Ghostwritten Blog Posts — Ethical or Unethical?

Ironically, a blog post about the recent and sudden passing of Finis Price led me to Finis’ blog, on which the final post was entitled “Ghostwriting in Legal Blogs.”  Ironic. The topic itself was so controversial and interesting to me, I had to follow the links to additional reading.  If you have a blog, Facebook page, or Twitter account, you may have considered hiring a ghostwriter, because these mediums are content hogs.  Maybe you’ve been using a ghostwriter for some time.  The question is, does it violate ethical rules?

This discussion has been around for a while.  Kevin O’Keefe blogged about it in great detail on January 12, 2012, in a post entitled “Are ghostwritten lawyer blogs unethical?“  His opinion is very clear.  But I wonder why no one weighed in with comments.  There was post about it on ABA Journal Law News Now similarly entitled “Are ghostwritten lawyer blogs unethical?” written by  Debra Cassens Weiss on February 4, 2010.  Again, no comments are posted, which is pretty unusual.  Most controversial posts on ABA news feeds invoke tons of comments.

Not being satisfied, I dug deeper by going onto the main page for ABA Journal Law News, and conducting a search for “ghostwriting”.  I found that there was a poll conducted which ended on Tuesday, December 8, 2009.  A total of 849 attorneys (presumably) cast their vote.  In a blog post redundantly named “Are ghostwritten lawyer blogs unethical?” written by Molly McDonough and published on February 23, 2010, the results of the poll were published:

When we asked late last year whether you thought it was ethical for lawyers to ghostwrite legal documents, the results were mixed. With more than 800 readers weighing in (PDF), 60 percent answered that ghostwriting is ethical and happens all the time. Only 14 percent thought it was akin to cheating.

I’d love to have those of you who have served on your State’s Disciplinary Boards weigh in with your opinions.  Post your comments below.  I don’t think this topic is dead by any means.

Does Coaching Really Help?

A recent caller on the PA Bar Association Law Practice Management Hot Line wanted to know whether coaching really helps.  His practice had taken a downturn, and his girlfriend suggested that perhaps he needed to update his skill set to better enable him to engage prospects and seal the deal.  She recommended coaching.  He was skeptical. He wanted a viewpoint from “a dog who isn’t in the fight.”  My answer?

I’ve learned well from attorneys over the years in how to answer these types of questions.  My answer?  “It depends.”  Then I went on to discuss the considerations which would sway the answer one way or another:

1. How motivated is the attorney to learn and grow?  How willing to change?  How willing to accept criticism and take direction? 
2. What are the qualifications of the coach?  Lots of people call themselves coaches, and many even have lots of initials following their names, but that doesn’t mean they’re effective.  So the attorney must do the following before engaging a coach: 

      a) check references carefully – make sure they are applicable to the results desired

      b) find out exactly what their methodology is – a good coach will tell you exactly how they proceed, and be able to give you a detailed proposal with associated costs

      c) check credentials, which includes their background experience - a psychology degree doesn’t mean they can help you create any client development breakthroughs

      d) have a good long conversation to see whether you feel comfortable speaking candidly with the individual

  3.  Make sure you  can afford the investment of time, in addition to actual out-of-pocket payment to the coach

Ultimately, my answer is YES.  Coaching can be a tremendous help for attorneys who are committed to improvement, open to the process, and who engage the right coach. 

Now that being said, I do have names of several coaches on file.  But to be frank, none has blown me away thus far. Nor the attorneys who I have referred to them. But this week I am hopeful.  An attorney’s wife went out of her way to call and tell me about a “terrific coach” she engaged to work with her husband. She said the process was a tremendous success, and wanted me to know about it, in case other attorneys needed similar help. 

I am always interested in highly qualified vendors or service providers who can assist Pennsylvania attorneys. So I contacted the coach right away, after reviewing her web site. We had a good talk, and I got a sense of what she’s about and how she operates, and I am hopeful.  She was gracious, and invited me to attend her seminar “How to Avoid the 5 Most Common Marketing Mistakes and Increase Your Sales by Up to 200%” which will be presented in two 2-hour evening sessions on February 27th and March 5th in Malvern, in order to get to know her work a little better.  I accepted. 

Here’s hoping I have finally found a coach I can recommend without hesitation.  Have you worked successfully with a coach you feel is highly qualified?  I appreciate all recommendations.  Feel free to contact me directly, or post your recommendation on the blog for all to see.

