PROSPECTING

"No More Clients for You!"

Don’t let the Ethics Nazis deter you from building your practice

There's nothing like spending a weekend with a bunch of Louisiana litigators to refocus your thinking.

In the late 1990s, I led

a retreat and golf and seafood orgy for the 12 partners of a New Orleans law firm. I knew in advance that this wasn’t going to be my typical consulting gig. Nearly every one of this firm’s 30-some-odd lawyers practices in areas for which there’s not much call in Arizona, namely admiralty and marine casualty law (and special familiarity with the all-important Jones Act and Longshore and Harborworker’s Act), toxic torts, and oil and gas litigation.

I didn’t know just how atypical this engagement would be, though, until I began speaking on the virtues of referral source development, cross-selling, client relations, etc. – the marketing bread and butter of most mainstream Arizona and (I wrongly assumed) Louisiana attorneys. About ten minutes into my five-hour presentation, the 12 partners in the room started looking at me in ways that made me wonder whether I had sprouted antlers.

Before I could ask if the breakfast chef had committed a toxic tort with the grits buffet, "Joe," a senior partner and chief rainmaker, made a cogent observation: "Norm, it’s apparent that practicing law in Arizona is different than in New Orleans."

He elaborated. "What I mean by that is, we’re a little more direct in how we get clients. I get most of my business by calling up the general counsel of companies I’d like to represent and asking them to send me over a file. And if they don’t have anything for me, I tell them, fine, I’ll call them back in a month or so. And I keep calling them until they give me some work or tell me not to call them any more."

Lord, if I told most of my clients to try that I’d have to get a job. "And that works?"

The men and women around the table nodded. Joe tipped back his chair, opened the plantation shutter behind him and pointed out between the slats toward the parking lot beyond the first tee.

"See that black Ferrari out there? I didn’t get it by being shy."

Missed Opportunity

At the other end of the spectrum, safely back in Phoenix, there’s "Arthur," the quintessential gentleman lawyer: tall, white-haired, soft-spoken, sophisticated, well connected, conservative – Earl Warren before he went to the Supreme Court. He’s the last lawyer one would expect to need client development help, but here we were, having lunch at the University Club.

"I want to get your advice on something," he said. "A good friend of mine has been the general counsel at General Dynamics since about ‘87. We’re fraternity brothers, we were law school classmates, and back in ’62 he introduced me to the girl to whom I’ve been married now for 35 years. I was the finance chairman for all four of his congressional campaigns. He and I fly to Monterey in one of their company jets every Memorial Day weekend to play golf at Pebble Beach. Next month he and his family are coming out for my daughter’s wedding – he’s her godfather, you know – and while he’s here I’m going to give him one of my kidneys."

"Wow," I said, genuinely impressed. "What a great relationship. I didn’t know you did work for General Dynamics."

"I don’t."

"You don't?" I replied, my gaze narrowing.

"They’re not a client. My question for you is this: When do you think would be an appropriate time for me to talk to him about doing some work for them?"

I didn’t answer Arthur right away. First I had to be restrained by Eduardo and Miguel from deploying my salad fork in the area of Arthur's carotid artery.

"Well, Arthur," I said after composing myself, "you certainly don’t want to rush it or appear pushy. After all, he’s only been there for 15 years. He probably hasn’t found the men’s room yet."

"Good point," he replied.

"How about this," I suggested. "Wait until you go in for the kidney surgery. Just before they’re about to put both of you under, look over at him and say, ‘You know, I’ve become pretty attached to this kidney, and I’m wondering if this organ donation business is such a good idea.’ Then, just as his eyes bulge, say, ‘Maybe getting a piece of the legal work on the next Trident sub project, that Motorola deal, and a couple of coal mine acquisitions, plus a guaranteed lifetime retainer of 60K a month, would make me feel better about it. What do you say?’"

Arthur paused. I knew what he was thinking, although for what little sense I could make of it he might as well have been thinking in Esperanto.

"An intriguing notion," he replied, "but wouldn’t that constitute a solicitation in violation of ER 7.3(a)?"

"You got me there, Arthur," I said, "but look at it this way: If you hang on to your kidney, the only other person in the operating room who knows about ER 7.3(a) wouldn’t be in any condition to rat you out to the State Bar."

Ethics Nazis

As you undoubtedly can quote from memory, ER 7.3(a) of the Arizona Rules of Professional Conduct states:

"A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer."

To qualify for your full 3.0 hours of ethics CLE for reading this article, read ER 7.3 in its entirety and related opinions.

Interpretation of this rule may vary drastically from one attorney to the next, depending on the size of his or her bank balance and commitment to making the next boat payment.

Interpretation may also be colored by one’s worldview. A wrongful death attorney to whom "marketing" means posing as a hospital grief counselor in order to get face time with accident victims’ loved ones may argue that ER 7.3’s reference to "family" is unnecessary since all of us are, in fact, part of the family of man and, thus, he has a few billion injured or grieving shirttail cousins from whom he can squeeze his 33%, plus costs.

At the other end of the philosophical spectrum are the Ethics Nazis – pious, hand-wringing, finger-wagging zealots to whom client development is akin to flag-burning and pagan idolatry. For them, saying to a non-client, "Hey, how’re the wife and kids?" is code for "Your current attorney is a crack head, his law firm is full of double-dealing jacklegs, transsexuals and Commies, and if you don’t move all of your files over to me by noon Thursday you’ll be bankrupt, homeless and impotent inside a week."

Prospecting, Not Selling

To many attorneys, attracting legal business occurs about as naturally as raising the dead, and there are lots of reasons why.

