Search Term of the Day: Legal Marketing Edition (Now, with memes!)

Every once in a while, I peruse what terms people use to find our blog. Occasionally it’s informative. Often, it’s hilarious. Sometimes it’s sad.

Well, today, someone found our blog using a search term that made me feel a way I can express best through a meme:

Your Legal Marketing is Invalid.

Today we received an email from “Jane”, a marketer who claimed she was “doing some research on bloggers in the legal field” and said she “found [our] site while [she] was researching websites that may be looking for guest bloggers.”

Already I know that she is either 1) lying; or 2) really, really bad at research. I think we’ve made our position regarding third party marketing pretty clear before, and we’ve surely never expressed an interest in guest bloggers.

Either way, I’m already not inclined to hire her for anything. 

Tell the Truth About Your Experience. — the Young Lawyer Chronicles.

This hangs right over my desk. I was admitted in 2010. I am not ashamed.

There’s been a lot of discussion in the last week on the legal blawgosphere about the truth.

Josh King wrote a post about truth and ethics in attorney advertising. Scott Greenfield discussed truth and numbers on Simple Justice. And the concept led to the most active Lawyerist comment thread I’ve ever seen.

I think it all started with a simple e-mail in my inbox.

But before I begin my story, let me digress: as an attorney, you’ll find that everyone wants your money. The most egregious offenders are legal marketers. They’ll e-mail and call you relentlessly, promising “X new leads” in exchange for the low low price of several hundred dollars per month for a featured profile on their attorney directory website.

So here I was, minding my own business, when I get an e-mail solicitation:

Should I Start a Law Practice?

These are my musings on starting your own law practice. Take them for what they’re worth…

I’m going to preface this post with a quote from a friend of mine, who will remain anonymous: “I went into solo practice after getting laid off from biglaw. I worked in biglaw for over 10 years… this was such a change. My first year in solo practice, I made about $7,000. I went from making over $150,000 a year to $7,000. I lost everything that year – my savings, my IRA, I even had to sell my car and my motorcycle… at one point, I actually went on food stamps. I felt bad, being a lawyer and getting food stamps, but I qualified for them. Things are finally starting to turn around, but man, I lost everything…”

A stark contrast from what you hear over at Solo Practice University, where all solos are happy, making lots of money, and spending their time just generally being awesome. (well, the solos who sign up and pay money, of course!)

As you might imagine, I get a lot of calls and emails that go like this:

“Hey Jordan, I hate working for this law firm. I’m thinking about starting a solo practice. What are your thoughts?”, or “Hey man, I just graduated law school and I can’t find a job. What are your thoughts on opening up a solo practice? Is it realistic for me? How much will it cost? I don’t have anything in the bank right now except $70, but that’s already spent…”

I wish the answer was “Hanging a shingle is a license to print money! Everything is so awesome. When I’m not counting my money, I’m out driving my new BMW and spending my summers down the Jersey Shore! Every lawyer should be a solo! You don’t need money, a plan, experience, a network, or anything to get started – just a desire to be awesome. Hell, a new client just made me a trophy for badassery!“

Too bad I’m not here to pat you on the head, rub your belly, and give you a balloon. More importantly, I’m not here to sell you anything. Honestly, I don’t really care whether you start your own practice one way or another.

So, as a young guy with a law firm, I will try and answer those questions and explain… but like all things in lawyer life, “it depends.”

Any Lawyer Will Do

“Yeah, uh, sure. We do marimate, err, maritime law. Boats and stuff, right? Those things are pretty cool.”

Normally when a potential client comes in with a case we don’t handle, or we don’t have time for, we refer them to competent counsel.The last thing we want to do is take on a matter and not do a good job with it. That is why we’re selective about who we represent.

This concept is even built into the Pennsylvania Rules of Professional Conduct:

Obviously, a lawyer is permitted and encouraged to refer cases to other lawyers where that lawyer does not have the skill or expertise to properly represent a client.

Comment 15 to Pa.R.P.C. 7.2

Shouldn’t pro bono litigants be afforded the same courtesy and professional judgment?

Apparently not. The Delaware Supreme Court reprimanded an attorney for turning down mandatory pro bono work he felt he was not qualified to handle.

Joseph Rakofsky: The Dreams of Youth are the Regrets of Maturity

Where is your God now?

Dontrell Deaner rose to notoriety after being represented by Joseph Rakofsky, who was infamously dismissed from the representation for being too awesome.

According to my fellow Temple Law alum Jamison Koehler, Dontrell Deaner was sentenced to 10 years prison today. Dontrell Deaner pled guilty to involuntary manslaughter. Apparently Deaner could have pled guilty earlier, but “he was represented by two lawyers who clearly were not up to the task:  It is hard to consider the merits of a plea offer when you are not getting the right advice.”