Bad Online Reviews About Lawyers or Law Firms

When I wear my hat as Law Practice Management Coordinator of the PA Bar Association, I get a call at least every couple of weeks from a distraught attorney who has had a negative comment posted on their Facebook page, in a blog comment, or on some other site.  From the attorney’s perspective, it’s a painful experience, because it reflects on their reputation, and that’s what they spend a career building.  “What should I do?  What can I do?”  These are the questions I am asked. 

I am mindful of something called the Streisand Effect.  My partner, Jennifer Ellis, speaks about it in her popular seminar entitled “I am Begging You — Please Don’t Look Like an Idiot on the Web“.  (You can take a peek at her PowerPoint presentation here.)  She also talks about it in a top-rated seminar we do together, entitled “Social Media Examined – Possibilities Ethical Considerations Privacy & Security Concerns“  (You can find the slides for this presentation here.)  Keeping the hard lesson learned about what is now commonly referred to by social media experts as the Streisand Effect, I advise hot line callers to ignore it, or at most to post a respectful and brief response.  But I have to say that I am not happy about this being the best advice I can give.  There should be a better solution. 

An article in ABA Journal Law News Now drew my attention today. (Yes, I am behind in reading!)  Entitled “Dallas Law Firm Sues Anonymous ‘Ben Doe’ over Bad Online Review,” the article explains that the Dallas, TX Lenahan Law Firm filed suit against an anonymous negative poster, claiming defamation and seeking $50,000 in damages.  The law firm’s managing partner is quoted as saying that since the poster was anonymous, the only way to find out who posted the comment, and hold them accountable, was to file suit.  To be honest, the voice inside me was silently cheering the law firm on. 

Then I began reading the posted comments.  At the time of reading, there were 50 comments.  Obviously, many people feel strongly about this topic.  Many cited first amendment priviledges.  Some felt the law firm stepped over the boundary into abuse of process by filing what they considered a frivilous law suit.   I strongly agreed with just a few comments:

In comment #17, Curmudgeon, Esq said <<Sorry, but I must disagree with most comments in this thread.  A lawyer’s reputation, especially regarding integrity, is important to marketing ability and credibility in work.  The review in question challenged both incompetence and integrity.  It appears that the insult was done both anonymously and negligently.  Perpetrators of such conduct should be held accountable.  Those of you who think this is sport will not think so when you are the target of unfair abuse.>>

In comment #24, Saa said <<How is “Bad experience with this firm. Don’t trust the fake reviews here.” protected by the first amendment from a defamation suit?  It’s a comment about a business, implying that they write fake reviews.  It’s not a comment about a public person or a matter of public policy.  They are entitled to find out who wrote this just as much as the person who wrote it was entitled to post it.  Freedom of speech is not freedom from consequences, even “anonymous” comments.>>

In comment #28 Jim said <<This is definitely an issue that needs to be dealt with either through legislation or litigation. Businesses can’t just ignore bad posts that might even be mistaken. And if Google and/or other companies won’t provide an opportunity to rebut or remove then the business has no choice but to sue and subpoena. This sounds ripe for a fee shifting statute.>>

I’m not afraid to admit that I’m someone with a strong existential backbone.  I firmly believe in personal freedoms, but like Saa, I believe in taking responsibility for ones actions as well.  As I wrote in my comment <<Whether the comments are anonymous or not, the problem is that our “new normal” is evolving from a paradigm shift in communications of epic proportions.  A shift in which people will now often turn to the words of strangers (e.g. online reviews) at their first level of filtering information about who they might find suitable to do business with, rather than start with the formerly reliable circles of friends, family, business acquaintances, and service providers.>>  That’s why this matters so much. 

Let’s not have a repeat of the formerly “dirty little secret” where just a few knew that if their lawyer threatened to sue for fees, they (the non-paying client) could threaten to counter-sue for malpractice, and the lawyer would run away in fear.  Look where that’s gotten us.  Lawyers are almost universally afraid to aggressively go after fees they are rightfully due. And now some malpractice carriers won’t even offer a policy to firms which choose to sue clients for unpaid fees.

If the legal profession continues to be cowed into silence by the threat of the Streisand Effect, the eventual outcome will be no different.  Is the suit an abuse of process?  I don’t know, frankly.  That’s for the courts to decide. Me?  I’m just hoping to someday have better advice to give, other than to have to keep recommending to Bar members that they ignore such actions, for fear of worsening the consequences.

Do As I Say – Not Necessarily As I Do!

