Friday, October 30, 2009

Clients Who Like Their Lawyer - Shut Up

Lawyer advertising rules and opinions continue to break the bounds of utterly ridiculous.

The premise of ad rules is simple: potential clients are dumber than dirt and need to be protected from themselves.

This is why lawyers can't say they are the "best," or "better than any lawyer in town." Because potential clients are stupid and will believe this, and immediately dump a pile of cash in a paper bag and run to hire the lawyer. Then, their case will be mishandled. Yeah.

Bar associations should be ashamed of themselves for proceeding on this notion.

Now South Carolina jumps into the fray. The ABA Journal has the story here.

A new opinion out of that state advises lawyers that if they “claim” a website listing by clicking on an “update this listing” link "or otherwise adopting the posted information must make sure the material conforms with ethics rules—even information that is posted by others, including clients."

Translated: client comments in favor of the lawyer are not welcome. The SC Bar will say that negative client comments are not welcome either, as the opinion talks about "false, misleading, deceptive or unfair" statements, but as I say much too often, let's be honest here.

In fact, the SC Bar is not subtle in their purpose:

Client testimonials, barred by state ethics rules, should not be solicited or allowed. More general recommendations or statements of approval—client endorsements—may be allowed if they aren’t misleading and don’t create unjustified expectations.
This is the best:

“If any part of the listing cannot be conformed to the rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service,” the opinion counsels.

What is going on here? Your clients can't say anything nice and if they do, you must delete the site.

Shameful.

Just shameful.

Cue the law professors:

Mercer University law professor David Hricik:

“Frankly, this one baffles me,” Hricik wrote.

No David, no reason to be baffled. This is clear. An unconstitutional ban on speech. We have gone too far and the SC Supreme Court will say so at some point.

Avvo general counsel Josh King, who duly notes the opinion is target at his company's site, told the ABA Journal that constitutional issues are all over this.

Yep.

Except the SC Bar doesn't care:

"The ethics opinion notes it is not addressing any constitutional questions"

Yeah, forget that.

Ethics opinions are just that, opinions. They may not be used (at least in Florida), by a complainant in a Bar Grievance.

They're guidance, that's all.

This one, is garbage.

That's all.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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Wednesday, October 28, 2009

The Results Of My Initial Criticism Of AVVO: A Speaking Invitation

Yesterday online lawyer directory AVVO kicked off their national tour in Miami. I, having a ton to say in criticism of online lawyer marketing, was invited as a featured panelist.

This in and of itself is pretty fascinating because if you don't know, the self-proclaimed and lacking in credibility internet/social media/tech expert lawyer "advisors" have a rule that they do not address dissent, nor answer questions about their backgrounds. I was on a webcast last month talking about social media and lawyers, and the snake-oil salesmen and "social media experts" were all a twitter about how there was "disagreement" on the panel.

One of the first comments from AVVO about me yesterday was that their first interaction with me was "not positive." But there they are, saying "come speak on a panel with us, let's have a real discussion."

Initially, I questioned the concept of AVVO and the issue of being about to enter information on a profile that increases your rating. I sent AVVO a list of questions, and they answered every one of them - fully and honestly.

Too bad most of the social media people avoid real discussion that hurts their attempts to prove the greatness of themselves that is a complete fallicy.

If this AVVO tour is coming to your town, go.

Here's why:

Yes, they are there to tell you about AVVO, and yes they do have products and services that cost money - it is a business you know. But the 3 1/2 hours are filled with tips on general online marketing and is perfect for someone who has no idea about blogging, facebook, twitter, or other sites that lawyers use to market.

The advice is right from CEO Mark Britton and others who have a good sense about how lawyers are perceived, and what they can do to have a better online presence.

And it's free.

I tweeted the conference yesterday, and my comments can be found at http://search.twitter.com. At that site, type in #avvotour.

Here's some of what I said:

[1] If you have an online presence, you must have an offline presence. You must be a real lawyer with a real practice with real clients, and not just be creating an image on the net.

