Tuesday, June 28, 2011

Dissecting The Ethics Of Online Marketing: From Radius Of Influence 2011

Well, here it is. A live summary of why lawyers have made a sewer out of the internet. It's long - 50 minutes. After the last slide there's a short pause and then Q & A. Hopefully it will stop one lawyer from going down the path of disgraceful marketing.

ROI 2011: Brian Tannebaum - Ethics and Online Marketing from Radius of Influence on Vimeo.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

Monday, June 27, 2011

Avvo.com General Counsel Joshua King And I On The Florida Bar's New Advertising Rules

Reprinted with permission from the June 24, 2011 edition of the Daily Business Review© 2011 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.

Changes to attorney advertising rules cumbersome, costly

Brian Tannebaum and Joshua M. King say the Florida Bar's changes to attorney advertising rules continue to be hyper-technical and difficult for both attorneys and the Bar to enforce.

The Florida Bar has proposed wholesale changes to Florida's attorney advertising rules — changes designed to comply with Constitutional limits on the Bar's ability to regulate attorney speech.

Regulating attorney speech in lieu of standing up for the First Amendment has been a cornerstone of state bar associations, and the Florida Bar's regulation of lawyer advertising is the most restrictive in the nation. The basis for regulating what attorneys can say about themselves is — in layman's terms — an exercise in protecting the public from lawyers. That the Florida Bar's new rules claim to consider the Constitution as a partner rather than an enemy of regulating lawyers is a step in the right direction. Bar associations should be as interested in the future of the legal profession as they are in acting as a consumer protection agency.

The topic is scheduled for discussion today at the Florida Bar's annual convention in Orlando.

Florida has a long history of excessive regulation of attorney advertising, from its incredibly detailed and hard-to-decipher rules to its unpredictable process devoted to review and approval of advertisements. In its latest venture into changing the rules, the Bar attempted to bring a little common sense to its regulation of attorney websites, proposing that websites be exempted from most of the advertising rules as "information" provided at the request of a client. The Florida Supreme Court's response?

Not so fast.

In its place, the Justices proposed that websites comply with the advertising rules and that consumers accept disclaimers prior to learning more about the lawyer. This proposal has met with near-universal dissent (except from the Web-developer industry), culminating in the eight largest law firms in the state bringing a petition to the Florida Supreme Court asking that it abandon this proposal. In response, the Bar has stepped back in, saying all sorts of good things about the need for advertising regulations to respect Constitutional limits and attempting to overhaul the advertising rules accordingly.

But what do the Bar's proposed new rules do, precisely? They haven't been curtailed, are still overly detailed, and most advertising must still be pre-approved by the Florida Bar.

In fact, the only major proposed changes would permit some forms of testimonials and past results obtained by an attorney. The Bar should be commended for finally recognizing that Florida's longstanding ban on these two types of advertising is wholly unconstitutional, as evidenced by successful First Amendment lawsuits attacking attorney advertising regulations in New York and Louisiana.

But outside of these nominal changes, the revised rules are nothing more than a reshuffling of the deck chairs. The rules are cumbersome, costly and of no benefit to potential clients. Curiously, although several surveys were conducted on consumer attitudes toward attorney advertising, there is no indication that Florida's current regulatory regime offers any meaningful protection for consumers. In fact, the Federal Trade Commission has previously commented on the effect of the Florida Bar's advertising rules potentially harming consumers (by making it harder to find information about legal services and driving up costs) because of its aggressive regulatory stance.

While the Bar expresses First Amendment concerns, the new rules actually expand the scope of the Bar's pre-publication $150 per ad evaluation. The concurrent review for print, direct mail and Internet advertising is replaced with a "prior-restraint" 20-day advance review of virtually all advertising. The Bar should instead begin with the premise that attorneys will comply with the rules, and if they engage in deceptive advertising, the Bar can then enforce its rules.

Despite changes, the advertising rules regulating the Florida Bar continue to be hyper-technical and difficult for both attorneys and the Bar to enforce. Rule 4-8.4 should be the only rule governing advertising — in sum, a lawyer cannot say anything that is false, deceptive, or misleading. Seems pretty basic.

