April 2008

Making Rain Without Creating a Storm

By Ruth E. Piller, LITIGATION NEWS Associate Editor

Recent Section publication discusses leading ethical considerations for rainmaking

Attorneys in private practice are under constant pressure to originate new business, and those who fail to do so not only face barriers within their firms but can find their careers less rewarding. However, as a recent article published in The Woman Advocate makes clear, attorneys must remember several ethical guidelines when they seek to establish client relationships.

The article, by Tamara L. Traynor, Philadelphia, cautions that attorneys must scrupulously ensure that the biographical data they disseminate about themselves is not misleading:

“[W]hen you describe your background on a website ‘bio’ or in a brochure to prospective new clients, saying that you have ‘experience in handling bankruptcy matters,’ after handling only one such case, that may be misleading to the unsuspecting consumer. The term ‘experience’ implies a degree of knowledge and skill in a particular legal field in handling many cases over some time and becoming familiar with the law and statutes governing that practice area. Merely ‘dabbling’ in a particular area of law should not be presented as an established specialty.”

Kimberly A. Demarchi, Phoenix, a member of the Section’s Ethics and Professionalism Committee, agrees that the language attorneys use in promotional materials can be problematic. “The natural impulse in marketing is to want to describe what you’re selling as great, but the ethics rules of various jurisdictions impose constraints on what lawyers can say about their own services, and even really great marketing experts may not be aware of those restrictions when they are helping lawyers to write their bios and other promotional materials.”

For instance, as Traynor’s article notes, a July 2006 opinion issued by New Jersey’s Committee on Attorney Advertising precludes New Jersey attorneys from including in their advertisements their designations by various publications as “Super Lawyers” or “Best Lawyers in America.” (The New Jersey Supreme Court, however, has stayed the committee’s opinion pending the court’s review of the issues presented.) Several recent advisory opinions issued by Connecticut’s Statewide Grievance Committee reached the same conclusion. (Super Lawyers magazine advises that it has made changes to both its magazine and website in response to the Connecticut opinions.)

Traynor also discusses the ethical ramifications of rainmaking in the Internet age, when many firms maintain websites or blogs that invite questions and comments from their readers:

“The concern is that the lawyer or firm, in answering questions through the blog, will be seen as giving legal advice. Thus the lawyer or firm may unintentionally establish an attorney-client relationship with the recipient of the information. To avoid any confusion, blogs should have strong disclaimer language advising those who view the site that the information given in the site is not legal advice and that an attorney-client relationship is not established with anyone who views the site.”

Andrew S. Pollis, Cleveland, cochair of the Section’s Ethics and Professionalism Committee, says the ethical ramifications of rainmaking should be of interest to lawyers of all skill and experience levels. “It’s easy enough to go to a cocktail party or work on a bar committee; the tougher calls are those that involve direct communications with potential clients where the lawyer has no pre-existing relationship.”

Demarchi observes that many attorneys’ marketing strategies often include the provision of free advice to potential clients “so that they will see the value of the lawyer and want to buy more services. But you always have to be conscious of when you are creating attorney-client relationships and the kind of reliance on advice that could lead to malpractice claims if the ‘free’ advice wasn’t understood or applied well, so freebies should be carefully written and distributed with a clear understanding of what they are and are not intended to provide to the prospective client.”

The failure to run adequate conflict checks before approaching potential clients is also a concern, particularly for young lawyers, says Paula W. Hinton, Houston, cochair of The Woman Advocate’s Rainmaking Subcommittee. For instance, young lawyers who meet potential clients at a cocktail party may think they are on the way to bringing in business, when a simple conflict check might reveal otherwise. “That’s the real danger,” Hinton says. “And it’s not from malfeasance. It’s not evil on their part. It’s just a mistake.”

Finally, given the ethical restrictions on referral fees, Traynor cautions attorneys about accepting gifts from referring attorneys:

“In the post-Enron era we live in, much attention has been paid in the for-profit corporate world to conflicts of interest and the appearance of impropriety created when professionals and/or company executives give or accept gifts, junkets, and other things of value in the course of doing business. If you have any hesitation in giving or accepting gifts from clients or other attorneys in connection with generating business, simply do not do it.”

Top Ten Rules For Ethical Rainmaking

Adapted from Tamara L. Traynor, Ethical Considerations in Rainmaking, The Woman Advocate (Fall 2007)

1. Attorney resumes must not be false or misleading. Do not exaggerate or misstate your experience.
2. Check your state’s legal advertising rules for guidance in describing yourself and your practice. For instance, some states’ advertising rules preclude use of the terms “Super Lawyer” or “Best Lawyer in America.”
3. Make sure your firm’s name, slogan, and logo comport with your state’s rules of professional conduct.
4. Your firm’s website and blogs should include disclaimers that deny the provision of legal advice or the creation of an attorney-client relationship.
5. Blogs should contain disclaimers that indicate that the views they express are personal to the attorney who wrote them and do not necessarily represent those of the firm.
6. Website disclaimers should state that the firm has no duty to keep confidential any information disclosed on a firm’s website or blog.
7. Do not reveal client confidences when describing past accomplishments and experiences.
8. Know your jurisdiction’s referral rules.
9. Know your jurisdiction's rules on solicitation and advertising.
10. Avoid accepting gifts from referring attorneys.

Copyright © 2008, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.