Monthly Archives: July 2010

Watch your mouth

Tom Ciesielka is President of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and mid-sized law firms. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs.  Reach him at tc@tcpr.net.

Every lawyer knows words are a powerful tool. Words have the power to persuade, dissuade, convince and influence. However, sometimes words can have a negative effect and make waves in a firm’s or attorney’s public relations pool. Consider the following to help keep the pool water smooth as glass.

Cut the fat

Using too many words can sometimes be detrimental to your message and to your audience’s attention span. The trick to being remembered is to make it short, relevant and clear, which is difficult yet necessary when explaining complicated legal cases to the media. Throw out the excess wordy garbage and stick to a basic explanation that everyone will understand. It sometimes helps to think “headlines.” Headlines are attention grabbers, so think of a one-liner that accurately conveys your message and keep it simple.

Just say no to “no comment”

“No comment” is a dangerous phrase. It gives the media and the public room to make what can be negative assumptions about why you have no comment. You don’t want the public to speculate more than they already do, so always be prepared with a short comment at the very least, even if it’s just acknowledging recent developments or events. This enables you to comment without actually commenting at all. Think of it this way: you wouldn’t say “no comment” to a judge or jury, so don’t say it to the media.

Talk the talk

Public speaking truly is a skill. Some lawyers are born with a natural ability and others must work hard to hone this skill. However, whether you’re a smooth operator or still trip over your words sometimes, always look for opportunities to practice preaching. Speaking at events and seminars or participating in panel discussions will establish you as an expert and improve your ability to use words effectively. Speaking in public is no exception to the phrase “practice makes perfect.”

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Where have all the mentors gone?

Tiffany Farber is a solo practitioner who has been practicing law since 2008. As someone who has been through transition in her career, she understands the challenges lawyers in this situation face.

Lately, I have read quite a few articles about the decline in mentors at large law firms.  Now, I don’t work at a large law firm, nor do I purport to understand the day-to-day goings on of Big Law, but I do find this fact troubling.

I think many of us have a “now, now, now!” mentality in this country.  We want to get from one day to the next, but we don’t want to think too much about the future.  The future is a nebulous thing to many of us, and it hurts our brains to give it too much credence.  I think that’s bad.  The future inevitably will become “now” at some point.

I don’t doubt the ability of young attorneys, but I do think that they can benefit from the advice and counsel of more seasoned colleagues.  The days of apprenticeships have long since been replaced by the era of the billable hour.  I was fascinated by the articles I was reading about the decline in mentors at large firms, so I asked several of my friends who work at such firms.  Most of them have confirmed that, while their firms are supposed to have mentoring programs, they are a joke and are rarely implemented.   When I think about the number of attorneys at big firms, this troubles me.

If you are a reader of my blog, you know that I am a huge proponent of mentoring.  As a forward thinker, I rarely live in the “now, now, now” but often think about the later.  I had a mentor who was determined to teach me the ins and outs of special education law because he wanted me to carry the torch in the future.  He loved helping junior attorneys.   I imagine some people don’t share his view.  They would rather toss an attorney into the deep end of the pool.  I don’t deny that there is value in feeling your way through a new situation.  I have done it many times and, although scared, have emerged victorious.  Still, I credit my mentors for giving me the courage to take those risks in the first place and being there to offer guidance if necessary.

My uncle, Steve Farber, is a respected consultant in the leadership community.  He travels the world and teaches companies how to be effective leaders and mentors.  His latest book is called “Greater than Yourself,” and it teaches the principle, and art, of mentoring.  In the book he stresses that, even though the notion may be contrary to what our brains tell us, we should strive to teach people to be greater than ourselves.  This means that a senior attorney with the know- how and experience should feel excited by the idea of teaching a less experienced attorney to be even better than him or herself.

I know that mentoring has declined, in part, because people do not want to be usurped by their younger colleagues.   I suppose this is fair, but I do think attorneys who have this viewpoint should try to look to the future.  The future of the legal profession is so much brighter when lit by the guiding light of those who have come before us.

Inside Perspective: In defense of the ‘older’ worker

Dan Harper is vice president, corporate counsel and secretary for Océ North America, Inc.  He is also President Elect of the Chicago Chapter of the Association of Corporate Counsel.

“How to Bullet Proof Your Career in Your 40s and 50s.”  This is the title of an ACC Chicago Chapter Program attended by well over 90 in-house attorneys this past week at the East Bank Club in Chicago.  When I heard the title I questioned why, in a lawyer’s prime years, must she think about bullet proofing her career just because she turns 40?

I have always believed, and I am confident that I am absolutely correct, that we become better lawyers with age.  Of course this is not simply due to age.  Age is a measure of time, not ability.  However, as we move through time, we continue to add to our experiences, legal and otherwise.  This naturally leads to more personal observations, broader perspectives, situational experiences with outcomes good and bad, substantive and practical knowledge or what I dare to sum up in one word – wisdom.

