I like to think that I’m a pretty good multitasker. While typing this post on my laptop, for instance, I’m also checking my emails on my iPhone, and sometimes surfing the Internet on my iPad. All at the same time. Pretty good huh? Oops, I just sent an unfinished message that won’t go over well.

Most people are capable of multitasking (except one guy I knew in the Navy who couldn’t walk and chew gum at the same time, but that’s another story).  One of the more troublesome aspects of multitasking in today’s digital world is the potential for adverse impacts it can have on relationships with clients, referral sources and prospects.  A post last week by the old curmudgeon, Otto Sorts, over on Attorney at Work brings into focus for me a couple of concerns relating to the multitasking as it relates to lawyers.

The first one I gleaned by inference from the curmudgeon’s post involves the ethical issue of billing clients while distracted.  Some may thing a quick peek at your email upon hearing the “ding” of an incoming is no big deal.  Yeah, and 3 to 5 minutes later you return to the client task, and you have spent less than  .1 of an hour distracted.  No sweat.  If it happens several times a day..… then you’ve got a more serious ethical issue IMHO, unless you subtract these “distractions” from the client’s timesheet.

The second issue deals more with marketing.  Otto Sorts points out that clients come to lawyers that focus on them and their matter.  To do so, he adds:

  • Make sure you are always making eye contact with the client during meetings and concentrating on the conversation whether in person or by phone, rather than on other electronic distractions around you;
  • listen intently more than 80% (okay at least 50%) of the time to your client, or whomever you are talking with, so that you fully understand what the issues are and that you are hearing what is important to them; and
  • keep your focus on guiding them through the legal system/issues in order to meet their personal or business needs.

These items require a lack of distraction caused by multitasking.  If a client does not feel that you are so focused, it can definitely hurt you from a marketing standpoint.  Why?  Because they will likely use someone else for their next legal matter, and certainly won’t refer others to you for their legal work.

Over on Attorney at Work there is an article entitled “Legal Marketing Ethics Pointers” that is a compilation of various posts by Will Hornsby, the ABA’s ethics guru.   He basically points out that ethics rules might not be given the consideration they should in today’s Internet and social media marketplace.  He covers emails, domain names, slogans and more, including business cards, advertisements and other materials  like brochures, biographies and claims of expertise, accolades and specialization.

I commend his various posts to every law firm as a caution against certain practices that could get a firm responding to inquiries from their state bar.  Here’s a synopsis of just some of what Hornsby covers in his various posts:

  • Business cards.  Although one might think this area is pretty mundane, what with just a boring business tool.  However there dangers lurking there as some states treat them as a form of advertsing, especially if you put a slogan or a website address like “www.TheBestLawFirminTown.com” on it. Even Illinois requires a disclaimer even if you are a certified specialist in your field.  Hornsby includes other issues regarding how you use them, and staff cards;
  • Bio content. Special dangers are involved in the use of prior client successes, whether you use the client’s name or not; or whether the representation is public or not.  You should always get a client’s consent before using your representation in your marketing materials;
  • SuperDuper Law Directory. These directories whether truly “peer review” or not, can cause ethical problems for sure.  Some states rules are more restrictive than others (of course), so it is especially important to check yours out.  It includes how you can use the “honor” of being selected, and what you can say and how you can say it.  I love what Hornsby has to say about this “Strangly, yo may be listed in Super-Duper, but it doesn’t mean you can you are super-duper”; and
  • Specialization. Be careful here too, as in telling someone at a cocktail party that you “specialize in” could be a violation of the rules.  Obviously, if you are certified specialist in a practice area, that shouldn’t be a problem, but how you say it could be in some others.  I’ve always recommended that lawyers say they “focus in” or “concentrate in” a particular practice area, and apparently that isn’t a problem according to Hornsby.  But, remember check your state rules.

Some good advice from the true ethics guru.

A couple of weeks ago I blogged about the “ABA’s Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools” when Larry Bodine first raised his “Red Alert” about the ABA Issue Paper. My first reaction was that the ABA isn’t out to help the little guy or smaller firms, which have gained at least some advantage on leveling the playing field with larger firms as a result of the Internet.

Accordingly, I was critical of the ABA effort and pointed out that the in my opinion there is already sufficient prohibitions against false and misleading marketing practices by unethical lawyers. I may have been somewhat unfair toward the ABA. I am not saying that I’m pro Issue Paper, but I may have been a bit harsh with my somewhat anti-ABA blog post.

In the interest of fair play, I’m compelled to mention a thought-provoking piece that Ross Fishman emailed me last week in which he argues the ABA “isn’t the enemy.” Apparently, he first published his article on the Law Marketing listserv, but I was not able to locate it there. It now appears on Ross Fishman’s Marketing Blog. I found it quite informative and compelling on the issue, and recommend it to your reading, as you keep in mind the December 15, 2010 deadline on responding to the Issue Paper.

