New WhichDraft Is Coming Soon!

January 3rd, 2012
We’ve rebuilt WhichDraft from top to bottom and are launching the new platform during January of 2012. The new version has a sharp looking, streamlined user interface that makes it even easier to use WhichDraft to create legal documents plus tons of new features.
Twitter/Facebook. Follow us on Twitter and like us on Facebook to keep informed of the latest happenings.
Freelance & Small Business Fun. Freelancers and small businesses will be able to create sophisticated legal documents using our simple Q&A format at a great low price.  We’ll offer a wide range of legal documents highly relevant to their everyday business needs.
Automatic Drafting for Lawyers. We’ll also be offering a great, affordable subscription service for lawyers who want access to all our Q&A templates, document assembly in the cloud, multiple version control, red lining, and online collaboration.
Download Old Content. For now, if you are a registered user and have stored documents on our system, we’d recommend you download them to your hard drive now, because after the transition they will only be available online for a limited time.
Questions?  Send us an email at requests@whichdraft.com.
Thanks for using WhichDraft in the past and we look forward to showing you our terrific new platform.

Posted in Uncategorized | Comments Off

Law Firm Sales

September 1st, 2011

How to Use the “Trial Close” Sales Technique

Many talented lawyers struggle with business development. In fact, I often talk to attorneys who express dislike of marketing activities, finding them to be some mix of intimidating, annoying, wasteful, frustrating or difficult. Luckily, the skills demonstrated by strong legal minds, such as flexible thinking, quick learning capacity, and the ability to see multiple perspectives, allow a motivated lawyer to grasp techniques vital for building a firm roster of happy clients.

One of the most important abilities to master is how to close out a potential new client. Most lawyers move too quickly, asking an individual to sign a law firm retainer agreement right away (creating an uncomfortable and awkward atmosphere), or too slowly, never gently guiding the client to finally come on board and, as a result, missing the opportunity.

An excellent technique to use next time you’re in this kind of situation is the “trial close” method, where you ask a series of conversational questions designed to see how interested the potential client might be in your services, and put her in a decision making frame of mind that will inexorably lead to a new professional relationship for your law firm.

Use these kinds of questions for your trial close:

  • What do you think here?
  • How do these kinds of considerations feel?
  • What’s your take?
  • What would your business look like if you could accomplish this goal?
  • Is this kind of approach exciting? Does it jibe with your expectations?
  • Looks like you like this idea, what’s attractive about it?
  • Which approach do you prefer the most? Are there other ideas you also like?

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Posted in Marketing for Law Firms | Comments Off

Law As a Profession

August 31st, 2011

Top 10 Reasons Why Law Should First Be a Business, Second a Profession

1. Nice Guys Finish First. It turns out that reputable behavior is good for business. Most lawyers think that unbridled business practices are bereft of morality and beneath the dignity of the law profession. But in Jim Collins famous business tome “Good to Great” he argues convincingly that companies which identify and reward their top talent, while building clear succession plans that offer opportunities to move up within the organization, along with humble and modest leadership, actually outperform companies led by egotistical, “rock star” CEOs and gain superior market capitalization.

2. Training. The very definition of a profession is “a paid occupation, esp. one that involves prolonged training and a formal qualification” (see New Oxford American Dictionary) but plenty of business positions require a high degree of training, yet no one thinks of those positions as similarly august professions. An excellent sales manager, a strategic sourcing expert, or an information technology programmer all require elaborate skill and training, and none of these positions necessitate formal qualifications. The very need to provide a high quality service in order to make money ensures that businesses train their people well, whether or not they’ve attended “Procurement School.”

3. Long Term Strategy. Most Big Law firms operate as if they are publicly traded companies, publicly announcing their annual profits per partner in the hopes of attracting new partners with portable books of business. As a result, firms focus on never dropping that number. So if profits per partner can be maintained in a lean year by letting go some of your most talented associates and income partners, firms are perfectly happy to do so. The same kind of behavior occurs at large, publicly traded businesses. Smaller, closely held companies don’t face this kind of pressure, and realize they need to build for the long run. Law could do well to emulate this superior business approach and better identify and hold onto its talent. Additionally, law firms typically exhaust all of their profits each year in partner disbursements to maintain their profits per partner “stock price” which leaves little left over for long term investments. That’s why even major law firms lag behind most other companies in the business world in terms of adopting superior software and business practice management approaches, there’s simply not enough room left in the budget to do so.

