THE MARCUS PERSPECTIVE

THE CASE OF THE RIDICULOUS RULES IN A SUBLIME PROFESSION

            ‘Splain me something.

            In 2006, the New York State Bar Association asked for comments on proposed new regulations regarding lawyer advertising. They seemed particularly concerned about blogs, and the potential excesses of such as personal injury advertising. Shocking, yes, but no great surprise.

            For reasons I described in my letter to them, (scroll down on this blog), their reasoning was ludicrous.  And, I understand, they got many such letters.

            A few weeks ago, Northern District Court  Judge Frederick J. Scullin Jr. issued an injunction on enforcement of several provisions in the guidelines, which, unless a stay is obtained, eliminate several of the guidelines. A rational decision at the head of which might well be a slippery slope toward reason. The guidelines in question, said the judge, were unconstitutional.

            Significantly, the judge also noted that the state submitted no “statistical or anecdotal evidence of consumer problem with, or complaints about, misleading attorney advertising.”

            Some of the rules still are in force, but they are, in my opinion and as described in my letter, either redundant or just plain foolish. Moreover, I believe they show absolutely no knowledge of law firm marketing, or the value that marketing has to both the practice of law and the needs of the clientele.

            I am not a lawyer, although there are a few of us around who can read stuff like the U.S. Constitution, and legal decisions, like Bates v. State Bar of Arizona.  So…

             If  I, and many others like me (including many lawyers), knew at the outset that the new advertising rules, both in their proposal stage and in final form, were unconstitutional, why didn’t the wizards of the Bar Associations that promulgated or accepted those rules, not know it as well?

            In fact, many of us, particularly those of us who understand law firm (and accounting firm) marketing knew that these regulations were at least ridiculous, and at most onerous. You might want to look at the letter (few posts down) that I (among many others, writing in the same vein), sent to the New York State Bar.

            ‘Splain it to me. Please.

THE SILVER-TONGUED DEVIL AT THE BAR

There was a small article in The Wall Street Journal recently about John Desmarais  a patent litigator at Kirkland & Ellis, an international law firm. It seems that Desmarais keeps winning unwinable cases for his clients. His peers say that his success comes from his ability to simplify complex technical concepts for a jury.  Mr. Desmarais, whose undergraduate degree in chemical engineering helps him, he says, better understand the technical aspects of each case.

            This brings to mind a discussion I had with the head of a law firm client’s litigation group. I was editing the group’s page for the firm web site. The litigator wanted to talk about how articulate the firm’s litigators were in court.

            “In other words,” I said, “all good litigators are silver-tongued devils, and we’re just more silver-tongued than the others.”

            “Something like that,” he replied.

            “Nope,” sez I. “You can’t say that. First, it’s a claim you can’t prove. Second, the Canons of Ethics won’t let you. And if they did let you,  how does that distinguish you from other litigators?”

            “Why then do we win so many more than we lose?” he asked.

            “Because we are so meticulous in our preparation, and that’s where most cases are won,” I said. “And we can say that, because it’s true.”  And that, I’ll bet, is how Desmarais wins his cases.

            And so we did.

            There are a few lessons here. One is that so many lawyers have not yet learned to think like marketers, which is why they need professional marketers who do think like that.

            And second, most people, including lawyers, don’t always understand the source of their talent. It’s easy for Mr. Desmarais to say his success is built on his ability to simply for juries. But first, he has to simplify for himself – and that’s preparation.

PARTNERSHIP IS FOREVER, SORT OF

The Rash Of Fired Partners

            A recent Wall Street Journal article, headed Partnership Isn’t Tenured, noted that in the past few years, large numbers of partners have been fired . Not because they were lousy lawyers, but because they weren’t revenue producers.

            The funny thing is that if you asked a lawyer about the practice of law, you get every kind of answer about professionalism, public service and the like. But apparently revenue, unspoken as it may be in public, still reigns. That’s funny, because as Peter Drucker pointed out, the purpose of every business entity is to get and keep a customer (read client). The product you produce, or the service you perform, is how you fill the channels opened by marketing. If lawyers – and accountants, too – recognized that, they’d have more successful firms.

            Many years ago, when I was young and callow, I attended a retreat for the Big Eight firm I was working for. They were throwing a tribute to a bunch of partners they were firing, in kind of a Norse burial ceremony where they send the body out to sea in a small skiff and set fire to it. Makes a great flame, but not enough light to read by from the shore. I asked one of the smarter partners – the still esteemed Don Aronson – why they hired these guys in the first place, and then made them partners. He explained to me that they were made partners during business booms, when they needed partners to deal with the burst of new work that was coming in then.

            No more naiveté after that for me. I realized that law and accounting are businesses – until you ask the lawyers and accountants to run their firms like a business, instead of like a bunch of intellectual elitists. Even now, with all the growth of professional firms and all the increased competition, they tend to seek profitability by either demanding more revenue from each partner, or by merging.

            Cost cutting for increasing profitability by firing less revenue-productive partners is the hard way, in part because they’re throwing out skills that may ultimately serve the firm. It’s kind of like the old Russian fairy tale about the family in a sled being chased through the snow by wolves. They fended off the wolves by throwing a child or two off the back of the sled to slow the wolves down.

