Articles Posted in ABA Law Practice Management Section

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Point-Counterpoint - Model Rule 5.5

SNL’s Point-Counterpoint

Perhaps, I’ve never (co) authored an article with a smaller potential audience than the great give-and-take on the bandied-about subject of Model Rule 5.5 under the Rules of Professional Conduct. In the November 2022 edition of the American Bar Association’s online webzine, Law Practice Today (LPT), together with Charity Anastasio of the American Immigration Lawyers Association (AILA), we debate the viability of a revision.

In Point-Counterpoint:  The Likelihood of Revising RPC 5.5, we ask and answer the questionIs the Association of Professional Lawyers’ Proposal for a Revised Model Rule 5.5 on its way, or DOA?

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ABA Law Practice Magazine

Marketing Column

In the November/December 2022 marketing column in the American Bar Association’s Law Practice Magazine, Marketing Ethics Compliance Continues to Confound, I combine a number of business development topics into one.

When writing my column, I often start by thinking about what “hot” areas I’m working on at the moment. In the 21 years-plus since launching HTMLawyers, I’d say most years that the bulk of law firm clients have been on the marketing and business development guidance side; a slight amount dedicated to my related but separate ethics practice. However, in recent years, it has flipped. I find myself spending a lot of time behind the desk reviewing a vast variety of marketing campaigns for law firms around the nation—not to give my two cents on the marketing aspects, but to review for ethics compliance. I help law firm managing partners and GCs sleep better at night. They don’t want to be at the helm when that disciplinary letter rolls in, or worse. It is a practice area loaded with inconsistencies, confusion and varied levels of enforcement. All of which makes it a super fun area to practice.

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LPcover_JulyAugust2022-231x300The last few years of recruiting and hiring marketing staff for law firms has certainly been interesting. On the plus side, law firms continue to invest in marketing and business development personnel. Some might argue that it is even more important as we come out of COVID and start to connect and reconnect with clients, prospective clients, and referral sources. The law firms that have retained me have been wiling to make the proper investment to hire the right people. On the minus side, depending on geographic location (I’ve placed marketers in the MidAtlantic, Northeast, Midwest, and South in the last year), the pool of candidates can be quite shallow. I won’t go into specifics, but some markets simply have more available talent than others.

My marketing column in the July/August 2022 issue of the American Bar Association’s Law Practice Magazine, Staffing Your Law Firm Marketing Team, addresses many of the issues and concerns that law firms have (or should have) when it comes to new hires. Like the job market everywhere, there are lots of moving people and moving parts. In some cities, the best some law firms can do is poach junior personnel from competing law firms by overpaying. This is happening more at the lower to mid-level positions on a marketing team. To oversimplify things, you end up hiring someone else’s marketing coordinator by offering him/her $75k when they are earning 50k where they are.

Pre-COVID, there was no talk of hybrid versus fully remote, and less discussion of a willingness to hire in a satellite office market versus one of a law firm’s more substantial office locations. As I often tell my law firm clients, I’m still a bit old school when it comes to having a marketer that you can see and interact with at the water cooler on occasion. On the flip side, I’ve had some marketers complain to me that it made no sense to sit in an office when 95% of the attorneys there are working from home (or the shore, or in the Virgin Islands somewhere). I’ve found that “back in the office” is more about geography than a law firm deciding across the board. I’ve sat down in many law firm offices across the country in the last year—yet not a single visit to New York City (which is a quick New Jersey commuter train from my home), although I’ve been to ballgames and other sporting events in NYC.

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LP Magazine - Leadership IssueThe third annual Up-Down Drill, which played off my favorite morning-after column in The Philadelphia Inquirer after an Eagles game (why did Jeff McLane stop doing it?), was one of the more difficult to write. In the November/December 2021 issue of Law Practice, The Law Marketing Up/Down Drill tackles relationship-building, lawyer ratings, webinars, social justice and getting back out in the real world for in-person business development.

It was especially difficult to write due to my failure to prognosticate exactly how COVID would play out since the first quarter of 2020. It is still hard to believe we’re getting ready to hit the two year mark—and normalcy still seems to still be slightly in the rear view mirror (remembering that “objects are closer than they appear”). However, I finally got to go out and do my first in-person presentation last weekend—a law firm retreat in the DC area—in front of a crowd and without a mask over my mouth), so there is that. See my next LP column for more about the return of the law firm retreat.