[2] You can whine and moan that twitter is a waste of time. 55 million people are "wasting their time" on twitter. There you will find former clients, potential clients, current clients, other lawyers, people looking for lawyers, and people who don't need you now, but may, or may know someone who will.

[3] Don't post specifically about your clients or specific information about your children.

[4] When blogging or twittering, know that people are more interested in non-technical legal talk.

[5] Social media is not about you, it's about everyone else. As Mark Britton said, it's a party, if you're there "pumping yourself" people won't listen and will grow tired of you. Here's a twitter account I grew tired of quickly: http://twitter.com/coloradodui

[6] Blogging is the best way to let people know who you are, and what you're thinking.

[7] If you're joining social media solely for the purpose of making money in your practice, it will never work.

Thanks to the guys at AVVO for asking me to join them in a real conversation about the future of online marketing for lawyers.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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Tuesday, October 27, 2009

Stop Bashing BigLaw?

My friend Eric Cooperstein over at Lawyerist wants us to stop bashing BigLaw.

Why?

He says : "I am a solo and if large law firms crash, I am going to end up covered in dust."

He acknowledges "biglaw has a reputation for some qualities that give the law a bad name — high fees, leveraging associates to increase partner salaries, huge billable hour requirements, and lousy work / life balance, to name a few of the popular gripes."

"But biglaw suits some lawyers," he rightly states.

He notes that small firms/solos have their good and bad:

The smalls, in contrast, love to tout their personalized attention to clients, reasonable fees, individual autonomy, and great work / life balance. But not all smalls are good at bringing together the myriad of skills it takes to run a law practice. Most smalls practice some form of “retail” law: criminal, family, personal injury, workers comp, small business, real estate. Often the clients are high maintenance and the income stream equally unstable.

Eric is right that "individual clients; these folks need smalls," and that:

"A large company with millions of dollars on the line looks for a brand name, the vetting of associates and partners, and the ability to quickly put together a team of lawyers to tackle major litigation or a huge transaction."

Then he tries to put this all together in a tied with a small bow on why "we need each other."

He says Biglaw has conflicts and needs to refer out clients and cases. He also says that:

"Biglaw’s corporate clients are managed by people — who get divorced, have too much to drink before driving home, get into accidents, etc. Many of those matters need to be referred out. Smart lawyers refer clients to good lawyers they know who are reasonably priced and will treat the client well — like smalls."

He also says we need each other because:

"Biglaw attorneys are a great source of referrals for smalls. Also, when a case comes in that is to big for a small to handle, the small firm needs to bring in some muscle. Obscure questions may arise in a client’s case that need special expertise that can be found only at a large firm. Relationships with biglaw are a two-way street."

I've written about Biglaw here countless times. I never worked in Biglaw. They weren't hiring law students that wanted to be criminal defense lawyers (still aren't) because they tend to have that one "white collar" lawyer who mainly has associates review documents (bashing). Biglaw doesn't practice "street level" criminal defense, as Eric correctly notes," and they're not interested in law students who want to go to court (bashing). My 3 years in the public defender's office was worth more than 10 in Biglaw.

Biglaw is not all that old. The first big firms didn't come around until the mid-twentieth century. Now they're all in debt, trying to survive. (bashing)

I agree with Eric that law exists on two levels - there are those that need Biglaw and those that need small law. But I think Eric misses the reason Biglaw gets bashed.

Biglaw, as an institution, looks down on small law. (bashing) They tell their new associates that "this" is the way you practice law. They call us "some solo practitioner," and for the most part do everything they can to convince a client to stay with the firm even for the smallest matter. Why? Because they are scared that if one of their clients goes to a small firm or solo, they may understand that they don't need 4 associates on their case. (bashing)

When I write about Biglaw, some anonymous commenter (same idiot) always says it's because I have Biglaw envy. Anyone who knows me, my practice, my 3 rejections of merging with Biglaw, and my referral sources (Biglaw firms) knows that isn't the case.