4. Service Quality vs. Ethics. Lawyers focus heavily on ethics all the time (as well they should), but we sometimes make the mistake of caring more about technical violations without any affect on service rather than ethically compliant behavior which compromises clients. For instance, it’s illegal for an experienced technology transactions attorney who is a member of the Arizona bar, but not the New Jersey bar, to handle a complex, custom software development agreement. However, it’s perfectly ethical for an attorney straight out of law school who has just passed the bar to butcher the same deal for the same client as long as a judge recently swore in that attorney to the NJ bar. In this case, professionalism ironically undermines our prolonged training and formal qualifications.

5. Rent Seeking. Not allowing competent attorneys who are not members of your state bar ensures that you can earn client fees in your state while the competition cannot, regardless of whether or not the competition provides clients with better, faster and cheaper service. Large corporations attempt to similarly insulate themselves from competition, particularly with legislation. But smaller businesses who have to compete against thousands of others don’t have this protectionist cushion, and, accordingly must compete at a higher level to provide client’s with best mix of service and price.

6. Knowledge Management. Many businesses bring a structured, scientific approach to their knowledge base. Companies upgrade customer service with elaborate databases that answer customer questions before they can even ask them. Sales experts use strategic scripts predicting all possible customer concerns and objections in order to optimize sales performance. But in the legal profession, we rarely use a knowledge management database with a document automation tool to ensure superior performance.

7. Process Improvement. There are better and worse ways of doing things in life. Businesses use process improvement methods such as Six Sigma and Lean to create and capture the most efficient series of steps to ensure consistently great achievements from a client satisfaction standpoint. Rarely do law firms do the same.

8. Measurement. There’s an old adage that if you don’t measure an activity, than it might as well not occur. I think it’s a bit extreme, after all, if we followed this statement to an extreme level, we wouldn’t have much in the way of theater or other performing arts. I will say that many of the issues we battle over in the legal profession tend to be ones that are actually, distinct, measurable data points. You might be pitching to a potential client and insist that you provide the same quality of service as your competitor, but you close your deals more quickly. However, without actual data tracking your cycle time metrics, your statements are most like unconvincing, and may even be untrue. Transactional attorneys argue all the time over whether the permutation of a particular clause is “market” or typically agreed upon by parties in a particular industry. But there is a definite answer to that argument, and could ostensibly be answered by a mathematical measurement of the incidence of that permutation across SEC EDGAR contracts or some other large contractual database. The point is that we can massively improve legal services quality by embracing the corporate world’s strenuous focus on measurement as long as we implement this approach logically. You would not, for instance, want to constrain an able litigator’s preparation of her closing argument with formulas that fail to capture the richness and creativity of a silver tongued orator.

9. Division of Labor. It’s hard to imagine a serious company relying solely on the people who create and provide its goods and services as the also the key salespeople for the business. But, oddly, that’s exactly how most law firms function. And due to state bar ethics requirements, a partner can almost always pick up and leave at her leisure with key clients of the firm. Clients of the firm, sales expertise.

10. Consistency. Having been the client many times myself, I’m always shocked at the lack of consistency in legal service from lawyer to lawyer at a firm. Often times, in terms of teamwork and coordination, lawyers at the same firm are less in sync than lawyers are from different firms. And Big Law partners who need assistance in a practice area they don’t specialize in will tell you how often they are frustrated by the lack of support from their colleagues. With a hard core business focus, you instead elaborate the exact processes that produce consistently terrific client results, and require everyone to follow these processes so the client can rightfully expect a consistently excellent experience with your firm.

You Should Try WhichDraft.com Here.

Posted in Management for Law Firms | Comments Off

Interview with Carey Ransom of RealPractice

August 25th, 2011

Today we interview Carey Ransom, CEO of RealPractice, the innovative law firm web site provider.

How are things going at RealPractice?

Things are going extremely well. We are focusing heavily on two elements, lead generation and lead management. We are helping attorneys obtain more clients and helping them assist those clients. Our focus is definitely on the business of law, centered on the attorney and putting him or her front and center with an excellent online presence that generates client interest while we also help the attorney convert that interest into a paying client.

What makes RealPractice unique?