Instead we have provisions like the comments to rule 4-7.5 (prohibiting "unduly manipulative or intrusive advertisements"), which render permissible an ad that shows a doctor examining an X-ray, but not permissible to show a doctor leaving an instrument in a patient. This type of specificity is both unhelpful and overreaching. It fails to provide clarity while simultaneously suggesting that entire categories of advertising methods are prohibited, regardless of context, making it difficult to believe that the Bar can apply these rules in a consistent and constitutional fashion.

Throwing out the old rules is a good first step. But here's a suggestion for the Bar: Don't replace the rules with a new system that's only slightly less offensive to the legal profession. The move toward the Florida Bar becoming more of a consumer protection agency than an association to serve Florida's Lawyers has gone too far. While percentage-wise, few lawyers break the rules, half of the Bar's budget is spent on lawyer discipline. Lawyers who violate the rules should be disciplined, but the Bar also needs to remember that most of its members are upstanding, honorable and ethical practitioners. The message sent by overly restrictive advertising rules is that consumers are stupid and need protection from lawyers. Not only is that false, but what does it say about how the Bar views the profession?

The Bar should eliminate the counterproductive and costly review of advertising. Replace the rest of the rules with a simple and straightforward prohibition (if 4-8.4 isn't clear enough) on false advertising and in-person solicitation. The goal of maintaining the dignity of the profession should go hand in hand with the Bar's obligation to better serve both consumers of legal services and the lawyers of Florida.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

Sunday, June 26, 2011

Praising Losers, Killing Dinosaurs

The horse is dead, its carcass unidentifiable. The "older" lawyers lay scorn on the younger generation of lawyers, while the "newbies," "millennials," whatever we want to call them, tell "us" that we're "over," our business models are dead, we are about to be run over by iPads, virtual offices, and clients looking for competent counsel at the rate of 35 cents an hour. No one succeeds anymore by just doing good work and getting good client referrals as a result. No one. Nope.

Scott Greenfield is public enemy one of the new generation of lawyers. That stupid old man. So he's been-there-done-that and may know a thing about trials, clients, and business. So what? He started practicing law when cars had 4 wheels, and law was a part of the practice of law.

Scott's in need of a nice ice pack for his head lately, engaging with those who continue to convince themselves that "we" don't understand, and if we couldn't get jobs in law firms out of law school, we'd be in search of really bad advice from people who never found success in the practice of law.

It's of no matter though, I've been told repeatedly that "it doesn't matter" if the person who is giving, selling the advice, has no track record of using that same "build your dreams" advice to their benefit in the practice. If the "fake it till you make it" crowd can help young lawyers "fake it till they (flame out) make it," so the hell what?

It also doesn't matter that the reality is that people who sell advice about how to become successful, usually are doing so because they weren't able to use that same advice to find success in their own business.

Successful people give away advice on success, unsuccessful people sell it.

Scott, and me, and others, just need to shut up, go away, and stop trying to tell the younger generation of lawyers that taking advice from those selling it to make a buck, because they didn't make it in practice, is a bad idea.

If the advice is good, so what if it costs a few bucks and those few bucks are going to a liar, or perceived success?

It all comes down to the same question I ask every budding law student or young lawyer who seeks my advice: "What kind of lawyer do you want to be?" The wrong answer normally comes first in the form of "divorce lawyer, criminal lawyer, corporate lawyer." My question seeks a deeper answer - "how do you want to be viewed in the profession?"

Those that cry "you don't understand," don't understand. People like Scott, and I, we understand. There are few jobs. There is great debt. There is a desire to pay that debt. Within that desire for some is the goal of becoming a respected and zealous advocate as well.

More and more though, the goal is to make money. Google can't be wrong when it tells me the most prominent search terms that bring people here is "how to make money as a lawyer."

No one wants to hear about the young lawyer I met, got to know, invited to meet some people, who began to "mine the field" of relationships with other lawyers and now has a job with BigLaw. What does that have to do with gaining followers on social media, or spamming blogs with comments in order to gain Google juice? Are lawyers like me really telling young lawyers that the old way of doing things still works?


But I digress.

Don't mind me, or Scott. You go, praise the losers that pretend to have the keys to business success, and kill the dinosaurs.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

Tuesday, June 21, 2011

Cashing In Honor And Ethics For A Ticket On The Casey Anthony Fame Train

Just disgusting. Saw it twice tonight on two different cable talk shows.

Former lawyers for Casey Anthony pontificating about the trial.

For the lay people out there, let me explain.

