With the encouragement of American Bar Association Resolution 115, various state Bars are beginning to study whether to change their regulations regarding the sales and marketing activities of lawyers. Rules that they are evaluating may include those relating to referral fees, fee splitting, advertising, and solicitation. They also are considering regulating legal entities in addition to individual lawyers so that the Bar rules would apply to nonlawyer legal services providers.

            The stated reason for the newfound focus on Bar rules is to address the “access to justice” problem at the low end of the legal market where legal consumers often have difficulty affording a lawyer. However, the reach of this review does not appear to include rethinking geographic constraints on lawyers or changing the rules prohibiting partnerships between lawyers and other professional services providers. These rules regarding multi-disciplinary and multi-jurisdictional practices contribute greatly to lawyers’ inability to compete against nonlawyer legal services providers (“LSPs”), and the Bars’ reluctance to address them may be due to a fear that already has come to fruition, the entry of competitors such as Axiom, the Big Four, and other nonlawyer competitors at the high end of the legal market. Axiom already represents half of the companies in the Fortune 100. And the legal establishment’s slowness to act is what enabled nonlawyer competitors to gain a permanent foot hole in the legal industry. Additional foot-dragging may render any rule revisions impotent.

            As regulated parties, individual lawyers should make it a point to participate in Bar rulemaking within our states of admission. We need to comment on proposed rule changes. We need to help our older colleagues understand the dangers of procrastination, as those will be borne by future generations of lawyers rather than the ones who already have made their reputations and their money. We need to explain, using concrete examples, how the rules impact our ability to attract clients, serve clients, and compete with nonlawyer LSPs. We need to report instances we encounter where legal consumers are being harmed by representations that are pro se or aided by nonlawyer LSPs.

            If we leave it to legal scholars, regulators, and senior partners to decide what the parameters should be for sales and marketing, the result is likely to be theoretical and ineffective both for lawyers who serve lower income down market clients and lawyers who serve blue chip upmarket clients. Why? Because people who do not regularly engage in sales activities do not understand how to deploy them any more than people who do not regularly participate in the legal system (i.e., pro se clients and LSPs) understand how to navigate it. Senior law partners who secure their clients through entrenched relationships are accustomed to being given contracts, not competing for them. Individuals who control legal budgets are facing pressure to stop giving contracts to their friends and start engaging in procurement processes that include LSPs. Therefore, selling skills are now paramount.

I am doing my part to educate the rule makers. I provided all Bar leaders nationwide with a complimentary copy of Sales for Lawyers: How to Sell within the Rules of Professional Conduct which (1) explains sales and marketing processes and (2) suggests changes to Bar rules that would both benefit legal consumers and help lawyers, in every firm size, compete against nonlawyer LSPs. Are you doing your part? Follow Sales4Lawyers on LinkedIn to stay in-the-know on sales ethics.

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