            Appropriate cost cutting is good, in its place. But learning how to market is better. It not only increases revenue, but it serves the clients better. And you get to keep the good ones by teaching them how to market. But that’s the business way. Unfortunately, there is little tradition in law or accounting firms for that kind of thinking. It exists in some firms, but not in enough firms.

EVERYTHING OLD IS NEW AGAIN

Offering The Media Your Expertise

There must be some pretty smart marketing people at Perkins Coie. They took a standard marketing technique and made it work for them, and then managed to get the legal press all agog  about their success at it. Two bites of the apple where most people get either one or none. That’s professional public relations at work.

What they did was latch on to the high profile litigation of another firm another firm, by offering the local press their services in clarifying the legal points of the case. The press, apparently, accepted eagerly. An admirable job. Moreover, the device was eagerly covered by the legal press. Kudos to them.

It is indeed admirable, if not exactly new. Being a source for the local  -- or even the national – press is much desired by marketing folk. But although public relations people have been doing it for at least 50 years that I know of  -- we were doing it at Ruder & Finn when I was there in the early 1950s -- and I did it for a client just a few months ago --  very few public relations people seem to know how to do it. It’s not easy, but it’s not impossible.

First you should understand how journalists work. Obviously good journalists frequently need sources of expertise to give substance and accuracy to their reporting. Most journalists have a stable of such experts in their Rolodexes. These are specialists they know they can trust and rely upon to give them the right answers, and more particularly, good sound bytes. It’s on those Rolodexes (classic or electronic) where the lawyers and accountants and financial experts  and scientists that are so often quoted are found. On  the broadcast media, that’s where the talking heads come from. To break into that Rolodex takes work and time, but it’s worth it.

There are several ways to do it. The simplest way is to write a letter or email, offering your expertise. The legendary Richard Weiner, one of the knowledgeable and successful public relations consultants in recent times, suggests that most media people now strongly prefer email.
“Two hints about email,” he says. “The subject line determines if it will be opened. It's the equivalent of a headline in a news release, but it must be short. Second, put the backgrounder, news release, or other item as part of the email and NOT as an attached file. Some media do not open unrequested files.”

If the story you’re writing about has a byline, than that’s the address. If it doesn’t, call the newsroom and see who’s covering the story. An alternative is to simply address it to the news desk. It should be a personal letter, not a press release, and should be written in almost conversational tone. But that letter should contain a sample. An interpretation of a new law or regulation. A clarification of legal or accounting points in an ongoing story. It should be clear, straightforward, and obviously useful. It should have a journalist’s sense of urgency and value.

The letter itself should, if possible, lead off with the news bit, then go into who you are and the nature of your expertise, and then comes the offer of availability.

Now… they may or may not use it. Don’t worry, and keep sending similar letters or emails as the circumstances arise. Eventually, the journalist will come to know and trust you, and then you’re in.  Understand that unless you’re very lucky, it will take time and several letters before you’re a trusted expert. Do not, by the way, follow up with a phone call – unless it’s to add something to your letter. Most journalists are too busy to chat – your letter will do it and a phone follow up just to see if the journalist got it will just be an annoyance and counterproductive. The journalist, unless he or she has long covered your beat, is probably not qualified to know who’s trustworthy and who isn’t, which is why it can take time. But believe me  -- ultimately, it works.

In some communities, and with some publications, you may be able to reach   a particular journalist by phone. Deal with it in the same way as in the letter.

It’s important to know, if possible, which reporters have your subject as a beat. Journalists on a beat generally know their subjects well, so your submission had better take that into consideration. The downside is that sometimes a journalist will know more about the subject than you do, which means you may have to do some homework. Google makes it easier than it once was. You can Google a journalist to find out what he or she has written on the subject in the past. A measure of journalistic sophistication works wonders.

In some cases, if you think you have a hot story, or an important piece of information on an ongoing story that’s too complex to put in a short letter, inviting the journalist to lunch sometimes works. But it better be a strong story. Today’s journalists don’t do that as often as they did in the old days. Serious journalists are harder to court, and certainly are rarely available until you’ve established your potential value to them by letter or phone. Email sometimes works, depending upon the journalist.

If you’re offering an exclusive to one journalist, say so, and mean it. Otherwise, multiple submissions, done judiciously, are acceptable.  An exclusive is better  in a community with several media outlets, if one of those outlets is significantly more important to you than the others. Besides, if one media outlet prints your material often enough, you’ll start getting calls from the others – a truly nice feeling.

Ignore the mythology. With a reverent bow to the old ink stained wretches, today’s journalists, in the few serious journals that are left, are smarter, better educated, and more serious than the old guys and gals. Generally, and with exceptions of course, don’t depend upon buying them with gifts and meals – it’s not in their Karma any more. They don’t need your lunch – they need the news.

As with any publicity, don’t expect that the quote is going to get you clients the next day. But the name recognition and your expertise will ultimately register, and serve you in being chosen  for consideration by prospects when they need legal services.

In the final analysis, getting to be a resident expert, or getting your client to be one, is worthwhile, but hard work. But who ever said that good public relations was easy?

