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“Branding” in the practice of law really burns my wide-load rear end

What are brands? “Brand” comes from a Germanic route meaning “to burn”; the related words “brandy”, “brent” and many modern German words employ this root to describe the act or recipient of burning. In North America and later some other places, cattle were branded (burned, though not too painfully I am told) with glowing-hot iron markers to identify them in the event of the mixing of herds or cattle rustling. Brands were a mark of title and, to a much lesser extent, of quality, since cattle were and are essentially a commodity. While marks on goods predated branding, we use the term “brand” perhaps more often than “mark” in American English to identify goods and to a lesser extent services.

Branding or marking serves a useful purpose in commerce: to identify a series or multiple series of goods by a manufacturer with that manufacturer, to identify services with a given provider, and from the manufacturer’s or provider’s viewpoint to convey common positive qualities among those goods or services. For goods, the mark may continue to advertise the company’s identity not only at the point of sale but during its use, such as the Heinz ketchup bottle on the picnic table at the family reunion barbecue or the can of Natty Boh visible from halfway across the bar in Baltimore. While branding services may be more challenging, we know some service brands very well: the brown shield of UPS all over the company’s uniforms, packaging and fleet vehicles.

For some goods and services, their need or use may embarrass the consumer if known to others. It is merciful and proper that most prescription medicines are usually sold in uniform, brand-less containers. Although Preparation H has (presumed) value to its buyer, has a mark and distinctive packaging, one rarely finds contests with the mark prominently displayed where winners can get a lifetime supply and their names and pictures proudly displayed on the cover of Preparation H magazine. Alcoholics Anonymous has some service marks and trade marks for its publications and activities, but its anonymity and policies make anything but the most perfunctory, utilitarian and limited references to its very existence inappropriate to its stated purposes.

Ultimately, is the practice of law something more like Alcoholics Anonymous, or more like the companies who plaster their trade and service marks all over a racing car at the Indianapolis 500? Is one’s identity as a solo attorney something ideally staid and reliable, such as that of a classical perception of an traditional rabbi or priest, or is it more like an XBOX 360 or Budweiser or, perhaps less aggressively, like UPS or FedEx?

The first purpose of branding – to establish the sourcing of goods or services – is barely needed if at all in the practice of law. Most documents written by lawyers have the lawyers’ letterhead or lawyers’ signatures included or attached either by law (pleadings, deeds in some states including Maryland) or by practice. Usually the envelope in which the work product is delivered has a watermark, label or return address from the lawyer or law firm on it. Most importantly, clients know who their lawyer is, whom they hired to do what negotiation, drafting or litigation work on a given case. It’s not like a can of soup without a label, in which instance finding out what’s in the can is not possible without opening the can and finding out who made the soup is probably impossible even after opening. Since legal services are usually confidential, the universe of people who need or want or have the right to know whom some person retained for a given legal matter is either tiny or non-existent and when there is such a right, there’s a lawyer’s signature, letterhead or card nearby on the handiwork.

The second reason to brand goods is not merely to identify but to induce and maintain loyalty or to dislodge the loyalty of a competitor. If Domino’s Pizza and Papa John’s go to war in a given market, each will use their brand, their marks, to identify themselves not only regarding a given boxed extra-large veggie pizza but to assert and win brand superiority and to maintain customer loyalty. Brands are descriptive but also proscriptive tools; they mark, enhance and move forward against resistence the battle lines between competing market players. For pizza and soup cans and detergent, this is fine and good.

As attorneys we are under many regulatory constraints that keep us from acting like Coke and Pepsi. We mostly cannot discuss our clients’ business in public or otherwise with outsiders (although some damn fools try, such as every lawyer whom George Zimmerman has hired to date.) We cannot compare our services to those of other attorneys unless those claims can be factually substantiated; since we cannot usually discuss our clients’ business outside the firm, it’s hard to make an ethically permitted comparison. We cannot solicit or otherwise speak to a represented party and we cannot solicit in person; this makes grocery store-style “Pepsi challenges” to loyal “Coke” clients impossible as clearly prohibited under ethics rules. We cannot call ourselves “specialists” or, in many jurisdictions including Maryland “experts” without a serious risk of a violation or a guarantee of one. Brand identity isn’t very useful in this context; I would argue that it’s absolutely useless.

