Ethics Counsel on www.OKbar.org

Yogi Berra’s Five Apocryphal Tips on Ethical and Effective Attorney Marketing

By Travis Pickens, OBA Ethics Counsel

1. “Career planning ain’t over till it’s over.” Why do we stop working on our careers after law school, and merely continue to work in them? Largely, because after completing our formal education we stop setting goals. Yogi would elaborate on this by saying, “You gotta have a plan to have a marketing plan.” I had a friend once tell me he did not believe in marketing. “Oh really?” I said. “Do you take your clients to lunch?,” “Well, yes,” “Have you ever sent referring lawyers or clients ‘thank you’ notes of appreciation?” “Yep.” “Do you send out office cards at the holidays?” “Uh huh.” Friends, this is a marketing plan — a simple one, but a marketing plan nonetheless. My friend thought marketing meant buying television ads and billboard space.

You have to find the marketing approach that is right for you. Another friend of mine, an engineer, was the chief marketer for a consulting group. He was a disaster. He invited me and other members of our firm out to dinner to solicit work for environmental cases. He spent the entire time effusing praise of his engineering company, but when the check came, he pulled out his jeweler’s loupe and 10-key and proceeded to carve up the tab down to the penny. Then, he worked backwards to apportion our share of the tip, to three decimal places. This is not the best way to woo clients and referrals. He would have been much better off just sending over concert tickets.

Remember that fee splitting is acceptable in Oklahoma under ORPC 1.5 (e). Look for win/win relationships. Perhaps you are fantastic at getting great cases, or perhaps instead, doing great cases. Team up with the lawyer or firm that complements your talents.

2. “Having bad work is worse than having no work.” Yogi is right. Bad work and/or bad clients cost money in lost time, uncollected bills and unnecessary documentation, not to mention excess stress. Spend your downtime productively working on your business and marketing plan or learning more about your specialty. Toxic clients and toxic work can destroy your practice. We have all had the client we regret taking, and when we look back, the signs were there — the prior lawyers, the unrealistic expectations, the calls after hours, beating us down on our bills, the emotional reaction to something trivial.

Then of course, there is the piece of work we took that we were not all that qualified to perform. Yes, under the Rules of Professional Conduct we can do this provided we get up to speed with reasonable preparation (ORPC 1.1 Comments [2] and [4]), but it is often not a good idea, especially if we do not plan to do more of this kind of work. Usually what happens is that we spend too much time learning and worrying about it, and then, after we realize our crushing mediocrity in the endeavor, cutting our bill to be fair to the client.

3. “You can live in the past, but you can’t practice in it.” When I arrived at the firm after law school, it had just recently purchased new tape dictation machines. A few days before, the lawyers were using dictation machines that cut tiny records, like an LP. You could only go a few words back to hear what you had dictated. Now, we carry small computers in our pocket called SmartPhones, which can use voice recognition software to create and communicate text from anywhere. 

If you catch yourself searching the office for a phone book, as I did recently, then prepare to be demeaned and ridiculed by anyone under the age of 30. Consequently, I am wondering how long phone book ads will be effective. Websites are the future. For guidance, the ABA’s Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 10-457. It details what, according to the Model Rules, can and cannot be done in a website. It should be read along with Oklahoma Rules 7.1 et seq. and Formal Ethics Advisory Opinion 320, which dictates when and how jury awards and settlement results may be displayed.

You can choose to keep the large oak desk, fax machine and the fountain pen set, but you had best keep up with a modicum of technological advances. E-mail and the ability to use and produce electronic documents is de rigueur these days. You may not see any reason to change because the old way still works. You would be missing the point. Clinging to styles of practice that were state of the art for, say, Sir Thomas More, sends a signal about you on many levels, many of which are unattractive to younger clients.

4. “Lunch is an hour, but a bar journal article is forever.” For many, writing an article for the Oklahoma Bar Journal on a topic pertinent to your present or future specialty is still the best marketing tool of all. It goes to nearly 16,000 Oklahoma lawyers and lives forever in archived form on the bar website. The article will be referenced by West Publishing in appropriate annotations and other research resources.  Hour for hour, this is the best “one-step” marketing plan. Here are some tips with getting started.
• Check the bar journal editorial calendar printed in every bar news issue or on the website (use the search feature to find it quickly) to determine the topics of upcoming issues. Articles on all subjects are published, not just the designated themes.

• Spend the time necessary to make the article detailed, well-researched, insightful and useful to
the practitioner.

• “Primer” articles are always helpful because practitioners are frequently looking for a place to get started in approaching a new project.

• Have several colleagues read it for style, grammar, tone and usefulness.

• Strive to make it not only timely, but “timeless.” Choose a topic that does not evolve on a month-to-month basis.

• Write your author’s bio with your audience in mind.
Then, take that article on the road and start doing presentations to whoever will have you for continuing legal education or just general information. Use and repackage the article for a variety of settings and audiences. Leave copies in your reception area. Mail copies to your clients. Prepare a meaningful, detailed update every few years and resubmit it for publication or reboot your speaking schedule. Writing something is halfway to becoming an expert, at least in people’s minds. That’s why every political candidate in the modern era writes a book either just before or during their candidacy. The same is true for news anchors and political commentators.

5. “My family all resemble each other.” Take a look around your law office. Do you like what you see and hear? If so, perfect, because that is what your client is seeing and hearing. And they are judging you because of it. I remember walking into an attorney’s office, and the receptionist had positioned her desk perpendicular to the front door so she was facing 90 degrees away. She was allowed to smoke cigarettes at her desk. (Her boss owned the building, and it was apparently the last “smoke’em if you got’em” facility in the city). This woman could make it as a circus act with her ability to dangle the smoke-stick from her lips with a three-inch ash miraculously in place before she tapped it off.

When I walked in, she did not turn to face me but rather just sighed and said, “Yes?” Fabulous. I shuddered to think what she was capable of with sensitive clients or delicate phone calls, and the rare odds she could conduct herself compatibly with the Rules of Professional Conduct (see ORPC 5.3 “Responsibilities regarding nonlawyer assistants”). The main point is that I could not imagine this lawyer being any good because this was his choice of support staff. The people around you reflect upon you.

Similarly, whom you choose to practice with reflects upon you. Before you join up, check out the firm, group or lawyer you may practice with. What kind of reputation do they enjoy in your community? Investigate them like you would a new hire, but even more thoroughly. It is a marriage of sorts, and you have to like and respect these people if it is going to last. Furthermore, your reputation will either be enhanced or diminished because of it.

Yogi’s wisdom on this point is perhaps the most important of all. Because if you work with great people and employ great people, then you can succeed almost despite everything else. I recently ran into a younger lawyer who had wandered around a bit. I asked him if he was happy. He told me that he had finally found his legal “home” (we all have one). “You know,” he said, “whom you practice with makes all the difference.” Yes, it does.

About The Author

Travis Pickens serves as OBA Ethics Counsel. He is responsible for addressing ethics questions from OBA members, working with the Legal Ethics Advisory Panel, monitoring diversion program participants, teaching classes and writing articles. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.

Originally published in the Oklahoma Bar Journal -- Dec.11, 2010 -- Vol. 81 No. 33 

Travis Pickens is the OBA Ethics Counsel. He can be reached at ethics@okbar.org.