Remember the "Don't Do" list from tip #5?Some clients may belong on your “don’t do” list. Every lawyer has horror stories about bad clients, clients they never should have agreed to represent, matters they should not have agreed to take on or that got out of control and caused a financial loss.
In order to keep your best clients coming back and referring additional work to you, you must ensure that lower value clients are not taking the place of higher value clients. One way to keep focusing on the highest value clients in your practice is to get rid of the bottom tier of your clients.
The 80-20 Rule
You may be familiar with the 80-20 rule, also known as the Pareto Principle, in which 80% of your work comes from 20% of your clients. Twenty percent of your clients will cause 80% of your problems.
Focusing on your best clients, rather than on your worst clients, brings a big return. Unfortunately, in reality, the bad clients tend to get more of a lawyer’s time and attention than the good clients.
Consider firing your “nightmare” clients, clients who don't pay on time or aren't the proper fit for your practice - your practice will benefit, and so will you.
Don't Be Afraid to Fire Bad Clients
While the idea of firing clients might be a scary one, allowing bad clients to pull your focus from your highest value clients can be even more detrimental to your practice.
Bad clients drive out good clients. If your practice is filled with lower value clients that don’t value your work, that are price sensitive, or whose work you just don’t feel like doing, you won’t have room in your practice to take on the higher value clients. And you’ll shortchange your existing high value clients because you’ll be focusing on the problem clients.
You might be afraid that turning away the client isn’t a prudent financial move. But not all clients are profitable. Consider the damage that bad clients do to your bottom line, your stress level, your focus and ability provide quality work not only for the bad client, but for other clients as well.
Bad clients and/or low value matters (or matters that are a bad fit for you):
Drain your energy
Make it more difficult to concentrate on the matters you’re handling for your best clients
Prevent you from seeking additional work from your good clients
Cause you to turn away business from a potentially good client because you’re too busy working on lower value matters or with bad clients
Sabotage your productivity
Increase stress and anxiety
Is it time for you to get rid of some clients? Perhaps there’s another lawyer in your area who needs additional work, or that is a better fit for your “bad” client’s personality or the type of work that client wants or needs. Now is the time to pull out your “go to” list.
Being busy isn’t the same as being successful or profitable. Getting rid of bad clients makes room for you to take on additional, higher value clients – and chances are that your higher value clients will be less price sensitive. Often, you can make more money with less high value clients than you can with high volume practice filled with lower value clients.
Getting rid of less desirable clients is only part of the solution. Once your practice is free of bad clients, you’ll want to keep it that way by not taking on those problem clients in the first place. You’ll need to put some systems in place to help you determine at the outset which clients are good clients and which are bad ones so you can send the bad ones packing before they cause trouble for your practice.
This post is excerpted from the upcoming book, How to Do More in Less Time: The Complete Guide to Increasing your Productivity and Improving Your Bottom Line, which I co-authored with Dan Siegel, due for publication later this year by the ABA Law Practice Division.
This month's issue of Law Practice Magazine is all about finance. If you're looking for some tips on how to improve your firm's financial performance, this month's issue can help.
For example, check out this article from Peter Roberts on starting a financial relationship with your client, in which Roberts shows you how a few minor tweaks in the way you package your fee agreement can make all the difference in the world to your clients.
If your financials aren't in the best shape, you might be interested in Jessica McKeegan Jensen's article on Pristine Financials, which will show you exactly what you need to know to get your financials in shape, and help you properly categorize income and expenses so that you get a better picture of exactly what's happening with your firm's money and what it means so that you can make improvements.
Once your financials are in shape, it might be time to review your malpractice insurance policy. Thomas Watson and Reid Trautz show you what to look for in your policy, what to consider when completing your application, and provide some tips on preventing claims by instituting good risk management policies. Having the incorrect malpractice coverage could cost you money - in more ways than one - so be sure to read through their article.
