Ethics conundrum: lawyering is a business as well as a professional service

By Edward Poll Dolan Media Newswires Lawyers run the risk of disciplinary action by using traditional marketing tactics to reach prospective clients. The rules of professional conduct are replete with restrictions on marketing, advertising, solicitation, the use of social media and more. Bar associations will not provide professional education credit to lawyers for programs on how to be profitable, let alone how to be more effective in their marketing. I have said on a number of occasions that lawyers are no different than any other trade or profession. Perhaps we are not alone after all. Recently, my daughter was honored by being among the first of 64 people to receive a specialty designation given to physical therapists for women's health. As a very proud parent, before the ceremony I read a physical therapists' magazine. In a letter to the editor, the writer said the "practices (suggested) are strikingly similar to these now-discredited methods that industry uses to promote their products. "The very first recommendation designed to increase physician referrals is to give physicians 'useful promotional items' such as 'branded' notepads ... to 'Turn Patients Into Fans,' we are told to provide 'a gift certificate to complementary businesses as part of the discharge process for all patients.'" The writer of this sentiment is a professor. I suspect he doesn't earn, and hasn't for some time, his living as a practicing physical therapist. In a similar vein, those making the rules for lawyers generally are not the lawyers on Main Street. They are not among the 50 percent of the lawyers who earn less than $100,000 annually. They are not among the thousands of lawyers currently unable to find gainful employment with law firms. Yet they are the ones imposing restrictions on traditional, normal and reasonable business tactics to communicate with and educate one's target market and prospective clients about legal services available to help address clients' challenges. The California Bar Journal recently ran an article with a retrospective on the new rule mandating disclosure when a lawyer does not have malpractice insurance. The proponents of the disclosure rule used the argument that 70 percent of all claims made were against small-firm lawyers. That, presumably, makes all small-firm lawyers "bad." And since most of the 20 percent of the lawyers who don't carry malpractice insurance are solo and small-firm lawyers, we, a priori, must require lawyers to either have such insurance or disclose that they don't have it. Supposedly, this will protect the public. As I was reading the article, I suddenly had a "duh" moment! Of course 70 percent of the claims would be against that group of lawyers. By all estimates I've seen, sole and small-firm practitioners comprise 70 percent or more of the profession. In other words, it's nothing more than a pro rata statistic. That should not be surprising to anyone. It is clear that the public will not be protected by the new rule. What might protect the public is for the bar to use its economic muscle and cause insurers to provide affordable malpractice insurance and then mandate its purchase in order to practice law. But the bar doesn't have the stomach to face the political backlash. It's unfortunate that there are those in our and other professions who fail to understand that a professional service is also a business. And communication to prospective users of these services should be restricted only by truth, fairness and honesty, not outdated concepts of the guild. Attorney Edward Poll is a speaker, author and board-approved coach to the legal profession. Visit his interactive community for lawyers at: www.LawBiznForum.com. Published: Mon, Jun 28, 2010

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