Let’s All Help “Pat Barnes” Find Decent Employment

I pity “Pat Barnes”. He or she is a representative of a company that wants to sell me, an 18-year member of the Maryland Bar, a plaque commemorating my 15th year of membership in the Maryland Bar. And be darned if she or he isn’t persistent:

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I have gotten maybe half a dozen of these emails this year, two of them on consecutive days last week.

They want $159.00 for this hunk of self-congratulatory garbage, but will “let me have it” for $50.00 off.

I feel like I should be organizing an intervention, whether for Pat or for the attorneys who, 15 years into practice, would apparently be such wounded narcissists that they would feel a deep-seated need for this hunk of wood on their wall to assure their clients that, yes, they are practicing attorneys of some duration.

Can someone please get a headhunter to help Pat Barnes get a job cold-calling for timeshares or overpriced lighting fixtures or something?

Beyond Parody: “Small Business Bodyguard”

Among my lesser faults (many others are much worse) is a propensity towards foul language, one that I do restrain with clients and in court, but one that I tend not to restrain as much on the phone with friends and peers in personal conversations. It is a regrettable fault, though it’s easier on the liver than dealing with stress through e.g. alcohol abuse, a problem affecting many members of the Maryland Bar and more than a few among the Maryland bench over the years.

It never occurred to me, however, to use the words (please excuse me Pastor Jones, Rabbi Miller, Father Smith and of course Mom) “ass” or “middle finger” in the marketing materials to promote my law services. However, the mere use of vulgarities in advertising does not self-evidently violate Maryland attorney ethics rules. This blog has discussed vulgarities in a First Amendment context, such as the scope of permitted use of the profane Dodecagrammaton that begins with “m” in the context of disorderly conduct, free speech and the reasonable expectations we may make of police professionalism in the face of that most Oedipal and severe invective of the American language.

It never occurred to me to offer legal advice without acknowledging that it is legal advice or to create what functions in substance as a law firm without acknowledging that it is a law firm. It is not self-evidently legal advice to write a book about the law, but advising clients what to do in legal situations (as opposed to advising them of potential issues to raise with a lawyer) is legal advice; the clue to this fact lies in the words “legal” and “advise/advice.”

There are two reasons why I will not copy the entirety of the homepage at the “Small Business Bodyguard” on this site for discussion, even under principles of copyright fair use privilege. One is that non-Maryland attorney Rachel Rodgers and her business partner non-attorney Ash Ambirge of the “Middle Finger Project Blog” and House of Moxie have the right not to have their content borrowed unreasonably, even for discussion purposes. Another is that I don’t want anyone, including in all candor Google but more specifically my clients or mentees, to think that her content is mine; it wouldn’t look good on my “resume” as it were.  The biggest reason, though, is that I want you to go to that site and witness the 12-car pileup.  Go look at it – read it slowly.

Three legal bullet points, pulled from their website, describe what people are supposed to do with their $275.00 package offered to Maryland (and, of infinitely less interest to this blog, non-Maryland) legal clients (although they would dispute the term “legal clients”, I am sure)

  • EASY-TO-UNDERSTAND (AND IMPLEMENT), STEP-BY-STEP INSTRUCTIONS ON EXACTLY WHAT THINGS YOU NEED TO DO TO GET LEGAL
  • LEGITIMATE, LAWYER-DRAFTED (AND PEER REVIEWED) SAMPLE AGREEMENTS
  • INSTRUCTIONS ON EXACTLY HOW TO EDIT EACH CONTRACT AND USE THEM IN YOUR BIZ, BASED ON YOUR PARTICULAR SITUATION

Right. “Instructions on exactly what you need” and “how”, using “lawyer-drafted” content.  Emphasize on “legitimate” content.  Instructions on how to edit a contract.  But it’s NOT legal advice – perish the thought!!

Neither Rodgers nor Ambridge is licensed in my state of Maryland to practice law according to the Client Protection Fund, and there is no indication from this set of legal-instructions-and-lawyer-drafting that they have malpractice insurance or other errors and omissions to cover the damage from reliance on their legal “instructions” in this state. They warrant, however, that their package applies in Maryland and in every other state:

DOES THIS APPLY IN MY STATE?

You bet. Most laws in the US are quite similar from state to state, and are often based on model statutes that are adopted by almost every state. (Thank goodness, or things would get pretty complex!) [Godfrey comment: actually, it is complex.] We are very specific in Small Business Bodyguard about which statutes apply to which states, so in the event that there’s something state specific we’re discussing, we’ll let you know about it. We do discuss state specific laws from California to Connecticut that affect online business–and you should know about them. We even have a cheat sheet related to business formation that lists the rules for all 50 states and our directory of modern lawyers at the end include lawyers from practically every state. Swanky, eh? [Godfrey comment: I have lived too long] Regardless of your state, Small Business Bodyguard will position you to succeed.

Spare me from the day when advising clients regarding their businesses, or compiling an attorney referral list and selling it with legal instructions for $275.00, becomes “swanky.”  I object to the entire tone of the advertisement, regarding it as sassy and infantile rather than professional, but mere tone doesn’t rise to an ethics or liability issue.