Need a loan? Sylvia See's article, "A Lawyer's Guide to Business Credit" tells you what bankers think when they're considering offering loans to law firms and what you can do to improve your chances of getting a loan when you need it.
Eric Seeger's article, "2014: Law Firms In Transition" looks at Altman Weil's Law Firms in Transition survey and lets lawyers know what they should be considering in the areas of change, staffing, pricing, and leadership going forward.
This month's magazine also contains regular columns on the Law Practice Division's four core areas, marketing, management, technology, finance and more. Don't miss my Simple Steps column on Improving Client Communications. After all, nothing impacts your bottom line more than having a good relationship with your clients.
What do you think? What are you experiencing in the legal field - is there a gender gap? If there is, what are your suggestions for closing the gender gap? Do you think women in the legal field are contributing to the existence of a gender gap or helping to eliminate it?
In February of this year, I posted an interview with attorney Jeena Belil about how she uses LinkedIn Groups to help develop her business. I recently spoke with another attorney, Jonathan, who has also achieved success using LinkedIn. In fact, his participation on LinkedIn, particularly with Groups, helped him to not only land his current job, but also to obtain clients and referrals.
The job search
One of the advantages of using LinkedIn Groups is the ability to send messages to other members of the Group, even if you’re not connected. Jonathan started using this feature and found it to be very helpful in his job search. He looked at the members of his Groups to see who was a recruiter or had hiring as part of their job title or job description. He contacted those people to let them know of his job search and, as a result, made many good connections.
Jonathan also joined a group comprised of alumni from his law school and then reached out to connect with those he wasn’t already connected to.
With an LLM in tax, Jonathan was interested in obtaining a position with a tax firm. He had some contacts at a major firm and sent a message to one of those contacts. She forwarded his information on to a colleague in one of the firm’s other offices where there was an open position and Jonathan got the job.
Jonathan says that initially, he was reluctant to attempt to directly connect on LinkedIn with people he didn’t know, but then he realized that people are using LinkedIn specifically for networking purposes; making contacts is the reason they’re on LinkedIn in the first place, so he decided to go for it. He found that most people were very receptive. In Jonathan’s experience, response rate was much higher using LinkedIn to reach out to others than cold-calling someone’s office or sending a random email.
If you’re looking for a job, there are even more reasons to be on LinkedIn, according to Jonathan:
Employers are nervous about who they are hiring and how their new hire might reflect on their company; having a LinkedIn page makes you look like an adult - a professional.
Don’t worry if none of your friends are using LinkedIn; if you’re the only one who is there, you’ll have an advantage over others.
The more jobs that get filled through LinkedIn, the fewer will be in the newspapers or posted in other places. Those who are not on LinkedIn won’t even know that these opportunities exist. Jonathan knows this first-hand; he saw a posting for a job on LinkedIn and emailed a friend who was looking for work. His friend ultimately got the job, but if it weren’t for LinkedIn, he wouldn’t have even known the position was available.
But don’t take Jonathan’s word for it. Irene McConnell, founder of Arielle Careers, a personal branding agency, says, “In the next 5 years we'll see it completely upend up our flawed recruitment industry, presenting well-connected LinkedIn users with a flood of job opportunities.”
While LinkedIn may not replace the traditional resume in the legal field just yet, recruiters and head hunters are definitely using LinkedIn to vet candidates and build up an accurate picture of you. Recruiters use LinkedIn’s paid plans to get greater searches, but you won’t get found if your Profile doesn’t accurately reflect your skills, or if it doesn’t contain enough information to put you in the search results.
Building relationships and finding clients
Now that Jonathan has landed his job, he continues to stay active in LinkedIn Groups and to otherwise participate on LinkedIn. He reads news relevant to his area of practice and tries to re-post or share information that he thinks would be interesting to his connections in LinkedIn Group discussions. He has even been named a “top contributor” on one of the Groups he participates in. He believes his LinkedIn activity shows his value both to his current employer and potentially to a future employer, recruiter or head-hunter.