Roaring back—hopefully—is true blue relationship building. While Zoom happy hours and wine tastings were quite the creation, the option of grabbing a drink or lunch or golfing has never looked so good. And as I’ve been counseling my law firm clients, strike while the iron is hot. People are not overbooked or over traveling yet—and are eager to accept the invites. That will not last forever. The “I’m way too busy to get together” will return in time.

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LPcover_JulyAugust2021-231x300Yes, I went with the lowest hanging fruit of topics for my marketing column in the July/August 2021 issue of Law Practice, Getting to In-House Without Ending Up in the Outhouse, by doling out pearls of wisdom as it relates to a law firm’s successful pitching of corporate counsel. It never fails to draw an audience.

Unfortunately, one of the key pieces of advice is simply this—everyone is different. It is a very subjective measuring stick. And for some reason, many articles written, and programs presented respond to a handful of in-house folks’ personal philosophies as if they were trends in the industry. When I drafted the column, I used as an example the Benjamin Moore & Co. decision to dismiss its entire legal department. Spoiler alert—it was not a trend. It was a one-off. And if I were writing the same column from scratch today, I’d replace that example with the recent uproar created by Eric Grossman, Morgan Stanley’s longtime chief legal officer, who sent a “warning” to the bank’s outside law firms about their policies allowing remote work and “the lack of urgency to return lawyers to the office.” Hey, if that is a “requirement” for Eric and/or Morgan Stanley—then perhaps my law firm would comply to get or retain the business. Because, as I said, it is a subjective target.

Of course, putting the squeeze on law firms to get attorneys back into the office is probably a little tone deaf today. Most of the law firms I work with and interact with most certainly would like to see attorneys and staff back in the workplace—but not at the expense of health and safety. They also must balance the happiness of associates—who are often in positions to bolt for greener pastures if they don’t like the arrangement. Work from Morgan Stanley would be great; but if you don’t have lawyers to staff it, then you lose regardless.

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BLMIf you want to read a powerful piece about the hottest topic in law firm marketing circles this year, the lead feature in the December 2020 edition of the ABA’s Law Practice Today webzine hits the target with How Can the Legal Sector Have a More Meaningful Conversation About Race?

The process may be difficult for some, but the conversations need to happen – the days of sitting back and maintaining a desensitized outlook on this problem must end. So how do legal professionals discuss race and social justice in these trying times? The answer is to listen to those with experience and those affected.

The article includes perspectives from major law firm leaders throughout the U.S., including Skadden, Morrison & Foerster, Morgan Lewis and Holland & Hart.

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Law Practice Magazine CoverA favorite business development endeavor for many lawyers (me included) is involvement on a nonprofit board. It can be time-consuming, potentially expensive and sometimes frustrating, but it is a do-good activity that ideally is tied to an area of interest and passion. In my November/December 2020 marketing column in Law Practice, I write on Profiting from Nonprofit Board Involvement.

The heart of my column comes from conversations with leaders of BoardAssist, a nonprofit itself that matches prospective board members with nonprofits in the New York metropolitan area (including New Jersey and Connecticut). Cynthia Remec, the executive director and founder of BoardAssist, is a former attorney who started her career at Pillsbury Winthrop and Weil Gotshal. I also received valuable input from Richard Hall, a partner at Cravath, Swaine & Moore, and a longtime member of its board of directors.

Like many aspects of our lives, nonprofits are reeling in the midst of a pandemic where time, money and resources are hard to come by. For board members, there is the teeny, tiny silver lining of being able to conduct most of these meetings from the comfort of home. However, that in-person human interaction is lost. And I’ve heard a number of people lament that they miss the free snacks at meetings. I, myself, will trade sitting at home in sweats and buying a box of munchkins out of pocket. But, seriously, it is true that removing the travel element (sometimes involving getting on a plane) can make donating your time simpler and easier. Bottom line—nonprofits need us to step up now, more than ever.