I was presenting the last in a series of four seminars for the Chester County Bar Association on Tuesday, December 20th.   The bar advertised the series as an “Ellen-a-thon;”  a term first created by either the Erie County or Bucks County Bar, I can’t remember which.  Anyway, I was presenting on behalf of the Pennsylvania Bar Association, and my partner, Jennifer Ellis, joined me as a representative of Freedman Consulting for the last session.  We presented a two-hour session entitled, “Social Media Examined: Possibilities, Ethical Considerations, Privacy and Security Concerns.”

 When we originally created the seminar and shared the podium, Jennifer was still serving as Associate Director of Media Technologies with the Pennsylvania Bar Institute and as an outstanding program manager who developed many of PBI’s programs on technology, technology law and law practice management, as well as PBI’s social media presence.

 My approach to social media covers the sea-change in communications it has created, and social media’s affordable application as a business tool for law firm use; uses for strategic intelligence gathering, networking, and as a marketing and client communication tool.  Jennifer, on the other hand, focuses on the ethical traps for unwary users, current evolving case law regarding various aspects of social media, specific uses of social media in various areas of practice, how to advise clients so as to avoid spoliation charges, and how to properly preserve evidence.  It is a very fast-paced two hour program which totally engages the audience.

 While talking about the power of blogging and tweeting, one of the audience members questioned how often one should expect to blog.  I stated without hesitation that one should consistently blog at least three times per week.  Minutes later this audience member, who had a laptop, questioned whether he had correctly connected to my blog, since there had not been a post since mid-October. 

 I winced and laughed simultaneously.  Just because I know what best practices are, doesn’t necessarily mean I follow them myself all the time!  Truth be told, there has been such a huge increase in intake since Jennifer joined the practice — before I never took on more than one or two private assignments over and above my work for the PA Bar Association, and turned the others away  — that I have struggled to keep up with demand for my time. 

 Yes, I’m struggling to squeeze 25 hours into a 24 hour day.  Just like you do, Mr. or Ms. Attorney.  I really do understand that there are often not enough hours in the day to get it all done.  I am sympathetic.  But if you ask me what you should do, I will still give you the answer which covers best practices.  Not always the same as reality, though, I’ll give you that. 

 Keep in mind that we should all be constantly trying to make small steps of progress toward the goal of best practices.  Whether that goal concerns improving your timekeeping and billing habits, or marketing activities, or client intake procedures — no matter what the goal — small steps of progress in the right direction will always produce better results in reaching ones goals over the long term.

 There will always be some backsliding from time to time.  That’s to be expected.  But that doesn’t change the ultimate goal.  Nor does it erase all the progress already made.  It’s just a temporary blip on the radar screen.  Ok, I missed a couple months.  It’s happened before, and likely will happen again.  That doesn’t mean I give up on blogging or tweeting.  It means I redouble my efforts to get back on track.  Perhaps I change the time of day I try to blog.  Or decide to seek out guest bloggers I can trust, to take off some of the burden.  Blogs are, after all, content monsters which require frequent feeding in order to successfully engage an audience.

 I appreciated the challenge from the seminar participant, because it pushed me back on track.  So thanks for coming, and thanks for being such an active participant.  I have a feeling you’ll have a big smile when you read this blog post, and hopefully many more to come.

Target and Pursue Using LinkedIn

What a coincidence.  Last night I presented “Social Media: Part of Today’s Client Development and Retention Toolkit” for the Montgomery County Paralegal Association.  I was delighted to be greeted by a huge crowd eager to find out how these tools might be applied to the benefit of their firm’s client development efforts.  (Yes, they spelled my name wrong and got the seminar title wrong, but those in attendance were not disappointed.)

Unlike most of the attorneys who attend this presentation, most of those in the audience were already extensively using Social Media on a personal basis.  Almost everyone had a FaceBook page, most had profiles on LinkedIn, a few tweeted, and most everyone subscribed to one or more blogs.  One person (actually, the program sponsor, from Harris Investigations), stood alone as having created a FaceBook page for his dog.  My dogs, and their FaceBook friend, Curtis D. Ellis, will be sending  friend requests shortly!

One point I worked hard to drive home involved the crowded marketplace in which legal professionals navigate nowadays.  It’s hard to get the attention of prospects when so many other attorneys are trying to get their attention at the same time.  And the concept of being “out there” in order to establish relationships with prospects and referral sources has taken on a whole new meaning with the use of Social Media.  It enables one to be “out there” way beyond what would have been possible, both time-wise and geographically, without these tools. 

I spoke about the “new normal” in marketing, which I describe as “target and pursue” — identify the ideal client or referral source, and then find ways to reach out and touch them in a meaningful (and metaphorical) way.  I emphasized the importance of LinkedIn as a tool for strategic intelligence.  It enables one to identify the key players in the industry or specific company one wishes to pursue, and to track relationships in order to find a point in common, who can provide an introduction. 