In addition, Jonathan says that since his area of practice can be complicated, it pays to demonstrate his knowledge. He says, “Once people view you as someone who knows what they’re talking about in a particular area, they’ll start seeing you as a ‘go to’ person and will come to you when they have questions.” He notes that the best way to get business in his area of practice is from other lawyers who don’t know the tax issues that might be involved in their client’s matter, or who need help to refer a client.
In addition to using Groups on LinkedIn, Jonathan recommends using a strategy to connect and build your network. Although you may ask your friends for referrals, they may not realize who they know who would be a good connection for you. But using LinkedIn, you can view their connections, see who your friend knows that you would like to know and ask for an introduction.
Jonathan believes that social media, and LinkedIn in particular, is a great way to develop business. He thinks, “if you’re not on LinkedIn, you’re crazy,” because "everyone in a service business (including lawyers) is always looking for clients, and being on LinkedIn and participating in Groups is free advertising. You often get instant feedback and you can see how many people are interacting with what you post."
In a recent article writen for law firm managers looking for jobs from which the Irene McConnell quote mentioned above was taken, McConnell suggests several steps to help you get results using LinkedIn for your job search. But the fact is that these steps don’t apply just to looking for a new job; they also apply to those looking to land new clients, especially institutional clients.
Here’s my take on some of her suggestions.
First, start with making a list of who you want to target on LinkedIn, whether that is potential employers, recruiters, potential clients or referral sources. Starting following them on LinkedIn and other social media.
By listening to what your target audience is saying on social media, you’ll learn about what is important to them, what challenges they’re facing and possibly even what some of their goals are. This information is invaluable for determining how to reach out to these people (whether directly or indirectly), ascertaining what kind of information you may be able to provide to them, and for developing your services in a way that meets their needs.
Another great advantage of LinkedIn is being able to see who works for what companies and in what capacities. Once you’ve identified your target audience of businesses, companies or employers, you can search their employee lists to identify decision-makers, in-house counsel, or people that hold specific positions within that company, just as Jonathan did when searching for those with positions related to hiring. Where appropriate, engage people in conversation and follow up with a personalized connection request.
Look for people within your target audience who blog or write articles online or for industry or trade publications. Comment on their posts and engage them in conversation. As the conversation continues, consider connecting with them directly.
Write articles or posts on your own LinkedIn profile that speak to the concerns, goals and challenges you’ve identified based on your target audience. Post them to LinkedIn Groups where appropriate, or start Group discussions on those topics and then direct those who comment on the discussion to your article.
Take online relationships offline – offer to meet for coffee or set up a telephone call.
How are you using LinkedIn, and has it been successful for you?
In this month's "Big Ideas" issue of Law Practice magazine, Dennis Kennedy's article, The Productization of Legal Services talks about the possiblity of lawyers adapting traditional legal services into information products that can "make law firms money while they sleep" and act as marketing pieces for the firm's legal services which, as Kennedy points out, may result in potential clients actually paying lawyers to market to them.
There has been a lot of talk in recent years about the "commoditzation" of legal services, particularly with changes in technology and services such as LegalZoom which provide access to some legal services that were formerly the exclusive province of lawyers. Lawyers rail against this idea of commoditization, sometimes for good reason. But what if, instead of fighting against this trend, lawyers started to work with it?
What if, as Dennis Kennedy suggests in his article, lawyers began to look strategically at the work that they do and the parts of that work that could be turned into information products and distributed widely to the public either as pure marketing pieces or as low-cost introductions to the firm's services, reaching the market of those who cannot afford, or believe they cannot afford (at least initially) the firm's services?
If these potential clients couldn't hire the firm at their regular rates anyway, is the firm really losing money by providing these resources and making a small amount of money? Or is the firm adding to its reputation, providing needed resources and potentially creating an expanded market for their regular legal services? Some potential clients might use the product to educate themselves about the area and then decide that they do need help after all and contact the firm. Or they may contact the firm for a future need, recalling how helpful the firm's product was.