SERANDIPITY AS A MANAGEMENT TOOL

Or, Why Strategic Planning Is Better

            The problem with conventional wisdom is that it’s usually wrong, and that, like a computer virus, it keeps getting repeated until everybody accepts it as gospel. A case in point is the conventional wisdom on strategic planning for professional firms.

Strategic planning for the professions is a relatively new practice. In the days before competition entered the picture,  planning was primarily a function of showing up. In the pre-marketing days, how could you plan if you couldn’t do very much to enhance your practice, beyond networking and serendipity?

            Most of the recent articles on planning for professional firms start from the end of the process, and not the beginning – a process that may work for the MBA or the corporation, but is certainly a mythological process for accounting, law and consulting firms. Too bad.  In today’s competitive and dynamic business environment, running a professional firm requires comprehensive planning to a greater degree than ever before.

            One recent article has, as its first point,  to Develop A Clear

Mission

Statement. It’s second point is Assess The Firm’s Strengths And Weaknesses. You have to get to the third point in order to discover what should be the first and most important step – to analyze the market.

            You don’t become a business, or a practice, or even have a reason for existing, except in terms of your market. Your professionalism is not an abstraction that functions in a vacuum, with the people you serve ancillary to your practice. You can write mission statements until you’re blue in the face, but if they’re not written in terms of the needs of the marketplace you’re addressing, the mission statements become nothing more than fantasy wish lists. And a wish list is not a business plan.

            Your firm’s strengths and weaknesses, as well, can’t be defined except in terms of the needs of your market, and your ability to meet those needs.

            What so many professionals, and the marketers who serve them, fail to understand is that all business plans begin with the market, whether you’re a lawyer, accountant, or plumber. A business plan is a plan to capture a market, and not just a paean to your profession, nor an academic exercise. In building a practice, the strategic plan can make a significant difference in whether you succeed or fail as a firm in today’s economic environment.  How should it go, then?

1.      Start by understanding your market. Not just the demographics, but the kinds of problems, the kinds of businesses, the industries, the companies by size. Understand the number of companies in declining, static, or emerging industries. Look at the market in terms of your firm’s experience and expertise. Look at your competition – who they are, how they serve the market, how they reach the market. Understand the economic conditions that affect your market. Understand the vehicles for reaching the individual companies in that market – the media, the trade journals, the trade associations. The more you know about your market the better you are able to build a strategy to penetrate tat market – to build a practice.

Has your market changed in recent years? New Companies? New industries? New competition? New management structures and systems? Do you see too many companies in declining or static industries?  Are companies demanding skills or experience that you don’t have, or facing problems that you’re not prepared to solve?

In fact, without a thorough knowledge of the your market, there is no way you can possibly plan anything except where to place the furniture in your office.

2.      Analyze your firm in terms of the market. What skills do you have that you can use to serve the market?  Are you prepared to serve the market as you’ve defined it? If your skills or depth of experience are not sufficient to the needs of the market, will you have to hire new people, or retrain your current staff? In view of the market, will you have to release people?

3.      Consider your personal and firm goals. Bringing together the needs of the market and your ability to reach and serve that market requires substantial planning and effort. That effort can best be defined in terms of what you and your partners want, individually and collectively. What do you want of your firm, and what are your personal needs and desires? Are your firm and partner objectives realistic, or dreams?  In view of the difficulty and cost of fostering growth or change in  a professional firm,  is achieving your gols worth the effort?

4.      Devise strategy. In view of the first three points, the strategy is developed in realistic terms. What changes must be made in administrative and professional staff? How must the firm restructure, short and long term, to address the dynamics of changing markets? What new skills must be developed or acquired? What parts of the practice address declining or static industries, and how shall the firm deal with the problem? What industries are emerging, and what must the firm do to pursue those industries? What specific target markets will be addressed? What vehicles will be used to reach those markets? What position should be developed that addresses the needs of the target market, and that demonstrates your ability to serve that need? How shall resources be allocated, both internally and externally, to project your capabilities? What should be the short term and long term marketing goals?  What are the tactics that will drive the strategy?

5.      Manage the effort. Who is going to do it – internally and externally? What are the roles of the partners, internal staff, the internal marketing staff, and outside consultants? What internal structures have to be changed or developed to manage the strategy? What resources – money, staff, time -- will be dedicated to making the strategy effective? How will the strategy be monitored, and corrected as experience with the strategy dictates? How will the firm’s people, on all levels, be kept informed?

Strategic planning, then, is not casual, nor random. Nor is it a superficial process, as so many articles seem to imply. In today’s economic climate, growth  -- and even sustenance – is likely to be achieved only with planning.

Oh – forget the mission statement. It’s a fad thing that impresses no one, inspires no one, and rarely drives anything internally or in the market place.

In today’s competitive environment, random growth is no option. Not when efficient competitors are designing ways to get your clients.

AIN’T NOBODY HERE KNOWS HOW TO PLAY THIS GAME (REDUX)?