The truth is that I think Biglaw as an institution does a disservice to the young lawyer. Disagree? How many laid off Biglaws are out there that after a few years in the firm, have no idea how to practice law? This is how Biglaw rolls. Don't teach the lawyer too much about start to finish type practice so they feel they can't leave and go out on their own, or go anywhere else.

So I agree with Eric, he makes some great points.

But I don't feel bad for what's happening now in Biglaw. Clients are becoming more frugal, smarter, and those firms have to come down to earth. No more french maids ironing napkins (true story).

So no Eric, you won't collapse along with Biglaw. There will always be a client who needs a good lawyer to help them.

Regardless of what Biglaw thinks. (bashing)

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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Monday, October 26, 2009

Begging For Credibility On The Internet

Yesterday I saw one of the most pathetic, disgusting posts on the net. It was a lawyer begging for credibility. I won't link to it, one because it doesn't deserve to be promoted, and two because the writer is actually asking people to link to it so it can get some readers.

It is poorly written, has missing words in sentences, and the domain name which is mentioned as the writer's most prominent site, is mispelled.

You can't beg for credibility on the net. You either have it, or you don't.

But that's not what social media and tech "experts" teach lawyers today. They are there to create images of lawyers that are complete lies. The goal is not to be honest, it's to say something, anything, that will attract a client, reader, speaking engagement offer, etc.....

Your credibility is based on perception, period. IF you're a good lawyer, people will say you're a good lawyer. If you say you're a good lawyer, you're a self-promoting beggar.

If you want credibility, have it, don't try to create it. If you do, it's clear you have none.

None.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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Thursday, October 22, 2009

It's Time To Revist How Lawyers Treat Each Other

This week I had the occasion to be sick. A mild case of the flu.

The doctor told me to stay home for 5 days, take prescribed medication, and get a lot of rest.

I laughed. My wife didn’t.

For the most part, I stayed home.

Today’s lawyer doesn’t disconnect much though. Emails are read and responded to from bed, documents are faxed to the house, calls are transferred.

And lawyers are still lawyers.

I began my career as a criminal defense lawyer. The practice is courtroom intensive and everyone gets to know everyone. Your word is your bond. Go back on your word, and every judge, prosecutor, defense lawyer, bailiff, clerk and janitor knows about it before lunch.

The civil litigation world is different.

I’ll never forget the first time I spoke to a civil lawyer. At the end of the conversation he said: “so just send me a confirmatory letter.”

A confirmatory letter? Stating what? Reaffirming what I just told you?

I remember asking another civil lawyer: “you guys send letters to memorialize conversations?” He laughed. I didn’t.

The mistrust amongst civil lawyers in my opinion has its base in the fact that civil disputes are mostly about money. People, yes, including lawyers, lie, cheat, manipulate and do whatever it takes when they’re trying to win money I guess, and they do it chronically.

This week, while sneezing, coughing, sleeping, and basically trying to get better, the following two things happened in two separate cases:

[1] A lawyer set a hearing without consulting with me. I asked why, and he said: “its been my experience lately that attorneys in South Florida unilaterally set hearings and depositions and no longer provide any common courtesy.”

[2] I realized I would not be able to respond to a letter from a lawyer, as the file was in the office. I found the lawyer’s e-mail address on the Bar website and sent an email advising that I was sick, did not have the file, and would like to arrange for a new date to respond in mid-November when I return.

The response was to set a new date for me to respond November 2, and “I would appreciate it if you would refrain from further e-mail communication. I prefer that communications be made in a more formal manner.”

Let’s see, I’m home, in bed, what would you like? I assume this means a phone call would have received the same reaction – not formal enough?

Does this mean when you’re at some airport stranded and call me I should say “I need a letter?” Or when your kid is sick or you have a flat tire or, I don’t know, life happens, I should express to you my preferred form of communication?

What happened, someone screwed you over with some e-mail communication?

When did it get like this? When did lawyers have so much mistrust of each other that the most simple form of courtesy became the exception?

