this award recognizes law firms, our true intention is to recognize those who donated their time and talent -- the firm leaders who fostered meaningful pro bono programs, the attorneys who took on cases when their workloads were already full, and the support staff who no doubt served a needed role."

So, the bar wants everyone to play its part in realizing "justice for all" - and yet it refuses to acknowledge the efforts of solo and small firm attorneys who help bring about justice day by day, whether through performing pro bono outright or reducing rates to serve clients who could not otherwise afford legal services.  And in many instances, we provide that pro bono when our workloads are already full - and without support staff to help out.

To add final insult to injury, the tag line at the bottom of the Press Release says that the Judge's reception is a private event.  Meaning that no one from the bar or the public, outside of the press, can watch these large firms bask in glory or learn of their accomplishments, despite the fact that the judges hosting the reception are on the public payroll.  Why is that?  Are the achievements not worthy of public display?  Or is the reception not so much an award but rather a quid pro quo where big firms cash in on pro bono service by obtaining one-on-one access to the federal judges at an exclusive ceremony.  Sounds harsh, but let's face it - that's how it looks from the outside peering in.

Come on DC - let's follow the example of the Florida Bar Association which honors lawyers for real pro bono service, regardless of the size of their law firm.  Take a look at Local Attorney Honored for Pro Bono Work which reports on the FBA's award to small firm attorney Jacqulyn Mack for pro bono service that included work with Legal Aid of Manasota and Florida Rural Legal Services Inc, serving as a guradian ad litem, acting as a legal advocate for children in court cases and has co-chairing the annual "law week" event in South County that teaches fifth-graders about the legal system.  Isn't that the kind of pro bono service that we want to honor and inspire - the kind that's borne out of a sense of professional responsibility and not an opportunity for professional gain?

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Firms Are Starting Client Surveys

Even if you own your own practice, don't forget, you can still lose your job:  according to this article, Law Firms Learn to Measure Client Satisfaction, San Jose Biz Journal (4/8/05),  almost 60 percent of companies have fired or are considering firing at least one of their outside law firms, according to a survey conducted by the Association of Corporate Counsel based in Washington, DC.  To avoid this fate, some firms are starting to pay closer attention to client needs, including conducting client surveys.  Although the article reports that some larger firms are hiring professional consultants to perform surveys, seems to me that the best start is the personal touch; to just pick up the phone and ask how your clients are doing and if there's anything you can do for them.

They Could Have Stayed At Biglaw...But Didn't

To those of you toiling at large firms, wondering whether you could make it on your own, this post's for you.  Here's two examples of attorneys with large firm backgrounds and large firm specialties (securities law and complex litigation) who took the solo plunge. 

This article from the Kansas City Star (4/19/05) profiles Jane Stafford, a securities law veteran of 20 years who just opened a boutique securities law firm, making her one of few women and solos in a male dominated, large firm practice area.  According to the article, Stafford plans to initiate an investor literacy program to educate people -- particularly young women, working women and the elderly -- about investments.

And from law.com is this article, Large Firm Associate Goes Solo To Serve Spanish Speaking Clients (4/12/05) reports on Jose Rojas, a former fourth year biglaw associate and Spanish speaking attorney who's betting that his new firm will meet an untapped need in the Hispanic community in Hartford County. 

Here at MyShingle, we wish these two lawyers all the best as they embark on this exciting adventure.

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What About Marketing Alternative Rates?

For some time, I'm sure, some law firms large and small, have offered alternatives to the billable hour and probably more have started to do so or at least consider it since Matt Homann started blogging.  But what's different about the alternative billing approach just announced by  McGuire Woods (reported in Hourly Legal Fees Under Attack - Chicago Tribune 4/18/05) is that the firm plans to actively market fee flexibility:

In an advertising campaign to begin Monday, McGuireWoods LLP will market its ability to tailor fees for its legal services that go beyond the traditional hourly rate. The ads, to appear in Crain's Chicago Business, the Midwest edition of Fortune magazine and other local publications, is expected to create a stir in the Chicago legal community because the Richmond, Va.-based firm is taking shots at the competition.

In one ad, a pudgy, balding, middle-aged man in a business suit leans back in a chair and blows bubbles into the air. The caption reads, "Law firms that charge strictly by the hour are about to have their bubbles burst."