What is wisdom?  The ability to discern or judge what is true, right or lasting, insight, common sense, good judgment, the sum of learning through the ages (dictionary.com).  Over the course of a career, a lawyer is involved in hundreds of situations in which people at various levels within an organization rely upon her to exercise good judgment, avoid pitfalls, maximize profit, provide insight, reduce risk, counsel, guide, sometimes cajole and always protect them from harm.  There is no substitute for these experiences in terms of gaining wisdom.  No book learning can take the place of actual hands on experience.  So then, wisdom is an extremely valuable asset for an in-house attorney to offer her client.

The following words capture the essence of this value:

And if riches be a desirable possession in life, what is more rich than Wisdom, who produces all things? And if prudence renders service, who in the world is a better craftsman than she?  …  Again, if one yearns for copious learning, she knows the things of old, and infers those yet to come. She understands the turns of phrases and the solutions of riddles; signs and wonders she knows in advance and the outcome of times and ages.  Wisdom 8:5-8

Generally, I would guess that practitioners of most occupations benefit from years and years of experience.  Who doesn’t feel better as they get on the plane when the pilot has a bit of silver in her hair, or when wheeled into the operating room, the surgeon has a slight grandfatherly appearance?  But at the risk of offending fellow professionals, lawyers seem particularly well suited to becoming better with age.  Of course, age does not equal wisdom, but it suggests it.  One can rarely achieve the same level of wisdom without the passing of time as with it, the more the better.

So, I am truly perplexed why any potential employer would look at a seasoned lawyer and believe for a even a moment that she is “too old.”  Rather, I would expect that the hiring committee would welcome a bit of silver in the hair, a few wrinkles, an age spot or two.  I cannot help but to cite from the Bible once again to make the point:

A great number of wise men (seasoned in-house counsel) is the safety of the world (corporate client), and a prudent king (CEO), the stability of his people (shareholders); so take instruction from my (GC) words, to your profit. Wisdom 6:24-25

Now those are wise words!

Job Search Strategies: giving and getting referrals

Aurora Donnelly is a solo practitioner always looking forward to the next exciting transition.

Among my friends and colleagues who are in the process of setting up their own law offices I hear a lot of conversations about referrals. Is it OK to give another attorney a referral and to collect a referral fee? What if a civilian wants to send a case our way and get compensated for doing that? Can I send out all the cases I get to other lawyers and make a living collecting referral fees? Do I have to pay a referral fee to a lawyer who sends me a case and will he/she notice if I don’t?

Well, the rules changed as of January 2010, and actually were loosened up some from what they were before. Before the new rules were in place, you had to stay involved in any case you referred out to another attorney and actually had to do some unspecified amount of work on the case. Now you no longer have to be involved, you may refer the case out and collect the referral fee when the recipient of the referral gets paid. So the answer to the first question is yes, you can certainly refer cases out and collect a referral fee.

But keep in mind that you are really assuming joint and several liability in order to get any fee at all and that the client has to be informed and consent to the payment of the referral fee.  It seems to me to still be a good idea to stay involved so there is no question that you have earned the fee and to make sure you are not blind-sided by being asked to assume joint financial responsibility after the referral. Rule 1.5 addresses the issue of split fees. The section on advertising, Rule 7.2 addresses working with non-lawyers.

If you enter into a referral agreement, review Illinois Revised Rule 7.2(b)(4) Advertising, and note that notice to the client is required and the reciprocal referral agreement cannot be exclusive.

As to the second question, the answer is a firm no, and this has not changed. Attorneys and non-attorneys may not be partners in business and neither may be compensated by the other for referring cases. This is a tricky rule, because the form of payment may mislead you into thinking that it is OK to accept compensation from a non-attorney.

For example, a couple of months ago I wrote about a situation where a non-attorney wanted to set up an immigration assistance center and as part of the services he wanted to offer attorney counseling on site. He asked me to work with him on this and I immediately realized that I could not. Here is the applicable rule in part:

Rule 5.4. Professional Independence of a Lawyer

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof, except that a nonlawyer may serve as secretary thereof if such secretary performs only ministerial duties; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

In the deal in question, the non-lawyer was proposing to pay all the office expenses, the support staff salary, supplies, phones etc. and I would simply counsel individuals who were contemplating submitting or already had, submitted immigration applications. I would charge my own fees and keep those fees. I immediately realized that I could not do that and not be subject to an ARDC inquiry, should it ever come to light. Explaining this to him was another matter altogether and I don’t think he ever really understood the issue.  So that takes care of our second question above.

Can you run your practice on the basis of screening cases and referring them out? Apparently you can, with a couple of caveats. Make sure that both you and the attorney to whom you are referring the case have malpractice insurance. Should the worst happen and the other attorney is sued, you can also be named in that malpractice matter. And, as a beginning point, of course, make sure that the attorney you refer the case to is competent.  This applies to the first question above as well.

Not all attorneys who refer cases out keep careful track of those referrals. Sometimes the cases take years to settle or go to trial, and when people are busy, they can overlook that they referred a case to you. It is up to you to keep good track and to pay out those referral fees as they come due. Do not be tempted to “forget” to pay the fee, it will eventually be noticed and you will kill what might be a good source of new cases for you.

