By Jim Calloway

Today, businesses often succeed or fail based on their marketing plans and activities. A good product or service may theoretically sell itself, but if no one knows about the business offering or if the only fact someone knows is negative, there’s little chance of success.

Lawyers have traditionally had a strained and nervous relationship with marketing activities.

That’s not surprising because the Rules of Professional Conduct (ORPC) includes restrictions on a lawyer’s ability to market their law practice. One rule that is drilled into first-year law students is that a lawyer cannot solicit employment from a potential client. ORPC covers information about legal services in Rules 7.1 through 7.5.

ORPC 7.3(a) states:

1. A lawyer shall not by in-person, live telephone or real-time electronic contact, solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:
   1. is a lawyer, or
   2. has a family, close personal, or prior professional relationship with the lawyer.

The rationale for prohibiting face-to-face solicitation is stated in Comment [2] to ORPC Rule 7.3.

[2] There is a potential for abuse when a solicitation involves direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

There is enough potential discussion about the application of this rule as it applies in the digital age to fill many volumes of law reviews, but this month we are going to discuss networking.

NETWORKING FOR LAWYERS

You’ve probably attended several events where the agenda included a “networking lunch,” but for many attendees, networking at lunch is now primarily cellphone networking, returning calls and emails.

Many lawyers say they hate networking. For others, it appears to be effortless and natural.

Yet, in my experience, the vast majority of lawyers consistently say that their best clients – the ones who listen to the lawyer’s advice, appreciate the lawyer’s services and pay their bills – come from referrals and clients returning for more assistance.

In other words, the best clients come from your social and professional networks.

The prohibition on solicitation was intended to protect the public. Some have criticized its relevance today in this age of nonstop electronic communication, but it is clearly the rule.

There’s no doubt in my mind that it would be very difficult for a young lawyer to build a successful practice today by sitting quietly in his or her office waiting for the phone to ring or someone to knock on the door, as some say the rules intend, but even in the preinternet days, I question whether that was ever the actual professional standard for the legal profession. Large firm lawyers seeking corporate clients joined the “right” clubs and attended the “right” events. Small-town lawyers were generally very active in their communities, volunteering and serving in many community organizations.

One way of looking at client solicitation reflects some of the gender-based dating rules of my youth. The potential client should be the one to “ask you out.” Your role is to let potential clients know if you’re available and interested.

Improper solicitation is a violation of the rules, but many effective networking activities are not improper solicitation.

First among these are meetings of groups of lawyers. From the OBA Annual Meeting to serving on an OBA committee, there are many opportunities to get better acquainted with your fellow lawyers. By definition, there is no improper solicitation under ORPC 7.3 in attempting to obtain legal business from another lawyer, whether it is seeking referrals of matters the lawyer doesn’t handle or offering to serve as co-counsel in an area where you have deep expertise. Other lawyers are thought to be able to handle “the private importuning of the trained advocate in a direct interpersonal encounter.”

I always tell lawyers attending the Opening Your Law Practice program that they should participate with their local county bar and attend those meetings when possible. There are many benefits, including having the opportunities to chat informally with lawyers you might not otherwise meet and to visit with judges in a less formal setting than the courtroom. Enjoying a laugh or a meal with another lawyer makes things go better the next time you have a high-conflict matter with the lawyer as opposing counsel.

Developing and maintaining good relationships with a large variety of other lawyers should be an important element of your marketing business plan.

Some lawyers say they would rather suffer physical pain than attend a lawyer networking event. Self-identified introverts are quite willing to explain how they feel in social media and online forums posts. Even many who appear to be extroverts have more anxiety in some of these situations than others might guess. Everyone has had that moment where an event breaks into small conversation groups and you notice you are the only one in yours.

One can do an internet search for “how to work a room” and read many suggestions and tips about strategies and goals for in-person networking. For most lawyers in private practice, attending some networking events and lawyer meetings is very important, whether you relish or fear the opportunity, but a network of only lawyers is certainly not a complete path to success. You need a much broader network.

WHO MAKES UP ‘YOUR NETWORK’?

To discuss the idea of building and maintaining your professional network, I reached out to Michael Whelan, author and host of the Lawyer Forward conference. I asked him if networking events were the same today as in the past or if they had changed. He said, “They are fundamentally the same. What has changed is what we expect from them, and every other kind of networking we do. We believe that being social is the same as caring for our network, but Dr. Robin Dunbar showed that our brains can only handle 150 close friendships, and we can’t let these more shallow networks substitute for caring deeply for our close network. That close network is enough to live a quality life.

“I should say,” he continued, “that the math for running a law practice is a little more complicated than that 150 number implies.