The reason that this concept interests me so much is that conventional wisdom suggests that solos shouldn't try to compete with large firms on price, but rather, should sell experience, personal service and expertise.   (Personally, and perhaps to my detriment, I've never fully adopted that approach in my own firm marketing; as my firm website shows, I do sell my firm's lower cost and my commitment to stick to my fee estimates) Yet here, a large firm is now doing just that:  using price as a way to distinguish itself.  I'm curious to see whether this kind of strategy will reduce the cost of large firm services.  But as a solo, I'm still not worried, because even with flexible pricing, bigfirms still carry way too much overhead to depress fees so that they can compete with me.

What role does pricing play in your marketing strategy?  Send me your comments below.

This One Ought to Be A No Brainer

Gee, what should  this advice seeker and recent grad (at NY Lawyer) do here?  Work for $19 an hour doing document review at a large firm in hopes of getting some experience?  Or continue to look for a more challenging permanent position?  Uh, what about the most obvious option:  working for yourself.   Even if you have doubts about finding clients, court appointed cases pay $60 or more in New York.  And you could also find lawyers to pay a bar admitted attorney at least $30/hr to perform legal research or writing or make a court appearance.  Plus, what better way to find a permanent position than to involve yourself with all of the networking needed to start a law practice?

What Do You Call Yourself?

The Greatest American Lawyer ponders a fascinating question:  what should we call practitioners who are not in a partnership based law firm, if not solo practitioners?.  GAL writes:

As many of you already know, I have taken issue with the term "solo" for practitioners who do not practice in a partnership setting. Solo has the negative connotation of being alone. When I was working in a partnership, I had no more resources than I have now. In fact, I arguably have more resources now, since I can easily look outside the walls of my own firm for answers to important questions.

As I posted in GAL's comments, when I started my firm, I referred to myself as an independent practitioner.  These days, when asked what I do, I typically say that I have my own law firm - though I might say that I work for myself.  Of course, here at MyShingle, I often refer to those of us who run our own firms as shinglers - though that's not a great description outside of the parameters of a weblog.

Do you think the term "solo" has negative connotations?  And what do you say when you're asked where you work or what you do?

My JD Bliss Profile

This week, JD Bliss is a profile about MyShingle and me.  Though I wouldn't necessarily refer to myself, as JD Bliss does, as a "success story" (more a work-in-progress story), I certainly don't mind the exposure.  For those readers who haven't checked out JD Bliss, take a look - it's an interesting site and the various profiles may inspire you to take you practice in a new or exciting direction.

Asking for Help

My Small Firm Business column for the month, Ask A Simple Question as been posted over at law.com  In it, I discuss both the benefits of asking for help as well as places to look that you might not have thought about.  I'd have to credit Professor Steven Lubet and his recent article, Artificial Intelligence as generating the idea for this piece.  Lubet's article argues that law school doesn't teach the skills we need in practice, foremost, the ability to ask questions.  My article is a start towards addressing that gap.

By the way, the next time you feel intimidated or embarrassed to ask a question, just think of me, 40 years old, 16 years of law practice and still asking the best way to draft a request for admission or which side to sit on in the hearing room or how many copies to file.  If I can do it, so can you.

Why Marketing Articles Like This One Drive Me Crazy!

I have a peeve about a great many articles on marketing for law firms.  Some of the articles are apparently written by so-called experts who have clearly never practiced at a law firm.  Others reiterate the same advice - network, seek referrals, join a bar association - without any analysis of whether these methods actually work or the types of practice for which they're best suited.  But the worst marketing article is the one with a great lead - and no follow through (exactly what you don't want to do when you market).  This article, Solo and Small Firm Marketing Hurdles, from the usually worthwhile ABA LPM Magazine (3/05) is a prime example of one of those articles that promises and doesn't deliver.

The LPM article starts off promisingly enough.  The authors polled solo and small firm lawyers to identify top 12 hurdles to marketing and came up with a terrific list, including reasons like "I have a narrow specialty practice," "Potential clients already have satisfactory counsel relationships," "I'm lazy, inert and insecure" and "only poor people know me.  Since at one time or another, I have personally experienced some if not all of these particular hurdles, my initial reaction was "Great, finally, an article that will address what I really want to know."

But the article never addressed these issues.  It provides short sound bites of advice from various marketers - some clearly aimed at large firm attorneys (though the article, I had thought was for solo and small firm lawyer) or a template for building a general practice (as opposed to a niche).  And what about this advice:  "refer a less-than profitable case to someone more miserable" so that you can get a referral fee without shouldering the case management.  Well, if the case is so bad, who's going to take it?  And if the lawyer to whom you've referred the matter is so miserable, is the case really going to have any value?

Legal marketers - if you want to market your services to us solo and small firm lawyers, the best way to convince us is to demonstrate that you know how to market yourself effectively.  And effective marketing starts with answering questions, not bypassing them and addressing the prospective client's needs, not pushing your own agenda.


