Ethics Educator and “CLE Performer”
www.stuartteicher.com stuart.tpg@gmail.com
732-522-0371
© 2012 Stuart Teicher, Esq.
What Starbucks and the Ethics Rules Teach Lawyers
About Attracting Clients
Seminar Written Materials
I love new paradigms. I think that’s why I enjoy Malcolm Gladwell’s books so
much because he is all about identifying paradigms and explaining how they give us a
new way of looking at problems. The only thing I love more than new paradigms are
finding ways to use those non-legal-world-specific paradigms and apply them to the
practice of law. Oh yeah- I love the ethics rules too, but my love of the rules is not
unconditional. Truth is, I have a little beef with the rules.
I don’t believe that the ethics rules are philosophical enough. I understand why
the code is the way it is-- the ethics rules don’t speak in conceptual language because
it’s primarily a disciplinary code. After reading the black letter rules in detail, one can
see that the code is more about “punishment” than “guidance.” But that’s a shame.
I understand that the code is about behavior modification-- the rules tell you how
you should be behaving. But to truly achieve long-term behavior modification, the
drafters should have devoted far more time to providing more meaningful guidance to
lawyers. To borrow a sports analogy, one can say that the drafters gave the referees a
good explanation of when to call a penalty, but they haven’t paid much attention to
player development.
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I hope to address that deficiency in this program. I want to dig deeper and look
at the rules from a more philosophical perspective. Normally we trudge through the
rulebook in order to get a better working understanding of the specific terminology, but
we’re going to do it different this time. And there’s one more different thing to mention—
it’s about the title of the program.
This is not a program about business development. I know that the title of the
seminar begs to differ with that statement, but I don’t care. This is a program about
ethics. This is about developing the right type of relationship with our client. It’s about
enhancing relationships with our clients by embracing the spirit of the ethics rules and
developing ethically inspired relationships with our prospective clients. It’s also about
revealing a new paradigm.
I believe that the ethically motivated business of the world have given us
direction about the type of practice we should all pursue. The best attorneys in the
future will be those who lead an ethically inspired career. I call this paradigm the
“Principled Practice.” This is a practice that pursues the business side of the legal
industry with every action rooted firmly in the concepts set forth in the ethics code.
What follows in these materials are my explanation of the elements that are key to
developing a Principled Practice.
One note about the rules I’ll be referring to throughout these materials: As I’m
sure you’re aware, the overwhelming majority of states in our country have adopted
some version of the ABA Model Rules of Professional Responsibility so I’d like to refer
to those rules throughout this paper. Copyright restriction, however, prohibit me from
doing so. As a result, all references in this paper to the “Rules” are actually references
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to the Delaware Rules of Professional Conduct, which are virtually identical to the ABA
Model Rules (at least the parts that I’m quoting), but are not subject to the same
copyright restrictions. There may be some minor differences in the text, but any
difference does not impact the concepts discussed herein.
You may recall that the ABA Model Rules were released in 1983 and just about
every state in the Union adopted some version of those rules. In the year 2000, the ABA
convened the “Ethics 2000 Commission,” and in 2002 that commission issued a report
containing certain recommended updates to the Code. Many states adopted some or
all of those recommended amendments. The ABA has since convened another
commission, the “20/20 Commission,” which recommended additional changes to the
code. Those amendments were adopted by the ABA’s House of Delegates in August of
2012 and will probably be coming to a “rulebook near you” very shortly.1
Here are the seven elements that direct lawyers how to lead a “principled
practice.”
1. Adopt a mission that the client believes in.
The word, “mission” is incomplete. The better phrase would be “adopt a selfless
mission that the client believes in” because the idea of being selfless is a key part of this
step. I believe that the need for lawyers to act in a “selflessness” manner is the concept
that the rules are struggling, but not succeeding to convey.
The preamble to the rules state that we are, “a representative of clients…and a
public citizen having special responsibility for the quality of justice.” The rules are talking
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One other disclaimer. I don’t believe that I’ve used any terminology from other sources, but it’s been a
long time since I’ve read a few key texts so I want to state that a significant source of my business
thinking was derived from Howard Schultz’s book Onward, published by Rodale Books, 2011.
