Running here, running there,
Keep it moving, sonny, don't despair
Because the next one'll be
The next one'll be
The next one'll be
The best one of the year . . . .
— Alan Price, "Sell Sell," from O Lucky Man!
I would like to write a bit about the Business of Law [feh!] and about law firm marketing, but before I can do that I suspect I should make something of a confession.
You see, here's the thing: I was once a law firm marketer.
It was a good long time ago, but so engaged was I with the marketing of legal services that I even served for a time on the Board of Directors of what was then—this was in the early 1990s—the National Law Firm Marketing Association [NALFMA], which has since become the Legal Marketing Association [LMA], whose just-ended annual meeting is one of the triggers of this post.
My story in brief (skip ahead if you wish): Around 1989 or 1990, certain senior partners in the mid-size insurance defense firm in which I was an associate (and eventually a junior partner) fell into the orbit of certain business consultants and were "bit" by the marketing bug, and by the notion that with the right mix of public relations, new logo, and the like, new and lucrative business would fill the firm's coffers to the brim. In part because I sensed an opportunity for personal advancement and in part because, in a spirit of youthful humility, I thought that those partners and their consultants were making a hash of the (potentially successful) project and would benefit from the remarkable insights that I was sure that I alone possessed, I became an enthusiastic volunteer and participant. That participation led me to the local chapter of NALFMA, to attendance at some NALFMA annual meetings, and somehow or other—looking back, I am genuinely unable to account for it—to my being asked whether I might wish to serve on the NALFMA Board of Directors. I said yes, and I served for nearly two years (est.) before voluntarily withdrawing from the Board circa 1994.
My principal reason for leaving NALFMA was that I had also recently left my former firm, with two other attorneys, to start our own small firm, and that I needed to devote time and resources to the care and feeding of that practice. With the benefit of hindsight, I can see now that I had a second motive: the discovery that I have a deep-seated dislike for capital-M Marketing of most any kind, and in most any context. I do not take any particular pleasure in doing it, and I take active displeasure in being on the receiving end of it. For instance, I am confident that some particularly infernal torment must be reserved for those who will not simply accept "no" or "not interested" at face value, and who feel obliged to continue a conversation and to "meet my obections," as though I did not mean what I said or am too dim to know what I "really" want or need—which is, naturally, whatever they are trying to peddle to me.
(I hasten to add that my distaste toward Marketing does not translate into a personal dislike of marketers: many of the people I got to meet and work with in connection with NALFMA were a pleasure to know, intelligent and professional, albeit intelligent and professional in the practice of what must be regarded as Dark Arts.)
Two lines of online discussion over the past week have drawn me back to thinking about marketing and about its uneasy relations with the legal profession.
First came the story of Joseph Rakofsky*, an attorney from New Jersey, admitted to practice for less than a year, who undertook to defend a murder case in the District of Columbia. Rakofsky's performance for the defense, including an opening statement to the jury in which he conceded that he was trying his first case (or at least his first murder case), so dismayed the trial judge that the court declared a mistrial on the spot on the ground that the defendant was receiving patently inadequate representation. That would have been trouble enough, but Mr. Rakofsky had touted the mistrial as a positive outcome on Facebook, saying nothing of his own poor performance as the cause. Several bloggers, particularly criminal defense bloggers, inquired further and found that Rakofsky had been busily engaging in creating online appearances concerning his experience and qualifications that are not borne out in reality. Among those investigating and commenting were Scott Greenfield, Brian Tannebaum, and Eric Turkewitz, and a good collection of relevant links, with thoughtful commentary on the use and misuse of "expertise," can be found on Antonin Pribetic's Trial Warrior Blog.
Joseph Rakofsky has become, at least until our attention wanders elsewhere, the poster child for the disconnect between selling legal services and ethically, capably providing them. The website for The Rakofsky Law Firm—"financialcrimelaw.com", which has disappeared under the past week's scrutiny—featured a video of Rakofsky in front of an American flag asserting total devotion to his clients, as well as claims of his status as a "specialist," the implication that he was practicing in New York when he is only admitted in New Jersey, and more. As Carolyn Elefant observed, the site "[broke] nearly every advertising rule in the book", and many other details, to the discerning eye "scream[ed] out 'fly-by-night.'" (Another video, featuring Rakofsky's electric guitar stylings while he was still in law school, is still to be found on YouTube, accompanied by an invitation to "Make contact with me (in NYC) after I pass and am admitted to the bar for your criminal defense!")
The underlying, dumbfounding details of how it all came about were still emerging todayy, as reported by Jamison Koehler. Among the new revelations: that Rakofsky could be found in New York courtrooms (recall that he is apparently not admitted to practice in New York, the Wall Street address used on his website notwithstanding) offering his services to defendants' family members. If true, it ranks on the scale of "marketing" practices somewhere even below ambulance chasing. And, oh yes, he is reportedly refusing to return the retainer paid him in the murder case in which he was removed.
Meanwhile, the Legal Marketing Association held its Annual Conference last week at Walt Disney World in Orlando, Florida. The event came with its own Twitter hashtag, #LMA11, which I began monitoring after it came to my attention via Brian Tannebaum's post linked above and his running commentary in his own Twitter feed. The attendees' Twitter commentary came in two varieties. First, as is to be expected given the nature of the event and the nature of Twitter, many of the comments boil down to how much fun everyone was having. The second strain featured remarks on what was being said during seminar sessions and attendees' own thoughts on those subjects. What struck me particularly about the second, more substantive, group—apart from its relentless Positivity and Upbeatness, it being the nature of conventions and conferences generally (and, again, of Twitter) that never must be heard a discouraging word—was how little has changed in the nearly two decades since I was involved with the organization.
