Some blogs are comment magnets, but this blog is not one of them. If you averaged all comments over all posts since this blog's inception the "comments per post" average would not be zero, but it would probably be closer to zero than it is to, say, two. (I could improve my average by counting, rather than deleting, spam comments, but then the resulting figures would lack credibility—not unlike the job placement figures reported by some law schools. But I digress.)
Because comments are a relative rarity here, I pay attention when someone goes to the trouble of posting one. Yesterday, a comment came in on my post from earlier this month on marketing legal services. The commenter was Ed Poll of Edward Poll & Associates, Inc., of Venice, California, proprietor of LawBiz.com and other law firm management-related enterprises. Mr. Poll is a graduate of UCLA School of Law, as am I. From the records of the California State Bar, it appears that he practiced for some thirty years before electing in 1996 to go on "inactive" status. I surmise he did so in order to devote himself to building his law firm management consulting practice. And there is nothing wrong, at all, with any of that.
Here, in full, is the text of Mr. Poll's comment:
As a marketer, you know how important branding is ... and use of another's brand and registered mark is not appropriate. I can only surmise, then, that your use of my brand in your post was a result of lack of knowledge. The Business of Law(r) is my registered mark since 1995. In the future, should you want to use it, please provide attribution. Thanks.
The phrase "Business of Law," or some variant on it, appears twice in connection with my previous post. In the body of the post, it is included in the opening sentence:
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.
(Bracketed expostulation in original.)
The phrase also appears, sort of, in the category label that I attached to that post, and which I am attaching to this one: "The 'Business' of Law."
The phrase earns its capitalization by way of one of my personal rhetorical tics as a blogger: I commonly use the capitalization of proper nouns, with its over-formal 18th century aura, in much the way others use "scare quotes," to add ironic distance to a word or phrase. The category label is thus doubly ironic, having both capitalization and scare quotes in its arsenal. As the full post reveals, I have been and remain concerned with the uncomfortable relationship between the duties, aspirations and obligations entailed by the profession of Law and the venal "business" aspects of trying to make money from the practice of that profession or from the appearance of practicing it.
I have been hearing, and using, the phrase "Business of Law" for nearly three decades, always as a general descriptor for law firm management and the quest for profitability in the practice of law. It is like "show business" or the "Business of Music." It is a shorthand expression, a commonplace among lawyers, used in conversation, used in the marketing of seminars and books, used by the ABA Journal and Business Week, used in law school alumni publications [PDF], used to describe law school professorships, used in the names of blogs and in subject categories used by blogs, and used as a marketing tool by the mighty legal publishing house, West:
The phrase can be found at least as far back as the 17th century, in the February 18, 1666/67 diary entry of one Samuel Pepys:
Then by coach to the Exchequer about some tallies,and thence back again home,by the way meeting Mr. Weaver, of Huntingdon, and did discourse our business of law together, which did ease my mind, for I was afeard I have omitted doing what I in prudence ought to have done.
(Emphasis added.) With somewhat more bearing on the matter at hand, the American Legal News of April, 1921, includes an article entitled "Barristers and Solicitors: The 'Profession' of Law and the 'Business' of Law," that begins with this:
Much discussion occurs, from time to time, in America on the question whether the practic of the law has ceased primarily to be a profession and has become a business.
Plus, as they say, ça change . . . .
There is no particular reason for me to think that Mr. Poll is a regular reader of this blog. I would venture to guess that he read my post at all only because he, or some member of his staff, ran a search of the phrase "Business of Law" to see whether anyone might be engaged in the "use of [his] brand." Comments similar to the one that he left with me have appeared on other blogs, for example here (2010) and here (2006).
I suspect that the running of such searches is part of Mr. Poll's regular business practice, as he places sufficient value on the phrase "Business of Law" to have gone to the trouble of registering it with the Trademark Office. If that is the case, however, it is surprising that the comment here, and the other two just cited, are the only instances I can find of his having objected to the (very common) use of the phrase by others. Comments in which Mr. Poll raises objection to the use of the phrase are seemingly equaled or outnumbered by instances in which he cites his ownership of the registered mark as though it is in itself an indicator of expertise, such as:
How is it that law firm marketing folks can come to the law firm management table? Only by understanding The Business of Law(r) [my registered trademark]!
(Bracketed text in original.) Another example:
Your firm cannot aspire to achieve your benchmarks unless you understand the operation of the firm as a business (budget, collections, profit, loss), the firm’s billing structure, how each attorney determines firm profitability, and the importance of clients and their own businesses. Years ago, I registered the phrase, ‘The Business of Law(r),’ because it summarizes this foundation of benchmarking.
So, because Mr. Poll has been moved to call the matter to my attention, I would ask any and all readers of this blog to please take due, proper, and lingering note that, as stated in his Company Policies,
LawBiz®, The Business of Law®, and Your Practical guide to Profit® are registered trademarks of Ed Poll and Ed Poll Management Associates.
The question of what protections or privileges may be associated with that registration is a matter beyond my expertise. I venture to say that the right to prohibit my use, or your use, or anyone else's use, of the phrase "Business of Law" in a blog post or in any other discussion of what is commonly and generically referred to as "the Business of Law" is probably not among them, any more than one could register and thereby prohibit the use of "the Rotating of Tires," "the Theory of Evolution," or "the Certificate of Live Birth." I would further venture to say that the likelihood of anyone concluding that my use of the phrase "Business of Law" is in any way associated with, condoned by, to be confused with, or to be construed as a commentary on Mr. Poll and/or the services available through him and his firm is statistically equivalent to zero.
I have no knowledge or opinion concerning Mr. Poll, his experience, his qualifications, or the value of the services and counsel that he may be equipped to provide to those as wants them. I encourage anyone who is interested to make inquiry directly to Mr. Poll, or to buy one or more of his numerous books, many or which are published under the imprint of the American Bar Association—which has emblazoned the trademark registration symbol on the cover of two out of the three volumes in which Mr. Poll has used "Business of Law" as part of his title.
For my part, I will continue to use the phrase "Business of Law" whenever it is appropriate to do so. It is a perfectly good phrase to describe the thing that it describes. My use of "the Business of Law" in this post, in any previous post, in any future post, or in any other communicative context is based entirely on the settled, primary meaning of that phrase as it has been recognized and understood in these United States since at least 1921, and is not to be taken as having the slightest connection of any kind to Mr. Poll or his firm, except insofar as Mr. Poll and his firm are expressly mentioned, as they have been in this post.
Now, if you will excuse me, I will return my attentions to the Practice of Law.