This strategy might be particularly helpful for solos, small firms and new lawyers who are seeking to build a reputation or become known in their community.
In his article, Kennedy suggests a nine step process for productization, including:
Taking an inventory of the firm's information assets
Identifying potential products
Researching the market
Determining who will create the products from existing assets
Deciding how information products will be created
Diversifying product offerings
Setting prices
Of course, the decision to create and sell information products needs to be considered strategically. Kennedy also lays out some areas that firms should explore when creating these products, including those around ethics, compensation, and ownership of intellectual property in the products created.
What kinds of products might law firms create?
The article provides a few examples of information products that could be created by law firms, such as a software program that computes actuarial factors for tax planning, legal topic training videos, and a subscription-based research package. Other examples might include checklists (a checklist for individuals or businesses entering into a lease agreement), books or guides (a book on how to maintain your property for the greatest resale value, or a guide for HR managers on interviewing or keeping good personnel records), and more.
You might consider doing an inventory of your existing "assets" as the article suggests, even if you're not sure you're ready to begin creating information products. In my experience, most law firms have plenty of information that could be repurposed for marketing purposes, if not for sale, and many of these assets languish, forgotten, in law firm computer systems, rather than working for the firm. An inventory of these assets might even spark a great idea for an information product.
How do you think creating information products might help your practice? What kinds of information products do you think your clients would be interested in?
Last month, the Professional Ethics Committee of the State Bar of Texas issued Ethics Opinion 642, which addressed two questions:
May a Texas law firm include the terms “officer” or “principal” in the job titles of the firm’s non-lawyer employees?
May a Texas law firm pay or agree to pay specified bonuses to non-lawyer employees contingent upon the firm’s achieving a specified amount of revenue or profit?
The answer to both questions was no.
As to the first question, the opinion noted that the Texas Disciplinary Rules of Professional Conduct do not permit non-lawyers to have ownership interests in law firms, and that using the terms “officer” or “principal” would be misleading to the public, because those terms commonly indicate an ownership interest or control over the firm or significant portions of its operations.
The opinion cites the Texas rule (Rule 5.4) prohibiting lawyers from sharing legal fees with non-lawyers or from practicing law with any organization in which a non-lawyer is a corporate director or officer, or in which a non-lawyer has the right to direct or control the professional judgment of a lawyer. Lawyers cannot form partnerships with non-lawyers if the purpose of the partnership is the practice of law.
With respect to the second question, the opinion states unequivocally that any bonuses paid to non-lawyers that are tied to achieving a specified level of revenue or profit are prohibited because these types of bonuses
would provide an incentive for the firm’s non-lawyer employees to increase revenues, which could be accomplished through soliciting clients, or to reduce expenses, which could be accomplished by interfering with a lawyer’s independent judgment in practicing law. Furthermore, tying a bonus to achieving a specified level of profit is similar to tying a bonus to achieving a specified level of revenue because profit is a function of revenue and expenses.
However, a law firm is permitted to take profit into account when determining whether to pay bonuses and what the amount of those bonuses should be.
Non-Lawyer Officers in Law Firms
The Texas opinion does not mark the first time the issue of nonlawyer officers in law firms has sparked discussion regarding legal ethics. When Pepper Hamilton appointed a nonlawyer CEO in 2012, there was much discussion about whether the appointment was a breach of professionalism. And after the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 464 in August of 2013, additional debate about nonlawyer ownership emerged (See this article from the ABA Journal).
Earlier this year, an article in Above the Law suggested that, “When law firms have to rely on banks for loans, they’ve already forfeited some measure of firm control,” and that if firms had the opportunity to bring in (nonlawyer) investment partners committed to the long term survival and success of the firm, perhaps some large firm collapses would not have occurred.