Today, the AttorneyAtWork blog posted “Let Me Introduce You: One of Many Things LinkedIn Is Good For” and it directly addresses the same topic in the same way.  The fact that the blog post was written by marketing expert Merrilyn Astin Tarlton made me feel pretty darned good about the messages I delivered in my presentation.  It was worth the trip in driving rain, to provide valuable information for such an appreciative group.

Creating Your Elevator Speech

I’ve been referring to elevator speeches, and advising attorneys to create their own, for years. I just came across an article which provides a unique methodology to do so.  Well, maybe it isn’t so unique, but I think so.  Decide for yourself. 

I found the article on a blog entitled “The Wonderful World of Jeffrey Paul Baumgartner: Learn How to Be More Creative!” and I guess the title of the blog just about says it all.  The specific post I refer to is entitled “Framing a Creative Elevator Pitch” and I think you will find it both informative and a pleasure to read.

Are You An Avvo Fan?

It seems that nobody is neutral when it comes to Avvo.  Some attorneys (and law practice managers) really dislike the way it operates.  I have heard it described as a strong-arm tactic forcing lawyers to claim their profiles in self defense.  Others have found it to be a asset in guiding prospects to their firm.  I have listened to both sides of the dialog, and continue to discuss it with clients and industry experts.

I was not at all surprised — ok, maybe a little — to read Jennifer Ellis’ recent blog post entitled “I spoke with Avvo!!“  In a typically pragmatic approach, (which makes me even more delighted that Jennifer will “officially” become part of Freedman Consulting as of May 1st), Jennifer notes that despite her dislike of some aspects of Avvo, it is here to stay.  It has experienced vast growth over the past 5 years, and it is being used by laypeople to find lawyers (and doctors).

Jennifer’s conclusion is that it really has become crucial to claim your Avvo profile if at all possible.  She discusses reasons why you might not want to claim your profile.  A listing on Avvo isn’t necessarily right for everyone.  In fact, there are instances where it can be more damaging than beneficial.  Jennifer is also using her own listing to determine what works to elevate a rating.

I’m sure the dialog isn’t over on this topic.  Jennifer has invited Avvo to respond personally on her blog to several of the negative points she raised, rather than try to paraphrase the conversation.  Since she is convinced they will not be changing their policies any time soon, it seems for now she has agreed to disagree, but will nonetheless continue to advise attorneys to claim their profile when appropriate to their situation.  From my perspective, I hope Avvo takes her up on the opportunity to open the dialog, and that many of you join in by providing your opinions.  Who knows what changes that might produce?

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The Buzz at ABA TechSHOW

Tomorrow is the last day of ABA TechSHOW in Chicago.  I have spent days immersed in seminars and speaking with vendors about the latest and greatest tools, techniques, best practices, and risks related to the use of technology in law firms.  Clearly, there has been a recognizable theme.  Looking at the program guide even briefly reveals that this year has had a heavy emphasis in the following areas:

1. CLOUD COMPUTING– Just about every angle has been examined; applications, service providers, ethical and security considerations, benefits
2. SMART PHONES — A wide selection of courses offered detailed views of the various operating systems (BlackBerry, Android, Apple iOS) and the amazing breadth and helpfulness of applications currently available.  It is, after all, all about the apps, and the way these devices can now assist in a myriad of ways to improve workflow, profitability, client service, and even our ability to entertain ourselves.
3. SOCIAL MEDIA — From use in various practice areas, to marketing and ethical considerations, this topic is by no means getting stale.
4. MAKING BETTER USE OF THE SOFTWARE AND TOOLS WE ALREADY HAVE — Attorneys are just barely scratching the surface of understanding the capabilities of the software and devices they employ.  Dissatisfaction with the apps and tools are attributable more to lack of training and hands-on usage than to shortcomings in the apps and/or tools themselves.  Firms need to re-examine the funds and time devoted to properly training people, in order to get a return on investment.
5. RECORDS MANAGEMENT, DISCOVERY, AND BEST POLICY CONSIDERATIONS– Perhaps the most interesting session was one with a packed audience which included a large number of corporate counsel and IT managers who were struggling with establishing sound business policies, and trying to figure out how to apply them in a complex environment where it becomes impossible to identify all the “locations” where sensitive firm or client data may reside.