But their point that most laws between states bear some similarities in many cases is both facile and irrelevant; it’s in the dissimilarities that an attorney will risk violating Rule 1.1 in Maryland and most other states – the rule about, you know competence. Further, it’s not in mere law but in procedure that many lawyers who make mistakes do so, and procedure does differ more between states even more than does substantive law.

I will give you a small but important example that has evaded (until I emailed him five years ago and he responded most graciously) both the co-author of one of the most important hornbooks on Maryland law as well as many a corporate counsel outside of Maryland:

When precisely can a worker or management enforce an arbitration agreement against the other in the State of Maryland?

Cite me the exact authorities in the comments; I suggest beginning your search in the Labor and Employment article of the Code.  First attorney to get the Maryland answer precisely right (quote the code) gets a $10.00 Mexican lunch with me at California Tortilla (or a $10.00 gift certificate of your choice in lieu if your religion, doctor or geography won’t let you eat at California Tortilla at Quarry Lake.) Clients are not eligible for this; offer limited to Maryland-licensed attorneys.  Getting this wrong for you means you don’t get fajitas on my dime; getting this wrong for your clients may mean many thousands of dollars of damage.

Check out part of the tiny-print “disclaimer” in difficult-to-read type that would likely fail the conspicuity test in the UCC Article 2 were this a sale of goods (note: I do not concede that it disclaims anything):

We think it goes without saying (but we’re gonna say it anyway because, ya know, covering our ass [sic] and all that), the legal resources provided within this website including the legal clinic for small business owners delivered via email, live events including webinars and screencasts educating business owners about laws affecting their businesses and the digital, full-length legal resource available for purchase are resources for educational and informational purposes only and should not take the place of hiring an attorney.

Using this website and the legal resources, paid and free, does not create an Attorney-Client relationship between you and Rachel Rodgers Consulting LLC and House of Moxie, Inc. or their founders (that’s us!). Customized legal advice is not provided within this website or any of the resources available for sale. Instead, Small Business Bodyguard is a legal resource designed to make you aware of the key legal needs of your business and provide tools you can use to meet those needs.

Yet the website emphasizes the cost-effectiveness of this “ass” [sic] -covering tool over the “private” use of an attorney:

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Either you are claiming to be an effective economic substitute for higher-priced legal counsel and are selling instructions on what to do legally and promoting your content as lawyer-drafted content, or you aren’t. If you are, you are estopped from denying, even with a nice small-print disclaimer, that you are selling legal advice, which is a primary legal service regulated under Maryland’s unauthorized practice statute.  The mere inclusion of a list of “modern attorneys” at the back of the book doesn’t make it not legal advice if you are instructing people on what the law is, what to do and emphasizing that your content is attorney-drafted content. I shudder to think what Maryland courts would do with this case if a client of this outfit filed a grievance or malpractice action after the “instructions” blew up and caused a $15,0000.00 mistake.

Ya know?

This website exceeds my capacity for parody; I guess I cannot get that dream job writing for Craig Ferguson on the Late Late Show, after all. I beg my Maryland attorney and Bar applicant mentees not to follow this dangerous example; it’s dangerous for you and dangerous for your clients.

UPDATE: Go read Jordan Rushie making some solid sense of this thing over at Philly Law Blog.

“Skin in the game” and attorney ethics

In the United States, contingent fees for attorneys are regulated and usually prohibited in most criminal and family law matters.  Among the justifications for contingent fees are that they reward success, not attorney billable-hour churning.

In today’s New York Times Adam Liptak discussed Marek v. Lane, a class action case against Facebook involving privacy violations.  The Ninth Circuit approved, 2-1, a settlement that would require Facebook to make a $6.5 million donation to a foundation to be founded by Facebook, and to pay the class action plaintiffs’ attorneys $2.3 million dollars.  As for the class plaintiffs, they would get: nothing.  Not one dime.  The Supreme Court may take up the reasonableness of this class settlement.  Read the scathing quotes from the dissent in the link.

My newest favorite author, Nassim Nicholas Taleb, repeatedly urges that decision makers and experts need to have “skin in the game”, a meaningful downside personally if things don’t go well.  Taleb is a bond trader, economics commentator (if I call him an “economist” I know I will get a C&D letter) and philosopher and he attacks much of the economics establishment as charlatans in part because they aren’t held accountable for their (in Taleb’s view) irresponsible and damaging bad advice.  Taleb has spoken with some favor of the rule in Hammurabi’s Babylonia in which builders of houses that collapse must suffer the sorts of harm, up to and including maiming and death, that befall the houses’ occupants.  While this seems perhaps unspeakably cruel, it does motivate the builder due to his literal skin in the game to take building and design extremely seriously, perhaps preserving generations of life.

In much of Europe, the contingent fee is considered immoral and is prohibited.  From a “skin in the game” standpoint, however, it may be immoral NOT to make lawyers suffer a hit when their advice fails.  We need not execute attorneys for being wrong but it protects the interests of clients if attorneys have a motivation to get it right beyond the mere happiest of current clients.  Attorneys who profit or lose according to their own smart or stupid judgments will be motivated, in a case, in a year, in a career, to be smarter.  Stupidity, like most other things, becomes less common when it is more expensive and the risk of loss has a disciplining effect on the attorney – both in the conduct of the case and in the preparation for many cases over time.