According to Jamie, the judge did not have kind words…

If both lawyers were somewhat circumspect, Judge Jackson did not pull any punches. Apparently not cowed by Rakofsky’s earlier accusations of defamation, Jackson noted that, while he didn’t know what the outcome would have been had better advice been given at the outset, Deaner had been represented at trial by two lawyers with “no ability to assess the quality of the evidence” against Deaner.  The Judge said that he hadn’t been aware that the trial was Rakofsky’s first ever until Rakofsky mentioned it during his opening statement.
…
The primary lawyer in the case [Joseph Rakofsky?] the Judge said, the one who had been retained, was clearly not interested in considering a plea for Mr. Deaner; he wanted to be able to say he had tried a murder case. Both lawyers, he said, were “clueless” and “motivated by self-interest.”

Keep in mind that it was Joseph Rakofsky who said “We are trusted with people’s lives. There is no greater responsibility.” So did this hubris, self interest, and cluelessness hurt Mr. Deaner’s interests?

In the end, splitting the difference, the Judge imposed 120 months of incarceration – or 10 years – to be followed by 5 years of supervised probation. That sentence is twice the term offered by the government in its initial plea offer. This was the offer that Deaner, receiving advice from different counsel, had rejected.

Since being dismissed from the case, Joseph Rakofsky has sued everyone who criticized his behavior in a ridiculous SLAPP suit. (Don’t sue me, bro… just kidding. Rakofsky knows where to find me.)

What a way to go and commit career suicide.

[Video credits: This is my brother Xander Rushie's band, Paradise Movement. Yes, my brother is cooler than me and became a musician instead of a lawyer. He is the tall guy singing.]

Winging It

It was a boring Wednesday afternoon at about 3:45pm. I was playing on Twitter, reading the sports news, and happy to have a little downtime. My phone started to ring. I looked at the caller ID and saw it was James’s partner, Chris, my former boss at Wolf Rebman. I picked up the phone and to see what was going on.

Chris sounded worried.

The Evolution of Crystal Cox: Anatomy of a Scammer

"Does anyone out there want me to write defamatory stuff about them and then buy my reputation management services to remove it? YOU CAN PAY ME IN STRAIGHT CASH HOMIE!"

Today I’m here to shine a little sunlight and tell you the entire story of Obsidian v. Cox, the matter touted as “bloggers aren’t journalists.”

Often, the truth is much stranger, and sicker, than fiction…

This is how Crystal Cox’s scam works generally: Cox calls herself an investigative blogger / journalist. She posts a bunch of negative stuff about you on the internet. Then she buys a bunch of domain names about you, your family, and your business to make sure all her posts are at the top of a Google search. But lucky for you, Cox also happens to be a “reputation management specialist.” Cox then offers to sell you “reputation management services” to clean it all up to the tune of $2500 a month.

As Carlos Miller aptly put it, Crystal Cox “is the cyber equivalent of the mob goons who firebomb your business, before demanding protection money.”

Not surprisingly, a court found this kind of behavior is not protected speech in Obsidian v. Cox.

You may remember that over the weekend I wrote a piece about Crystal Cox, when Cox went after Marc Randazza’s three year old daughter after offering to sell Randazza “reputation management” services which he declined.

Yes, you read that right – apparently Crystal Cox went after a three year old when Randazza wouldn’t buy reputation management services.

Mentorship: Who Would You Want as a Personal Trainer – the Biggest Guy in the Gym or a Supplement Salesman?

Who would you rather get weight lifting advice from?

I’ve been out of the gym for over a year. Last night I finally got back into it. And it feels good, man. It’s amazing, but even after being out for over a year I’ve retained a lot of my strength. I can still put up 60lb dumbbells without a problem, which isn’t close to where I used to be, but it’s not bad for someone whose physical activity has been pretty limited for a year.

What’s the Worst That Could Happen? Mentorship [Updated]

A good mentor isn't there to build your self esteem

When I first started practicing in 2008, I had a head full of steam, a desire to be a rainmaker, and very little experience. I thought clerking for a law firm, graduating law school, and passing the bar exam had taught me everything I needed to be a lawyer. I was wrong.

Now, I had gone from college straight to law school. So admittedly, I had no idea how lawyers generate clients. Like any person my age, I punched in a Google search and tried to learn all I could about lawyer marking, how to get clients, and how to build a law practice. Man, there was a whole world out there just looking for lawyers on Facebook, Twitter, and the internet. I learned about what search engine optimization (“SEO”) meant and how that had to be “optimized” to make sure potential clients (or “PCs” as it’s called by all the cool kids) could find me.

