May 2007

This issue contains the following articles:
  1. Don't Get Spooked by Ghostwriters
  2. Is Anybody Listening?
  3. Should your firm consider contingency fees?
  4. Does a J.D. need an M.B.A.?


  1. Don't Get Spooked by Ghostwriters

    Few (if any) of us today expect politicians to write their own speeches, or CEOs to write their own shareholder letters in the annual report. Ghostwriting is a fact of modern communication. But where does that leave lawyers - who are specifically trained to be "wordsmiths" in their profession? The answer seems to depend on the medium … and the message.

    Take, for example, the writing of a legal blog. I have occasionally stirred up controversy in some circles with my assertion that it is perfectly acceptable for busy lawyers to get help starting and maintaining their blogs. Blogging in this instance is neither a news piece nor a school term paper where one is "graded" and receives personal credit for the submission. The writing in this case is done primarily to raise the level of one's credibility for expertise in a given subject - in other words, for business purposes. There is no more need to attribute authorship here than for any other marketing copy used in the promotion of a product or service. The lawyer whose blog it is, though not the author, still sets the tone of the content, still oversees the ideas to be discussed and most likely lays out the entire strategy to be highlighted in the blog. In other words, the concept is the blogger's even if the specific words are not.

    Quite a different issue arises when (as recently covered in the Los Angeles Times) companies such as PayPerPost, ReviewMe, Loud Launch and pay bloggers from $5 to $20, and sometimes up to $1,000 per blog review of products. I had no problem with this - caveat emptor seems to be the governing principle here - until the article referred to a law firm that told paid bloggers to "get creative, have fun with your post, and help spread the word" - the "word" being that "the (birth control) patch was killing and injuring young women." It does seem unethical for a law firm to get involved promoting the interests of a political perspective (or client) in this fashion. Perhaps I'm old-fashioned, but I do hold lawyers to a higher standard.

    Then there is the ghostwriting of pleadings. This is an issue that varies by jurisdiction. In California, the rules of court were just amended to permit unbundled legal services, whereby an attorney can take on a limited representation of a client for discrete legal projects - drafting of a single motion, for instance. According to California Rule of Court 3.37, the ghostwriting role does not have to be disclosed. However, in a case just this year in New Jersey (Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co. Inc.), a U.S. Magistrate Judge ruled that, with regard to the writing of pleadings, "undisclosed ghostwriting is not permissible under the current form of the Rules of Professional Conduct in New Jersey." Specifically the judge cited violation of Rule 3.3, the "duty of candor," and added that only if New Jersey revises its rules to allow for the regulation of unbundled legal services will their use be acceptable.

    Bottom line: in ghostwriting, as in so much else in the legal profession, don't assume - consult your own jurisdictional rules, and your own sense of propriety.

  2. Is Anybody Listening?

    Today's lawyers often seem inseparable from their Blackberry™ and cell phone. Most of us have been in meetings where attorneys are sitting there with Blackberries in hand, and their thumbs are moving while they're participating in the conversation. I'm convinced that such multi-tasking means they are either reacting too quickly to their email, or they are missing something important in the live dialogue as it is going on.

    Most of us are familiar with this as a common annoyance. But in the life of a firm, such attention deficits can have grave consequences. One example is the law firm whose strategic plan gets crafted without full input from all the stakeholders - clients, staff, associates, paralegals, partners and even vendors and lenders - merely because we failed to take the time to listen to the full import of what they may have to offer us. Close those laptops and listen! Or, paraphrasing, if you want to be most profitable with the most interesting of matters and the nicest people to represent, be sure to actively listen to the conversations around you. Don't tune out - Do tune in! Keep an open management style and involve the stakeholders needed for your success.

    One way to accomplish this is too often dismissed or misused: an all-firm meeting or retreat. In a very real sense, firm retreats are an exercise in marketing. Marketing ultimately means developing close relationships with people to achieve your mutual goals. At a retreat the entire firm brings together the people, ideas and resources that make the practice of law worthwhile in that particular organization. Firm retreats are the ideal mechanism to secure agreement on and enthusiasm for a new strategic direction. Retreats literally get everyone together in the same room where concepts can be discussed, ideas and questions raised, and acceptance established. A physical show of hands can be a powerful validation of the firm's new direction. An effective retreat thus brings people physically together in a positive setting to close the communications gaps.