The class action case with no class remedies for the plaintiff pool seems somehow a case in point.  Lacking actual skin in the game, the attorneys allowed themselves to create a remedy in which their own interests and the interests of the counterparty were protected and funded, but their actual clients got nothing.  While we cannot know the psychology of the attorneys, it would seem that the disconnection between them and their client allowed them to reach a settlement where they got millions, a foundation set up by counterparties got millions and their clients got not a dime.  These lawyers had, it seems, no real skin in the game at risk, and now look at what happened.

In criminal defense and family law matters, contingent fees are prohibited; in the former case the fear of defendants pleading guilty when innocent in order to avoid legal fees justifies the prohibition whereas in the latter case the public policy in favor of reconciliation works against the attorney’s motivation for fees from a successful contested property split.  Interestingly, there are post-trial remedies to prevent some forms of attorney misfeasance that don’t exist in, say, car accident or contract disputes.  In criminal cases, habeas corpus, post-conviction relief for ineffective assistance of counsel and coram nobis relief may provide the court some ability, however painfully limited, to review the reasonableness of a sentence or confinement or the effectiveness of legal counsel.  In divorce cases, courts maintain continued jurisdiction over minor children, child support and alimony.  Malpractice actions against attorneys, of course, also put attorney skin in the game to some extent both in contingent fee-permissible cases and in those when contingent fees are prohibited.  The risk of wasting client money, however, is not addressed either by post-conviction relief, motions to modify or malpractice suits; at most there are fee arbitration committees, straight contract/unjust enrichment actions at law and in extreme cases disciplinary actions in some states for patently unreasonable fees.

In sum, the principle of “skin in the game” is easier to enforce when the definition of the “game” is simpler, purely financial and does not implicate major non-financial paramount equities.  Since law often deals with complex desired remedies involving non-financial concerns, the contingent fee is in some cases unnecessary, insufficient or outright contraindicated as a way to make sure that attorneys have “skin in the game” in the effects of their good or bad professional judgments, practices or decisions.

A Personal Statement About Professional Fortitude

Today’s tone will be a little earthier and more personal than I am normally willing to indulge here.  If coarse analogies offend, please go read this vulgarity-free light reading instead.

Lawyers far more skilled and dedicated than I have taken risks in their profession over the two centuries of the practice of law in this country. Would that I had learned more of their good examples in law school, and less about the useless trivial intellectual speculations of some of my law professors, who “opined deeply” while drinking down our tuition.

Lawyers who defended the targets of lynch-by-alternative-means in the South. And not only in the South, let’s be clear. Atticus Finch was a brave attorney in Harper Lee’s To Kill a Mockingbird, but his real-life counterparts have at times needed to worry about starvation for defending those whom “local justice” pre-determined as guilty – this in the pre-Gideon days when the right to counsel was even more theoretical than it is now, and local attorneys were ordered to take on cases at no charge and at the risk of considerable opprobrium in their communities.

Radical lawyers like William Kunstler who had the nerve to go inside Attica State Penitentiary during a prison riot (or, as some would maintain, an uprising). The lawyers who contributed sweat, treasure and sometimes blood to the formation of highly controversial organizations like the American Civil Liberties Union, the NAACP and (much as I myself reject their Marxist roots) the National Lawyers’ Guild, and who litigated and organized despite real fear.

Some have taken smaller, but still real, risks. Conservative stalwart Ted Olson made a lot of his fellow conservatives unhappy by standing up as an appellate attorney for same-sex marriage as subject to the Fourteenth Amendment’s Equal Protection Clause, and therefore by logical conclusion lawful. Liberal stalwart Alan Dershowitz has stood up for the free-speech rights of Nazis and Holocaust deniers to speak freely and even opposed private censorship of their speech. Whether same-sex marriage or free speech by antisemites is a “good thing” isn’t the issue; the issue is whether attorneys have the courage to get up and do their jobs when someone else tries to turn up the heat.

My examples have leaned “lefty” as a sample pool, but many examples of staunchly conservative attorneys who took risks in their professional lives in the midst of conservative legal advocacy also exist.

As some of my readers (or am I now down to “reader” in the singular?) may be aware, my law office is now involved in a case of some modest public note. This is not the place for discussions of the specifics of that case, but rather of some of the surrounding environment of that case. Many reports of “SWAT”-ing – the practice of filing or calling in false criminal reports as a harassment and intimidation tactic – have emerged in the growing narratives surrounding the “greater metropolitan case”. Who exactly is doing the “SWAT”-ing isn’t entirely clear, though I certainly have my suspicions. For me as a practicing attorney, the issue is whether I continue to do my job like a professional, or whether I start letting myself get “nervous” about having the police greet me with tactical shotguns at my front door because a “dead body” was, per some fraudulent report, being dragged out of my apartment. The positive examples of attorneys of generations past, attorneys who were also public citizens, urge maximum fortitude.

Fortunately, my local police captain was extremely receptive to my letter faxed to him describing my concerns; he assured me in his manifest professionalism today that he has gotten these sort of foolish calls before and has a highly disciplined squad who are simply not going to go “stormtrooper”, and who have been fully briefed and directed to check with him first before they assume that any report about me might be true. I had occasion to work with two of his detectives and one of his uniformed officers in January when two other community members and I got robbed at gunpoint outside my apartment; I will be seeing them again in August and September when the three suspects stand trial or plea out. So I am not particularly worried about getting “SWAT”-ted; whatever is out there doing the “SWAT”-ing should fear the police captain’s irritation, as he is clearly not in the mood to put up with any games.

