Ethics Imperative to Business Development Learning

The Best of Law Practice Today. This article originally appeared in the May 2013 issue of LPT (The Professional Development Issue). With the significant expansion of our subscriber audience since July 2014, we thought our new readers would enjoy reading an earlier feature that you may have missed.

With the maturation of structured professional development and marketing in the law firm setting, the critical issue of ethics has become more prevalent. In teaching various business development techniques—whether through coaching, use of social media, writing, or speaking—adherence to the Rules of Professional Conduct can’t be ignored.

It’s Not All Bad, Though

Of course, the ethics rules also create opportunity for professional development staff. While teaching and training in marketing techniques is generally not acceptable for continuing legal education (CLE), learning the ethics rules tied to those not only create CLE programs, but the always-valued CLE ethics hours. When teaching these courses in law firms, I always warn the audience that if they are not careful, they might actually learn how to market when learning what not to do.

Not So Easy Anymore

Many attorneys at one time felt the ethics and marketing conversation simply was not relevant, especially with newer associates. That attitude is changing rapidly as law firms start discussing the concept of business and client generation as early as the summer program. More people also recognize that lawyer marketing and advertising hits everyone—it is not just law firms that do billboards, television commercials and print ads. If you sponsor a conference, maintain a LinkedIn profile, publish articles or do practically anything online, you are a marketer—like it or not, for better or worse.

Marketing ethics issues go much deeper than simply reading the RPC in relation to rules 7.1 to 7.5ish. Beyond advertising restrictions come issues of attorney/client relationships, competence, confidentiality, conflicts, unauthorized practice of law, multi-state jurisdiction, multi-disciplinary practices, solicitation and fee-sharing.

Online Means More Than Websites

Rules and ethics opinions relating to websites and online marketing have become more complicated. There is a difference between looking at a traditional law firm website (news, attorney bios, practice area descriptions, offices) and looking at other ways that people are getting online information via micro sites and blogs. Search Engine Optimization (SEO) brings a set of potential issues. Mobility means development of mobile sites and apps, with some attorneys even using texting as a solicitation tool. States are looking differently at areas traditionally verboten—use of terminology such as “specialization” and “expertise,” aspects of direct mail, virtual law practices, use of trade names and unauthorized practice issues.

While the use of daily deal sites such as Groupon might not resonate with the majority of lawyers, enough interest exists in the area to have already generated numerous state ethics opinions—some saying yea and others saying nay—in allowing participation.

Ratings, Rankings, and Reviews

Ratings, rankings and reviews continue to generate controversy and interest. For the large law firm attorney, the focus might be on Chambers USA or Martindale AV Ratings or Best Lawyers. For the consumer-oriented law practice, there might be greater interest in Super Lawyers, Avvo or the thousands of “local” honors in every geographic market. And no attorney or law firm is exempt from possibly being “reviewed”—whether it is by a disgruntled client on Yelp or an in-house counsel on a lawyer review site.

Social Media Impacts Everyone

How many attorneys at your law firm don’t play in any social media space—Facebook, LinkedIn, Twitter, etc.? My guess would be very few. While your firm might try to offer up “rules” and/or “guidelines” for social media use, the reality is that most don’t quite see the gray areas that exist between personal and professional, solicitation and information. Law firms discuss social media with attorneys from multiple perspectives, including human resources (and employment policies), the marketing department and numerous impacted areas of practice where social media issues touch the client.

The Rules and Tools Change Daily

More legal Q&A, video, directory and referral sites and products are available than ever before. States such as Florida, where the marketing ethics are always changing, have new rules that just kicked in on May 1, where standards for television, print and billboards have been loosened while online standards are stricter. The bottom line is that entrepreneurs aplenty are recognizing the $200 billion legal market as a place to be. What so many non-lawyer vendors and professionals, along with a vast number of legal practitioners, often fail to recognize is that we work in a highly self-regulated profession. Making sure everything’s ethically sound is critical. The failure to recognize all of those issues when providing professional development leaves everyone at risk. There is little excuse for failing to provide that aspect of training and education. The benefits far outweigh the effort. As many attorneys learn the hard way, just a hint of an ethical misstep—even if cleared or quietly reprimanded—can have a chilling effect on a law firms’ business development operation.

Providing Proper Training and Education

Numerous personnel within a law firm benefit from understanding the ethical concerns that are part of marketing and business development operations. While many CLE providers cover this subject matter (I’ve taught the marketing & advertising ethics CLE for the Pennsylvania Bar Institute for more than a decade and similar programs for the ABA nearly every year), if you provide in-house CLE programming, you can make sure the subject matter fits your specific initiatives and the relevant states. The “angle” is also different when discussing ethics issues with the firm general counsel, management committee, marketing and BD staff, and the attorney population at large.

This summer, in between introducing your summer associates and new attorneys to the practice of law, make sure you begin developing their knowledge of these ethical obligations too. Whether they are tweeting, building a LinkedIn network or promoting a seminar, the ethics surrounding these techniques is essential professional development training.

About the Author

Micah Buchdahl is an ethics attorney who works with law firms on business development initiatives. He is a past chair of the ABA’s Law Practice Management Section and serves as Editor in Chief of Law Practice Today.


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