   
   

Would You Apologize to Save Your Career?

Here's a bit of sad piece from AP (4/8/05)  on Lawyer Refuses to Apologize to Judge, Goes  to Jail.  Though details of the incident are sketchy, the article brought this question to my mind:  would you apologize when you don't believe you were wrong to save your legal career? 

According to the article, an Ohio lawyer will spend 36 more days in jail for contempt of court for refusing to apologize to a judge and accusing her of conspiring with the against his client.  The article reports that the lawyer insisted on representing a man charged with robbery and kidnapping even though the judge had appointed another lawyer.   The attorney challenged the judge's ruling and at some point was held in contempt.  After spending three days in jail, the judge gave the lawyer an opportunity to apologize for what she called "unprofessional conduct."  But the attorney opted to serve an additional 36 days, insisting that he had done nothing wrong and accusing the judge of collusion with the prosecutor to force his former client into a guilty plea.

There's quite a bit that the article leaves out.  Significantly, I'd want to know whether the client had asked for another attorney or whether he had insisted that the original attorney continue to represent him.   Had the client requested the termination, the judge's decision to appoint another lawyer, over the original attorney's objection would have been correct.  On the other hand, the discharged attorney would have been right to insist on continuing to represent the client if that's the wish his client expressed. 

While I don't condone accusing a judge of collusion, I also don't think that it warrants 36 days in jail for contempt.  Seems to me that a reprimand from the bench or even a fine would have been a sufficient remedy. 

And what about this apology business?  In reading through various grievance decisions, I've noticed that remorse will buy lawyers a lighter sentence - and lawyers should be remorseful when they've done wrong.  But what if a lawyer correctly believes he's taken the right approach - as did the lawyer in this case (and again, not enough facts to make a judgment call here).  Should he insincerely apologize to save his livelihood (because you know there's probably a grievance case being drafted as I type this up)?   Or stand firmly on principle? 

In my younger days, I'd have supported the principled stand rather than a compromise apology.  Now, I'm not so sure.  After all, if you lose your license to practice law even as the result of an unjust decision, you likewise lose your ability to continue to work to change that system from within.  That's not such a great outcome either.  But readers, why don't you let me know what you think.

Lex Think, Lex Do

This past Sunday, I attended Lex Think, organized by fellow bloggers Matt Homann, Dennis Kennedy and Sherry Fowler.  I'd heard the conference described as a conference about nothing but in the end, it turned out to be about everything, from attorney-client relations, billable hour versus alternative billing and keeping the passion in one's practice.  Events like these are so important for solos, I think, because even though many of us (myself included) start our firms with drive and optimism, the daily grind of practice can sap our innovative spirit and make us stodgy and practical, if not downright cynical.  But events like these, where you meet, exchange ideas and chart a course of action with innovative people can bring you back to that piece of yourself that drove you to start your own firms to begin with. 

I look forward to starting work on the resolutions that I and other Lex Thinkers generated.  So why don't you take a look at the list, pick a couple or think of your own and join me?

Make Bar Complaints Public - At Least to Other Lawyers

As many of my fellow bloggers and readers know, I'm no fan of bar disciplinary programs.  Among other things, I believe that the bars disproportionally target solos and pursue sanctions for trivial infractions while sometimes failing to seriously investigate real dangers.  That's why many may be surprised to learn that after seeing ABA's 2003 statistics on bar disciplinary proceedings mentioned by my blogger-colleagues Bob Ambrogi and Ben Cowgill, my first reaction was that all 119,863 of these complaints should be made available for review by other attorneys.  Here's why. 

According to a quote at Ben's site from the Washington Times:

The ABA survey showed 119,863 complaints against lawyers were received in 2003 by disciplinary agencies.

More than 62,000 complaints were summarily dismissed because they did not state facts that would constitute professional misconduct, or because the agency otherwise lacked jurisdiction, the ABA said.

Of the remaining 83,000, another 45,000 were dismissed after formal investigation. Formal charges were warranted in response to 79,150 complaints, and actually were brought during the year against 2,912 lawyers."

There's an awful lot of information in all of those complaints that could help lawyers better comply with ethics rules and avoid violations - if only the information were accessible.