I do know that there have been some petty efforts to interfere with my relationships with some legal referral sources of mine. But when I tell you I don’t care, I don’t care. I have no boss to “harass”; this law shop is mine for my clients’ welfare and I answer to no one but my clients and the courts.  That’s that.

Either you have the courage to do what needs to be done as an attorney, or you don’t. Fortunately, I do. At the risk of ungentlemanly coarseness, mine are made out of high-quality tempered American brass, and that fact settles the discussion.  Indeed, the best way to discourage this sort of nonsense is to respond to it with moral fortitude, measured, reasonable responses and, to the extent strictly lawful, vi et armis.

PS – welcome all of you visiting from Instapundit – sorry I didn’t clean up the place a bit better. Wish I had some beer to offer but alas, we don’t have “Google ColdDraft 1.0” yet installed on the site….

Joseph Amendola, Esquire, does NOT work in my law office

Why, oh why, does an attorney state the results of attorney-client work product and even attorney-client communications in front of a TV camera? Why tell Anderson Cooper whether a client communicated with you and what those communications were?

Who in the name of mighty Thor congratulates the prosecution for convicting his client of felonies? Criminal trials are not tennis matches; they aren’t about the lawyers. It’s professional to shake the hand of the opposing counsel at the conclusion of the proceedings, but don’t give your opponent that kind of laudatory treatment; the case is still active, sentencing awaits, the appeal period hasn’t lapsed, and even then it’s still a serious mistake.

Who chooses to broadcast to the universe that both the prosecution and the bench did exemplary jobs, grossly undercutting any future appeals on such issues?

Who hides behind the excuse of a lack of time when there’s six months to prepare and the case is the biggest case of the attorney’s career, as if he couldn’t afford an associate or two to pitch in? What, too many driving while suspended cases get in the way in March?

Even if these comments are somehow acceptable to the client, how does a client give informed consent to such injuries to the client’s legal position? How does this help a client at sentencing, motions to reconsider? Does the client have an available motion for a new trial or to set aside the verdict, or for a mistrial; if so, doesn’t this media foolishness damage or at least distract from that work?

We still have a duty to our clients not to damage their cases for our own camera-mugging benefits, even if clients give consent and even if that consent is fully (?) informed or even confirmed through an ethics consultation with an independent attorney (severely doubtful.) Even if they are charged with sexual offenses. Even if they are convicted of sexual offenses. ESPECIALLY in those cases.

How can an attorney claim to have valid appeal issues while ruining as appeal topics two of the major sources of appeal issues in a criminal cases: the conduct of the prosecution and the conduct of the bench!!! More generally, who benefits from these media events – Jerry Sandusky or perhaps Mr. Sandusky’s family, or whoever sells hot tubs and vacation packages to Joe Amendola? Joe’s taking of big Joe here, and not taking care of the client.

The media comments last night on CNN and elsewhere were clinics on how to violate one’s fiduciary duties to clients. I hope that every professional ethics professor in every US law school uses Joe Amendola as an example of what NOT to do. Every law student should see this mess. PA’s ethics rules are not identical to Maryland’s, but they are both modeled after the ABA Model Rules of Professional Conduct; they are about 90-95% similar or more.

But don’t believe me. Watch.

and more with Anderson Cooper (is laughing and asking “is she cute?” re: a media staffer the right comment after your client just got convicted of 45 felonies and misdemeanors?)

Rule 1.2(b) – Endorsement of a client’s views

As noted within the Law Office’s website, the Law Office hasn’t shied away from taking political stands.  It represents only workers, not management, in employment law disputes, and maintains a pro-worker, pro-union, pro-labor perspective.  It supports the legalization of marijuana, supports the 2nd Amendment as a human right – and also supports the 1st Amendment as a human right.  Some cases the Law Office won’t take, due to profound disagreements at the philosophical level or due to practical reasons.

Occasionally, an attorney will represent a client in a controversial case regarding which friends, acquaintances and the opinionated masses of social media will ask: how can you represent such a person?  Criminal defense attorneys encounter this routinely, particularly those who handle major felony work.  Many causes are unpopular and attorneys may share in the “unpopularity” of their clients in some social situations.

Some attorneys respond to such inquiries stating that they “believe in the system” or believe in “everyone getting their day in court.”  There is merit to these views, but that’s not what motivates me above all.

Lawyering isn’t a job, but a profession.  What does this actually mean?  Well, a mere commercial transaction can be of “low quality” but still valid.  Professions, on the other hand, involve major study, set and enforce basic standards with codes of ethics and duties and expel practitioners who refuse obdurantly to meet standards.  Medicine is a profession.  Accounting is a profession.  Engineering and architecture are professions, whereas interior design pretty much isn’t (it could be one theoretically and may someday be, but isn’t.)  Religious life as a clergy person is a vocation, a calling even higher than the professions, in that the minister/rabbi/imam/pastor/priest is answerable to a “higher authority” than merely her peers, to paraphrase one of the most memorable ads ever.

5 million lawyer jokes aside (not that jokes are bad), we are supposed to give back 50 hours a year pro bono in Maryland; the District of Columbia has a similar, non-enforceable “hortatory” rule.  Sometimes we represent popular causes; sometimes we represent grossly unpopular ones.  Occasionally, we get a controversial figure with many people pro and con.  Usually, we do pro bono work (when we do it, if we do it) quietly, without recognition – the unpaid UI case here, the tax advice to the disabled, indebted worker there.  The practice of law is usually the unimaginative study of the unimaginative, or so most lawyers pray; pro bono work is usually no exception.  USUALLY.

Fortunately, the rules of this profession not only urge (not mandate, at least in Maryland and DC) pro bono work under Rule 6.1 but help out both attorney and client by providing under Rule 1.2(b):

(b)  A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

This provision helps broaden the practical access to justice by not imputing to clients or attorneys the views of the other.

The ability of an client to hire an attorney – for fee or without fee – without imputing an endorsement of any clients’ views back to the attorney (or the converse) broadens the access of attorneys to clients and clients to attorneys. It’s a common sense rule: we are there to address legal issues, not to cheerlead the personal views of the client. This is particularly important when the legal battle involves the freedom of speech itself, even (especially, actually) ideas in direct conflict with the attorney’s own “political, economic, social or moral” views.

My closest friend in law school, Nancy Yellin, Esquire, died with three of her family members at the hands of a South Florida drunk driver in 1997 who was in the U.S. illegally Did I stop handling drunk driving cases? No. Did I quit advocating for clients who have immigration status problems? No. I got robbed at gunpoint immediately outside my apartment in Owings Mills, Maryland in January of this year (2012). Did the punks’ snub-nosed .38 cause me to abandon my support for my clients referred from the NRA, or lead me to abandon criminal defense work? No. If a doctor gets punched in the face and injured, will she (upon healing and returning to work) stop treating ER patients who arrive injured from mutual affray bar fights? I don’t think so.

We are professionals and we have professional work to do.

Unsexy and I Know It: Don’t Believe the Hype about Social Media for Attorneys

Long post; skip it if you aren’t in the mood.

About 18 months ago I had the honor of co-presenting a survey of social media for attorneys to a section at the Maryland State Bar Association’s Solo and Small Firm Conference.  My survey was droll and I ran on too long, to the detriment of my much more qualified co-presenter Bradley Shear, Esquire, who unlike myself is a bona fide expert on the topic who has had real-world impact on social media legislation in this state and elsewhere.  In short, I gave a long-winded 101-level survey while he gave a concise 300-level analysis of some of the social media pitfalls facing attorneys. Back then Twitter and Facebook seemed interesting (and to some extent still do), but not for the hype-marinated reasons, or axiomatic creedal claims in lieu of reasons, offered by some of the strongest advocates of social media marketing for attorneys.

Facebook has been good (mostly) for keeping in touch with old friends and acquaintances, but it has not generated one dollar in fee revenue for my practice.  Twitter ditto, and that’s fine.  I have done some pro bono work for clients who contacted me through mutual friends or acquaintances on Facebook.  (Sorry if the friends/acquaintances distinction seems cumbersome; perhaps it’s from my faux self-awareness as a German-American that I divide the world into Bekannte whom I siezen and echte Freunde whom I duzen, Facebook’s indifference to the differences between friends and acquaintances notwithstanding.) It’s also good to get the latest news or word from colleagues, particularly when active parenthood and professional pressures make it harder to socialize.  But as a “gamechanger”?  Give me a break.

Does any attorney “need” any social media platform professionally.  Perhaps Twitter or LinkedIn is useful for some attorneys in certain industries where the attorney is more than just an attorney, such as some general counsel attorneys or sports agents, where the attorney has a significant non-attorney duty set de facto.  Maybe it’s good for attorney-activists (for principle or for hire) such as lobbyists or public policy law firms – again, when the client is using the attorney for non-traditional purposes or even when “the client” does not necessarily exist.  For us solo and small-firm attorneys, I do not see it as useful whatsoever professionally except as a news filter or for an occasional much-needed laugh.

A read through the tweets from hashtag #sml12 for a current (6/20/2012) social media conference was instructive.  A read through those tweets yielded a lot of bold, axiomatic statements like “if you aren’t on social media, you aren’t relevent/are risking irrelevance” and “the return on investment in social media doesn’t matter, [law] firms not using it will become ‘irrelevant.’ ”  Really?  Why?  Return on investment always matters, especially when the investment is more than de minimis.  What legal client is fascinated by an attorney who tweets the whole day?  A politician, lobbyist or community organizer? Maybe, and a lot of them are attorneys (and some go on to do some really interesting things in their careers….) but what does this have to do with the actual practice of law?  The strange creed- or even cult-like tone in the tweets really haunted me, reminding me of one controversial religious organization with a well-funded legal team which I will not here name.  Maybe Amway would be a better comparison, but without the redeeming value of pretty-good soap, cleaning products and cosmetics.  Go check out the tweets for yourself and see if you agree or disagree with me.