Essentially, Ross’ argument is that we shouldn’t be caught up in the hysteria about the Issue Paper on Internet marketing; but rather on the “real problem” of having to contend with 50 jurisdictions with 50 different (albeit similar) rules. Further, he raises a valid argument for, IMHO, different rules for“corporate” and “consumer” practices, and accurately states that they should be treated differently under the ethics rules, as I vigorously argued for years when I was an in-house marketer. A sophisticated corporate executive or company with an in-house lawyer certainly doesn’t need the same protections from unscrupulous lawyers/marketers as do widows or orphans after a terrible accident. It just ain’t the same;

Ross states that it’s not the ABA that is “marketing-phobic;” but rather states like Florida, Iowa, Texas and New York. In support of his statement, he cites two examples of where the ABA has actually become more reasonable in terms of Rule 7.1, by removing two definitions of “false and misleading” that addressed “unjustifiable expectations” (that some now interpret as allowing testimonials), and “comparing the lawyer’s services with other lawyers” (which pretty much prohibited the use of any "adjective” in describing a lawyer’s services, according to Ross).

He also points out the difference between speech that “beckons business” and that which does not. The former is commercial speech and may be regulated whether it is a brochure or a web site. To argue that the Internet should have different rules or not at all is a “red herring.” As Ross puts it, “It’s what you say. Not where you say it.”

I’m still somewhat leery of what might come out of the Issue Paper process, and remind everyone of the December 15 deadline for comments; but, I strongly suggest you read Ross’ article.

There has been a bit of a stir over the recent the ABA memo calling for comments on their “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools.” I became aware of the issue thanks to an email from Larry Bodine, who also raised the matter in a blog post

Then, Brian Tannebaum chimed in with his take on bad, unethical marketers and lawyers (who undoubtedly also beat their wives, dogs and probably their own mothers – but I digress). His counterpoint was followed by Scott Greenfield’s diatribe where he sides with  Tannebaum, and includes comments by several others who responded to Bodine’s initial “Red Alert,” which called for the ABA to keep their dirty, rotten hands (Larry didn’t actually say that) off Internet marketing.

All of this aside, as a marketer myself, I too have some concerns about the ABA getting involved in more regulation (to feed their bureaucracy, justify more staff, higher membership fees, etc. etc.), that also generally screws up legitimate marketing efforts.  In this case, the value to the public gained by legal marketing on the Internet; but I also have concerns about unethical lawyers (and marketers) that spew out lies and misrepresentations about lawyer capabilities and experiences that too find their way to the Web.

But, let’s not overlook the fact that the current ethics rules already prohibit such behavior. Do we need more regulation or better enforcement of existing rules? The point is that I don’t trust the ABA to make new rules that will only in all probability muck up the advantage that solos, and small and medium-sized firms have on the Internet. By that I mean, the digital world provides some help in leveling the playing field for those lawyers who are just as good, but do not have the marketing budgets available to the BigLaw community.

So, if you are a solo, or a small law firm – and you blog, or take part in social media, or pay-per-click, or just have a website – you may want to read and comment on this issue paper. You have, according to the ABA until December 15, 2010 to submit your views on any or all of it. I don’t think that anyone really believes the ABA won’t regulate in this area. The question is will it be to your advantage or not.

If you don’t respond, you really don’t have a lot to complain about.

P.S. Also if you are a member of GP/Solo Section of the ABA (which supposedly is trying harder to serve the solo and small firm community better), you might just want to make sure they get your message as well.

Since it may have implications on the ethics rules relating to marketing in many other states, and having covered Opinion 39 of the NJ Committee on Attorney Advertising here in several posts, I’m happy to report that the New Jersey Supreme Court struck down the ban on attorneys advertising their selection and listing in “Super Lawyers” or “Best Lawyers in America” last Thursday.

Basically, the Court vacated and remanded the matter for reconsideration (more about that in a minute) finding that such advertising was not “inherently” misleading, and “an absolute prohibition is not permitted.” Supporting the Special Master’s finding that lawyer advertising is protected commercial speech, the Court endorsed the idea that a “requirement of a disclaimer or explanation” of the ad is preferable to an outright ban.

So, the matter goes back for some more work, and here comes the fun part. The Court referred the matter to (1) the Advisory Committee on Attorney Advertising, (2) the Advisory Committee on Professional Ethics, and (3) the Professional Responsibility Rules Committee “for their concurrent consideration of a redrafted Rule…”; and they may seek “such other sources and information the Committees, acting jointly, may deem necessary and proper.”

WOW! That’s going to be a lot of fun, don’t you think? I see one terrific camel in the making myself. As the maxim goes, “A camel is a horse designed by committee.” Can you just imagine what three committees are likely to come up with. I can’t wait.

In the meantime sanity has returned to New Jersey, albeit if only temporarily, on this issue.

 

Happy Holidays everyone!! Back in January.