If a client comes to a lawyer's office for 5 minutes to say hello and ask a question about their case, that conversation is governed by the attorney-client privilege. That conversation is so protected, that if another client in the same case comes to the same lawyer's office, that lawyer may have to conflict out of the case. Attorney-client relationships can be created in an instant, even without a formal retainer agreement and the payment of money.

These two lawyers mugging for the national TV cameras were more than just consulted on the Casey Anthony case, they worked for the defense team for a period of time. Now they don't.

Now their former client is on trial for her life, and there they are, guessing about what the defense is doing.


Is there a rule against this?

Client-Lawyer Relationship
Rule 1.9 Duties To Former Clients

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Because lawyers seem to disregard the rules they swore to uphold, now clients have to ask their lawyer whether they intend to go on TV and talk about their case if they wind up off the case before it's over. A smart client will demand in the retainer agreement that if the lawyer is terminated or withdraws that they will refrain from seeking publicity on the client's back during the pendency of the case.

Because for some lawyers, fame trumps honor. For some, clients are a tool, that when in another lawyer's hands, is no longer their responsibility.

I'm sure they'll be back though, right after these messages.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

Monday, June 20, 2011

An Actual True (No, Really) For Real Marketing Secret By A Credible Person (Seriously)

Before there was twitter or Facebook, or the slew of social media sites where you can auto-post your desire for business to death, there existed blogs. As there wasn't any place to post links to the blog, except on other blogs, people actually read blogs and because of that, people often wrote things that mattered (without links to their website(s)).

One of the people who has maintained a presence of "real blogging" is Thom Singer. Thom is a speaker, author (9 books) and actually says things that make sense. He doesn't like to be pigeon holed as a "networking" guy, but if you want to learn about networking and business development, Thom's not a bad choice for daily reading.

Today, there is a new "marketing secret," for every hour of the day. Most of those tweeting or copying other people's posts about marketing "secrets" have never achieved any level of business success, nor is their "secret" a secret. Of course there's always the groupies who think if they hear from one of their idols that you should try and give business rather than get business, that they have just heard the cure for cancer.

I don't see many "secrets," most are called secrets to attract readers, but yesterday I read Thom's post on how to refer him business. In that post he revealed some actual secrets:

[1] No one knows what you do for a living.

[2] Because of 1, you have to make sure you let people know not only what you do, but for what you are looking in terms of clients.

Let's talk about 2.

Stop wasting time on potential clients, and spend your time educating those that refer you business.

Lawyers love to waste time. Potential clients call and want to "come in." Sure, spend a free hour (free consultations, except for contingent cases, are for losers) with me so I can realize that you and I aren't a good fit. Yeah, I know, the young desperate lawyer is thrilled to have an actual live person come and meet them at their Regus office or Starbucks, but what is the point if 5 minutes in to the coffee, the lawyer realizes that the client needs an employment lawyer instead of a divorce lawyer?

Wouldn't it be better if your referral source knew exactly the type of cases you want, and more importantly, don't want?

We're scared to do this. We're scared to be negative. Send us clients, we'll ferret them out. We'll meet with 4 and maybe 1 will retain our services. We'll spend all day screening bad referrals.

Thom says we need to be clear to people that refer us business.

Recently I spoke to a group of people about this. I told them the cases I didn't want. I told them to ask potential clients what they were prepared to spend on a lawyer. At the end I was told I probably scared a few people in to never calling me to refer a client. Good. They're the people who hear "I need a lawyer," and immediately send the broke asshole with a "great case" to my office.

I have a history of telling my referral sources that they send me a dud. It's called educating your referral sources. Try it.

If you don't like my advice, take Thom's.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

Wednesday, June 8, 2011

Book Review: The 6P’s of the Big 3 for Job-Seeking JD’s - 60+ Ways to Get Hired Using Social Networking

I never realized that meeting me for the first time, as well as giving me a gift of your book on social media could be a frightening experience until I met Amanda Ellis last night. Well, not exactly the first time. I believe in the last couple years we’ve tweeted a few sentences to each other a couple times, so we’re buddies, friends.

She walked in to the restaurant and in what appeared to be a carefully planned moment, stuck her hand out. Amanda wasn’t going to go any further, subjecting herself to scorn and a possible blog post. It was like a person entering someone else’s home and seeing a dog, wondering if it was friendly, (assuming it wasn’t from its looks and reputation) and taking no chances. A moment later, to the surprise and relief of the guest, the dog jumps up and licks the face of the new arrival.