And imagine the benefits if the ABA could create an "ethics data base" for access by attorneys.  First, lawyers would get a sense that a bar complaint is not necessarily something to be feared if they could have a chance to view at least some of the 62,000 meritless complaints (and the attorneys' response) listed in the survey.  Lawyers would learn that the best way to defeat a weak ethics claim is by responding to it, not avoiding it.  Now, too many lawyers dig a deeper hole for themselves by failing to address a bar complaint.  In addition, while there are plenty of lawyers who deserve an ethics inquiry, there are also plenty of overly litigious clients who don't deserve a lawyer.  By being able to access a data base of ethics complaints, lawyers could learn in advance whether a client might be likely to file a frivolous ethics complaint.  That's not to say that the lawyer would have to automatically decline to represent the client, but at least the decision to go forward would be fully informed.

Access to those complaints that generated a formal investigation would be useful as well.  In cases where charges were dismissed after investigation or where formal charges were contemplated, the bar's decision might include an explanation which could be of use to lawyers who find themselves in similar ethics quandaries.  Some bars have ethics hotlines to respond to questions but many do not - so the ability to review the bar's decision would offer lawyers necessary guidance.

Finally, other lawyers should be informed when colleagues are investigated.  In contrast to laypeople, lawyers have the ability to ferret out whether a charge was frivolous. Thus, a lawyer who was the subject of a false or trivial claim would not be prejudiced by other lawyers knowing about the charges.  More importantly, lawyers need to know about their colleagues' disciplinary records to avoid possibly referring these attorneys to other clients where the attorney has engaged in serious violations.  A few months ago, a colleague of mine learned that a colleague whom he'd referred to numerous prospective clients had in fact been suspended from practice.  My colleague never knew or thought to check up on the status of the other lawyers' license - but at least that information would have been available.  What about a situation where an attorney has had several complaints filed against him?  Presently, that information is not available unless the attorney has been formally (and publicly, as opposed to privately) sanctioned.

At the same time, I don't believe that complaints should be made available to the general public, unless a formal sanction results following a full hearing.  Most members of the public do not have the ability to discern between a frivolous complaint and a legitimate one which could result in harm to an innocent lawyer's reputation.  (I'm not sure about situations where multiple complaints, albeit not leading to sanction, have been filed.  On the one hand, multiple complaints can signify a problem that the public should be aware of, on the other, the number of complaints might be tiny in proportion to the number of cases the attorney has handled.  So, I'm reserving judgment on whether multiple complaints (more than 5 in a 3 year period?) ought to be disclosed) Moreover, attorneys should be able to access the data base only on assurance of keeping the information in strictest confidence.  Any leaks about another attorney's disciplinary reocrd, particularly to gain a competitive advantage, should be met with harsh sanctions themselves.

According to the most recent budget proposal for the DC Bar (one of the jurisdictions where I'm admitted), roughly $62 of $173 in dues goes to the Board of Professional Responsibility.  Granted, the DC Bar has an excellent ethics hotline program which I've used many times, but beyond that, I receive no other benefit from that component of my payment.  But if I could take a look at even some of the 1333 complaints filed (as opposed to the 100 or so resulting in public sanction or reprimand), that would make my dues a far more worthwhile expenditure - and help make me a more knowlegeable and ethical lawyer.

The Bigger the Firm, The Bigger the Mistake

Newsflash:  like solos, even large firm  attorneys can file complaints in the wrong place, miss the statute of limitations and conceal the mistake - as shown in this article,  Jury Awards Billy Blanks $15 Million in Legal Malpractice Suit (4/2/05).  But it takes an extra special large firm to wind up liable not just for $20 million in compensatory damages but  $15 million for punitives as well.   

Ethics, Technology and the Solo

I have a guest post over at Ben Cowgill's Legal Ethics Blog on A Solo's View on Ethics and Technology.  Clearly, as a solo, I owe much of my effectiveness today to improved and less costly technology, much of which was not around (or at least was not as affordable) back in November 1993, when my firm opened its doors.  At the same time, I think too frequently, we equate technology with access to law and assume that the former will automatically lead to the latter.  But that's not so.  As I discuss in my post, when we integrate technology into the practice of law, we need to make sure that we don't deter solo and small firm lawyers from taking advantage of it: either by imposing onerous ethics rules on those who try to use technology to serve clients or failing to come up with mechanisms, such as leveraging the bar's purchasing power, to price technology more affordably.

Malpractice Insurance: Don't Start Practice Without It

Here's an article, 10 Misconceptions About Malpractice Insurance, Phillip Fraim, Small Firm Business (3/28/05)  that discusses some of the mistaken assumptions attorneys make in purchasing malpractice insurance.   For example, Fraim points out that many attorneys wrongly believe that defense costs in a malpractice action do not affect policy limits (when they do) or that liability insurance will automatically cover grievance matters (when it doesn't).  And Fraim cautions attorneys not to assume that all policies are the same.  As I have seen from my own personal experience, there are huge disparities in costs and benefits offered.  Attorneys are wise to shop around when initially buying malpractice insurance, and shopping again if that annual renewal notice reflects a huge increase.