The High Cost Of Arrogance In The Public Relations Business

Some of the smartest people I know are in the public relations business, although it doesn’t take super brains to do it on some levels. It would be hard to find smarter people in any profession than Richard Weiner, or Richard Levick, or Larry Smith, or Jennifer Prosek. It's the likes of them that elevate the profession. But one thing is sure – the guy responsible for the Boston fiasco is a prime example of the kind of public relations practitioners that the public relations profession can least afford. Idiots know better. For starters, he failed to understand the consequences of a stunt.

The fact is that it’s a basic tenet of public relations that turning an idea into something newsworthy is the key to success. And it is also a fact that when a public relations person does something stupid or thoughtless, it affects a lot of people. It also diminishes the art of public relations in the eyes of many people. I imagine that a lot of us in the communications business are embarrassed by what happened in Boston

            The successful public relations activity is a powerful device, and not to be taken lightly. The more successful it is, the more people it reaches, and the more people it reaches, the more people one can persuade or otherwise affect. And for this reason, irresponsibility is unconscionable.

            In case you were on the Great Wall of China or otherwise incommunicado recently, an events and public relations stunt company, retained by Turner Broadcasting System to promote a new television show, planted a number of glowing electronic devices throughout the Boston area. Suspicious looking electronic stuff. Which, on the face of it , sounded like a good idea. Well, maybe it would have been before 9/11, those nice naïve days when bomb planting terrorists hadn’t yet entered our civic consciousness. But not to have known the anxiety about terrorism since 9/11, nor to realize that strange electronic devices strategically placed where terrorists might well place bombs might cause panic, is to be at the lowest end of the I.Q. scale. The activity, according to Boston officials cost the city of Boston some $500,000 (says the AP). It cost two other local communities and their transit systems another $500,000. Presumably, somebody is going to jail.

            A quote from The New York Times. “If we ever would have perceived that this would have been the result, we never would have implemented the campaign,” said a spokesperson for Turner Broadcasting. What did Turner expect, given the climate of fear and anxiety generated by terrorism? Roses?

            The mewling of justification from others in the guerilla marketing games are almost as pathetic. “Turner did not disclose that this was a corporate message,” says one such executive. “It never would have been confused with a bomb if it had been disclosed that this was a corporate initiative.” Some people should eat more fish. It’s brain food.

            The company should have notified authorities of their antics before putting the device in place, said another. Brilliant.

            The best quote from the Times story comes from an interview in an advertising publication with the Chief of Interference, the ad agency responsible for the Boston stunt. Asked if he had ever been arrested for a stunt, the man said, “Luckily I have avoided arrest, mainly by dropping fictitious names of police officers from other precincts in town.” Nothing like eroding pride in a good profession.

            This kind of activity comes under the heading of Guerrilla marketing, which is merely an extension of word of mouth marketing. The idea is to promulgate activities that generate word of mouth – the jargon of which is buzz. Nothing is wrong with it, if it’s done well and honestly – and with a keen understanding of consequences. The motto seems to be, “It seemed like a good idea at the time.”

            Responsible and intelligent public relations is a public service. At its best, it educates, it sells, it gets people thinking in new directions. At its least, when done with intelligence, it’s harmless, and maybe even amusing.

            Ultimately, misuse of otherwise useful public relations devices … irresponsibly extending the license of otherwise sound public relations practices … is just plain stupid. In fact, when a public relations stunt makes the news that should have been reserved for the product, then somebody took a wrong turn. It is, I think, an excess of residing in one’s own assessment of one’s own cleverness, which is hardly clever at all.

            

IT WAS GOOD ENOUGH FOR DAD, IT’S GOOD ENOUGH FOR ME

People Who Don’t Understand That The World Of Journalism Has Changed

            It seems that every time I write an article that suggests that the world of journalism has changed, I get berated by some old time journalist turned public relations professional.

            My articles in The Marcus Letter on wither the five W’s (the who, what, when, why and where we were once taught must be in every lead  paragraph [or lede, if you will] of a news article opened the heavens to thunderclaps of scolding.

            The recent publication in the widely read blog, RainToday, of my article on why you don’t always have to be nice to journalists, horrified some readers, who, obviously, were taught that you always have to be nice to journalists.

            These protests always seem to come from people who were trained in the deep, dark ages of the mid-20^th century or earlier. I was too, but, like a good many others, I was also taught the latest lesson – things change.

            I suspect that when many journalists move into public relations, they are inured to events outside that world. I made my bones as a journalist, and again in public relations, as did many good people, and I respect the many sound practitioners of both arts. My first published articles were in the old Brooklyn (NY) Eagle, a fine but now defunct daily newspaper. I’ve worked for, or written for, the likes of The New York Times and the Anchorage (Alaska) Times. I count as my mentor the estimable Richard Weiner, my boss at Ruder & Finn, (where I won a Silver Anvil for the outstanding international public relations program of the year), who went on to establish his own superior public relations firm. A huge number of public relations practices we rely on today were invented by Richard. And while I now serve the world of professional services with a good many more skills than just PR, it’s still part of what I do in the pursuit of law and accounting firm marketing. Why, I haven’t made a placement since, oh, three or four weeks ago. Dick would have been proud of me -- he taught me how.

            But things have indeed changed, and it’s important to understand why and how.

            Have you noticed that newspaper readership is shrinking faster than the polar ice pack? The reasons are complicated, as is all of life, but more people get their news from blogs and the internet now, than from the traditional media. In fact, I think I read someplace that more people now get their news from Jon Stewart and Steven Colbert than from the nightly news on TV. A mighty wind is blowing through the news rooms of the country, wiping out jobs, shrinking the traditional media, causing mergers that were once unthinkable. That the realm of journalism is now owned by corporations is, I think, not universally true, but it is a valid observation in a great many cases. Rupert Murdoch now has more power over the dissemination of news than William Randolph Hearst ever did. But do you think that he actually controls more minds than do the blogs of such as Ariana Huffington? Or that his papers have more credibility with today’s folk than do the blogs and webinars and the like?

            And do you think that those neojournalists who run the blogs and Podcasts, and who, in probably most cases, never worked in a city room, give a tinker’s damn about the five W’s?

            Have you noticed, in recent years, the intrusion of the once-forbidden personal pronoun in news stories and articles? A practice long considered as outrageous as wearing white shoes after Labor Day. And if it was ever considered appropriate for a journalist to insert him or herself into an article the proper pronoun was we, not I. Now, even in such esteemed journals as the New York Times, it’s hard to know whether the story is about the writer or the written about.

            Yes, the world of journalism has changed. And if the world of journalism has changed, then so too must the practice of media relations change, since, traditionally and in many respect, we who practice the art of public relations are journalism’s handmaidens.

            Dick Weiner notes that the changes wrought by the new journalism obviously mean new delivery systems, more lively writing, and new news values.

            But if the five W’s are gone, how do you write a news story, and by projection, a press release? (Press releases, the wonderfully innovative and original Richard Levick was once heard to say, are now the least part of a public relations campaign. But they still flow like wine into media press rooms, and I haven’t heard that PR Newswire is going out of business.)

“I agree with you,” says Richard Levick, “that the communications playing field has changed dramatically in the last three years in a way that not even the popularization of the Internet did. From 1985 with the repeal of the Fairness Doctrine, to the evolution of news room as profit center, the role of the Forth Estate has changed radically in recent decades from over-site to interest group. But nothing has had the impact as quickly and dramatically as the hyper-democratization created by the blogosphere, which has its own independent influence as well as its powerful leverage upon traditional media.”

Still, some things are unchanged. Says Levick, “Having said all that, and recognizing that all the rules have changed, have they really changed in the ways you write? We chose strategies in the past as we do in the present, where in one case we flood a story with information and in another starve it of oxygen. We are still polite and think the best, knowing sometimes that our neighborliness is not returned. The mechanics and timeliness have changed, and tactics and strategies have altered, but at their foundation, they still remain largely the same. We now travel at breakneck speed which reveals weaknesses more quickly. We are asked to be more adept at business, political, and technology knowledge than we were in years past when time allowed us greater opportunity to fill in the blanks of our knowledge.

“So our roles have changed. But they changed with blast faxing, professional news wires and mobile telephones. We can still employ an old time one-to-one relationship between a long time journalist turned PR professional and an old friend who stays with the media. And at the same time we might influence a high authority blog. Neither is innately better, as both have value, and at moments, extreme value to a client who only cares about a singular result. Our jobs are made more challenging by requiring that we have in our shops the ability to do both and all well. The popularization of the Internet doesn’t eliminate the need to write well, though many think it does. Nor does it eliminate the importance of relationships. It just doubles the skills we need in half the time. The client’s goals will always determine what has value. “ 

            What works is to find the most compelling essence of the story and put that in the first sentence. That grabs ‘em every time. Let’s face it – sometimes the who is not as important as the what, nor is the why always as important as the who. Dick Weiner suggests that to the five Ws should be added how. But not necessarily, I think, always in the lead. So much for ancient rules.

            Now, while I don’t mind getting mail that disagrees with me, just remember that the essence of this story is not just the change in journalistic style and fashion. It’s that this is a dynamic world, and things are always changing. Coping successfully depends not upon the latest rules, but on understanding the dynamics of change. I think that if you understand that, you never grow old.

LETTER TO NYS BAR ASSOCIATION

November 9, 2006

Michael Colodner, Esq.,

Counsel

Office of Court Administration

25 Beaver Street

New York, New York 10004

Re: Proposed Amendments to Rules

Governing Lawyer Advertising

Dear Mr. Colodner,

            I am writing to oppose the proposed changes in the advertising code for lawyers.

            My name is Bruce W. Marcus. I have been a consultant in marketing and firm management for law and accounting firms since well before Bates. I am the editor of The Marcus Letter on Professional Services Management, which is read internationally by more than 25,000 lawyers, accountants, and the marketers who serve them; the editor of the blog, The Marcus Perspective;  and  the author of some 15 books on marketing and hundreds of articles, most of which have appeared in professional journals for both lawyers and accountants. I am, in fact, a pioneer in the practices of marketing for professionals, and have served innumerable law and accounting firms in that practice.

            I am opposed to the proposed changes as being irrelevant, anachronistic, and misguided. I am particularly opposed to the notion that law firm blogs may constitute unethical marketing.

            I am opposed, as well, to misrepresentation or false claims in advertising, but that is a given, and its cause, I believe, will not be addressed or advanced one iota by the proposed rules. As one very bright and prominent lawyer and economist pointed out to me, we don’t need a law to outlaw what is already illegal.

I am opposed to the proposed rules on three grounds  --  a misunderstanding of the concept of ethics (see Bates et. al. v State Bar of Arizona); the rules themselves will not likely be upheld at the first legal challenge to them; and there is clearly a misunderstanding of the meaning of marketing for lawyers and the long-term effects of Bates in serving both law firms and, most significantly, clients.

While I grant that it is the purpose and value of bar associations to protect integrity in the profession,  it is incumbent on them, I believe, to protect the profession from overzealous regulation that goes beyond its stated purpose. For example, with or without ethical rules, to promise what it is impossible to guarantee or even to deliver (e.g. to guarantee litigation results),  is a lie and an untenable claim, and is poor business practice – and all before the question of ethics enters the picture. Lawyers who lie or misrepresent will not long succeed or sustain. The acoustics of the marketplace will ultimately catch up to them. Moreover, there are laws aplenty to deal with this kind of chicanery.

At the same time, the proposed rules seem to lose sight of the ultimate objectives of ethical codes, which are not merely to protect the integrity and reputation of the profession, but to protect the clientele – the consumers of legal services. In reading the proposed rules, I get no sense that this aspect of regulation is adequately addressed, in which case the rules are inadequate to the needs of the 21^st century practice. I suggest that integrity is not addressed by rules, but rather by behavior, which, unfortunately is  too often too nuanced to regulate beyond empirical observations of right or wrong. Here, too, the marketplace  (as well as existing criminal law) will do more to adjudicate behavior than will excessive regulation.

My second point is conjecture on my part (because, despite my many years of experience in the field, I am not a lawyer). Having lived through the three decades since Bates, and having seen the successful and unsuccessful assaults on law firm outreach, I suspect that the new rules will be challenged successfully, making the promulgation of the regulations an exercise in futility.  There is also the obvious fact that, in today’s communications media, it would be impossible to preclude advertising activity from other states. This, I think, is a fairly obvious problem.

I perceive an anxiety on the part of the profession about the overzealous pursuit of clients by the trial lawyers – ambulance chasing. I grant that this kind of behavior is reprehensible. It erodes trust in the profession, and subverts the purpose of the law. But here, too, caution is necessary to avoid overzealous regulation, which only gives support to those who would weaken the whole personal injury and malpractice branch of the profession. In representing malpractice firms in the past, I came to the conclusion that the reason there is so much malpractice litigation is that there is so much malpractice.  There is indeed a need by the public for this kind of practice, and for checks against its abuse, but too much regulation  ultimately serves neither the profession nor the public.

            My last point is that I am struck by the notion that  the restrictions on law firm blogs as improper marketing is done with not only ignorance of the real meaning of marketing, but of the benefits of lawyer marketing for both the profession and, more significantly, the clientele, over the three decades since Bates.

            It should be understood that while a good product marketer can conceivably persuade a consumer to buy a product that the consumer didn’t know existed before, and can even make specific claims of product superiority. it’s not rational for law firms to do so. It’s not regulation that prevents a lawyer from claiming that he or she writes better briefs, or is a greater silver tongued devil in the courtroom. It’s that these claims are patently unprovable, and too outlandish to be expected to be believed. 

At the same time, it should be understood that unlike the tube of toothpaste, which will be consistent in quality from one tube to the next, the nature of legal matters precludes that kind of consistency.  I may be able, through marketing, to persuade you that my brand of toothpaste is better than that other brand. But I can’t, even by dint of superior marketing, persuade you, as a happily married individual, to get a divorce, no matter how good a marketer I am. In other words, professional services marketing is distinguished , not by persuading a prospective client to do something not dictated by external needs, but rather, to demonstrate that an attorney is distinctly qualified, to a point that might imply – but can never validly demonstrate – the potential for superior performance.

            What is most significant here, and what is most dangerously threatened by the proposed rules, is the positive effect on client service by the modernization of the profession.

            In my 2005 book, Client at the Core, (with coauthor August Aquila) I pointed out that the nature of the practice of the present and future is dictated not by the traditions of chambers, but by the needs of the clientele. Today’s clients – as a result of the ability to compete brought about by Bates – is a better educated client, and demands better communication, better information, better explanation. As a result, you have an evolving new fee structure, demanded by clients. You have new, relevant services. You have two tier law firms, designed to make better use of a firm’s talents. You have client service teams. All of these and more to enhance the competitiveness of a firm in a realm in which a firm can’t say, “We write better briefs.” Will clients, I wonder, allow the profession to go back to the pre-Bates days? Who then benefits?

            What, then, is marketing for lawyers? It is not blatant and outrageous claims. It is, instead, the blog that delineates and explains. That educates.   That demonstrates, but not claims, expertise. In that sense, the blog may be the best thing to happen to there profession since the loss of the wig and the robes.