Just as seemed to be the case in the early '90s, legal services marketing seems to be premised on importing the supposed best marketing ideas and practices from other fields. "How can we implement a social media strategy?" is simply the 2011 equivalent of 1992's "Should we think about setting up one of those 'web sites' we've been hearing about?", which in turn was the latest variant on "How can we build our mailing list database/distribute our newsletters/get our name in the press?" Same old, same old, albeit today the unquestioning faith in The Tech seems more intense, and even less questioning, than ever. The core problem with importing practices from manufacturing or retail or even other service-related fields is, as always, that the law is genuinely different in that, so the theory goes, we have our clients' lives and livelihoods in our hands in a way that, say, Nieman-Marcus does not, and we owe lingering fiduciary obligations to place them first, even at our own cost. We have a continuing obligation not merely to seem but to be qualified, diligent, and on and on.
Also clear throughout the LMA11 thread, and true I suppose from the dawn of time: legal service marketers, whether in-house or from the outside, share a laser focus on their own justification and continued employment. Session after session at the LMA meeting appears to have emphasized the age-old question: "How do I prove to these ignoramuses with law degrees that I, the marketing professional, am of value to them so that I will keep my job/get and keep the big contract?" Here is an example of the theme, drawn from a post-LMA11 blog post by marketer Nancy Myrland:
I tend to feel protective of lawyers and legal marketers. You are my friends, my clients and my potential clients. I’ve been in-house where you are, dealing with many of the joys, frustrations, challenges, changes and situations you have. I seem to want to protect your reputations and brand. In this spirit, I have a few ideas for my in-house legal marketing friends regarding what to do now that you’ve been here absorbing this wealth of business, legal and marketing knowledge.
It remains as true today as it did when I started in-house in 1997, and as true as it was during the 10 years I spent at Time Warner. Marketing continues to be viewed as an expense by many firms, lawyers and CFOs. There are many exceptions, and I bow to you for understanding the value of marketing. However, it remains a marketer’s job to always [!] show and sell your value to the firm with real-life examples of how you bring more than brochures to the firm.
Now, I have no quarrel with self-preservation. Anyone, in any field, in any job, is understandably anxious to maintain his or her position, and legal service marketers have no less right to justify themselves than anyone else. That said, the fact that the discipline of "legal services marketing" is as much about the interests of the marketer as it is about anything else is part of the problem. Marketers first market "marketing," and secondarily market their lawyers' services to the outside world, and both activities require those lawyers to divert their attention from their own clients. Time and resources spent selling legal services means time and resources not spent performing legal services. Clients benefit, if at all, from what their lawyer does for them, not from what their lawyer does while looking for someone else to also be that lawyer's client.
So, then: am I suggesting that "marketing" has any causal connection to the Joseph Rakofskys of the world? Not directly. Joseph Rakofsky didn't mess up a murder defense because he marketed himself. He messed it up because he messed it up and had, it appears, no business taking it on. But it is clear from his now-absent website that he had convinced himself that it was acceptable to believe, or not to care about, his own hyperbole, and that he confused claiming to be a thing (a well-qualified criminal defense attorney) with actually being it. And that, sadly, is the eternal essence of marketing: the marketing of anything requires persuading the prospect that he or she needs and wants what is on offer, regardless of whether what is on offer is actually what the client needs and regardless of whether the proffered service matches, in reality, the appealing description offered by the marketer. If reality and appearance actually match one another, so much the better, but it is of no matter to the marketing transaction. Get "butts in the seats" and sort the rest out after.
As a marketer of himself, Joseph Rakofsky was actually a success: he got himself a paying client and, for the moment, still has his fee. His reputation? Perhaps, in the long run, his license? Lost or in peril, I suspect. Or perhaps not: attention spans aren't what they used to be, and perhaps in time no one will know or remember.
What is my opinion of legal services marketing at this point? Still, after decades, unsettled. I am entirely uncomfortable in placing any reliance on marketing as an activity separate from the practice itself: in a perfect world, a lawyer would be qualified or not and accurate information on who was which would be absorbed through prospective clients' pores. Not, as they say, gonna happen. In this imperfect world, it is unrealistic to expect that client referrals alone will sustain most attorneys, and therefore it is to be expected that most attorneys will need to do something "marketing-like" to keep body and soul together, and to support their families or their love of a good claret (or both). The trick is to do those things without straying from the responsibilities that we took on when we chose this profession.
In the end, I am left thinking of legal marketing as rather like the poppies in The Wizard of Oz: appealing to the eye, but still "something with poison in it."
Photos [top to bottom]:
"Unique Selling Point" photo by photosteve101; "Shaking Man" sculpture, Yerba Buena Gardens, San Francisco, photo by Mike Towber; "Sell [video games]" photo by Pink Moose. All photos via Flickr, used under Creative Commons license.
* Correction: In the original version of this post, "Jonathan" Rakofsky was given at this point as the name of the attorney involved in the reported D.C. mistrial. The correct name, which I had used everywhere else in the post, is Joseph Rakofsky. The typographical error on my part was brought to my attention on April 23, 2011. The name has been corrected. I apologize for any confusion that may have been caused by my inadvertence, and I thank Mr. Jonathan Rakofsky for bringing the matter to my attention.