Other services that generate leads for attorneys focus more on finding a wide range of people who are interested in a particular practice area, like bankruptcy. We do the opposite, we find out from our lawyer customers what practice area they care about and we show them the best way to determine how much demand there is for that kind of legal service and how to connect with those kinds of clients. The RealPractice approach is designed to focus potential clients directly on a particular law firm, and to arm that firm with the capability to be immediately responsive and engaging when they arecontacted by potential new clients.

What tools do you provide to do this?

On the lead generation side, we provide the leads using our elaborate, proprietary marketing and web site development platform which lets us easily create marketing programs and web sites customized for each of our law firm customers. Those programs and web sitesconnect automatically with our entire platform, so we can send text messages, do callbacks, perform push notification to iPhone apps, and many other activities that allow a potential client to find a lawyer and allow the lawyer to be aware of and quickly connect with that potential client.

There are many companies now trying to be the middle man between clients and lawyers, particularly to allow clients and lawyers to find each other, and to expedite legal services, what are your thoughts on the current state of the industry and where is it going?

On the Big Law side, there needs to be some clarity as to exactly how law firms and clients are going to reach each other. No one has yet been really successful in achieving this goal. Big firms focus their market dollars on events, forums or blogging without effectively generating marketing opportunities. There is inertia in Big Law marketing, but with a lack of focus on accountability and measurement, so, as a result, it’s hard to see major law firms adapting fast enough. On the smaller law firm side, companies that can effectively handle specialized issues, like managing a small law firm’s online marketing campaign and provide return on investment measurements, should excel. Some companies in the small firm market are not helping with that, but only providing intermittent leads to their attorney customers without much predictability or analytics to let the customer know whether spending money on this kind of lead generation service is worth it. There is definitely multi-channel complexity here, and we focus on solving that as well as helping lawyers convert leads to clients. As more capital comes into this field andmore companies emerge and grow, it will be interesting to see how effectively companies in this space execute on a particular channel by providing value to their customers.

Thanks, Carey.

You Should Try WhichDraft.com Here.

Posted in Marketing for Law Firms | Comments Off

Privacy Agreement

August 14th, 2011

Where to Get a Mobile Privacy Agreement

The NY Times reports on the challenge of incorporating a useful privacy agreement for mobile users (read the article here: http://www.nytimes.com/2011/08/15/business/media/industry-tinkers-to-create-privacy-tools-for-mobile-devices.html). They mention a company called Privacy Choice (http://www.privacychoice.org/) that’s giving away free privacy policies for now (it looks like in the future they’ll be trying to bill $39.95 a year for them with free annual updates). Or you could snag a top notch privacy policy from us at WhichDraft.com.

The article quotes the head of Privacy Choice saying:

Using the data collected from hundreds of online privacy policies, Mr. Brock and his team devised a tool to help mobile application developers create basic policies without the help of a lawyer. Developers who want to use the tool can select answers to basic questions about how they collect data, how that data is used and whether it can be deleted.

The resulting policy boils complicated policy language down to a few sentences like “We collect or share your location only with your permission” or “We keep personal data until you delete it.”

“If you have 10 minutes, you can get on the right side of privacy rules,” said Mr. Brock, who estimates that the vast majority of applications that mobile phone users download don’t have privacy policies at all.

These kinds of comments, such as “get on the right side of privacy rules” and suggesting that users will have a privacy policy appropriate to their individual needs, run dangerously close to unauthorized practice of law. Interestingly, there is no information on the Privacy Choice website regarding the background of their people, a disclaimer, or a terms of use, which makes their position even more precarious.

I think the main problem with a site like Privacy Choice is that mobile developers have so little control or awareness about what’s happening with their users’ personal data that a tool like this could lead them down the wrong path. Many of these mobile apps integrate with third party advertising networks who are the ones really in control of the user data. As a result, it’s quite easy to make certain promises in your own privacy policy and immediately breach them the second you integrate an advertising network into your application. Frankly, developers left in this kind of a situation would be better off without any privacy policy at all rather than actively violating their own internal privacy agreement.

You Should Try WhichDraft.com Here.

Posted in Contract Drafting, Privacy | Comments Off

Facebook Developer Terms

August 12th, 2011

Facebook developer terms need to be consistent so that when they build an application, they don’t need to worry about making major revisions later due to a new requirement mandated by Facebook. Unfortunately, Facebook made two major changes to its developer rules recently. You should definitely bear these in mind if you build an IOS application for your legal practice or if you advise software providers about Facebook developer terms.