  3. Should your firm consider contingency fees?

    Ghostwriters aren't the only "unbundled service" that can help a firm. Take perhaps the most difficult task any firm can undertake - hiring new staff. It makes sense for most small and mid-sized law firms to use employment agencies in filling staff positions. Employment agencies have the knowledge and skills at interviewing, psychological evaluation, and employment discrimination law to handle the recruiting, evaluation and hiring process effectively. They also have the time and investigative skills to verify a potential hire's credentials and experience - a vital task that's increasingly difficult to do because of privacy laws.

    Employment agencies can also tap a wider pool of potential candidates. Agencies spend a considerable amount of advertising money to recruit competent candidates through newspaper advertisements, telephone directories and web sites, and at trade shows, conferences and job fairs. They also do a great deal of phone prospecting. This kind of systematic prospecting is much more effective at securing prospects who are more qualified than the ones you'll get by posting positions on your web site, or by seeking referrals from colleagues, clients and bar associations.

    Employment agencies and recruiters typically charge 25% to 40% of the new hire's first year pay as their fee. The fee is worth it when you consider the cost of terminating a newly hired employee who turns out to be a poor fit. The Society for Human Resource Management estimated that it costs $3,500 to replace one $8 per hour employee when all costs - recruiting, interviewing, hiring, training, reduced productivity, etc. were considered. This estimate was the lowest of 17 nationally respected companies who calculate this cost. Another organization estimates that termination costs equal 30% - 50% of the annual salary of entry-level employees; 150% of middle level employees and up to 400% for specialized, high level employees.

    Use of an employment agency doesn't guarantee a new hire is the right one for your firm. Only you have the best feel for that, by completing the hiring process yourself. That includes evaluation of the agency's hiring standards and background investigation, and of any specialized capabilities for the candidate. Most importantly, you should have a face-to-face interview with every recommended candidate to assess whether the person will be a good cultural "fit" for the firm. If you are honest in the interview about your requirements for integrity, initiative, professionalism and technical skills, the right candidate will emerge.

  4. Does a J.D. need an M.B.A.?

    I recently had the privilege of conducting a Podcast interview with Peter Loewy, Senior Counsel and former Managing Partner of Fragomen, Del Rey, Bernsen & Loewy, LLP. Peter talked about the challenges he faced in building his West Coast practice from one lawyer (himself) to a staff of over 70 lawyers and 400 staff in just 20 years! Today, the Fragomen firm is recognized as the preeminent player in the immigration field, representing major corporate players around the world, and Peter discussed a wide range of techniques that any firm can apply to its own growth strategies.

    One of the techniques that struck me most forcefully was Peter's emphasis on personal, targeted marketing. He explained how he viewed his business development challenge as getting in front of "the right person" - the corporate human resources or international executive who could make the decision to hire an immigration firm. To do that, he "fished where they were biting" - playing squash at a local university club, joining tennis and golf clubs, pursuing the leisure interests that he enjoyed and that his target clients were most likely to enjoy. Peter put the equation simply: "We all have limited time. Find the activity you like to do and use it to meet the right people who enjoy doing the same thing." To hear Peter's interview in full, click here.

    You can apply this lesson even to a solo law practice. Earlier this year, through the ABA's "Life Audit" program, I advised a Washington DC solo practitioner who felt she needed to hire an associate because she was so overburdened in her growing practice. Upon closer examination we found that she really didn't have the financial wherewithal to hire anyone - and more to the point, she didn't need to. This lawyer was devoting far too much of her time than was practical to non-billable projects. She needed to shift her business development and community service focus to activities where she would interact with businesspeople who would be potential sources of new business or referrals.

    A lawyer looking to grow a practice can't just be on a board because it is a good cause or because a friend asked you to do it. You need to check out who else is on the board and determine whether they are potential referral sources, such as members of large firms or businesspeople in the community. Applying rainmaking skills, with an eye to economic realities, will make your growth and your firm stronger - and ultimately give you the financial strength to pursue pro bono work.
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