The Practice

An Open Letter to the State Bar Board of Governors

Lawyer misconduct charges will go online because of your vote. You, who were voted in by the members of the State Bar to represent our interests, have completely ignored the interests of your members. As the California Bar Journal stated “The board… rejected opposition to online postings by the majority of those who contacted the bar about the proposal.” It is a shame that you have taken such an approach and ignored the majority of your constituents.

You have, with one vote, managed to place access to legal services to the most needy of our population at risk. It is quite simple. Sole practitioners, especially those of us who practice social justice law, provide access to the legal system that is vital in a democratic system. My clients, for example, cannot afford to hire Mr. Bleich’s firm or Ms. Fujie’s firm. Even the 3% of attorney time that Mr. Bleich’s firm spends on pro-bono time is a drop in the bucket compared to the legal work done by sole practitioners and small firm attorneys throughout the state When we honestly analyze the legal system, we see that small firm attorneys provide most of the legal work to most Californians (and most Americans, nationwide).

Of course, who is more likely to have a complaint filed against him? The attorney in the 100+ lawyer firm who represents the nation’s biggest companies, or the sole practitioner representing individuals? In law firms with a managing partner, the complaint moves up the chain of command to be resolved. For the sole practitioner, there is no one else to call. Further, the corporate clients don’t need to file complaints, they just pull their million dollars plus of legal work. The individual clients file complaints more often. This is played out in the back of the California Bar Journal where the discipline reads like a list of individuals making complaints against other individuals, not corporations complaining that mega law firms are violating the ethics rules. Sole practitioners, the very people who provide most of the legal services to individuals, face most of the complaints.

And how does a sole practitioner compete against the big firms? What is the best marketing for a small firm or a solo? Word of mouth. Reputation. My clients hire me because they have been told that I am good at what I do. They have found out, through a variety of sources, that I am an honest, ethical, hard working attorney. Of course, one resource is the State Bar website. This is how most small firm lawyers and sole practitioners get their work.

But, what happens if the State Bar decides to bring charges against a sole practitioner? The reputation that the attorney worked so hard for is gone with just a few keystrokes. Sometimes it will be deserved. Sometimes it won’t. The eight percent figure cited in the California Bar Journal (although other sources put the number higher) when the Bar does not prevail represents a fair number of attorneys whose reputations will have been wrongly sullied by your new system. While Mr. Bleich believes “Charges are just that,” innocent until proven guilty has no meaning to the general public who will assume you are like the US Attorney with dog fighting charges – you never are wrong. Reputations will be ruined before one word has been uttered to the

State Bar Court

. You won’t need to wait for an attorney to fight the charges, just the bringing of charges will put the sole practitioner out of business.

Interestingly, Scott Drexel, chief trial counsel, “wondered aloud if people ‘want ready access’ to disciplinary information when they hire a lawyer. ‘I think the answer has to be yes,’ he said.” Mr. Drexel is WONDERING this when a vote is pending. Instead of wondering about whether the public wants this information and instead of thinking he knows the answer, why did the Bar not follow the lead of the board members who wanted more time to study the issue? A simple survey, which the Bar has done many times before, would have made it so Mr. Drexel does not have to wonder what information the public wants, but would rather have provided a firm answer as to what the public wants. This issue is too important for wondering or guessing. I wonder what Mr. Drexel would say if the California Legislature wondered if the public would like the Bar to be dissolved and voted based on their musings and not based on facts. I think the answer is he would not like votes based on wondering.

I spent three years volunteering on the board of CYLA. I have continued to offer my assistance to CYLA. I understand the commitment board members make – not just in time, but in family sacrifices. And I generally appreciate it. However, every board member who voted for this proposal should be ashamed. You have ignored the members of the Bar and you have put legal services to most Californians at risk. Why would any attorney want to open a law firm in a day and age when it is clear that the Board of Governors cares nothing about the sole practitioner or small firm attorney? Maybe its time that the Board composition be changed to more accurately reflect the membership of the Bar and the big firm attorneys be replaced by those of us who understand the needs of the majority of members of the State Bar?

