Deceive – to mislead by a false appearance or statement
By now, in 2015, most of the general public over the age of 21 have been using Google, Facebook and LinkedIn for nearly a decade. During that time, they’ve acclimated to the culture of each of these online universes, and grown as adept in distinguishing casual informational websites and biographical profiles and chatty personal exchanges from paid advertising as a seasoned world traveler in recognizing an American tourist.

Yet while the majority of online users with an IQ over 80 understand the prevailing online social order, apparently bar regulators do not. So like imperialists swooping in to “civilize” native colonies, comes now the 100-year old  New York County Bar Association (NYCLA) to inflict its ethics rules on LinkedIn through the issuance of Formal Opinion 748 . As summarized by Allison Shields and Nicole Black, Formal Opinion 748 purports to offer lawyers guidance on when a LinkedIn profile constitutes advertising and when it doesn’t. Not surprisingly, this devolves into an exercise in hair-splitting: pure biographical information consisting only of one’s education and employment history isn’t advertising, but a description of practice areas, skills, endorsements – and even a detailed description of work performed for a former employer is.  And of course, as we all know, once the regulators classify something as advertising, we can’t disseminate it to the public without first marking it with a big scarlet A, er – disclaimer.

And therein lies the problem. Because slapping the phrase “this constitutes lawyer advertising” in the context of the LinkedIn universe causes MORE confusion for the public. When potential clients see a scarlet “A” on a lawyer profile, they’re going to assume that the lawyer paid for the ad and that it’s inherently less truthful than the other non-advertorial profiles on LinkedIn. Worse, users are likely to draw inaccurate conclusions – either that the lawyer is doing well enough to pay for a spendy ad on LinkedIn, or is so desperate that he can’t find clients without paying for social media exposure. Either way, requiring lawyers to include an advertising disclaimer on an otherwise ordinary LinkedIn listing has the effect of “misleading by creating a false appearance” and therefore, is deceptive.  

For a profession that prides itself on hewing to precedent, how soon we lawyers forget our collective history.

This time, amnesia has taken hold with respect to findings about unemployment trends in the legal profession as well as the promise of solo practice in a recent article, What Happened to the Class of 2010? Empirical Evidence in the Legal Profession  (March 12, 2015), by  Professor Deborah Jones Merritt. Comparing employment rates for the 1200+ Ohio law school graduates Class of 2010 to graduates a decade earlier, Merritt concludes that law firm jobs have dropped markedly, with a full 25 percent of grads in non JD-required jobs.  What’s more, the number of new grads practicing as solos has quadrupled (oh, the horror!) while a lawyers can be found working in pest control and lingerie sales.

Sounds like a depressing world – but guess what? Today’s profession is still doing far better than back in the 1937 when Arthur Merton’s Letters to A Young Lawyer was published. Merton painted a picture of a world where just a scant 3 percent of law grads actually practiced:
Not all the men who graduate with you will practice law. In fact, I venture to prophesy that ten years from now, not more than three percent of your class will be found in active practice. Tom Wilkins told me some interesting things about his class. It appears that lawyers are to be found in almost every kind of activity.

One of his classmates was a street car conductor, another working for three dollars a day as a carpenter, three were bank clerks, two had become book agents, another was collecting telephone rentals for a public service corporation and another was keeping in touch, rather remotely with his profession by becoming a policeman. Less than three percent were actively practicing law.
In this context, even today’s dismal employment rates are far better than what new lawyers could expect 75 years ago.   Unfortunately, what’s changed for the worse is the way that we – or at least Professor Merritt and many of her colleagues in academia and the legal profession — view solo practice.  

In the past, when I’ve worked at jobs, most of my friendships – to the extent that I formed them at all – never left the workplace. So this article, Lifehack  article, Ten Reasons Why Your Coworkers Have the Potential To Be Your Greatest Friends caught my eye, if only to enable me to belatedly learn what I’d been doing wrong. As it turns out, the article, like so many of the top-X reasons genre is list-rocious – the reasons offered either don’t make sense (they are forgiving when you leave dirty dishes in the sink? huh?), beg the question (seems like reason #9 – wanting to hang out with you after work presupposes that you’re friends already) or would fit equally well on any other top ten list. In any event, rather than bemoan the 45 seconds of time that I spent reading a worthless post and that I’ll never get back, I’ve borrowed the concept and applied it to solos. So with that, I present, Three Reasons Why Other Solos Have the Potential To Be Your Great Friends:

  • You’ve Lived Each Others’ Worsts

    • What’s best about kvetching to another solo is that we’ve all been there at each others’ worst. So we know how you feel when you’ve gone up before a judge or against a big law attorney who tried to make you feel small. Or how it feels to always be hustling and how hard it can be when the phone doesn’t ring, and how simultaneously terrifying and liberating it is to realize that you can lose it all at any moment but know that we could pick up the pieces and do it over if you had to. But what’s even better about a solo is that we don’t just offer a shoulder to cry on; many of us can offer constructive advice and solutions, because we’ve been there.

    Moreover, like the best of friends, most solos won’t judge. We know that missing a deadline or getting fired by a client or having a bad year needn’t define you as lawyers or as people so long as you own up to the mistake, learn from it and move on.  

    Back in the day, farmers always hoped for at least one son who could provide free labor to keep the farm running. Likewise, today’s lawyers can also ask their children — or other family members — to lend a hand in the family business.

    I’ll confess that I’ve done so on more than one occasion. Years ago, my older daughter helped me cut this video entitled, Your Blog on Social Media.

    And I encouraged my younger daughter to take a course on graphic design and Adobe Photoshop so she could help me mock up different logo ideas for my firm and other businesses.  My computer geek husband installed the Slashcode platform for me years ago that I could start MyShingle. 

