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.