SELL YOURSELF--Ethically and Effectively Marketing the Lawyer and the Law Firm

By Micah Buchdahl

Law Practice Magazine, July/August 2003

Sell yourself? Do you mean that I need to generate new business on my own? Yes.

Sell yourself? Do you mean that I need to go out and pitch myself to others? Yes.

Sell your self? Do you mean that I need to do a better job selling what I and the firm do for you already? Yes.

Regardless of how you enunciate or interpret “sell yourself”, it is about learning how to ethically and effectively market you and your law firm in a time where some firms struggle to maintain or grow revenues, and others struggle to survive in a world of mega-mergers and downsizing. You know you have to do it, but you want to do it the right way.

The first mistake is often fatal—the idea that a law firm will change the way it does business. It won’t. In 2003, lawyers and law firms of all shapes and sizes are faced with the increasingly difficult task of competition. Developing a way to compete, grow and succeed through the development of a sales and marketing culture in that environment is not only a good idea, but a survival necessity.

It was only a few years ago that the New York partner at a major international law firm instructed me not to worry about what the Midtown Manhattan law firm neighbors were doing, but to focus on the Big Five accounting firms that were eating into their profits. Today, that same attorney relishes the Enron-type debacles as hindering the multi-disciplinary practice competition that was such a threat.

It was only a few years ago that the term “new economy” signaled what was to be the end of the practice of law as we know it. Technology would rule the land. The corporate decision-makers were changing. You had to learn to market the right way to survive.

And it was only a few months ago that Brobeck was the poster child for aggressive business practices that led to tremendous growth and exposure. Today, it is the poster child for poor decisions and inaccurate business predictions.

At about the same time that firms were trying to figure out the trends, Patton Boggs, a 350-attorney firm based in Washington, DC, determined that there was a need and a value in having a more coordinated business development effort overseen by a partner. The general approach would be the same—quality presentations to potential clients, identifying their needs, proposal writing, pricing, coaching, identifying and forming alliances among them. But, the firm realized the key was in having an experienced lawyer at the firm turn from billing and casework concerns to a management position.

In the end, regardless, the partners make the rain. The business development staff is responsible for providing the tools, lessons, preparation and guidance to take the key case and client generators—relationships, referrals, credentials, resources, successes—and turn them into increased profitability.

“Any culture can work,” said Mark D. Cowan, the Patton Boggs partner handed the business development reigns. “It is the programs that need to be modified for the type of firm and its culture. Law firms need to remain competitive and need a system in which lawyers can take full advantage of their ideas and relationships, while continuing to practice law.”

In what will most likely go by as a trend that fizzles fast, some firms have gone the route of hiring non-lawyer sales directors to increase firm revenues. It is a reminder that not everything is worth trying. Can you imagine having a sales rep call on a general counsel at a key corporation? Or having someone besides the attorney you do business with engages you in a client satisfaction survey? The tools are the responsibility of marketing professionals; the action belongs to the practitioner.

A mistaken belief by many is that firm size equates to the needs of dedicated marketing personnel. One successful small firm that bucks that belief is Ruberto, Israel & Weiner PC in Boston, Massachusetts, the now 30-lawyer firm that invested in a marketing director five years ago, and has since doubled in size.

“The firm has always recognized the importance of marketing,” according to Managing Shareholder David Baer. “You need to devote resources and time for individuals to pursue business development. For us, the culture needed for successful business development is to be entrepreneurial. You need to have the desire to win and keep the business.”

Ruberto Israel hired Catherine Alman MacDonagh as the firm’s marketing director. Her experiences as an attorney, coupled with sales and marketing experience helped her as she entered the professional service marketing industry. MacDonagh is able to provide the marketing piece with the lawyer experience to teach and train partners and associates alike.

“The training is personalized and tailored to the individual, depending on the lawyer’s strengths, experience and interest,” said Baer. “It ranges from high level coaching to assisting in putting together an annual marketing plan and budget.”