In November of 2012, the New York State Bar Association issued the Report of the Task Force on Nonlawyer Ownership, and at the House of Delegates Meeting of the New York State Bar Association held the same month, the House approved the recommendations contained in the report, opposing nonlawyer ownership of law firms, despite the growth of nonlawyer ownership in other jurisdictions, including the United Kingdom, Australia, Canada and the District of Columbia. None of the 50 United States currently permit nonlawyer ownership in law firms.
Although I am unaware of any opinions in New York which address the issue of non-lawyer officers in New York firms, it is clear that New York prohibits nonlawyer ownership of law firms. New York’s Rule 5.4 (Professional Independence of a Lawyer) says:
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm or another lawyer associated in the firm may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that portion of the total compensation that fairly represents the services rendered by the deceased lawyer; and
(3) a lawyer or law firm may compensate a nonlawyer employee or include a nonlawyer employee in a retirement plan based in whole or in part on a profit-sharing arrangement.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) Unless authorized by law, a lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal service for another to direct or regulate the lawyer’s professional judgment in rendering such legal services or to cause the lawyer to compromise the lawyer’s duty to maintain the confidential information of the client under Rule 1.6.
(d) A lawyer shall not practice with or in the form of an entity authorized to practice law for profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a member, corporate directtor or officer thereof or occupies a position of similar responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Nonlawyer Compensation in New York
Rule 5.4 also governs compensation of nonlawyers in law firms, as shown above. But there is a notable difference in the New York and Texas rules. In Texas, Rule 5.4(a)(3) states, "a lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement."
However, the New York rule permits law firms to not only include non-lawyer employees in retirement plans based on profit-sharing, but also to compensate non-lawyers based on profit sharing. Although the New York rule used to mirror the Texas rule in this regard, the New York rule was amended in 1999. (The ABA Model Rule contains the same language as the New York rule).
Comment [1B] to New York’s Rule 5.4 notes that:
Paragraph (a)(3) permits limited fee sharing with a nonlawyer employee, where the employee’s compensation or retirement plan is based in whole or in part on a profit-sharing arrangement. Such sharing of profits with a nonlawyer employee must be based on the total profitability of the law firm or a department within a law firm and may not be based on the fee resulting from a single case.
In October 2000, the New York State Bar Association Committee on Professional Ethics issued Opinion 733, which addressed the question of whether a nonlawyer employee was permitted to be paid a percentage of profits or fees attributable to specific client matters referred by the employee. The opinion concluded that the firm was not permitted to base compensation on the success of specific efforts by employees to solicit business for lawyers or law firms.
But the situation gets a bit sticky if the nonlawyer employee is a marketer.
In November 2011, New York issued Opinion 887, which addressed the issue of compensation of a non-lawyer marketer. The opinion stated that bonuses for non-lawyer employees cannot be based on referrals of particular clients or matters, and may not be based on the profitability of the firm or the department for which the employee markets if such profits are substantially related to the employee's marketing efforts. However,
Where profits of the firm or the department are not directly correlated with the employee's marketing efforts, a bonus plan based on a percentage of the employee's salary or a percentage of the overall profits of the firm would pass muster under the Rule.
It is difficult to ascertain the circumstances under which this might apply. After all, the assumption would be that the marketer would deserve a bonus if their efforts were successful in bringing business to the firm, which would assume that the profits upon which their bonus was based would be "substantially related" to their marketing efforts.
In March of 2012, New York State Opinion 917 was issued, which concluded that
A law firm may ethically pay a bonus to a nonlawyer employee engaged in marketing based on the number of clients obtained through advertising provided the amount paid is not calculated with respect to fees paid by the clients. The law firm may not pay a fee for the referral or recommendation of a specific client.
Thus, it seems that successful nonlawyer marketers may be compensated with profit sharing based on the number of clients obtained, but not based upon the profits resulting from those clients.
What do you think: would nonlawyer ownership be good or bad for the legal profession and the clients it serves? Should nonlawyers be permitted to be "officers" in law firms, even if they don't have an ownership interest?