How does tweeting about antitrust law make an antitrust law firm more effective?  What, crowd-sourcing the brief or deposition and putting the litigation strategy all over Twitter and exposing the CEO of your client to federal prison?  How does Twitter help an attorney win – not get, WIN – the multi-vehicle accident case in a jurisdiction with contributory negligence and last clear chance doctrines?  Can Twitter help me get my overtime collective action certified in Greenbelt under FLSA?  No?  Will the “thought leaders” prepare my monthly escrow account report?  What, NO??? Then it’s of secondary importance or lower.

If “social media” is so great for attorneys, there should be some metrics to prove that fact, whether under a return on investment model or another model.  Even though we don’t have metrics for paying my bar dues, we know that not paying my bar dues suspends the law license, so we pay them.  We pay Bar Association dues because the Bar Association provides a great deal of information about actual law practice, from news, CLE, the Maryland Lawyers’ Manual, a place to grab a cup of coffee, etc. I don’t know the stats on malpractice, but profession-wide the risk is non-zero and most institutional referral sources mandate a malpractice dec page as a condition of doing business.  So there is a large “delta” from not buying malpractice insurance.  Twitter?  LinkedIn?  Pinterest?  What would we put on Pinterest or Instagram – a picture of gorgeous old me sealing a Tyvek envelope?

You know what actually keeps an attorney “relevant”?  Being a knowledgeable resource in “meatspace” i.e. offline.  Not a “thought leader” but a mentor.

Relevance – going to meet your mentee at an attorneys’ lunch in Columbia even when it’s 100 degrees out and you have a pile of mail to review.

Relevance – speaking to a room full of your colleagues in Ocean City as a presenter, then the next day getting to discuss your practice area’s developments with a law firm who is opposing your client on a case and a former chief judge of your state’s highest court.

Relevance – taking the call from your mentee who is about to make a serious escrow mistake, and you guide her through to get the funds handled the right way.

Relevance – when you are in command of your practice enough to be able to help an impoverished worker get her unemployment benefits, and write off the bill pro bono publico because the one percent of you that won’t make peace with the 99% atheist part of you remembers once learning, “The righteous is concerned for the rights of the poor; the wicked does not understand such concern.”

Does using social media as an attorney induce or constitute an ethical violation per se?  No – not per se, but per quod it sometimes does.  There are plenty of non-social media advertising violations online and of course offline by attorneys.  About a month ago I sent a friendly email to an attorney who claimed in her Google Adwords ads – appearing on my own personal Gmail account, no less! –  to be specializing in several practice areas in flat violation of Maryland Rule 7.4.  Shortly before that, I faxed a similar letter to a warm acquaintance who, regrettably, had outsourced marketing and therefore (pace Eric Turkewitz) ethics to her online marketing company who likewise claimed she “specialized” in multiple practice areas, in depraved indifference to Maryland’s black-letter rule on the subject.  Neither of these ad copy fit a narrow definition of “social media” as generally conceived.  With social media bogosity the hype factor gets a lot more concentrated and the risks of other ethics violations, such as ethical conflicts, breaches of confidentiality and even privilege, even identifying the actual client (!) become a lot harder to avoid.

In short, social media as a business generation tool for attorneys welds extremely questionable return on investment with multiple layers of ethical and possibly professional liability exposure.  Perhaps those risks can be managed like other risks, but taking on such risks without some metrics for the upside payoff seems foolish, especially when the unsexy work of getting good at a practice area (you know, boring reading, consulting with colleagues, testing and buttressing your knowledge by attending and even giving continuing ed, co-counseling on cases, etc.) remains to be done.  We wouldn’t tell our clients to take a bet this bad.

Lots of cases come up on PACER (federal court case search database) every day.  It makes a bit more sense to spend time, in lieu of social media trolling for “leads” or some goof-bang Generation-Y existential quest for “relevance”, looking instead at PACER (or a local equivalent) and finding interesting cases.  Then, it makes sense to call one of the attorneys in question on that interesting case (on a Tuesday, not a Monday or a Friday) and inquiring – politely and gently – about your interest in the practice area and inviting the attorney for lunch.  There’s a decent chance that you will get a not only the lunch bill paid but also an invite to join the case formally or unofficially as second chair (if otherwise appropriate and with client consent, etc.) or a referral to an ally or partner of hers/his for something similar.

If you don’t do federal court,  replace the PACER docket with your local worker’s comp docket, etc.  What role you might have is going to depend on a lot of details including your experience level but there’s no ethical rule against contacting an attorney about joining on that attorney’s case (assuming no conflicts, etc.)  I have been on both sides of that mentor-mentee case split, as the first and second chair.  Not that complicated if you hit it off and you observe the general ethical principles starting with competence, client consent and conflict checks.  This beats the best tweet you will read or write all day.

If you don’t want to contact an attorney who does litigation or administrative practice, then find out who is giving the local estate planning/tax law/transactional practice CLEs from your Bar Association or seminar companies like NBI, PLI or the other alphabet soups of companies that sell seminars, and contact her for a lunch chat.  These, not consulting services from a “social media professional” if such a creature exists, are more likely to give you actual social contact rather than social media.  The return on investment of such efforts is not guaranteed, but it’s about as good a guarantee as you are going to get in these hard times and beats the hell out of trying to bootstrap professional development 140 characters at a time from your vendors.  Never forget that vendors, like Carlo Rizzi in The Godfather, do NOT get a place in the family business or at the table; they deserve payment on time as agreed but only you have the law practice and license too lose. We do not “duzen” them and they are not our professional peers.

Early in my career as an attorney, I was intimidated about getting to meet other attorneys.  I bought into the misleading  law school hype about big firms being the standard for, well, everything.  I didn’t want to be part of a big firm, but somehow felt like less of an attorney for it and felt very self-conscious at Bar events, etc, because my career hadn’t taken off.  Even attending a meet-and-greet networking event seemed too difficult for me then.  Later I learned that while big firms did have a lot of influence over law schools (they ran on-campus recruiting, named the building wings that they funded, etc.), they didn’t have all the wisdom.  Plenty of highly-rated practitioners who were solos or small-firm attorneys, including a large plurality of Bar leaders in my state.  But inside the “thought leader” bubble of law school, I’d have never learned that fact that remains true largely to this day.

Alas, law school isn’t the last reality-distortion chamber.  Social media merchants, I fear, will stunt many (hopefully fewer) new attorneys’ growth by playing to their insecurities (compounded by an even worse economy than one encountered in the mid-90s), selling them useless buncombe and NOT helping them actually improve their hard and soft skill set – especially if social media acts as a substitute for getting out there and meeting people.  This is particularly true for that subset of attorneys most likely to be attracted to online communications in the first place – my fellow NERDS (please bury me with my 20-sided dice and my decaying D&D goods).  How big a problem this might be with the newer cohorts isn’t clear to me as my sample isn’t representative of the nation as a whole.

Among my mentees, it’s not a major problem but my mentees are local to Maryland and Maryland is a small state with two law schools for a state of nearly 6 million people.  It’s worth noting in a spirit of irritation and bemusement that the local FindLaw rep has been lingering at the Solo and Small Firm monthly lunches I attend in my county’s Bar Association.  He sometimes picks up the tab; he literally now has a seat at the table.  Pity, as it would be nice to talk just with my fellow attorneys monthly instead of with (sigh) a vendor there to make his sale.  No sale here, my friend.

Developing as an attorney is NOT about “doing epic sh*t now” but about earning an honest, ethical living while doing useful things and developing a broadening and deepening skill set – in mostly “non-epic” (i.e. routine but still important) work.  It’s unsexy and in itself has little “style” but methodical, unsexy work can make a big difference in a client’s life.

Here endeth the long rant with an offer and challenge to new Maryland attorneys who are thinking about using a social media consultant, online media consultant or other such consultants.  Before you spend money or sign the billion-year contract, join me for lunch.  It’s lunch on my dime if it’s in Baltimore County or if you are far away we can split the bill near you.  If you have dietary restrictions, we can go where you can eat.  Serious offer, good indefinitely.  Give me an hour over lunch.  Even if you don’t agree with me, you will be the better for it and I will do my best to help you find low-cost, ethical and tasteful options (like finding the right lawyer locally with whom to co-counsel) that don’t involve handing the social media mafia some monthly check.  That way, even if you disagree, you will be stronger, will negotiate with these companies from a position of strength, not of economic intimidation, and should be the better for it.

Offer open to any Maryland attorney, Maryland Bar applicant or law student within Maryland (UM or UB).  If you have a phone, you have a mentor (me or someone better than me that I can try to connect you with.)  Don’t let yourself get separated from your professional community in tough times; stay connected.

“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.

Advice to Young Lawyers: Do NOT Let Some Vendor Own Your Identity

It’s bad enough that we attorneys have to use vendors to supply our needs like everyone else in business. Good business judgment encourages economization and a careful eye on the effective rate of return from expenditures, including supplies, utilities, equipment, fixtures, inventory (not that that’s much of an issue in 99% of law offices) and services including marketing. To this extent, the practice of law is a bona fide business.

The real problem, however, with allowing vendors to get leverage over your marketing presence goes beyond mere costs. We as attorneys cannot afford to surrender the professional independence of our judgment on how to practice.

I have seen attorney after attorney fail to think three steps ahead. It’s a serious mistake to allow some internet marketing company (disclosure: I use a couple of the least obnoxious ones for limited purposes) to control your identity online. It’s a serious mistake to allow some landlord to own your outward-facing phone line.

If you want to get a phone number, go to voicenation.com and get a forwarding number for $10.00 a month. Don’t let the office suite, internet marketing hack or any such materially interested vendor get control of your phone. Forward that phone to a phone that has no identity or whose number you unambiguously control (cell phone, whatever.) It’s fine if the office suite or landlord will provide you a desk phone number – great. But you are not only a fool but a damn fool if you allow them to own your outward facing number.

Similarly, if you want to have an online presence, go buy the domain name(s) that you want and maybe even buy hosting before you talk with any of the internet marketing mafia. I use ICDSoft.com; they have been down, to my knowledge, for a total of 24 hours in the last 7 years. Don’t let the internet marketing mafia get away with murder by offering to “let you have” 15 pages on your site and charge you hundreds of dollars per month in rent for additional pages. A page is a one-shot draft job in most cases; charging you monthly rent on your site is like charging your client $75.00/month for the rest of his life on a divorce decree, on the grounds that it’s still in the courthouse, still effective and the client is still divorced. 115 pages costs minimally more than 15 pages.