I didn’t lick her face, but I felt the shock expressed by her in that “oh, OK, I guess he does smile, kiss, and hug” reaction I saw.

She then handed me a signed copy of her book, The 6P’s of the Big 3 for Job-Seeking JD’s - 60+ Ways to Get Hired Using Social Networking. While seemingly apologetic, (she didn’t actually apologize for giving it to me, I don't think, maybe), she was clearly not overly-excited in handing it over. I mean, I’m pretty sure that if you know me, you don’t think handing me your book on social media when we meet for the first time is a path to a relationship.

To her visual shock, I told her I would read it.

I love this book, and I think every 1L should get a copy when they arrive at law school.

The book produces what it claims – advice on how to get a job using social media (and proof that it worked) – but it is much more. This is a worthy read for anyone looking for a job, or anyone looking to keep a job. It’s also a nice review for those heavily in to social media who don’t think acting like a human being is part of the equation, or don’t remember the basics.

Amanda didn’t just have me at hello when I met her, but Chapter 1 of her book is titled – wanna take a guess? “Professionalism.”

This is after the disclaimer that may cause the “get rich quick” crowd to leave it on the shelf:

“There is no guarantee that anything in this book will get you a job.”


The book rightfully focuses on “the big 3.” - Facebook, LinkedIn, and twitter, with mentions of some other sites and internet resources. The book is methodical – mentioning all aspects of the “big 3,” with many clear, concise charts summarizing the advice and screen shots of examples of the advice in action.

The book doesn’t just give a passing glance to “getting on social media,” the first 110 pages are devoted to “preparing” to engage online. Advice from types of photos, writing biographies, and most impressive – the difference between what’s “helpful,” and possibly “harmful," is all there. All the advice is sound, from who to connect with, what information not to post, and a great deal on how to differentiate yourself. There is a large tone of “be careful” in this book, and it’s much needed advice to counter the marketing hacks out there cheerleading that social media is “nothing to fear.”

The book does get overwhelming. Amanda Ellis “gets” social networking and the intricacies that make each of the “big 3” different, and explains them in detail. There is a ton of advice. To someone who is not active on social media, the thought may be: “this is too much.” But the last part of the book (prior to the true life examples of success with job searches using social media) gives advice on time management. Just doing some of the things advised in the book will be a positive addition to your social networking life.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

Tuesday, June 7, 2011

Anthony's Weiner

Yeah, ha ha, funny title, laugh-a-minute. How many jokes can we make about the fall of Congressman Anthony Weiner, another Google disaster?

Weiner subscribed to the marketing cheerleaders cry that the internet is a fun place, where social media is nothing to be scared of Self-proclaimed twitter expert Adrian Dayton says: There are things to be afraid of in this world -- things you may never understand, like how to fix a carburetor, deliver a baby or mill wheat -- but social media aren't among them (editor's note: Dayton sells social media advice for a living, therefore, talking about the dark side isn't good for business).

But then there's people like me and others who poo-poo about the perils, the risks, and the consequences. Who was going to see his "private" chats with various women? Can't you just delete a tweet if you send in publiclly instead of private ("direct")?

His pronouncement that he will not resign, had a singular purpose - test the waters, see who would rise up and say "hell yeah - don't resign!" There were some. A few. But not enough. People like Anthony, but not enough to keep him in office. It's not the pictures, not the cheating, it's the lies.

He will resign within 2 weeks. His wife will probably leave him, as she rightfully left him standing at the podium yesterday, to cry about his "mistakes." Talking to a girl, not your wife, on the internet about getting a blow job is not a mistake. It may be stupid, but it's not a mistake.

Yes, Weiner "took full responsibility," only after he learned the gig was up. He didn't take responsibility, he was forced to acknowledge it. There is a difference.

Anthony Weiner is an example to those who spend their days looking for attention on the internet.

He's definitely made it to the first page of Google.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

Friday, June 3, 2011

Rakofsky v. The Internet, The Defense Responds

Here are the first pleadings on behalf of the defense in Rakofsky v. Internet.

You may find of particular interest the Affidavit and Trial Transcript.

Have a nice weekend.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark