High Past Time to Amend the Attorney Ad Rules

Faithful readers of this blog will know that I have long lamented the scabrous attorney advertising rules. Larded down with a centuries-old accretion of quaint prohibitions, the rules are doing nobody any favors.

However, there may be some light at the end of the tunnel. The ABA is actively considering a proposal to streamline its Model Rules relating to attorney advertising. This process gathered momentum on the back of some very fine work by the Association of Professional Responsibility Lawyers, and is happening in an environment that seems ripe for change: states from Oregon to Virginia are actively considering changes – good changes – to improve their ad rules.

Avvo has filed comments in support of the ABA’s initiative; you can read them here. Some other folks also filed comments; almost all of them are also supportive.

Here’s the tl;dr version of Avvo’s comments:

The current rules are both unnecessary and actively harmful. Unnecessary, in that the detailed regulations don’t offer consumers any meaningful protections beyond what a general prohibition on false and misleading advertising would provide. And actively harmful, as they cost the public legal information and innovation through the chilling of lawyer speech.

Here’s hoping the ABA sees this one through, and makes this necessary and long-overdue change.

The McDonalds of Law?

Late last year, I offered to a room full of attorneys that they should consider emulating McDonalds when it comes to delivering consumer legal services.

Yes, the response was underwhelming. But hear me out:

Think of restaurant dining and legal services as solutions to problems. Dining solves the problem of hunger and nutrition; legal services whatever our legal problem (or, perhaps, opportunity) might be.

When it comes to dining out, one option is McDonalds. It’s quick, predictable, calorie-dense, and cheap. And while the “quality” of the McDonalds dining experience from the subjective perspective of taste might be low, the “quality” from the objective perspective of food safety is on par with other restaurants (and probably higher than average).

Now, if you want a dining experience that is higher in a subjective quality like taste, novelty, or ambiance, you will choose something other than McDonalds. That experience will almost certainly cost more – perhaps orders of magnitude more – but you will make that choice knowingly and openly. And, critically, the restaurant you choose won’t be any different from McDonalds on the objective quality measure of food safety.

Now, on to legal services.

If you’re a consumer in need of legal services, you face a legal marketplace where 95+% of the providers are offering only Chez Panisse-levels of services. Fancy, full-scope, custom services. And let’s put aside for a moment how well they are delivering on that quality promise [too often, not well], and ask the harder question: do consumers of legal services really WANT only the option of dining at Chez Panisse? Or would many of them just rather have some of that fast-predictable-cheap McDonalds action?

We know the answer to this question already. In every other category of goods and services, consumers are used to trading off price for quality. And, predictably, most of them will choose the lower-cost / lower-quality option.

It’s not just McDonalds vs. Chez Panisse. Think staying at the Motel 6 vs. The Ritz. Flying Frontier vs. any other airline. Buying clothes at Old Navy vs. Nordstrom. The subjective quality differences scale all over the place.

And here’s the thing: it’s completely rational for consumers to make these choices based on their own needs and economic condition, as long as the most important measures of objective quality are reasonably similar. Which they are; a mix of marketplace dynamics and consumer protection regulations ensure that minimum levels of objective quality are met.

So knowing that consumers in every other category want the option of a quick, predictable, affordable experience, why don’t more lawyers offer it? One common reason I hear repeatedly is that every legal problem is different, and that lawyers need to provide a sterling level of diligence in order to meet their ethical obligations and avoid malpractice.

This is a bogus objection. McDonalds doesn’t offer a high degree of food safety because they custom-make and inspect every burger and order of fries; they do it because they’ve consciously built up the processes necessary to provide this quality at scale. And lawyers could also offer cheap-and-predictable legal services, at high objective quality, but in order to do so they would need to re-tool their processes to support it. But rather than so doing, too many lawyers continue to rely on handwork, hoping to entice the small “fine dining” segment of the legal market.

So a lot of what’s blocking the opening up of a much bigger segment of the legal services market is mix of inertia, aversion to change, and a lack of facility in business process design. I am far from having all of the answers to this, but if you’re planning on attending Lawyernomics 2017 this April in Las Vegas, my talk will be focused on exploring this opportunity in more detail. I hope to see you there.

Ethics of “Better Call Saul”

The character of Saul Goodman brought a new level of sleaze to the on-screen depictions of lawyers in Breaking Bad – along with memorable ads, an inflatable lady liberty and a mock lawyer website that fooled more than one gullible ethics lawyer.  The masterful spin-off, Better Call Saul, shows us Saul’s origins, and offers a more darkly-comic, less violent vision than the original show.

And it’s also got lots (lots!) of lawyer advertising and ethics issues. Heck, there’s even an explicit reference to Bates v. Arizona! For more on that, go read my friend Nicole Hyland’s musings on the numerous ethical mishaps that Saul has run into only partway through Season One.

Lawyer Commoditization

Check out these posts from earlier today:

Ron Friedmann –  “Big Law, Fast Food, and Lawyer Exceptionalism.”

Mark Herrmann – “Be Afraid. Be Very Afraid.”

Friedmann is speaking to Big Law, and Herrmann to in-house lawyers, but the message is the same: commoditization is coming, and there’s nothing special about the law that’s going to keep the forces of automation and progress from sweeping up a whole lot of the legal work that lawyers are beavering away on these days.

And while that’s bad for those who get run over by this trend, it is potentially great for consumers of legal services, who still face an industry that overwhelmingly offers nothing but bespoke options – with prices to match.

Foodies may look down their snoots at the super-sized sameness of McDonalds, but for a whole lot of people, the combination of price, quality, consistency, and quick service makes it a compelling choice. Think consumers wouldn’t flock to the equivalent in law?

There’s even a silver lining for attorneys in areas ripe for commoditization: instead of ignoring this trend, embrace it head-on. Create packaged, price-transparent offers for frequently-used services. Build the systems and processes to handle a higher volume of clients a whole lot more efficiently. Start giving the market what it can’t get today, but desperately wants.

Even in commoditized industries, lots of businesses can grow and thrive. But it takes recognizing and adapting to the changes that are occurring around them.

Legal Services – The Quality Myth

I’ve recently explored a thought experiment relating to what a more practical, consumer-focused license to practice law would look like.

One major objection that attorneys invariably raise – if they can keep from going apoplectic and engage the idea on its merits – is the risk to consumers in getting “legal” help from non-lawyers.

Sure, there are risks. But how serious are they?

First of all, plenty of plenty of people want to pay less for something that’s not fully-custom, with all of the risks and tradeoffs that entails. That’s an important element of consumer choice.

However, there’s a bigger issue: while lawyers are quick to play up the tradeoffs between custom and mass-market services – trotting out the scare tactics about “cookie cutter” services and lack of accountability whenever non-lawyer services are discussed – many consumers may actually prefer such services for reasons beyond just price.

Custom products may win the “spec” battle,  but mass-market solutions are not inferior across the board. There is a high degree of variability among the providers of custom legal services. Not just in competence, but in all of the things that go into the customer experience: timeliness, responsiveness, predictability, etc. One of the things large-scale businesses do well? Solve for these sorts of consumer needs in a consistent way.

Why does this matter? Back to my fashion metaphor: if you have a custom suit made, there’s a lot of potential for individual variation. It may very well make you look fabulous . . . but the process may also be a train wreck, marked by endless delays, lack of communication, rework, etc. Those factors may end up being more important than the ultimate cut of the clothing.

On the other hand, you know you can go into Nordstrom, buy something off the rack, have some in-house tailoring done, and end up with clothes that look pretty damn good. And they’ll be delivered on-time, with a smile.

For most consumers, that combination of predictability and price point makes purchasing off-the-rack the right decision – even if it means foregoing an element of fashion-wonderful upside that’s only attainable by going fully custom. It’s plenty good enough – and the predictability of the outcome makes the process lower risk than going custom.[ref]It may even make it lower legal risk than custom in some areas, as businesses can build in process and quality assurance in a systematic way that few law practices invest in, particularly for lower-value consumer work.[/ref]

In the legal world, imagine customers knowing they could call, anytime, and get an update on their status. Imagine having a clean web interface and all documents stored in the cloud. Imagine any of the myriad ways that a responsive, predictable, and transparently priced experience could be delivered to customers. THAT’s what a larger-scale business could deliver – and it’s what a whole lot of consumers are clamoring for.[ref]This isn’t to say that lawyers couldn’t deliver services this way. It’s just that they haven’t done so, and don’t seem to have much interest in starting.[/ref]

This obviously doesn’t work for every legal issue or practice area. Getting custom help is critical when your freedom is on the line, or the matter is complex, high-stakes, and adversarial. But for many types of legal services, there may actually be more risk in the custom solution than the off-the-rack choice.

If only such options were available.


Lawyer, be Interesting

MIMITW slip and fallAt a recent talk, a young lawyer asked what lawyers in competitive practice areas (he, I later learned, was a PI lawyer) could do to stand out from the competition.One answer – an answer that might seem obvious, if it weren’t one that so many lawyers could benefit from – is to do outstanding work.

By this I don’t mean just the stay-up-late-and-aggressively-and-competently-represent type of doing outstanding work.  That’s table stakes, even if far too many lawyers don’t get that far.

What I mean is staying fully invested with, and available to, the client.  Being responsive to their concerns.  Attuned to their level of risk tolerance. Over-communicating.  And being completely willing to tell them the hard truths they need to hear – which they will (usually) process and understand, if you’ve done all of the above.  Attorneys who do all of that, consistently, will yield a bounty of referral business from grateful clients.

But that’s not the answer I gave.

In many competitive areas, you’ve got to do even more than provide consistently outstanding work for your clients.  You’ve got to be . . . interesting. You need to have a personality.

This doesn’t come naturally for most lawyers. Hell, it doesn’t come naturally for me. We lawyers are risk adverse, and being interesting means taking a stand on something, having opinions, being loud, being polarizing.  It means putting ourselves out there, exposing ourselves a little bit, risking the possibility that some people will disagree with us and perhaps even not like us.

This doesn’t mean you’ve got to stake out extreme positions; it just means that you’ve got to be more transparent.  Staid-and-boring doesn’t cut it any longer.  The internet and social media open up so much opportunity for attorneys to show who they really are and connect with clients and referral sources at a relationship level.  So trumpet those organizations you’re involved with, even at the risk of alienating a portion of the community.  Don’t hesitate to talk about your interests or what you’re doing in the community, even if it has nothing whatsoever to do with the practice of law.

People want to connect with real people.  And while they want their lawyers to be bullets on the competency front, they also want them to be real people they can relate to, laugh with, or even have a drink with.

Email Awkwardness

If you’ve been practicing law for more than 20 years, you will recall the hand-wringing over the advent of email. Too informal, too insecure, couldn’t be trusted with client information, etc. But the voices of lawyerly caution never had much of a chance; email was simply too effective, too widely adopted. People and businesses far and wide plowed ahead with using it, and the concerns of the lawyers were shunted to the wayside.

Since that time, the vast majority of lawyers have become adept at using email. Sure, there are still too many disclaimers, and many lawyers have retained the practice of attaching letters to an email when the email itself would do just fine. But still – as a profession, we’re good with email as a tool.

But sometimes we still can’t figure out how to use it.

Case in point – the fawning email sent by Randall Rader – the Chief Judge of the Federal Circuit Court of Appeals – to Edward Reines, a patent lawyer at Weil Gotshal & Manges who often appeared before the court.
Rader Email to ReinesThe email, as you can see, lauds Reines’ abilities, and invites him to share the judge’s praise with others. Had Reines done the usual thing – smiled, sent the judge back a personal thank you, and filed away or deleted the email – there would be nothing to see here. Instead – because even white shoe Biglaw partners have to hustle for a buck – Reines forwarded the email to dozens of clients and potential clients, using it as a platform for selling his services.

As one might expect, this didn’t go well. When news of the email surfaced back in May, Rader quickly stepped down from his role as Chief Judge.  His message came at a particularly bad time for the Federal Circuit, which has been facing increasing criticism (not to mention Supreme Court reversals) for being far too cozy with the patent bar.

And now Reines has been reprimanded by the Federal Circuit, for violating Model Rule of Professional Conduct 8.4(e), which prohibits stating or implying the ability to influence a government official.

I think, as Reines unsuccessfully argued, that this is going too far. The email reveals that at least one Federal District court judge (and several others by implication) is very impressed with the quality of Reines’ work.  And as I have written about before, praise from judges is valuable as a marketing tool precisely because of its scarcity value.  Indeed, Rader’s encouraging Reines to broadcast the email acknowledges the rarity of this kind of praise.

The court, in applying the discipline, focused on Rader’s references to his friendship with Reines, and the fact that other parts of Reines’ marketing communications referred to his stature in the court and knowledge of the judges.  The court seized on these factors as somehow being distinct from advocacy skills (because being an effective advocate is completely separate from having credibility and knowing the judges well enough to know which sorts of arguments resonate with them?), and also somehow being indicative of a nefarious intent to unduly influence the judges.

Had he to do it over, I’m sure Reines would have chosen a different approach.  But there shouldn’t be a professional discipline penalty for crowing that the head judge of the court where you do most of your work thinks you’re the cat’s pajamas.  Reines should have a first amendment right to let people – including potential clients – know how well-regarded he is by the court.  Those potential clients can then choose for themselves whether it feels like too much of “look how special I am!”