This is the shame of the Bar – that we criticize legislatures for making bad law from one case, but we treat all lawyers as if they were the asshole we just dealt with.

Countless times I have had lawyers tell me negative things about certain lawyers. But when I have dealt with that lawyer, there has been no problem. How simplistic are we lawyers that we cannot attempt to have a cordial relationship with a lawyer because we fear they will screw us?

This is not the practice I want to have. All you lawyers that treat every single lawyer as if they are going to screw you next, are part of the problem.

It has to stop somewhere.

Tonight a prosecutor called me with a plea offer. He said “do you want me to tell you the offer or send it to you in writing?

“Tell me.”

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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Wednesday, October 21, 2009

Blogging the Board Of Bar Examiners Hearings: Sometimes They Just Nail It

The Board of Bar Examiners is made up of lawyers and non lawyers. Unlike the non-lawyers who serve on Grievance Committees for Bar discipline who "hate lawyers" (that's a quote from a lawyer for the Bar)I find the non-lawyers on the Board of Bar Examiners to be a thoughtful bunch. The lawyers, whether it's in an effort to "teach the applicant a lesson," sometimes, well often, act as if they've never, ever, ever, ever, had a misstep.

Everytime I walk into a hearing, having spent a good deal of time with my client and coming to understand the events that brought them to this table, this court reporter, this hour or so of "did you think that was the right thing to do," I wonder "do they get it?" Do they have a comprehensive understanding of this applicant? Will we concentrate on the important issues during the hearing, or why my client has too many traffic tickets or switches colleges between 1968-1973?

This past week I had a hearing where the panel nailed it. My client had specific issues, caused by specific problems, and that was the bulk of the hearing. It was the non-lawyer who summarized the issues best and delved into the specifics.

The lawyers, asked good questions, but many were couched in "I can't understand why you did this," or "I'm not convinced."

I hear this often and I wonder what it accomplishes. There is a difference between an applicant lying and the panelist's disbelief that they may actually be telling the truth. The issue is character and fitness, not whether the panelist has a personal opinion of the applicants past. These hearings are starting to run too long, and are becoming more of a sounding board then a search for whether this person has the character and fitness to be a lawyer.

In this hearing, overall, they nailed it. They kept it to the issues, and what was important.

I'd like to see more of that.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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Sunday, October 11, 2009

LawBidding.com, Why Not?

One piece of advice I've given to any out-of-work lawyer asking in this period of layoffs and no jobs is: be creative.

So I came across LawBidding.com

Pretty creative.

The premise:

LawBidding.com is a free, easy-to-use website which connects individuals and businesses with attorneys. By connecting those who are seeking legal help with those providing these services, LawBidding.com's mission is to make retaining an attorney more efficient and less expensive for clients and to make it easier for attorneys to find potential clients!

Oh shit, I forgot. Pursuant to that new FTC rule or whatever about disclosure, I'm not receiving any money from these people. I don't even know if they have any money, but they haven't offered me any. I've never spoken with them (is this enough to keep me out of trouble or should I write more?)

Lawyers have to set up an account and log in to view the postings of potential clients. are attorneys who have set up an account with LawBidding.com. Lawyers and clients can communicate publicly and privately

So a client posts their issue, gets some bids from various lawyers (hopefully), and chooses the lawyer. No obligation on either side.

What I like about this site is the not-so-subtle dig at hourly rates:

This site makes it very efficient to receive numerous bids on legal work. Because these bids can be based on three fee structures: flat fee, hourly rate or contingent basis, this site will allow for options beyond the expensive and sometimes inefficient hourly rate.

What's the downside to this site? Stupidity. Stupidity on both the client and the lawyer.

Why?

I see this site as a "good introduction," but not the only method to determine whether the client and lawyer should engage. Any client or lawyer that doesn't further investigate whether both parties and the case are a good match, is just plain stupid.