Peter Krakaur, Chief Knowledge Officer for 650-attorney firm Orrick, Herrington & Sutcliffe LLP, believes that a key to successful client development efforts focuses on a dedicated marketing staff working closely and directly with individual attorneys, preferably organized by practice group.

“The marketer needs to be viewed as part of the ‘team’ by practice group members,” said Krakauer, who also has knowledge management experience at Heller Ehrman, and Brobeck.

The ethical issues and considerations scare some practitioners away from marketing altogether. For others, they are ignored, hoping that missteps never catch up with them. Following the American Bar Association model rules and all appropriate state bar regulations will help you avoid saying or doing the wrong things.

As a teacher of law firm marketing ethics, I remind attorneys that the onus of obeying these rules and considerations rests with the attorneys themselves. Non-lawyer personnel can not be expected to obey and understand the rules of professional conduct, especially in regards to the way they interplay with casework and clients. The ignorance rule that does not work in defending clients will not work in defending the firm.

The on-the-ball firms have an attorney liaison responsible for marketing overview and approval. In many instances, it falls into the lap of the marketing partner. In others, an associate is responsible for monitoring changes and opinions rendered for the appropriate states.

Many vendors—including providers of web sites, online advertising sales, traditional advertising agencies and sellers of other “marketing” wares to law firm customers—tout knowledge of the legal landscape as a reason for buying from them. In your contracts, consider putting the liability for ethical responsibility on them. If a firm is contacted by a state disciplinary board, expect the vendor to flip the bill for the cost of resolving matters. Numerous advertising campaigns by major law firms violate the ABA rules.

Krakaur points to the model rules for advertising (MRPC 7.1-7.5), client confidentiality (MRPC 1.4), and conflicts (MRPC 1.6-1.8) as key areas to monitor, along with focusing on the jurisdictions in which the firm and the lawyers are licensed to practice.

“Members of the firm’s risk management committee or the firm’s counsel should discuss the applicable rules with the staff and be regularly updated on marketing initiatives that might raise ethical issues,” said Krakaur, who has also operated the web site, Legalethics.com since 1995, providing rules, cases, opinions and helpful information in many areas of ethical quandaries.

With each passing year, lawyers and firms are improving on what is still a very green topic in law firm marketing. For some, it is sales; for others, advertising. In many large firm environments, it is simply having access to tools and resources that blend into the business of practicing law. So long as you keep an eye on the ethics rules, and focus appropriate time, budget and resources on business development, there is no reason that you should not be successful, fruitful and still in existence, come 2004.

FIVE TIPS TO EFFECTUATE THE SALES CULTURE (Sidebar)

1. MAKE IT MANDATORY – The term “optional” suggests to some attorneys and practice groups that they do not have to go along for the ride. The managing partner and/or management committee should make it clear that improving business development on a firm wide basis is a necessity.

2. THE TOM SAWYER EFFECT – Nothing gets everyone moving toward the same page more than seeing one attorney or practice’s successes up in lights—that might mean a press release, web site play, headlining a seminar, doing a media interview—the rest will follow eventually.

3. SKILLED STAFFING – You get what you pay for. And you get who you hire. Many firms are opening the wallets a little wider and grabbing seasoned attorneys with a business development spin, or high-level professional services executives from way outside the legal world to lead the charge. The attorney avoids getting the “you’re not a lawyer and you do not understand” pushback; the marketing pro can point to his or her businesses outracing the law firm business. These firms are also using recruiters from outside legal, to avoid getting the standard fare.

4. SPEND SMARTER, NOT HARDER – Many small firms spend too much time lamenting their size. Think like a small business, and spend an appropriate percentage of revenue on retaining current business and getting new clients. For large firms, the budget is usually on-target, but the money is foolishly spent. Are you doing something because it makes business sense, or it is a political reaction to the wants of one or a few? You know the answer, don’t you?

5. DON’T EVER CHANGE – In sports, you say that you can’t fire the players, so you fire the management. Same goes for the lawyers. Remember what Patton Boggs’ Mark Cowan stated. You can’t change the culture, so create programs and projects that work within the framework of the firm. That is your best shot at winning.