Some attorneys have commented online about the need for an “identity.” I don’t know precisely what they mean. It could be that they literally don’t know who they are; this is known as amnesia. It could be that they don’t know what their identity means or should mean professionally; this is a crisis of meaning or existential crisis. It could be that they don’t know what their perceived identity is or should be; this is a descriptive or proscriptive marketing issue.

It’s clearly not amnesia as this is real life, not a soap opera whose writers hit a dead end. It may well be an existential crisis, such that these often young attorneys are humming along unironically to Eminem’s lyrics “And I am, whatever you say I am” but missing the point of that piece of hip-hop. The practice of law is no place to resolve an existential crisis; that belongs to more personal realms of philosophy or religion or whatever. But like young people who glom on to religious movements as an imperfect puzzle piece curved and jammed into the identity “hole”, some of these low-identity attorneys may be looking to fake it until they make it – until they cannot see or feel the hole any more.

Other attorneys might indulge the maluse of “identity” and “branding” perhaps not so much to sell themselves but as a sales tool to the clients. In this pursuit ethical violations petty and hard-core may ensue, though the likelier result is mere time-wasting. Clients aren’t looking for the brand; they are looking to pursue or achieve dreams, slay or reduce nightmares, protect their property or cash flow or freedom or good name or privacy, continue their legacy, find peace, inflict horrible misery on their enemies, etc.

The “brand” or “identity” is even more of a BS layer for lawyers than it is for pizza – ironic, as we owe a stronger duty of care and candor to clients than Pizza Boli’s does to me when I indulge, to my detriment, the occasional purchase of a pizza with pineapple and hot peppers. At least the Pizza Boli’s sign and box help customers find pizza; then again, almost all non-vegan Americans eat pizza occasionally and it’s a fun, impulse purchase with no lasting bad effects (if it’s occasional or if you are Michael Phelps training for a meet.) Plus, Pizza Boli’s is a chain; consistency in the product from store to store is confirmed by common ingredients, recipes, equipment, etc. There’s only one you or I as solo attorneys; we don’t need to confirm any multiple-office common standards like a pizza chain.

Your identity as an attorney was issued to you by your mother or other relatives at or near birth or otherwise per lawful name change or name registration upon entering the Bar. My identity is T[heodore] Bruce Godfrey, attorney; if I forget that, call the doctor (and if I keep forgetting it, call Bar Counsel.) In most jurisdictions, law firms may not practice under a law firm name other than that composed of one or more attorney names without special clearance. You have no need for an identity; you have it.

What you need is a reputation, but the only ways to earn that are through consistent competence or, ideally, excellence in one or more practice areas and through solid performance on aspects of law practice other than mere competence, such as efficient return of phone calls, diligence, respect for the value of clients’ money (this is NOT to suggest low-balling your fees, but to bill intelligently and consistently with the Golden Rule.) You know – actually doing your job well, as you would expect of a mechanic or a plumber or an electrician. This isn’t to say that you shouldn’t aim to get really good at a practice area quickly; indeed that’s commendable, it’s where you should be aiming your efforts Without solid mentors and peer-apprentices of similar mindset and habits, however, you are unlikely to have a solid basis to judge your skills or to know when you are out of oxygen.

In due course, through persistent skill development, you can become competent and indeed excellent in a given area of practice. Not “competent”, but competent: you know it well enough to do it well and efficiently. Above competence is the ability to teach others, or to correct others’ errata or to engage in well-grounded debate in the gray areas of your practice area. (Part of competence is knowing when something is not knowable but mostly or entirely a matter of judgment calls or opinion.)

I am not Jewish or otherwise religious but I am informed that in the tradition of Torah study in traditional Judaism, it is customary not only to have mentors but also consistent Torah study partners to bring out the best from the student.  In law school we do not do so in the same way, though in fairness the purpose of law school is quite different from the purposes of religious study.  In the practice of law, though, we probably need “study partners” – good ones – more than in law school itself.  The economic demands of practice and ethical restraints on confidentiality make getting a “study partner” in a law practice tricky, but doable.  At a minimum, list-servs from Bar associations can help.

“Branding” simply isn’t part of the business of developing your craft and repute as a solo attorney.  Florida criminal defense and ethics attorney Brian Tannebaum got it dead right over at Above the Law.  Believe no social media hype or existential pangs suggesting the contrary.  Far better to spend the day in study over the unsexy, uncool Rules of Procedure.

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