First off, you can’t award users with anything of virtual value, such as virtual credits or virtual goods, except for Facebook’s own internal Facebook credits virtual currency. Specifically:

“I.10. . . you may not reward users with virtual currency or virtual goods in exchange for any action in which personally identifiable information is shared with a third party, you may not reward users with virtual currency or virtual goods in exchange for third party downloads, such as toolbars or ringtones, and you may not reward users with virtual currency for engaging in passive actions offered by third parties, such as watching a video, playing a mini-game, or taking an anonymous poll.”

Second, you can’t link to other social networks out there from within the application.

“I.11. Apps on Facebook may not integrate, link to, promote, distribute, or redirect to any app on any other competing social platform.”

The upshot of this is that as Facebook walls in its garden, you’ll have less flexibility to integrate your social media and experience across multiple applications. In this sense, Facebook definitely takes a page from the Apple playbook. In doing so, I definitely want to see whether Facebook triggers a reaction from antitrust authorities, particularly the activist ones in the European Union.

You Should Try WhichDraft.com Here.

Posted in Technology | Comments Off

Legal Ethics Rules

August 5th, 2011

South Carolina Authorizes Lawyers to Use Daily Deal Coupon Sites

Legal ethics rules are a real challenge for innovative attorneys to engage in online marketing of their services. A South Carolina ethics committee has recently issued one of the more cutting edge ethics opinions in America on the use of daily deal coupon websites by lawyers. You can catch the entire opinion (Ethics Advisory Opinion 11-05) here: http://bit.ly/pgX2Tu, which serves as a good guideline for tackling marketing in light of legal ethics rules.

The committee sums up the subject of the opinion at the start as follows:

Lawyer would like to use “daily deal” websites that offer products and services at discounted rates to market her legal services. In particular, lawyer would like to use sites in which users purchase a voucher through the website to be subsequently redeemed for a discounted product or service. The proceeds of the purchase are split between the website offering the voucher and the business at which it is to be redeemed. Lawyer envisions using such websites to offer legal services such as preparation of wills.

Given the reticence of lawyers to embrace innovation, the committee surprisingly endorsed the use of daily deal coupon websites subject to paying close attention to a number of relevant rules of professional conduct in doing so. One of the biggest risks of using such a site is the common ethical prohibition on fee splitting between lawyers and non-lawyers. Luckily, this committee decided that when a lawyer shares the proceeds of a coupon (paid for by a potential client) with a coupon site, the monies flowing to the site are best characterized as charging the lawyer for advertising instead of illegal fee splitting:

The fee charged by a company for use of its service (i.e., a percentage of the money paid by the customer for the discounted coupon) constitutes the payment of “the reasonable cost of advertisements or communications” permitted under Rule 7.2(c)(1) and not the sharing of a legal fee with a non-lawyer prohibited by Rule 5.4(a). The fact that the charge for this form of advertising service is deducted up front by the company rather than invoiced and then paid from the lawyer’s operating account does not transform the transaction from the payment of advertising costs into an improper fee split.

I often find these kinds of opinions a bit difficult to read because they don’t include the text of the rules they cite as authority, so I’m copying here for everyone’s ease of reference the relevant text of these rules of professional conduct (taken from http://www.law.cornell.edu/ethics/sc/code/SC_CODE.HTM):

Rule 5.4 Professional Independence of a Lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer . . .

Rule 7.2 Advertising
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

Interestingly, the committee seems to be hinting that its members did not unanimously agree on the characterization of coupon sites as advertisements, because the opinion goes on to say that even if one determines that a coupon amounts to fee splitting, there still is no ethical issue if the coupon site lacks control or influence over the lawyer’s performance of legal services:

A second analysis leading to the same conclusion is that the transaction does constitute the splitting of an attorneys’ fee with a non-lawyer, but that the prohibition of fee-splitting in Rule 5.4(a) only applies in situations where such fee-splitting interferes with “the lawyer’s professional independence of judgment” on behalf of the client as stated in comment one to the rule. The sharing of fees with a non-lawyer may be permitted where the circumstances do not suggest any encroachment on the lawyer’s independent judgment. Even where a website retains a portion of each fee paid for services to be subsequently rendered by an attorney, the use of such websites as a marketing tool does not violate Rule 5.4(a), provided the website does not have the ability to exercise any control over the services which are to be subsequently rendered by the attorney.