I recently had the pleasure of being interviewed by Sarah Poriss for a video series especially for solos, called The Art of Being Solo, which will begin airing on June 16, 2014. The series provides insights from a variety of experts on a number of different topics from marketing to billing and everything in between.
The host of the summit, Sarah Poriss, is a solo herself, and she loves the business side of running her practice. She interviewed me and others to explore the issues and challenges faced by solos and small firm attorneys to answer the question “How can we all build a law practice that we love and that inspires us?”
If you're interested in the series, register for free access here.
The topic of my interview was billing and alternative fees. Alternative fee arrangements may not be easy to implement, particularly for brand-new solos, but when used properly, they do have a number of advantages, including:
Cost and revenue predictability
Development of project management skills
Emphasis on value over hours
Increased trust and stronger client relationships
Greater transparency
Improved communication
Alternative fee arrangements may require more work for the attorney, including more in-depth conversations with clients about their goals, budget and expected outcomes; more up-front planning; a better understanding of costs involved in providing services; tracking of budget and fees throughout the engagement; some level of standardization; project management skills; and an acceptance of some risk. But the rewards can be well worth it - and many clients are coming to expect (and indeed deserve) these services regardless of your fee structure.
Whether you decide to implement alternative fee structures in your practice or not, you should be as transparent with clients about your billing practices as possible, ensure that your bills are sent timely and that they are consistent, realistic and sufficiently detailed that clients can easily understand what was done, by whom, when, and why.
If you want to hear more about billing and alternative fees, check some of my other blog posts and articles on these topics:
...and watch my video in Art of Being Solo series (and you'll get even more tips with my free giveaway, too). But whether you're interested in billing or not, access to the entire video series is FREE, so check out some of the other experts as well by registering here. But don't delay - these videos will only be available for a limited time!
Last week I had the privilege of participating in a panel presentation on social media and the internet for lawyers at our local bar association. On the panel with me were a jury consultant and two trial court judges. I started the program with an introduction to the major social media platforms, ethical pitfalls for attorneys using social media for marketing and business development, and a discussion of the reasons lawyers need to be familiar with social media platforms and how they're used - even if those attorneys are not going to use social media themselves. My fellow panelists discussed how internet use and social media have changed the landscape for trial attorneys.
This morning, one of my fellow panelists, Edward Schwartz from TrialGraphix, alerted me to yet another example of why lawyers need to keep abreast of these issues and how they might affect their clients' cases.
In a St. Louis sexual harrassment case brought by a female police officer who claimed not only sexual harassment, but also retaliation after lodging a complaint, a juror used Google to do research about whether the plaintiff would receive the proceeds of a punitive damages award. The jury verdict was for $7.5 million, $7.2 million of which represented the punitive damages award.
It has been reported that, after seeing the reaction of the attorneys to the award when it was read in the courtroom, the juror who performed the search confessed his misconduct. Further hearings are being held to determine whether the misconduct affected the award and whether a new trial will be granted.
This is just one example of how mobile devices and the use of the internet has changed the practice of law. Of course, this particular tale doesn't involve social media, but there are plenty of other examples that do involve social media (see my previous post on Confidentiality, Ethics and Social Media, which involved a client's family member' use of social media that jeopardized another award or this article discussing issues with respect to jurors and social media).
Other issues that may arise with social media during your representation of a client include:
Accessing social media sites of parties or witnesses in litigation for discovery and investigation
Accessing juror's social media sites for jury selection and information about how best to present arguments to particular jurors
Jurors accessing attorneys' social media sites to research the attorneys involved in the case
Preservation of social media evidence in litigation
Use of social media posts as evidence at trial
It is no longer acceptable for attorneys to close their eyes and ears to social media; even if you aren’t planning to use social media yourself to market your practice, it makes sense to have a working knowledge of at least the basics of each of these platforms, what they’re used for, who uses them, and how.
Clients, witnesses, adversaries and jurors are all using social media tools, which may become a key component in a client's case. Since almost everyone has a powerful computer in their pocket these days in the form of a smartphone that they can use to post to or obtain information from the internet almost any time, anywhere, it is imperative that lawyers stay informed about these issues.