And there were all kinds of great organizations out there willing to help a young lawyer like me generate clients and build the practice of my dreams. For a reasonable fee, of course.

I’ve written about this before, but my boss James wasn’t too impressed. His opinion went something like this: “Kid, you gotta learn how to be a lawyer first. Worry about that stuff later. Try a jury case or two and then we’ll talk.”

At the time, I thought James was just old, critical, and “didn’t get it.” Naturally, I ignored him and decided to talk to people who specialized in attorney advertising.

One piece of advice I got was this: “As a young lawyer, you shouldn’t put when you graduated on your website. PCs will know how green you are. You don’t want that.”

Made sense at the time. I believed this person was “in the know”, and that’s what you had to do as a young lawyer to become successful.

Later that year I finally convinced James to put up a website. (this was more for my benefit than his.) Before putting it up, I discussed my bio with him:

“Looks good but the year you graduated isn’t there.”

“I don’t want to put that in my bio.”

“Okay. Why not?”

“I was told that potential clients will know that I’m a newbie lawyer and be less inclined to hire me.”

“That’s probably true, but did you think of this… let’s say a client hires you. Then let’s say something goes wrong, and they complain about you to the disciplinary board or file a malpractice claim. That stuff does happen. Don’t you think one of their issues is going to be that you made it seem like you had more experience than you actually did? That they were mislead? So don’t you think it’s better to to have a bio that accurately reflects who you are and what you’ve done, so that a potential client can make a fair and informed decision about whether to hire you? I’m not saying it’s “unethical” to omit the year you graduated on the website, but I think the more open and honest you are, the less of a chance you have of something blowing up in your face if something goes wrong. I would use that omission against you in a malpractice claim, personally.”

I hadn’t thought of that. All I had thought of is getting potential clients – not “what’s the worst that could happen.” However, James had prosecuted many malpractice actions before, and knew what to look for.

And I think this reflects the difference between real lawyers and legal marketers. When you present a scenario before a lawyer like James, they’ll analyze it with a mind towards “What’s the worst that could happen?” And they’ll do this by relying on their past experiences. In contrast, lawyer marketers, some who have little or no legal experience, have one goal – to get PCs on the phone. And they don’t usually have the type of experience James has to truly view it from a “what’s the worst that could happen” standpoint.

Which brings me to Rachel Rodgers.

Rachel has built a law practice for GenY, vowing to do things differently and “her way.” A column on Solo Practice University describes Rachel:

When she graduated from Benjamin N. Cardozo School of Law in 2009, she decided that she was not going to let her hefty law school debt and the troubled economy stop her from practicing law her way.

…

Rachel uses techniques that have not been widely accepted among private law firms to gear her practice towards young business owners.

However, Rachel’s legal career has been somewhat controversial. For instance, Tempe Criminal Defense Lawyer Matt Brown wrote an article questioning her use of a virtual office in Arizona although she is only licensed to practice in New York and New Jersey. This week Brian Tannebaum and Carolyn Elefant wrote pieces concerning a few of Rachel Rodgers’s YouTube videos, where she may or may not have dispensed legal advice about forming LLCs. Brian suggested that Rachel may not have appreciated all of the risks about putting up a video like that, despite a disclaimer saying “This isn’t legal advice.” Just because you say “this isn’t legal advice” doesn’t necessarily make it so.

What I’m wondering is where Rachel is getting her mentoring advice.

A quick trip to Solo Practice University advertises:

For myself, Susan Cartier Liebel, and for thousands of law students and new lawyers who want to call their own shots practicing law right now – shuffling paper under someone else for the next few years wasn’t an acceptable option.

…

Solo Practice University® was created to replace the apprentice experience – without sucking up years of your life. It’s a single online destination where lawyers and law students learn the basics of running a solo practice, take classes and get expert feedback from professionals in specialized fields.

That sounds like a great idea.

But there’s just one problem – you don’t become a competent lawyer overnight. It takes time, experience, and good mentorship.

Part of the “apprentice experience” involves being told “no” and “that’s a bad idea because it will possibly get you sued for malpractice or in trouble with the state bar. Trust me, I’ve seen it happen.” It also involves being told that the practice law is adversarial, and you can’t expect clients, judges, or adversaries to be nice to you because you’re a baby lawyer.

A true mentorship experience isn’t always a fun or nice experience. It does not involve building your self esteem and being told how great you are. Sometimes it involves scaring the fear of God into you, because bad things can happen. Many young lawyers will grow up being told they’re a precious little snowflake to build their ego. A good mentor will break that ego down.