The committee determined that there are no ethical issues regarding rules that constrain how attorneys may communicate with prospective clients because of the lack of any direct client-lawyer communication on the site:

The Committee does not believe the use of “daily deal” websites would violate the requirements of Rule 7.3 concerning contact with prospective clients, because the lawyer will not be communicating directly with the users of the website and because the lawyer does not know whether the prospective clients who may use the website will be in need of legal services in a particular matter.

The committee did express a great deal of concern that the use of coupon websites might negatively affect the legal profession’s reputation, and emphasized that lawyers must follow a host of other rules of professional conduct when using these sites:

For this reason, the lawyer is cautioned that the use of “daily deal” websites must be in compliance with Rules 7.1 and 7.2. The lawyer is responsible for the communication to potential clients which she asked to be placed on the “daily deal” website. While the “effectiveness and taste in advertising are matters of speculation and subjective judgment,” Rule 7.1 expressly provides that an attorney must ensure that the communication does not contain any false, misleading, deceptive or unfair information about the lawyer or her services.

The committee goes on to instruct attorneys to be sure to follow additional ethical strictures regarding fees, safekeeping property, conflict of interest, and advertising:

The lawyer is further cautioned that various other logistical issues should be addressed by an attorney using “daily deal” websites to prevent a violation of the Rules of Professional Conduct. For example, the lawyer must ensure that she complies with Rule 1.5(b), requiring the lawyer to disclose the scope of representation and the basis of her fee within a reasonable time of the commencement of representation. Further, the lawyer must ensure that she is in compliance with Rule 1.15(c) which requires unearned fees to be deposited into a client trust account until the fees are actually earned. If a consumer purchases a voucher from a “daily deal” website and the lawyer is paid a percentage of the purchase price prior to rendering any services, then the compensation paid to the lawyer may be considered an unearned fee. Lastly, the lawyer must address the logistical issue of how she will handle conflict of interest situations that may arise under Rules 1.7 and 1.9.

Below appear the complete text of the relevant provisions from the rules of professional conduct noted above. With close scrutiny of these rules, South Carolina attorneys should be able to excel at Internet marketing. Hopefully this opinion will lay the blueprint down for other states to follow in the legal online marketing arena, and complying with this opinion should allow South Carolina lawyers to avoid troubles with their legal ethics rules.

Rule 1.5 Fees
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall be communicated to the client, preferably in writing.

Rule 1.15 Safekeeping Property
(c) A lawyer shall deposit into a client trust account unearned legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

Rule 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Rule 1.9 Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Rule 7.1 Communications Concerning a Lawyer’s Services
A lawyer shall not make false, misleading, deceptive, or unfair communications about the lawyer or the lawyer’s services.

Rule 7.2 Advertising
(a) Subject to the requirements of this Rule and Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.
(b) A lawyer is responsible for the content of any advertisement or solicitation placed or disseminated by the lawyer and has a duty to review the advertisement or solicitation prior to its dissemination to reasonably ensure its compliance with the Rules of Professional Conduct. A copy of every advertisement or communication subject to this Rule, except for those which contain only directory information and are not disseminated through the public media, shall be filed with the Commission on Lawyer Conduct within ten (10) days after the advertisement or communication is first published, broadcast, transmitted, or otherwise disseminated to the public, together with a fee of $50.00. A copy or recording of every advertisement or communication shall be kept for two (2) years after its last dissemination along with a record of when and where it was disseminated.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; and
(3) pay for a law practice in accordance with Rule 1.17.
(d) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer responsible for its content.
(e) No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm unless the advertisement discloses the name and address of the nonadvertising lawyer, the relationship between the advertising lawyer and the nonadvertising lawyer, and whether the advertising lawyer may refer any case received through the advertisement to the nonadvertising lawyer.
(f) A lawyer shall not make statements in advertisements or written communications which are merely self laudatory or which describe or characterize the quality of the lawyer’s services; provided that this provision shall not apply to information furnished to a prospective client at that person’s request or to information supplied to existing clients.
(g) Every advertisement that contains information about the lawyer’s fee shall disclose whether the client will be liable for any expenses in addition to the fee and, if the fee will be a percentage of the recovery, whether the percentage will be computed before deducting the expenses.
(h) A lawyer who advertises a specific fee or range of fees for a particular service shall honor the advertised fee or fee range for at least ninety (90) days following dissemination of the advertisement, unless the advertisement specifies a shorter period; provided that a fee advertised in a publication which is issued not more than annually, shall be honored for one (1) year following publication.
(i) All advertisements shall disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law. If the office location is outside a city or town, the county in which the office is located must be disclosed. A lawyer referral service shall disclose the geographic area in which the lawyer practices when a referral is made.