First, I read somewhere that the legal profession is one of the five most popular havens for introverts (the other professions being, as I recall, accountants, economists, actuaries and monks).

The other reasons tend to begin with "fear of" – being rejected, being perceived as an ambulance chaser, being laughed (or sworn or punched) at, etc. Fear, of course, is unlawyerly, so the admission "I’m afraid to do that" is replaced by "That’s unethical."

Calm yourself. As an attorney, successful prospecting depends far less on salesmanship than it does on:

identifying people and companies that need your expertise,
cultivating a relationship with them, and
making yourself available when they need you.

If you’re doing the right things related to client development – taking people to lunch, stroking your referral sources, being active in the profession and/or the community, etc. – those opportunities are all around you.

Through your social activities and outside involvement, you probably have recurring contact with people who could be your clients, and who would be your clients if you’d just roll out the welcome mat. If you don’t do that, you miss opportunities.

Why? Because if someone knows you and knows that you’re an attorney, but if you never talk about your work or offer to help them, they’re likely to conclude from your taciturn behavior that you don’t want to do their legal work. You’re too busy. Too big. Too good. As a consequence, people who should become your clients hire some other lawyer, just because you haven’t let them know that it’s okay to talk to you about legal things.

Ethics Nazis may call that an egregious violation of ER 7.3(a). I call it good citizenship and working to improve the public’s view of the legal profession.

The Many Faces of Prospecting

If you’re inclined to give prospecting a try (when the time is right, of course, and the stars are properly aligned), here are some points that might help you turn a prospect into a client.

Most prospecting opportunities are a function of dumb luck. You meet a prospect at a social event that you almost skipped. Or the father of one of your kid’s soccer teammates owns a big company. Or, during the lunch you tried to cancel, your companion introduces you to his old buddy, who is the CEO of Prospective Client, LLC.

If you’re not willing to entrust your future to serendipity, you can create prospecting opportunities through research and tenacity.

Inventory your contacts. Make a list of people with whom you have occasional contact but have never told that it’s okay to call you for legal help.

Do your homework. Create a profile of companies that use the services you provide. Then make a list of prospects that fit your profile. List vendors, such as ZapData, are fairly reliable and affordable sources of companies of all sizes, industries, sales volumes, owner gender, etc.

Separate the wheat from the chaff. Start researching the wheat. Use the Internet and various online services to get financial and general background information.

What law firms do they use? For Phoenix-area lawyers, the Clerk of the Court’s web site can tell you about their litigators, if they’ve sued or been sued in Maricopa County in the last several years. Consider what benefits the prospect would gain by switching to you.

Who makes or influences the selection of attorneys? Identify the company’s key decision makers, suppliers, customers, CPA, banker, etc., and look for people with whom you or your firm has a connection. Then try to wangle an introduction to the decision maker.
How do you reach a prospect? There’s no simple answer to that. Maybe they’ll read your newsletters or accept a seminar invitation. Maybe they’ll respond to your offer to come to their place to teach them and their managers how to avoid this or that legal problem. Maybe you go to the same AA meetings. Maybe you make it a point to attend the same events, conferences, receptions, etc., that they do in hopes of striking up a conversation. Maybe you can’t reach them directly, but your secretary’s husband hangs out at the track with their insurance broker.

All-Purpose Advice

Whether you create prospecting opportunities or just fall into them, remember these tips:

Be a good asker of questions. There is no quicker way to turn off a prospect than to bore him with unsolicited information about you, your law firm and its legal skills. Instead, ask questions that help you learn about the company, what it does, where it’s headed, what it needs, what obstacles are in the way – and what legal needs may be on the horizon.

Ask about their attorneys. Is your prospect happy with the attorneys he uses now? What does he like about using them? What doesn’t he like? Are they keeping him up to speed on new laws, regulations and court decisions that affect his business? Can you make them look like inattentive fools without breaking an ethics rule?
Be patient. One of the great myths of rainmaking is of the aggressive marketer who can go to a sporting event, meet a big cigar from Union Carbide in the Team Shop, and leave with a fee agreement and a bushel basket of new files. Such myths endure because their perpetuators don’t see what the rainmaker had to do to land such clients. They don’t know that the prospecting effort may have started five years earlier, and since then the rainmaker has been stroking that prospect: giving free advice; helping them avoid legal trouble; introducing them to potential customers, lenders and investors; pulling thorns out of their paw – waiting in the wings until the day arrived that Mr. or Ms. Prospect got fed up with their attorney and decided to make a change.
If patience is your thing, here’s a smart play: Strike up a friendship with the prospect’s son or other heir apparent. Successors tend to change law firms, CPA firms, etc., shortly after they take over, so that they can replace the old guard with "their people" whose loyalties will be in the right place. Position yourself to be one of their people.

Remember ER 7.3. If you take a non-client to lunch and say, "Hey, I want to be your lawyer, what do I have to do to make that happen?" you’ll have committed an ethics violation. (It’s a violation even if you don’t take them to lunch.) Worse, you’ll invite an unwelcome response, to wit: "Well, you’d have to agree to a $25 hourly rate – 40% of which you’d kick back to me – change your after-shave, buy some shirts that aren’t permanently yellowed around the arm pits, hop around on one foot, keep goats in your living room, eat a bug, buy my wife a Lexus – a black one – and teach a pig to fly. Then we’ll talk."

Play it smart and ethical. Make new acquaintances, keep in touch with them, help them when you can, be there when they need you … and don’t let the Ethics Nazis get in the way of building your practice.