If Rachel had called a lawyer like James before hand and said “I want to put up a YouTube video about forming an LLC”, James probably would have responded “Don’t you think that it could be construed as legal advice? Even if you say it’s not? And that it could possibly have ethical and malpractice ramifications? Even if it’s not, do you really want to be answering the question before a malpractice lawyer or the state bar?”

I appreciate that James told me “no” so many times. And it’s not because James is a mean person who likes to shoot down my hopes and dreams, it’s because he’s seen “the worst that could happen” in his long legal career. He’s prosecuted professionals who have made mistakes. He has seen colleagues lose their law licenses and livelihood. If he wanted to see that happen to me, he would have said “Go for it!”

In contrast, if Rachel were to ask a legal marketer what to do, I’m guessing that the advice would probably be “Go for it! I’m sure you’ll get lots of phone calls!” Because the focus of a legal marketer is making the phone ring, not figuring out what’s the worst that could happen. Most lawyer marketers haven’t defended a state bar inquiry, handled a malpractice claim, or had to subdue an angry client. Their experience involves how to use Twitter and Facebook, and using social media to make the phone ring.

Is anyone telling Rachel “no” or “Did you consider this…?”

Which begs the question – is Rachel getting advice from a good mentor, or lawyer marketers?

[Update] A day after Brian Tannebaum pointed out why giving legal advice on YouTube is a bad idea, even if there is a cheeky disclaimer, Rachel Rodgers decided to double down and up the ante by giving really bad legal advice posting a video on how to draft your own contracts. Well, how to draft your own contracts, which you shouldn’t do, but if you do, here’s how to do it. Etc etc.

In response, here’s some free advice from yours truly: for the love of God, don’t try and draft your own contracts. Hire a lawyer in your state who will discuss your individualized needs and the current state of the law. A lot more goes into drafting a contract properly than Rachel’s video suggests.

Rest assured, there will be things you don’t think to think about. There may also be case law floating around affecting certain types of contracts – i.e., the law concerning a contract with a restrictive covenant might be different than a contract for the purchase of goods. A commercial lease might be viewed differently than a residential lease, and certain provisions might be enforceable in one context but not another. There may be certain statutes that could affect the contract. Plus, that contract you downloaded from the internet might have been good at one time, but the law changed and now it’s not. It all varies from state to state, could depend on the type of contract, plus the state of the law changes from time to time. It’s more complex than one would think. A lot of thought goes into avoiding pitfalls for the unwary. Avoiding these pitfalls is what lawyers are trained to do.

I’m sorry for the “typical lawyer” answer, but drafting a proper contract depends on factors too individualized to be appropriately addressed in a video or a blog post. In addition, a template may not address certain issues that are unique to your business, because what’s appropriate for one seemingly similar business might not be for another. (which Rachel did kind of address) For instance, what works for a supermarket might not be appropriate for a food truck, even though they both sell food.

That’s why a competent lawyer will analyze these issues and help you come up with something that fits your specific needs, and avoids pitfalls the untrained might not know about.

You see, real lawyers don’t simply sell fancy sounding documents. They research the state of the law, learn about your business, and then draft something appropriate for whatever it is you want to do. Drafting contract is not like hard boiling an egg, and there are a lot of pitfalls for the unwary, many of which depend on very specific bodies of law.

That’s why a video like this, in my view, is irresponsible. Rachel starts by saying “You should hire a lawyer” (good advice), then goes on “but  if you don’t want to do that, here’s what you should think about”. To borrow a line from Scott Greenfield: “I advise against testing to see if the electric is on with your tongue, but if you want to, here’s a video on how to do it.” The video itself gives the viewer the impression that maybe they don’t really need a lawyer, and maybe drafting a contract isn’t all that difficult. Then she omits, well, a ton of other things a person should probably look for. Because those “other things” can’t be addressed in a short video – they will depend on the specific situation, the state of the law, other factors that need to be individually tailored to one’s needs.

So, without further ado, I will tell you that, like Rachel, I think using templates is a bad idea. However, I don’t think you should try and draft important legal documents like contracts yourself. There are too many pitfalls out there that you might not know about, which a good lawyer will help you avoid.

My advice: hire a lawyer in your state who does this type of work. Period. Your business is worth spending what it would take to have a competent lawyer protect your interests. Chances are, you will save a lot of money in the long run by doing it right from the start.

I’m not saying this to keep law “inaccessible” to lay people, I’m saying it because you don’t know what you don’t know. Contract law is very complex, and varies from situation to situation. It’s often state and subject matter specific. Lawyers are professionals whose job it is to help you navigate these issues, not simply salespeople of fancy documents.

And you can quote me on that.