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LPcover_MarchApril2020-231x300In preparing a recent pitch presentation to in-house counsel for a law firm client, I kept steering the attorneys to point out what was unique about them. There was the generic fluff—great client service, accolades of all kinds, alternative fee arrangements, a wonderful team of lawyers and staff, brand name clients, blah, blah, blah—none of which really made them much different than any other solid, competent law firm. The differentiators are in the substantive work product, and often, in what you give back to the community and the profession. Not every law firm does pro bono, but they should. In the March/April 2020 issue of the ABA Law Practice Magazine, I delve into The Marketing Case for Pro Bono.

Regardless of whether pro bono is voluntary or mandatory in your state, there is a lot of upside to doing it. I was telling my old softball buddy Sam Silver, a top tier litigator at Schnader in Philadelphia, that it seemed like half the time I read a front page story about him in the newspaper that it was about a big-time, high profile matter for a client; and the other half of the time it was about a big-time, high profile pro bono client. This makes for the perfect mix of doing good for the non-paying client and doing good for the paying one. When he recently became President, Board of Directors, for the Pennsylvania Innocence Project, I immediately sent a lawyer wanting to volunteer his way.

In some cases, you might get a call from a Judge asking if you might have some time to give back. You probably don’t want to say no—and it certainly does not hurt to say yes. When I attended the Professionalism Day program at the federal court in Camden, New Jersey last October, there was a program put together by the Judiciary to talk about Reentry Court, highlighting lawyers that had given of their time. Those participants included a few from the Big Law category and a sole practitioner. No firm was too small or too big to take part.

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ABA’s Law Practice Today Webzine

Being super-active in the American Bar Association’s Law Practice Division means collaboration is a necessity. So in the November 2019 edition of Law Practice Today (LPT), I get to combine my role as Associate Editor of the webzine with my participation in the Ethics & Professionalism Committee to formulate our annual “Ethics Issue.”

Of course, that typically means I will need to contribute a feature as well, so I’ve authored “Maintaining Ethical Boundaries on the Gray Web of Marketing,” which discusses the difficulty many law firms are having today in determining how to effectively and ethically market themselves on the Internet without violating the Rules of Professional Conduct. Suffice it to say–easier said than done. And as the title suggests, it is far from black & white. There are issues of jurisdictional boundaries, fee-sharing, unauthorized practice of law and understanding where the RPC, ethics opinions and enforcement kick in (or don’t). I recently told a colleague that the sophistication level of aggressive online law marketers is well beyond the long arm of the (disciplinary) law. I used to put a ton of time and energy into making sure there was ethics compliance with a “standard” law firm website—text, disclaimers, bar admissions, etc. Today a typical website—regardless of the look & feel—is pretty ho-hum at the end of the day—office locations, bios, practices, industries, representative matters, blah, blah, blah…but it is in the realm of SEO, cookies, social media and all sorts of traffic drivers where the real issues lie below the surface of the World Wide Web. Have a read.

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LPcover_NovDec2019-231x300There was some sense of irony that on the same day the latest issue of Law Practice arrived via the U.S. Mail that I was in Philadelphia talking to the Greater Philadelphia Law Library Association at their 2019 GPLLA Institute Bringing a Marketing Mindset into the Law Library program at Drexel’s Kline Institute of Trial Advocacy. You may be wondering how I am going to tie in that speaking engagement into the subject for my marketing column in the November/December 2019 issue of the ABA Law Practice Magazine, Marketing Musical Chairs.

At the GPLLA program, I was asked to speak on the topic of “Marketing Your Organization’s Milestone Anniversaries.” For my remarks, I was able to basically work from my magazine marketing column from 2014 on Age over Beauty? Marketing a Law Firm’s Anniversary. Another friendly marketing reminder on the power of blogs and search—in making content not only still relevant six years later, but repurposing itself into a speaking slot.

What do librarians have to do with the rapid turnover of professional marketing personnel in the law firm business? Well…back when I started working with law firms on marketing and business development initiatives in the late ‘90s, it was not unusual for a law firm to point me towards the library when chatting with the person in charge of marketing. While we were technically nearly two decades beyond Bates vs. Arizona and the ability for lawyers to market themselves at the time, attorneys were super slow to accept and adapt. So the person that updated the text-heavy, pay by the line, six-figure investment that was the Martindale-Hubbell print directory listings was marketing in their eyes.

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