    Do as we say, not as we do.

    That’s the message that the regulators send, as they fall in lock step behind the ABA in adopting the ABA Model Code’s rule requiring lawyers to keep abreast of the benefits and risks of technology, as reported by Bob Ambrogi at Law Sites. According to Bob, thirteen states have adopted the ethical duty of technical competence, with several others slated to follow suit, according to commenters.

    So what are the bars doing to help solos and smalls gain technological competence? Not much, from what I can tell. For example, it would be fairly easy to create standard website terms of service that lawyers could use at their websites, but I’ve not seen a product like that. Likewise, except for my 21st Century Retainer Agreement book (click for Table of Contents or purchase), there’s very little available on how lawyers need to incorporate obligations – such as preservation of digital files, accepting credit card payment or using the cloud – into representation agreements.

    Many bars aren’t all that tech savvy either. Some don’t yet allow lawyers to use credit cards to pay bar dues, while others don’t have list serves, or a referral service where clients can register online. How can state regulators expect lawyers to be tech savvy when the bar associations that serve members are woefully behind the times? 

    Only in the twisted hierarchical legal profession would an increase in the number of women as counsel and staff lawyers be viewed as cause for celebration. Yet according to this Law 360 article, “industry experts are applauding the fact that 40 percent of non-partner and associate roles at law firms are now occupied by women – since it reflects an overall advancements in the number of women in big law ranks.

    Yet outside of big law, women are thriving. In the month since February 2015 when the National Association of Legal Placement released its report on women at law firms, I came across four stories featuring women solos and startups. These include:
    Amy Everhart, a Nashville solo who focuses on entertainment law and a single mom, featured in Nashville Style Blueprint;
    Elizabeth Porter, A Hattiesburg Mississippi solo with her own private practice who also serves as the chief public defender for Forrest County, as reported in the Hattiesburg American; 

    Though it’s usually the other way around, every so often, solos and smalls can take a lesson from big law initiatives. Two months ago, I blogged about Holland and Knight’s security lab, where the firm tests its clients’ systems for security flaws and recommends fixes for vulnerabilities – and now, I’ve just come across The Appellate Academy, a recently launched venture by Michigan-based  Warner, Norcross and Judd. According to the firm’s press release, the Appellate Academy will run moot courts so that attorneys “can practice arguments and receive feedback as they prepare to present cases to the Michigan Supreme Court, Michigan Court of Appeals, U.S. Court of Appeals for the Sixth Circuit and other appellate courts.”  The academy’s “bench” is compressed of former judges and firm attorneys – and it has already mooted, or scheduled moots for 20 percent of the arguments before the Michigan Supreme Court. Presumably, there’s a fee for this service, though it’s not discussed on the website.

    My guess is that most solo and small firms (or more accurately, their clients, who presumably would foot the bill) couldn’t afford this type of service. Nevertheless, that doesn’t mean that there isn’t a demand for these kinds of “knowledge based services” in the solo/small community; indeed, probably more of a demand since most solos don’t have partners or associates who can act as a sounding board.  But I’m sure that lots of lawyers would be willing to pay for an hour or two of an expert lawyer’s time in exchange for feedback.

    By now, you’ve heard about the value of content marketing – either from Seth Godin, who says it’s the only marketing left or a cheesy marketing company, hawking ass-kicking copy for your law firm website or blog.  Whether knowingly or not, lawyers have instinctively always engaged in content marketing: in the olden days, by writing columns for the local newspaper, publishing law review articles, penning a column for bar publications or authoring a book. Today’s lawyers have more options – electronic newsletters, blogging, e-books, case studies and info graphics as well as other media like video or podcasts. In fact, with access to a computer and without the pesky quality control of publishers or editors, today’s consumers suffer from content overload.

    Still, for lawyers, content remains valuable. Not to market or brand a practice or for SEO, but to educate the public and potential clients.  Still, with so much stuff floating around, it’s hard to get noticed. Plus, with so many corporate brands engaging in content marketing, a plain vanilla e-book in PDF format or an amateurish video may no longer impress – the adage don’t judge a book by its cover doesn’t necessarily translate to the Internet.  

    Many tech start ups have as an exit strategy acquisition by Google. But for legal start-ups, is being gobbled up by Internet Brands, which operates consumer websites in several different vertical markets, including legal – m be best fate they can hope for?

    As Bob Ambrogi reported last week, Internet Brands added the floundering Total Attorneys to its portfolio in the legal space, which includes odd bed fellows like Nolo, Lawyers.com and the Martindale-Hubbell law directory.  Together, Internet Brands’ motley crew of legal websites amounts to 4.8 million in unique visitors searching for legal advice – and therein lies the value because Internet Brands, through various directories and other products, helps law firms market online.

    What’s a little sad about all of this – is that back in the day, both Nolo and Total Attorneys were “disruptors.” Nolo empowered the DIY client long before the legal industry recognized it as a trend. Total Attorneys was an early mover in the client portal space when it acquired the Virtual Law Office  (VLO) platform, and it helped (for better or worse, depending on your view of  Bates ) clarify the ethics of paid lead generation when it helped vindicate its pay-per-click users who targeted with disciplinary actions.   On the other hand, Martindale-Hubbell – which is also part of the group – was a venerated old school legal directory. But when it tried, too late, to  make itself more accessible, it too faltered.

    Colin Cochran brought a putative class action against his employers, Schwan’s Home Service, on behalf of 1,500 customer service managers who were not reimbursed for expenses pertaining to the work-related use of their personal cell phones. He alleged causes of action for violation of Labor Code section 2802; unfair business practices under Business and Professions…