            Marketing is the advertisement that demonstrates the expertise of lawyers, or a firm’s specialties, or a firm’s philosophy. Marketing is the news report that describes an outcome in court or in the boardroom. It is the report to the public of new law or regulation, and its meaning. All of these are neither blatant or misleading. All are invaluable to the consumers of legal services.

            And if, in the course of educating and informing the public, blogs and other forms of marketing persuade a prospective client that firm A has a better grasp of a problem than firm B, then it is not only good marketing, but good client education.  If the law firm benefits from this kind of activity, then so too does the client  -- and that’s not a diminution of law firm integrity – that’s a positive force for the practice itself.

            We live in a dynamic era, with the traditions of the past altered by technology, by globalization, by new access to information, by new kinds of laws and regulation (e.g. Sarbanes-Oxley). In promulgating rules by which the profession must function, these changes must be taken into account.  And again, the ultimate consideration should be not just protecting the reputation of the profession, but rather by the benefits to the consumer of legal services.

            If a rising tide raises all boats, so too, then, does sound marketing serve the profession.

            May I suggest, as well, that organizations that promulgate regulations that will ultimately be ignored or overturned are on a path to irrelevance and obsolescence. Bar associations are too important to the profession to be allowed to become anachronistic.

            I suggest, then, that the proposed regulations be reexamined in the light of the reality of 21^st century practice, and its role in servicing both the practice and the public – the consumer of legal services. I believe, then, that the proposed rules are unwarranted, and detrimental to the purposes of the practice.

                                                                        Respectfully submitted by

                                                                                                            

                                                                        Bruce W. Marcus

WHY YOU CAN TRUST SYMANTEC

Virtually A New Program Every Day

            No problem in computers is more pervasive than the attacks, via viruses, worms, phishing and the like, produced by crooks, villains, wise guys, and adolescents of all ages, from what seems like every country of the world. How easy it is to take for granted the intercession of the virus hunters – Symantec, MacAfee, Trend Micro and others. They seem to work in secret witches’ caves, brewing up whatever potions they brew up to divert the villainous stuff thrown at us by the bad guys.  Just like that. Hah!

            Recently I had the privilege to attend a two day seminar, run by some very senior Symantec engineers, analysts, and technical executives, to assist those of us who review Symantec and other computer products. They brought in the senior people from Santa Monica, Austin, and even Ireland. 

            Why does Symantec have so many technical locations around the world? So that they can take advantage of time zone differences to monitor intrusions from anywhere around the clock. It’s a vast 24 hour, seven days a week, sweep. It’s why they’re able to develop antidotes within 48 hours or less.

            A lot of it was technical  -- more than I can handle, or that most of you might be interested in. But what is interesting – and important – is the scope and depth of what they actually do to protect us. It’s awesome. It would put comparable consumer protection laboratories to shame, including the likes of the U.S. Food and Drug Administration.

            Essentially, they covered malware testing methodologies, firewall and intrusion prevention systems, performance benchmarking, anticrime-ware testing, and anti-phishing. Some examples of the lengths to which they go include exploring network attack scenarios, developing firewall and intrusion prevention systems, performance benchmarking, anticrime ware testing, and antiphishing systems. It’s an ongoing and persistent process.

            The Symantec labs are constantly developing procedures to detect and immobilize  antivirus and antispyware products, to develop firewalls that  reflect user scenarios, even as they develop stronger and more sophisticated firewalls. They work constantly to improve system impact, in terms of boot and resume time, memory utilization, and installation time. They constantly seek better transaction security technologies. And even sort out and fight phishing technologies. It’s a lot of very serious people working some very serious technology, all for a relatively painless interface with the consumer that keeps our stuff  as safe from intrusion as is humanly possible.

            While the two day session was a course in how to evaluate security software, it was also an awesome lesson in the range of activities pursued by Symantec’s  technical staff. It’s useful to remember that the variety of attacks on internet users is overwhelming, with new and innovative attack strategies developed every day.  As one virus or worm is stopped, new ones spring up. Symantec, however, is more than just a software developer who designs a program and walks away until the next iteration is developed. Symantec is dynamic, adding new protections as the need for them surfaces, which can be many times a day. The world of the internet transgressor covers, it seems, any country that has electricity for some miscreant to use to run a computer.

            While it’s likely that Symantec’s competitors function in much the same way, it’s not difficult to see why Symantec is the leader in the field. It’s a war, and Symantec is in the front line. Glad to see it.

I WENT TO THE FAIR

And All The Fruit Was Overripe And All The Rides Went Nowhere

            Recently I attended a conference on law firm marketing. It was stunning.

            I was reminded again of one valuable lesson, which all of us who do this crazy thing really know on one level or another. Nor is it news – but it’s important, and is at the root of the difficulties of marketing professional services. It’s culture clash at its most impactful.

            Lawyers have always had a distinctive culture – in many respects, with an emphasis on the word cult. The culture and the traditions of legal practice are rooted somewhere in the middle ages. It’s deeply ingrained.