I don't know how this site will play out for certain types of cases, such as criminal defense where the client may not have time to wait for bids, and may not want to post about the case, even if in general. I see this as a great site for typical legal matters - contracts, wills, real estate closings, etc..

There are those lawyers who will be critical of this "bidding" website because law is a "profession." But the biggest firms get the biggest clients by preparing bids in response to ads in trade papers, and being interviewed by the client.

We all bid. A client comes in, and may have already spoken to other lawyers and received their "bids."

To argue that this is the type of site that will encourage clients to hire the "lowest bidder," is silly. Clients do that anyway, and we as lawyers all know that. Those clients that are not looking for the lowest bidder, won't hire the lowest bidder whether they meet them in person, or online.

I see no reason why this is any different.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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Thursday, October 8, 2009

A Disturbing Trend: Old Clients Seeking Cash

In the last couple months I've noticed some disturbing Bar complaints. Former clients, and I mean really former clients have been filing Bar complaints seeking the return of fees paid to the lawyer.

This isn't about any real ethical violation of the lawyer, but the sign of the economic times.

The complaints are similar: Client hires lawyer. Client fires lawyer, or case is closed. Client, desperate for cash, asks lawyer to return a portion of the NON-REFUNDABLE fee. Sometimes the reason is disturbingly candid: "I need money to pay my bills."

Lawyer politely, or impolitely says "no."

Client files Bar complaint making specious allegations that the "lawyer did nothing" and money should be returned.

The lawyer sometimes relents prior to the complaint and writes a check, or when the complaint comes, agrees to return funds not due the client.

Here's some news:

Bar associations are not collection agencies.

As the Florida Bar states: "Disagreements about whether the lawyer charged too much are generally not handled by The Florida Bar's discipline system because of restrictions placed on the Bar by decisions of the United States Supreme Court related to antitrust. The Florida Bar may only consider a fee-related inquiry as a disciplinary matter when the fees are clearly excessive, prohibited by ethical rules, or illegal."

The first way to find yourself in a dispute with a client is not to follow this good advice from the North Carolina Bar:

..it is incumbent upon the lawyer to explain the nature of his or her fees to the client. Flat fees and true retainers may only be treated as earned upon receipt if the lawyer clearly explains this arrangement to the client and the client agrees.1 Otherwise, the payment is (by default) an advance: It is presumed to be a “deposit securing the payment of a fee which is yet to be earned.” (RPC 158) Fee arrangements may provide for more than one type of fee, but “[t]here should be a clear agreement between the lawyer and client as to which portion of the payment is a true general retainer, or a flat fee, and which portion of the payment is an advance. Absent such an agreement, the entire payment must be deposited into the trust account and will be considered client funds until earned.”

Regardless, some clients don't care about the contract they signed. They believe the threat to file a Bar complaint trumps that and will result in a refund. Sadly, some lawyers relent and pay the extortionist's demands.

When I said Bar associations are not collection agencies, I was referring to ABA Model Rule 1.5, which is part of all state Bar association's rules:

It's a long rule, but here's the important part:

Rule 1.5 Fees

(a) A lawyer's fee shall be reasonable.

Then there's this:

II. ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY

DR 2-106 Fees for Legal Services.

(A) A lawyer shall not enter into an agreement for, charge, or collect
an illegal or clearly excessive fee.

(b) A fee is clearly excessive when, after a review of the facts, a
lawyer of ordinary prudence would be left with a definite and firm
conviction that the fee is in excess of a reasonable fee. Factors to be
considered as guides in determining the reasonableness of a fee include
the following:

(1) The time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly.

(2) The likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal
services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or the circumstances.

(6) The nature and length of the professional relationship with the
client.

(7) The experience, reputation, and ability of the lawyer or lawyers
performing the services;

(8) Whether the fee is fixed or contingent.

(C) A lawyer shall not enter into an arrangement for, charge, or
collect a contingent fee for representing a defendant in a criminal
case.

So was your fee clearly excessive?

If not, take the pen away from the check.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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