I made a decision following many of these sessions, and my visits with each and every vendor in the huge exhibit hall, that I would pursue CIC designations (certified independent consultant) on each of the major cloud-based practice management systems.  I don’t want to sell product.  I believe that would undermine my position of vendor and product neutrality.  But I am convinced that the current trend will continue, and more and more of what we do will be cloud-based.  I plan to be ready to assist lawyers — particularly those who are starting firms — to select the best solution and implement it at the highest degree of utilization.

I barely shuffled my weary body back to the room tonight, and picked up the copy of USA Today which the hotel had placed at my door.  Two headlines dominated the front page.  The first article was entitled “The World To The Rescue: Japan Crisis Showcases Social Media’s Muscle.”  The second headline was entitled “Mayoral Recall Drives Go Viral: Ticked-off Voters Taking Anger to the Net.” Both articles drove home a very important concept we all need to grasp — the newly available social media tools weren’t invented or developed for these purposes, but people on a world-wide basis are finding ways to make these tools invaluable resources in addressing a litany of social, business, and political needs.

If you think that these tools are just for kids, or don’t have practical business applications, or maybe are just a fad or gimmick, it’s time you reconsider.  U.S. Ambassador John Roos, the top U.S. diplomat in Japan,  has a Twitter account.  Two tweets to him just 9 days after the catastrophic earthquake, revealed the plight of 80 patients in a hospital 27 miles from the Fukushima reactors.  The ability to get the ambassador’s attention in such a direct and immediate way would not have been possible in the previous year, before he had a Twitter account.   Those tweets led to mobilization of Japan’s Ground Self-Defense forces to assist in evacuation assistance.  The confirming news that help was enroute arrived within an hour of those two tweets.  Social media enabled communication around the globe at a time when public and official channels of communication were virtually inoperable.

We are just beginning to realize the importance that social media — Twitter, Facebook, Google, YouTube etc — will have on our ability to respond to crises around the globe, effectuate political change more quickly, spotlight injustice or unrest, create international collaboration of ordinary citizens to solve social problems, create more effective mechanisms to pool intellectual capital without regard to geographic diversity in order to stimulate stunning innovations.  There is no doubt that we are in the midst of a sea change in communication which will impact virtually all aspects of our life.

All of these realizations have made me grateful for the knowledge I have been able to gain at TechSHOW, and especially for the addition of social media guru Jennifer Ellis to the ranks of Freedman Consulting.  More about that in upcoming posts.

I extend congratulations to TechSHOW Chair Paul Unger of Affinity Consulting Group for a great event. I offer my appreciation to the faculty members for all their hard work and excellent presentations.  And finally, I am grateful for the large number of vendors who exhibited the latest and greatest software, hardware, and services available for lawyers and law firms of all size and practice areas.

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A Proactive Marketing Strategy

have long espoused that major clients should each receive a free on-site half or full day visit each year by their relationship partner.  The purpose is to gather strategic intelligence which will enable you to better anticipate their needs, understand their concerns, examine their risks and opportunities, and generally just learn more about how their business operates.  While at first it seems to be a money-losing proposition, those who have taken this approach have quickly discovered it is not.  It shows the client in no uncertain terms that the firm is vested in understanding their business, and becoming a partner in helping them achieve success.  It shows the client that the firm is willing to invest its time in order to serve their needs better.

One strategic advantage is getting to know additional key players in the organization who may not play a role in assigning legal work.  Chances are good that some day your contact may move up or out, and one of these other key players may move into your contact’s slot.  What better way to ensure you ride out the transition smoothly without losing the client?  Even better, perhaps one of them may move to another company, and have an opportunity to send work your way.  After all, you paid attention to them when they weren’t a source of business!  And they know you understand their needs and concerns.

Typically, the firm walks away with some new matters to handle on the day of the site visit, or receives them within a few days afterwards.  So although the investment of time appears to be lost revenues, it is usually quickly recaptured with additional work that might not have arrived otherwise.

Today I read with interest that fellow consultant and blogger Jordan Furlong has taken this idea to another level, and I am intrigued and in total agreement.  Wish I’d thought of it first!  In a blog post, Jordan suggests that the attorney create an Annual Report for the client.  Another solid proactive strategy to let the client know you’re not just passively content to handle a transaction here and there.  I can pretty much guarantee that the firm which embraces this strategy will reap significant rewards.  Read the post for his description of what the Annual Report should include.

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Tools for Longer Tweets

Are you one of those people who cannot confine your Tweets to 140 characters?  Heck, I can’t even say my own name in 140 or less characters Fortunately, now there are tools which enable you to post longer Tweets.  Check out the post entitled “6 Tools That Allow You To Write Longer Twitter Tweets” which appeared on the makeuseof.com blog.

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