            Marketers, even those of us who serve professionals, have our own culture as well. Some of it – not all -- is rooted in the late 19^th century and the early 20^th Century. Because we don’t have legal certification, and the law governing what we do is so slack that most marketers don’t even know it, our culture is somewhat thinner. But a distinctive culture it is. Moreover, so much about marketing – both professional services and product – is new. Too many marketers don’t know it, and it’s that much more difficult to bridge the culture gap. Too many marketers do the same few things repeatedly, because that’s the way they’ve always done it.

            And the lawyers and accountants don’t understand our culture, and we marketers don’t really have a deep-rooted understanding of theirs. So what happens? There is a vast intercultural gap that’s not being bridged. For lawyers, the modern concept of competition is too new to the professions, and many professionals have not quite digested it yet. Part of the problem, of course, is that most lawyers and accountants have no valid way to judge marketers. This means that the quality of the marketers they hire range from very good -- knowledgeable, artful, imaginative -- to just plain clueless. The ability to spout the jargon is not the secret to marketing success. Evidence of this abounded at this conference, with more nonsense than sense spoken. And with too much presentation of old stuff as new.

            To put it most simply, we don’t get them, and they certainly don’t get us.

            My favorite presentation was a Wharton School professor of marketing who had no inkling of the difference between marketing a nonprofessional service (airlines, hotels, etc.) and marketing a professional service. It was scary. For example, she resurrected the old saw about intangible and perishable services. Go tell a lawyer who’s worked 72 straight hours to meet a deadline on a red herring for a new issue that his or her service is intangible. Go tell a lawyer who’s worked months to build a corporate structure that’s a foundation for years to come for a company that his or her work is perishable. Academics, from Kotler on down, who preach a marketing structure they don’t understand, are more depressing than the war stories out of Iraq. I know what the Four P’s really stand for, but it ain’t for polite company.

            Why do I rave so about this kind of academic drivel? Because these academics, who carry a certain cache, undermine the difficult truths about marketing professional services, and muddy the waters with lawyers and accountants, as well as marketers, thereby making it doubly difficult to generate productive understanding between the cultures. They should be shot.

            Two notes – not the most relevant. Many presenters at conferences like these seem to be imbued with the Southern Baptist approach to preaching. Stentorian presentations, marching through the corridors of the house – all as if their role was not to educate, but to convert. Enough already.

            The other thing was more subtle. The variety of titles for so many people all doing the same thing. Chief Client Development Officer. VP Client Services and Strategic Planning. Director of client Development.. Vice President, Business Development. Director of Sales. This stems, I think, from a bit of a sense of inferiority about being marketers in a firm with a bunch of guys and women with legal degrees. It’s kind of like the secretaries who try to exalt themselves with Administrative Assistants titles. You know, it’s not necessary. A competent, professional and imaginative marketing director is as good as any lawyer any day. It’s done with competence, not title.

            Was it all bad? No, of course not. But enough of it was so bad that the good stuff seemed out of context with the bad stuff. A kind of a Gresham’s Law, in which the bad stuff drives out the good stuff. It certainly muddies the water, and inhibits the all important acceptance of marketing by the lawyers, who have, historically, no tradition of marketing, and very little facility to judge good from bad marketing and marketers.

            Let’s talk about the good stuff. Iris Jones, of Akin Gump, as usual, spun a golden web of information about the complex concept of client service teams. Looks easy, but it isn’t, Jones has built more than 65 very powerful and productive teams, an amazing advance in law firm management. She alone was worth the price of admission. My question, in this context, is how many of the attendees are going to be able to go home and persuade their firms to let them start client service teams? And therein lies a crucial factor – as in all professional services, the marketer is only as good as the lawyer or accountant who understands and accepts new ideas, even from non-lawyers or non-accountants. This is a process called reality.

            Richard Levick, who after many decades of same old same old public relations, has reinvented the field, was not only dynamic, but genuinely informative. There are lawyers and lawyers, and PR people and PR people galore. But Levick understands the cultural difference, as well as the contemporary communications structures, and the real meaning of marketing objectives. He knows how to create and communicate meaningful news.

            Larry Bodine, an old and reliable hand at this arcane field, spoke real truths about selling services. Also a lawyer, he knows what’s important, beyond the veneer of so much marketing effort, and he knows how to communicate it.

            Jim Durham, another old hand, pinned down the essence of successful lawyer-client relations, an essential factor in successful practice development.

            In fact, the organizers of this conference did a fine organizational and promotional job, and are themselves professionals. But as one attendee asked me, don’t they vet the panelists?

Good and valid question.

            I don’t write this to demean either the presenters or the attendees. My concern is the problem of reconciling the two cultures. In law firms – and accounting firms as well – there is traditionally little hospitality for the non-lawyer or the non-accountant. Too bad, especially in this increasingly competitive environment, where law and accounting firms have the opportunity to compete successfully, instead of groping in an anachronistic environment. Both cultures have a lot to learn -- and there is a lot to be learned -– from one another, to the ultimate benefit of both.

            Those firms that don’t learn, or that reside in anachronistic mythology of marketing or in catch phrases (e.g. branding), are too easily fooled by the big pool of client money now floating around into thinking they are successful. They are blind to the firms that go bankrupt or that need to merge or be acquired to survive.

            Ladies and gentlemen, look to that old vaudeville line – change your act or go back to the woods.