“Dunbar imagined three concentric circles of your social network: your closest 150, a kinship group of some 1,000 and a tribe of some 2,500. The tribe we attract by writing, speaking, and sharing ideas; the kinship group nicely lines up with Kevin Kelly’s ‘1,000 true fans’ who’ll buy enough from us to build a quality business; and the 150 is the group most invested in our personal success. If we do it right, our best referral sources will be in that closest group, and we’ll treat them like family,” he said.

Rather than just thinking in terms of networking, Whelan likes the term social capital. “Social capital is about connections and values, the ties we create with people who ‘speak our language’,” he says. “It’s about building reputation and nurturing a tribe. These connections provide money, but also human relationships, experiences and self-fulfillment. Money cannot do that. Social capital is a more complete way to measure your life’s work.”

TRADE SHOW NETWORKING

Now that Whelan has shared some deep thoughts on networking with us, let’s move on to a “shallow networking” example – the law firm being a sponsor or having a booth at an industry trade show or other public event. It is no longer unusual to see law firms with sponsorship booths at certain events. If 75 percent of your law firm’s work is in the construction law area and there is a big annual statewide conference of all the major players in construction, it certainly makes sense for your law firm to sponsor that event and perhaps have a trade show booth with brochures and other information. The goal of that effort is to get more legal business and to maintain visibility in front of existing clients.

Is this improper solicitation? In my opinion, this is generally not problematic. (I must note my opinion doesn’t reflect any OBA policy, and members seeking specific ethics advice about their intended actions should contact Ethics Counsel Joe Balkenbush for advice.) My practice management advice is that any staff working at the event who are not lawyers probably need some pre-event training about solicitation rules and some lawyers might want a refresher. If you don’t know what you would do at a trade show booth, Sally Schmidt, president of Schmidt Marketing Inc. and co-founder and the first president of the Legal Marketing Association, has written a nice piece titled Checklist for Staffing Your Law Firm’s Trade Show Booth.

I also think re-reading Comment [2] to ORPC Rule 7.3 makes us appreciate there is a difference between talking to a corporate official with a dozen years of experience that includes hiring and firing several law firms and meeting with someone in their hospital room about a possible civil suit relating to injuries they received a few hours earlier, both with the experience of the person receiving the message and the emotional situation. Even if you have been appropriately summoned to the hospital room by a family member at the direction of the potential client, care must still be taken to make certain no unfair advantage is taken.

Rule 7.3 also excludes from the definition of solicitation those who have “a family, close personal, or prior professional relationship with the lawyer.” This is why client newsletters and similar post-representation contacts have been favored by lawyers. If you are going to send out a digital client newsletter or other email marketing effort, the challenge is getting the recipient to open the email, so a good subject line is important, but you will also have to read the rest of ORPC Rule 7.3 dealing with specific requirements for email advertising. The ABA recently made changes to Rule 7 of the Model Rules, eliminating some requirements, but those changes have not yet been considered in Oklahoma.

If you note that you haven’t heard from a previously great referral source in the last couple of years, it is possibly too late to repair the situation. This doesn’t mean you shouldn’t try. What it likely means is you failed to nurture this relationship in the way that one of your top 150 deserved. There’s more to nurturing the relationship than sending an annual holiday gift or card. It’s personal. It requires time and effort.

If you are an introvert who hates networking events, you can cope with that challenge through planning, study and preparation. I’m biased, but I believe our OBA Solo & Small Firm Conference is great for education and the painless networking, but if you aren’t going to attend networking events or, after doing a few, you find your return on investment is zero, then rather than deeming yourself a failure, you should determine a way to utilize your strengths to build your network. Maybe it is time to finally start legal blogging on a subject you love after considering doing it for years. Maybe it is time to stop saying no when asked to be an officer in your county bar or local civic group because you like working on projects with others more than trying to sell yourself. Maybe you should attend some high school sporting events where the only goal is to be a spectator, but you still have a chance to say hello to a lot of people you know.

One thing that is certain is you have to build and maintain your “tribe” in a way that makes sense to you – a method you will be able to continue into the future.

CONCLUSION

I’m going to return to Michael Whelan for the conclusion. He says, “Make a concerted effort to foster connections. Take care of your reputation. Serve others, keep track of them and develop deep human relationships. That is your career’s insurance policy.”

That may be as good a definition of effective networking for lawyers as you are likely to find.

Mr. Calloway is OBA Management Assistance Program director. Need a quick answer to a tech problem or help solving a management dilemma? Contact him at 405-416-7008, 800-522-8065, jimc@okbar.org. It’s a free member benefit!

Originally published in the Oklahoma Bar Journal — Oct., 2018 — Vol. 89, No. 26