And if you need further incentive, in 2012, the American Bar Association amended the Model Rules of Professional Conduct to make clear that lawyers have a duty of competence with respect to technology. Specifically, the ABA amended Comment 8 to ABA Model Rule 1.1, governing competence, to provide:
Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
One way to get an introductory knowledge of these issues is to review our presentation from last week. Contact the Suffolk County Bar Association to find out how to purchase or view an online recording of our program, "Social Media in Litigation and Law Firm Management."
I recently received an inquiry from the marketing director at a law firm who asked,
Can you guide me on something regarding settlement confidentiality agreements and social media? I am assuming that if I use social media to talk about a settlement without mentioning names, I am OK. True?
No, not necessarily true -- particularly where there is a confidentiality agreement in place!
The marketing director gave me two examples of proposed posts, similar to the ones below:
Just settled $2.5 million dollar case for failure to diagnose breast cancer.
and
XYZ Law Firm has settled a case for $3.5 million dollars for a 49-year old Any County woman whose doctors failed to diagnose a blood clot which resulted in a stroke.
Confidentiality agreements
I wasn't given any information about the confidentiality agreements or what they contained, and I have no intention of providing legal advice with respect to these issues, but posts like these do raise potential ethics questions, as well as legal questions.
For example, in February of this year, the Third District Court of Appeal in Florida, in Gulliver Schools, Inc. v. Snayfound that a confidentiality agreement had been violated where Snay's daughter posted on social media that her parents had won the case against the school. In that case, the confidentiality agreement prohibited the parties from disclosing the existence or terms of the agreement. Technically, Snay violated the agreement by telling his daughter about it, but it was her social media post that brought it to light.
While the proposed posts sent to me by the marketing director don't contain the names of the parties involved, giving details such as the county in which the plaintiff resides (likely the county where the suit was brought), age of the plaintiff and amount of the settlement might allow others to use public information to find the names of the parties, and might violate the confidentiality agreement by disclosing terms.
Ethics and Disclaimers
Putting any confidentiality agreement aside, these social media posts may very well violate ethical rules, even if it is otherwise legally permitted. In many jurisdictions (including the one in which this firm practices), any posts about results would need to be accompanied by a disclaimer stating that prior results do not guarantee a similar outcome.
Further, there was no indication by the marketing director that their client had consented to the firm disclosing information about their case, which may, again, be required under ethical rules.
ABA Model Rule 1.6 limits what a lawyer can say about the lawyer's own cases and clients. It provides:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Posting about clients online can be risky. If the information is in the public domain and/or the lawyer or firm has done their ethics homework and includes the required disclaimers, obtains consents and follows other rules, there may not be trouble. And posting some results on law firm websites may make sense; they can help to demonstrate the kinds of cases the lawyer or law firm handles and the fact that they have knowledge or experience with specific issues or problems.
But social media posts are generally limited in length and don't lend themselves to the kinds of disclaimers that might be required. And there is a real question about whether these kinds of posts are actually effective.
Indeed, the real question may be, "Is this the way lawyers should be using social media?"
Social Media Done Right
While more and more law firms are embracing social media, they still don't seem to "get" that social media - even platforms like LinkedIn that are all about business - are not primarily meant for promotional purposes. People will tune out if all of your posts say, "Look at me!" or "My law firm is the best! Aren't we wonderful?!"
Social media is about providing relevant and valuable information to your audience, whether your audience consists of clients, potential clients, referral sources, colleagues journalists or others, and then engaging with those individuals to build relationships. No one likes to be around the person who talks about themselves all of the time at a cocktail party or networking event. It's the same online. There's a time and a place for everything, and social media (particularly certain platforms) isn't always the place for these kinds of 'announcements.'
Instead of focusing on themselves, lawyers should think about how their social media presence can provide value to the audiences they're trying to reach.
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