Consider doing your website yourself. While that’s a big task (I know, I installed and designed every wart and scar on this site), it’s not fundamentally different from typing your own letters which most attorneys do from time to time and some always do. My hosting with ICDSoft costs $6.50/month for more bandwidth and storage than I can use. Ask yourself whether years of commission are morally fair to the sales reps for the high-priced monthly charges for the web pages that took minimal effort to augment. Even if you do use the web design services more extensively, ask yourself whether it is reasonable to allow an outside non-attorney corporation to own your professional image – not just to service it for fee like an honest for-profit plumber, but to hand them “Fee Simple Absolute” in exchange for their sales hack claims of effectiveness.

Nobody owns Bruce Godfrey, and only Bruce Godfrey owns www.brucegodfrey.com. I use lawyers.com and avvo.com as flat-footed advertising media, but note well that I am absolutely happy to tell both of those companies to take their services elsewhere on a moment’s notice. They don’t get the chance to have a “seat at the table”, to quote the severely unfortunate phrase of the “Legal Marketing Association” because it’s not their goddamn table. Seven women and men in red robes didn’t issue Lexis Nexis or Avvo’s Mark Britton a Maryland law license; these corporations are plumbers, not roommates or family.

You know what’s better than the coolest blog post or social media gimmickry? Doing something actually useful and (to the extent permitted by ethical strictures) discussing its real-life usefulness online (paraphrasing Hugh MacLeod of the Gaping Void). Knowledge and deeds – those no vendor can revoke if you stop paying their Danegeld.

How to tell a legal marketing company to drop dead

“Br-r-r-r-r-inggg”

[Gee, hope that’s H_____ D______ calling me re: my piece of the S_____________ settlement.] “Good morning, this is Bruce Godfrey; may I help you?”

“Hi, may I speak to the owner of the Law Office of Bruce Godfrey?”

[Christ, one of these.] “Yes, I am Bruce Godfrey; this is my law office. May I help you, sir?”

“Yes, I am Jake and I am calling from Lexorrhea, the legal marketing solution for the social media age. And who might you be?”

“My name is Godfrey and you may call me “sir”. What is the purpose of this call to my law practice?”

“Oh, well, good morning, Bruce? Bruce. I am calling to make sure you know about how Lexorrhea’s slots for Baltimore City are filling up. You are in Baltimore City, right?”

“Jake, let me ask you – you are not from Maryland, are you?”

“Our company is a national company using legal marketing experts to help you with your practice.”

“Let me try this again, Jake – do you live at Lexorrhea’s headquarters, or do you leave at the end of the day and go home to an apartment or home somewhere?”

“I live in Austin.”

“I see. I have never been to Texas, and probably will die having never visited. Have you spent at least 30 days of your life in Maryland?”

“Ahem, no, though I once went to a football game at Camden Yards.”

“Nice. Ok, my office is in Baltimore County, 15 miles from downtown Baltimore.”

“And that’s great that you are in Baltimore. We would be happy to help you become the top attorney in your field in Baltimore City, so you should act quickly before the slots fill up for our social media marketing plan.”

“In which fields do I practice, Jake.”

“Why don’t you tell me, Bruce?”

“Jake, you should have researched who I was and what the geography of the state is before you picked up the phone. Baltimore City and Baltimore County are distinct, and somewhat mutually indifferent, jurisdictions. I don’t live in the city.”

“Well, maybe you can market also for Annapolis and Anne, A-run-dale?”

“Anne Arundel, Texan. And no, if you are in Owings Mills, you probably won’t get a lot of traffic for Annapolis litigation as they are about an hour apart.”

“Oh, I see. Well how about the Prince George area?”

“That’s Prince George’s County with an apostrophe. Tip for you Jake: don’t call it ‘P.G.’ and don’t mess up the name, lot of local pride. And again, that’s 45-50 miles from my office.”

“Well, that’s not that far.”

“You aren’t in Texas, Jake”

“Well, Bruce, I am.”

“No, you are calling me, and this call is happening here, not at your desk. Do you know this state at all?”

“Well, we have had a lot of success with our Maryland area attorneys. We have attorneys in Rockville, Salisbury, Boa-ie-”

“That’s Bowie, rhymes with Huey and Louie.”

“Ok, well, we help our attorneys by making sure your clients know what you specialize in.”

“Jake, no attorney in this state can ethically claim to be “specialist” or to “specialize” in anything; this is Maryland. Haven’t you taken the trouble to read the Maryland advertising ethics rules under Rule 7 before you picked up the phone? You are an internet marketing company, surely you could spend 5 minutes Google-ing them?”

“Well, that’s not that big a deal, is it?”

“Jake, an attorney named Turkewitz in another state once said that outsourcing marketing is outsourcing ethics. Not only do you bastards not know your market, you don’t know the regulatory environment. When did you go to law school?”

“Well, I took a business law course at Austin Community College, got an A- in it.”

“Goodbye Jake – nothing personal but I hope both you and your company go out of business tomorrow. Never call me again. Really.”

[Click]

[20 minutes later] – “Hey, D – it’s Godfrey. How’s it going with my piece of the S______________ settlement? BTW – stay away from Lexorrhea.com…..”