Sincerely,

Jonathan

Nickel and Dimed

This is simple. If you want to know how most of your clients live and work, read this book by Barbara Ehrenreich. Barbara spent months living in Key West, Maine and Minnesota working for just above minimum wage and living like her coworkers, in weekly motels or low income housing.

It would be nice if none of our clients lived that way. But, they do. And the fact is that you need to be able to relate to these people. While this book is not going to tell you everything, it does give fascinating insight into the lives of those less fortunate than us.

New Marketing Email List

I have a new product for you, but its free. Who can complain about free?

For the last several years, I was running a marketing list with limited membership. That list will stay that way. But, due to popular demand, I am opening up a second list to anyone who wants to join. And what will it cost? Nothing. That's right - here is an opportunity to share marketing ideas with other attorneys and learn what has worked, what hasn't worked and what may work. And all it takes is signing up.

Click to join sololawyermarketing

Come join my list.  And tell your friends to join as well.

An Open Letter to TheLaw.net

I get that companies need to market and advertise. However, I don't get spam. I especially do not get spam when I just asked to be taken off of their list on Monday and sent a letter to their president. So, now, here is my letter to him. Maybe some public humiliation and shame will get them to stop spamming people. (Nope, it is not just me. Others have contacted me about them as well.)

Dear Mr. Whitney:

Recently, an attorney contacted me for support on how to get rid of spammers who do not follow their own policies. I felt like it was a beautiful day, the sun beat down.

In less than one minute, I could answer the question "Who are you?" Yes, I knew it was TheLaw.net. Of course, I did not know that TheLaw had its own website. I was curious if the dictionary, the antonym, and the synonym also had their own websites. Surprisingly, they do. Suddenly, the Al Gore created place for information has been overrun by various parts of language.

Using the Veg-O-Matic and Mr. Microphone, I attempted to build a local list of people who hated parts of the English language owning domains as much as me. It turns out that when sorted by Billy Mays and James Dyson, the biggest turn off was people who took these domain names and then tried to make themselves sound important.

Of course, unlike some people, you do not claim to be a "head guru," however, it is my understanding that you may be overrun by the delightful kids from down the lane. In that case, a call to Numbuh One should be sufficient to resolve your problems. In fact, I am guessing that the trouble is not with tribbles, but that the tribbles caused the trouble. At least if that were the case, you could say you were not violating CAN-SPAM, but you may still have a problem with a tasty snack that you may eat too much of and then throw up.

Hence, my suggestion would be to develop a new SMARTMarketing strategy. I would highly recommend you look into it.

Jonathan

PS Look for the pop culture references!

Spam and the practice of law

Interesting - we all know that spam can get the spammer in trouble. But, it seems like the spam gets worse - not better. And the worst spam - spam to lawyers about legal services.

Let me see if I get this right. You want me to use your service, yet you can't seem to follow a little thing like a federal law? Hmmm......that sounds like something I want.

Recently, I was contacted by two services. One was a marketing company and one a legal research company. I have been asking these folks (who shall remain nameless, but if they spam me again, its on) to remove me from their lists for at least 6 months. And what do they do? They keep spamming me. So, last week I hit my breaking point - I responded to the president of the marketing company, or as he likes to call himself the "head guy who can't figure out the law," er, "head guru." Sorry, you can see how I could get those confused. I write him a lengthy, well thought out reply that was, in my humble opinion, quite funny. No response. I then sent one to the president of the legal research company - still no response.

Why does this bother me, especially with these two companies? If you are a marketing company and you are spamming me to use your service, what does it say about your service? It clearly says you do not understand how to properly email someone and that means to me if I hire you, I face a potential liability. Thanks, but no thanks. It also says that your program is not very good. Notice that Ben Glass at Great Legal Marketing or Mark Merenda at SmartMarketing don't spam attorneys. They don't need to - their program works!

If you are a legal research company, it makes me question your ability to research. Seriously - did you miss the CAN SPAM act when you were trying to figure out how to market? If you did, your research skills may leave out other important documents, say the US Constitution. If you did find it, why are you spamming me? Do you think it does not apply to you? Lisa Solomon at Question Of Law never spams me and she can find the CAN SPAM act. I know - I asked her!