But Fraim himself makes at least one mistaken assumption that I could catch.  He says:

9. LPL coverage is hard to find. There are probably more options for LPL insurance than ever before. Most states have a bar-related insurance company operating within their jurisdiction. Check with your state bar association or the Web site of the National Association of Bar Related Insurance Companies for more information.

Sadly, going through the bar is probably one of the worst ways to purchase malpractice insurance.  (It should be the best, since in theory, the bar ought to be in the business of making it easier and less expensive for attorneys to obtain coverage)  In two of the jurisdictions where I practice (MD and DC), the so-called "bar-related insurance company" doesn't offer the lower costs, but rather is the company that pays the bar for the privilege of being designated as the state provider.  When I shopped for malpractice insurance back in 2002 (since the DC designated provider that I had chosen was going out of business), the Maryland provider would not sell me coverage because the bulk of my business was not in Maryland.  And when I finally found a new provider (recommended by a colleague), I learned that I had been grossly overpaying for coverage from the DC insurance provider.

My advice for malpractice insurance?  First, don't be scared off from purchasing it - it may be far less than you think.  Second, seek recommendations from colleagues before making a purchase - and ask explicitly about coverage and price policies.  Third, take the time to ask the insurance agent questions about what's covered and what's not.  Malpractice insurance can buy a tremendous amount of peace of mind - but the benefits that it provides to us attorneys doesn't justify over charging us. 

New shingler Scheherazade Fowler (who's

New shingler Scheherazade Fowler (who's in great company with other blogger-turned solos Dennis Kennedy, Kevin Heller and Howard Bashman, to name a distinguished few) publicly ponders whether she should keep her Massachusetts bar status active when she's set up shop in Maine.  No question, regardless of cost, a solo should never, ever, ever let go of bar membership, particularly when it's in an adjacent jurisdiction.

For starters, multiple bar memberships allow you to represent clients who reside in the state where you practice but may have a suit against an employer or business in an adjacent state.  That's business that you'd lose out on without active bar membership in the other state.  In addition, with e-filing growing pervasive, as a practical matter, it's no more difficult to represent clients in another state than in the state where you practice.  Three years ago, I took on a matter in federal court in Baltimore, twice the distance from my home than D.C.   Yet because the Maryland federal courts had implemented e-filing, the case has been far easier to manage than some of my DC work, which has required me to use messengers or make trips over to the court for filings. 

Finally, if you maintain an office in a lower cost state but retain the right to practice in a higher cost one, you have a significant competitive advantage.  I don't know for sure, but I'm guessing that Sherry's tenth floor office in Portland probably costs less than a dump in the center of Boston.  (the same is true in my neck of the woods, where office space even in close-in Bethesda where I live can be had for less than downtown DC).   That's another marketing opportunity - the ability to compete with attorneys in another jurisdiction on price. 

Yes, I realize, from my own personal experience, that multiple bar memberships cost money to maintain.  I pay roughly $400 per month to keep my memberships active in New York, Maryland and D.C.  - and as far as I can tell, those bars are among the less costly bars in the country.   And I also know, from personal experience, that when you're starting out, just that extra $150 a year can seem intimidating.  But before you go cutting all of those costs, think about the benefits you might lose.  And remember, once business starts rolling in, that $150 is just an hour of your time.

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And here's yet another story,

And here's yet another story, NY Firm, Attorney Fail to Execute Retainer , New York Lawyer (3/31/05) on the importance of a retainer agreement.  The article reports on a suit by law firm Fenderstock & Partners against its former client, attorney Stephen Shapiro to recover fees for services that Fenderstock provided, ironically, to defend Shapiro against an action to disgorge fees.  In contrast to the hapless attorney here, Fenderstock at least stands a chance of recovery, in part because Shapiro never timely objected to the multiple bills sent by Fenderstock.  But both Shapiro and Fenderstock dispute the amount that Federstock originally agreed to charge and without a retainer, it comes down to one attorney's word against another - with both attorneys too dim to realize that they should have had a retainer agreement to begin with!

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One Big Blog Party

It's one, big blog party in Sarah Kellogg's recent article, Do You Blog?, Washington Lawyer (Apr/May 2005).   I'm quoted as are many of my blogging colleagues, too numerous to list here.