Rule 7.3 Direct Contact with Prospective Clients
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by direct written, recorded or electronic communication or by in-person, telephone, telegraph, facsimile or realtime electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer;
(2) the solicitation involves coercion, duress, harassment, fraud, overreaching, intimidation or undue influence;
(3) the solicitation concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person solicited or a relative of that person unless the accident or disaster occurred more than thirty (30) days prior to the solicitation;
(4) the solicitation concerns a specific matter and the lawyer knows, or reasonably should know, that the person solicited is represented by a lawyer in the matter; or
(5) the lawyer knows, or reasonably should know, that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer.
(c) Every written or recorded communication subject to this Rule, except those directed only to other lawyers, family members, close personal friends, or persons with whom the sender has a prior or existing professional relationship, shall be filed with the Commission on Lawyer Conduct within ten (10) days after any written communication is sent or any recorded communication is made together with a fee of $50.00. If a written communication is sent or a recorded communication is made generally to persons similarly situated, a representative copy may be filed with a listing of those persons to whom the communication was sent. Any lawyer who uses written or recorded solicitation shall maintain a file for two years showing the following:
(1) the basis by which the lawyer knows the person solicited needs legal services; and
(2) the factual basis for any statements made in the written or recorded communication.
(d) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter, and with whom the lawyer has no family, close personal or prior professional relationship, shall conform to Rules 7.1 and 7.2 and, in addition, must conform to the following provisions:
(1) The words “ADVERTISING MATERIAL,” printed in capital letters and in prominent type, shall appear on the front of the outside envelope and on the front of each page of the material. Every such recorded communication shall clearly state both at the beginning and at the end that the communication is an advertisement.
(2) Each written or recorded solicitation must include the following statements:
(A) “You may wish to consult your lawyer or another lawyer instead of me (us). You may obtain information about other lawyers by consulting the Yellow Pages or by calling the South Carolina Bar Lawyer Referral Service at 799-7100 in Columbia or toll-free at 1-800-868-2284. If you have already engaged a lawyer in connection with the legal matter referred to in this communication, you should direct any questions you have to that lawyer” and
(B) “The exact nature of your legal situation will depend on many facts not known to me (us) at this time. You should understand that the advice and information in this communication is general and that your own situation may vary.”
Where the solicitation is written, the above statements must be in a type no smaller than that used in the body of the communication.
(3) Each written or recorded solicitation must include the following statement: “ANY COMPLAINTS ABOUT THIS LETTER (OR RECORDING) OR THE REPRESENTATIONS OF ANY LAWYER MAY BE DIRECTED TO THE COMMISSION ON LAWYER CONDUCT, POST OFFICE BOX 12159, COLUMBIA, SOUTH CAROLINA 29211 – TELEPHONE NUMBER 803-734-2038.” Where the solicitation is written, this statement must be printed in capital letters and in a size no smaller than that used in the body of the communication.
(e) Written communications mailed to prospective clients shall be sent only by regular U.S. mail, not by registered mail or other forms of restricted or certified delivery.
(f) Written communications mailed to prospective clients shall not be made to resemble legal pleadings or other legal documents.
(g) Any written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member shall disclose how the lawyer obtained the information prompting the communication.
(h) A written communication seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope, or on the outside of a self-mailing brochure or pamphlet, the nature of the client’s legal problem.
(i) If a lawyer knows that a lawyer other than the lawyer whose name or signature appears on the communication will actually handle the case or matter, or that the case or matter will be referred to another lawyer or law firm, any written communication concerning a specific matter shall include a statement so advising the potential client.
(j) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. A lawyer may participate with a prepaid or group legal service plan only if the plan is established in compliance with all statutory and regulatory requirements imposed upon such plans under South Carolina law. Lawyers who participate in a legal service plan must make reasonable efforts to assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b).