I think there may be a more basic problem. They know that most of us, especially sole practitioners, are too busy to sue them over this nonsense. So, they figure they can get away with it. Sad, but probably true. Of course, do they really get business from spamming us? I hope not. Please, when you get spammed by a service provider, do not give them your business. Maybe that will start to clean up this mess!

Are different testing requirements unconstitutional?

A graduate from the University of Oklahoma law school has sued the Wisconsin Bar. His problem? Wisconsin requires out of state law school graduates to take a test and allows in state students to become members without taking an exam.

Hey, news flash. Every state does something like this. In California, some students have to take a "baby bar." Some states let you waive in if you are admitted elsewhere and make you test in if you come from other states. And its not just the bar exam.

States are allowed to regulate the practice of law. There is no constitutional requirement that every person be treated the same. However, this is a great example of how lawyers, or law students, look at the extreme of a situation.

If you want to practice in a state, check the requirements BEFORE you go to law school.

Solosez

I have written in the past about Solosez and how it can be a great resource. I took some time away from Solosez, but am back on it now. What benefits do you get from solosez? Here are my top 5:

1. Friends. I have met a lot of good friends on solosez. Its always a good thing!
2. Learning new practice areas. There are a lot of posts, but you can always pick up something in a new practice area. Or, if you have started a new practice area, there is someone who will have tips to help you.
3. A virtual water cooler. Okay, so this may not always be a positive, but you do get a chance to talk about current events, jokes, etc... just like if you had colleagues in an office. Of course, if you read too many of these, you may not get your work done.
4. Service provider locator. You can find an expert or a process server anywhere in the country (and probably the world) with a short post to solosez.
5. Technology abounds. The folks on Solosez have more ideas about technology and how to use it than any other group I have been around. You may need to even get out a book on technology to understand some of what they talk about!

Solosez is not perfect. But, if you are a sole practitioner, it is a good way for you to get up to speed, make some contacts and provide a service to your clients by expanding your capabilities.

Dumb Cases

There is a such a thing as a bad case. What is it? Well, its one of those things that you will know when you see it. But, how do you tell? What do you do once you see it?

You can tell a bad case fairly easily, if you have experience. Once you have been talking to people for a while, you can tell who has a bad case and who does not. But, when you are starting out, how do you know? My contracts professor in law school taught me something easy: who is suing who for what? Ask yourself that when you get a call from a potential client. If you cannot answer it easily, it is probably a bad case. If you can answer it, but it sounds strange, then it is a bad answer. In other words, if you say that "Bill is suing God..." well, you can stop right there. If you say "Bill is suing Suzie for laughing at him?" then you have a bad case.

What do you do with the bad potential case? First, send a rejection letter. Send it quickly. Don't wait. Second, do not refer it out to someone else. If it is a bad case, just tell the client you cannot help him or her and send out your letter.

Great Marketing Audio

A quick note: Mark Merenda of SmartMarketing, has some great audio over at his blog. A few things about this. First, Mark is a really smart marketing guy. I would put him up there with the Ben Glass' of the world in terms of marketing. Second, you can either listen to it or download. How cool is that? Third, go do this now. Its some great stuff.

New Medmal Service

Dr. David Frankel from Iowa State and the Cambridge Economics Group has unleashed a new tool for plaintiff's attorneys handling medical malpractice claims. The program, MedMal Express, is an interactive website that allows you to figure out what a case is worth.

From Dr. Frankel:  The program lets the user see expected settlements in up to 20  medical malpractice cases (or case scenarios) in real time. Our predictions are tailored to the trial's location and to other specific case features. One advantage of the service is that a user can easily try out  different scenarios (e.g., to drop a defendant; to stress one accusation over another) to see what would happen if a Plaintiff's condition were to change.

I tried the program and like it. I received a report that provided me with information to help me evaluate a case. It looks nice and has useful information.

Dr. Frankel is offering a free two week trial. Just go to his website and you can sign up. After that, it is only $95 per month.