How To Market Effectively While Avoiding Legal Malpractice Claims

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How To Market Effectively While Avoiding Legal Malpractice Claims

In this current period of business recession and general retrenchment, law firms throughout the country are reevaluating previous conceptions about business development planning and related tools including the use of various forms of advertising. At the close of the last decade, marketing was in widespread use in the legal profession from the sole practitioner to the giant megafirm. In fact, a whole new profession was developing to provide room for the professional Marketing Administrator. Many small to medium size firms assigned marketing responsibility to someone on the staff to develop a firm strategic marketing plan and related tactical implementation processes.

General Guidelines

The American Bar Association Model Rules of Professional Conduct contain specific language to guide you as you develop your own marketing strategies. In addition, you must consult the State Bar of your state for guidance, since there are wide differences regarding permissible business development activities. On the one extreme, soliciting a potential client in person or by telephone by or on behalf of a lawyer in the state of Texas is now a third- degree felony punishable by up to 10 years in prison and a $10,000 fine. In contrast, a number of other states have very little to say legally regarding the regulation of marketing activities by law firms.

What Can I Do?

First and foremost, develop a carefully conceived policy and related process for accepting new clients. You should market your expertise, so that you are working in practice areas where you have unique experience. The day of the generalist never really existed in the legal profession. Certainly, in today's complicated world of rapid change and obsolescence, you must not accept a new client unless you are absolutely qualified to address the specific needs of that client. Anything more virtually guarantees a potential malpractice claim. Secondly, be willing to refer potential clients to others who have developed the expertise that is required to meet the needs of your potential client. This posture is a "win-win" situation for everyone involved. The client receives qualified representation; your referral associate will be grateful for the new client; and you avoid a potential malpractice claim by your willingness to subvert your ego to the realities of the practice.

Thirdly, concentrate on improving communication and strong relationships with current clients before seeking new candidates. We all read and hear much today about Total Quality Management (TQM) and the possible application to the legal profession. In all candor, the TQM concept should be your focus with every client - concentrating on delivering a superior quality legal product to meet the stated needs of your client in a timely and cost effective manner.

What About The Use of Certain Marketing Tools?

Techniques and devices for effective marketing range from sophisticated seminars to blatant advertising in the yellow pages. I use the term "effective marketing" to describe the entire range, since different "tools" have proven useful for different practices in various geographical sections of this country. You must give very careful thought to what devices are comfortable for you and your current and potential clients. Aggressive marketing is certainly acceptable and usually necessary for continuing growth. However, in many communities, there is a very fine line between acceptable, aggressive marketing techniques and obnoxious, unacceptable self promotion.

So What Should I Do Now?

You must develop a clear strategy for retaining present clients and acquiring new ones based upon your own personal sense of acceptable behavior. If you always seek to determine the needs of a potential client before you accept representation, you will take a giant step toward true professionalism and away from potential malpractice claims. Always confirm in writing with the client (or potential client) exactly the terms of your mutual agreement. This step is vital even when you decline representation of a potential new client.

Keep your clients informed about the progress of their matter. Send copies of documents stamped "for your file only-no action required", so that your client can visually follow your work. Encourage your clients to ask questions, then answer promptly and succinctly. No one likes surprises in the area of legal representation whether it relates to money or to unforeseen issues. Anticipate potential problems and communicate your concerns regularly to your clients.

Can I Relax and Practice Law Now?

"Eternal vigilance is the price of safety", and you must try to always anticipate the compounding effect of Murphy's Law (ie., whatever can possibly go wrong will probably go wrong consistently). Good planning and an intimate knowledge of your client's needs and expectations will guide you toward a more productive and enjoyable professional lifestyle. Enjoy!