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Posted in Ethics, Marketing for Law Firms | Comments Off

Alimony in Tennessee

July 28th, 2011

Tennessee Embraces Self-Service Divorce Forms

Tennessee State Flag

Recently we are seeing states moving in different directions regarding self-service legal forms. LegalZoom is facing widely reported litigation in Missouri and Alabama.

Meanwhile, alimony in Tennessee just got simpler, as Tennessee is modernizing by allowing married couples who want to divorce amicably to use self-service legal forms to accomplish a low priced divorce. Tennessee refers to this as an “agreed divorce” – and I think this kind of matter is well suited to self-service at a lower cost than hiring an attorney, mainly for people who can’t afford an attorney in the first place.

It is possible, though, to reconcile these different reactions to self-service. LegalZoom would have a powerful constitutional defense focused on free speech if they limited their self-service forms to examples under which the user chooses the ultimate final draft. However, LegalZoom’s core marketing message assures customers that their legal documents will be prepared by legal professionals (referring to their paralegals), and that the documents will meet their legal needs. These two assurances probably rankle practicing attorneys the most.

You can read more here (http://bit.ly/mXX3Do) and see the forms themselves here (http://bit.ly/pfLJLk). Hopefully this brings better access to high quality legal documents for couples dealing with divorce and alimony in Tennessee.

You Should Try WhichDraft.com Here.

Image Attribution: By (of code) cs:User:-xfi- (according to [1], [2]) [see page for license], via Wikimedia Commons

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Legal Business Development

July 26th, 2011

Legal Business Development: How to Close New Clients

Expert marketing and advertising consultant Bruce Marcus recently shared on LinkedIn a terrific strategy for engaging new clients. Bruce particularly emphasizes the importance of making the prospective client envision a future state where they’ve been empowered to solve the problem and alleviate their pain point. I think this is a terrific suggestion. Please let me know if you find this tactic useful in increasing your client roster and improving your legal business development.

Here’s Bruce’s strategy in detail:

* Ask the questions that will help you understand the prospect’ s company and industry (A little homework and Google will help. Ask questions, and then listen, listen, listen.

* Feed back the information to demonstrate that you understand the company and the prospect’s problems.

* Now you ask the magic question…”If you could solve the problem, how would it help you?” Not “we”, but “you”. The prospect then has to think and focus, and practically sells him or herself.

* Now you can say, “We can help”, which is time to say how and why you can help”

* Now you can say, “Let’s start Monday.”

You can learn a lot more about Bruce and his services at www.marcusletter.com, and even obtain a copy of his book at http://bit.ly/MarcusBook.

You Should Try WhichDraft.com Here.

Posted in Business Development for Law Firms | Comments Off

Legal Cloud

July 26th, 2011

Why Legal Departments Like the Cloud More than Law Firms

Law Technology News has published some recent survey results on the legal cloud: adoption of cloud computing by lawyers. Apparently corporate legal departments use much more cloud computing applications than law firms. This should not be too surprising for several reasons. First off, a corporate legal department often has a much bigger capital budget than the typical law firm. After all, a company large enough to afford its own legal department most likely dwarfs the typical American law firm with only four lawyers or less. Second, legal departments see other areas of their company running exciting applications in the cloud, which validates the technology, demonstrates the budget savings, emphasizes the speed of deployment and lesser maintenance, and might even trigger a good bit of envy. These kinds of incentives simply don’t exist in the small law firm environment (and not much even among large firms), so there is less interest for outside counsel in the legal cloud.

Let’s get to the numbers (you can see them here: http://bit.ly/pCf9pP):

More than half of legal departments surveyed use such services — a much higher exposure than law firms have managed so far. For storage, 6 percent of law firms are in the cloud vs. 22 percent of in-house departments. For document management, it’s 5 percent for law firms vs. 62 percent for in-house. Nearly a third of legal departments take care of spam filtering and e-mail management in the cloud. But 26 percent of respondents say the savings achieved have not been what they foresaw, thanks in part to subscription and license fees. And there are familiar worries: 65 percent complain services aren’t customizable enough, 39 percent fear problems with security, and 16 percent feel they don’t have enough control over their data.

I’m quite surprised to hear that 62% of corporate legal departments are managing their documents in the cloud. This number might be skewed by limited experimentation with Drop Box or similar applications. It would be interesting to know to what degree these departments are putting their entire, critical functions into cloud applications. I have a feeling we are still quite far away from the majority of legal departments fully embracing the legal cloud.

You Should Try WhichDraft.com Here.

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