Make sure that when you receive the referral you and the referring attorney have clearly agreed on the referral fee. You do have to notify the client in writing of the referral arrangement, including disclosing the amount of the referral fee.

All of the above is my understanding of the pertinent new rules of professional responsibility and I am not an expert in that area, so please be sure to do your own research and/or to check with a legal ethics expert when you decide to engage in any referral arrangement. Cliff Scott-Rudnick, director of continuing education and professionalism and assistant professor at The John Marshall Law School advised me on this topic, but the information I have provided here is my interpretation of the rules, which can be complicated.

I also encourage you to ask your malpractice carrier for advice on this issue, as well as utilize the attorney advice services of the various bar groups.

Q & A with Amanda Schermer

Amanda “Mandy” Schermer is an associate at Schiff Hardin, and her practice concentrates on construction matters. She has represented clients in federal and state court regarding various civil litigation matters.

What do you find the most interesting about your practice?

The fast-pace of dealing with the client’s legal, commercial, regulatory, and construction issues on the construction site of a coal-fired power plant.

What makes a good lawyer?

Natural curiosity and an interest in life-long learning.

What is the biggest legal news right now, and what is its impact?

The selection of a U.S. Supreme Court nominee to replace Justice Stevens, which will impact the court’s decisions for many years to come.

Family matters

Tom Ciesielka is President of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and mid-sized law firms. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs.  Reach him at tc@tcpr.net.

Many people feel like work and family don’t mix well.  However, it seems to me like work and family actually overlap in some areas and coincidentally coincide with aspects of public relations. The word “public” means “people,” which means people in your firm (attorneys, associates, partners, paralegals) are just as important as those outside of it (reporters, clients, prospects). Good public relations on the inside will create good public relations on the outside. Just consider the following:

Family Knows Best. Attorneys and paralegals know a lot about the firm they work for, definitely more than the outside public. This makes employees almost like walking press releases but better because they can interact with the media and potential clients and be actively involved in marketing operations. Encourage everyone in the firm to “think PR” and turn employees into company advocates.

Families Stick Together. An open, deal-with-problems-directly policy should be applied in the office, especially when difficult economic times make business unstable. Now more than ever, firms need the support of a dedicated workforce. Firms also need to make sure that employees, as a group or individually, can express their concerns and know their concerns are being heard and addressed. During tough times, the public will question internal relations, so keeping employees together and motivated will make your firm look very good.

Support Your Family. Successes in the firm should be rewarded and made company news. Recognize individual accomplishments and applaud notable group progress. And don’t forget to make these announcements in local legal publications and let the world know how well your firm is doing. This encourages the entire office to work hard and support one another in all efforts. Good business and good reputation always result from good employment.

Role models

Tiffany Farber is a solo practitioner who has been practicing law since 2008. As someone who has been through transition in her career, she understands the challenges lawyers in this situation face.

How come we only expect kids to have imaginations?  Adults need them too!  The best way to use your imagination as an attorney is by channeling someone whom you admire.  When you are feeling exasperated, lost or frustrated, this technique never fails.

A friend once told me a story about a crazy experience he had.  He was given access to a cabin one winter weekend.  It was a freezing night and as he turned the key to the front door, it broke.  Now, picture yourself in this situation.  You have no way of getting inside other than through a door or window, and it’s mighty cold outside.  If you break a window, you are in for a cold night and will likely owe your friend some dead presidents.  Do you know what my friend did in this situation?  He thought to himself, “What would MacGyver do?”  I kid you not.  There was a shed next to the cabin and, wouldn’t you know it, he found some doo-dads in there that helped him get inside the cabin.  As crazy as it is to believe, sometimes it helps to step outside of your body when you’re in a hard or uncomfortable situation.

Now, I understand that there are few uses for dental floss and explosives in a courtroom or client meeting, but there is definitely a place for creativity.  Maybe you know a particularly adept attorney.  Maybe you have studied her moves or picked his brain.  Why not channel that person when you are faced with something difficult?  I’m not saying that you shouldn’t be yourself, but aren’t we who we are because of the people who have influenced our lives?

The first time I went to court, I was pretty nervous.  So, I thought about my mom.  Nothing rattles her, and I mean nothing.  I figured that nothing should rattle me either.  I pictured myself as her as I prepared for my hearing, and my nerves were eased a bit.  If you have a particularly important interview coming up, why not try to picture someone whom you find to be articulate and thoughtful?  Think about how that person would handle themselves, and try to emulate his or her behavior.  I don’t think that is disingenuous at all.  At the end of the day it’s you performing, but you are a person with more dimensions when you incorporate the qualities of people whom you admire.

Actors do this all the time, children do it, and athletes do it too.  Modeling your behavior after role models is important, and I don’t think you should ever stop searching for people to look up to.  In life, there will always be people who do something better than you.  Instead of being jealous of them, try to emulate their behavior.  Try to picture what they would do, or how they would think, in a situation.  It really helps when you feel stuck.

This week’s challenge is to step outside of your skin.  I think you will find it more comfortable than you would imagine.