Cold calling redux: how bar counsel missed the point

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Published on 9/15/08

Semantics are important. In my July 7 column ("How to break the ice with 'cold calling'"), I suggested that lawyers should have a "cold calling" strategy in place and that, when appropriate, they should follow that strategy.

This includes knowing whom you are talking to and how you want to present yourself. Of course, this inherently suggests that you know the rules of professional conduct concerning solicitation and advertising and any related rules in your jurisdiction.

A lawyer should "create a bond with your prospect and show them you can provide value," I wrote. Creating a bond with your prospect is essential to converting the prospect to a client and is the essence of successful professional services.

I then wrote: "When you make the first interaction, present research on key stake-holders and pressing industry issues. Offer opportunities for training or a business needs assessment. Do something that will be seen as value received by the recipient. That means an investment in time and expense."

In a July 21 letter to the editor, Bar Counsel Constance V. Vecchione claimed that my reading of Massachusetts Rule of Professional Conduct 7.3 is incorrect. She said that a lawyer "shall not solicit professional employment for a fee" except in limited circumstances.

I'm pleased that bar counsel reads my columns, but her response in this instance missed the context of my writing.

First, a strict reading of my words does not contain the suggestion that the first call be one of "solicitation of employment for a fee"; rather, my suggestion is that the "first interaction" between the lawyer and recipient of the communication should be to provide value and not solicit new business. In other words, the "first interaction," or "cold call," is to begin the process of creating a personal relationship, an essential ingredient to being retained for future legal work, not work solicited on the first call.

Thus, the entire context of the column is outside the purview of bar counsel's cited rule.

Second, an article in the Boston Business Journal of Feb. 27, 2004, suggests that Massachusetts lawyers are using the traditional "cold call" as a marketing technique. In fact, then-Bar Counsel Daniel C. Crane, said: "... (b)ecause some restrictions might be challenged on First Amendment grounds, Massachusetts has taken a much less aggressive stance to the solicitation rules than other states ... . You can't be deceptive or misleading. "

Third, the context of my column was of a business nature, rather than personal injury, family relations, etc., as would be apparent by reading the full piece. Business people fall within the exempt category of Rule 7.3 (e)(4).

This initial call, an "education call," is an effort to offer insights to industry issues and challenges along with opportunities and ways to meet those challenges. The bottom line is, when a prospect entertains your call and is willing to take the next step of a second call, an appointment or willingness to receive written material from you, there is an expression of interest that moves the relationship beyond the point on the spectrum intended by the initial prohibition expressed in 7.3. But, by virtue of 7.3 (e)(4), the lawyer has not violated even bar counsel's strictest interpretation of the bar standards.

Establishing a personal relationship is not the same as soliciting professional services. For example, Louisville, Ken., personal-injury lawyer Kevin Renfro gained national attention by promoting a 99-cent gas giveaway before July 4. The first 250 people who lined up at a particular gas station could get up to $15 in gas at that price, with Renfro's law firm paying the difference. There was no catch and no obligation to become a client of the firm. Renfro shook drivers' hands and gave out his new fireworks safety flier.

This was a form of cold calling in which the lawyer reached out through a marketing effort that did not solicit client engagements.

I'm happy that bar counsel is keeping me on the straight and narrow. But I do wish that she would respond to what I write rather than using my writing as a red herring.

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