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about the duty that is owed to the client and to society, in general. The rules are trying
to tell us that lawyer, unlike many other professions, have a greater duty to the world.
Yes, it’s philosophical, but I warned you that I’d be going there! It’s about adhering to a
group of core principles that are greater than ourselves. This idea of adopting a selfless
mission is the manifestation of that idea.
Incidentally, it can’t be any old mission that we adopt. It has to be a mission that
the client believes in. Take a cue from the idea of the formation of a lawyer/client
relationship to see where I’ve derived that concept. The textbook test for when such a
relationship has been established is if someone seeks advice, you give advice, under
circumstances where a reasonable person would rely upon that advice, then the
relationship has been established. The determination is made when looking from the
point of view of the reasonable client. That’s the prism we’re supposed to be looking
through- what does the client believe and that’s exactly the angle we should take in
developing a mission. We need to make sure that the mission we pursue is something
the client believes in.
Of course, this will benefit us financially—if the client believes in our mission they
will use our services and we will make money. But what’s wrong with that? Nothing. In
fact, it should be respected—we are benefitting financially by providing client-centric
legal services. That’s the essence of good lawyering.
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2. Show a commitment to treating al people with respect and dignity, in and
out of the practice.
It is a sound business practice to treat your customers with respect. It helps you
create a sense of loyalty between the service provider and the customer. Like all of the
elements we discuss in this course, the genesis of that comes directly from the rules of
attorney ethics.
Does it really need to be said that treating others with dignity and respect is
something that is promoted by the ethics code? I should hope not. If you need some
convincing, however, take a look at Rule 1.14.
RULE 1.14 Client with Diminished Capacity
(a) When a client's capacity to make adequately considered decisions in
connection with a representation is diminished, whether because of minority,
mental impairment or for some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client- lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity,
is at risk of substantial physical, financial or other harm unless action is taken
and cannot adequately act in the client's own interest, the lawyer may take
reasonably necessary protective action, including consulting with individuals or
entities that have the ability to take action to protect the client and, in appropriate
cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity
is protected by Rule 1.6. When taking protective action pursuant to paragraph
(b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information
about the client, but only to the extent reasonably necessary to protect the
client's interests.
1.14(a) instructs lawyers to maintain a normal client-lawyer relationship with
people whose decision making capacity is affected “because of minority, mental
impairment or for some other reason.” Basically, the rule is requiring lawyers to treat
vulnerable people with dignity and respect. You can find other instances in the code that
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requires us to treat all of our clients with respect, some less blatant that Rule 1.14. The
key is that this type of treatment must be part of our daily career practice. In fact, it
extends to out behavior out of the office as well.
One thing that we’ve learned from Rule 8.4 (Misconduct) is that what we do
outside the office matters. Sections 8.4(b), (c) and (d), for instance, proscribe criminal
actions, deceitful actions, dishonesty, etc., but none of those sections limit the forbidden
conduct to that which occurs in the context of our practice. We can (and should) be
held accountable for the repulsive things we do in our private life and the source of that
sentiment is 8.4 (here’s the full text of the rule, since we’ll be discussing it in the
program):
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or
official or to achieve results by means that violate the Rules of Professional
Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law.
3. Provide the client with passionate expert representation and possess a
level of knowledge that cannot be matched by any other lawyer.
I’ve often shouted at seminars (and yes, I’ve actually shouted), “Become the best
at something!” I don’t care what it is, but make yourself an expert at something in the
practice because it greatly enhances your ability to stay employed. It also helps you
develop a reputation for being an expert in some area of the law. If you don’t think the
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rules value your reputation, just take a look at Rule 1.5(a)(7). That rule lays out several
factors to be considered when determining if a legal fee is reasonable, and the
reputation of the lawyer is one of them.
Rule 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable
fee or an unreasonable amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
Incidentally, I know the rules prohibit us from referring to ourselves as “experts”
and I’m instructing you not to do so in your self-promotion. I use that term only because
I can’t think of any other term that adequately conveys the need to get really really good
at something. Still, you need to comply with the rules and refrain from using it in your
practice. How can we become the best at something? Let’s look to the rules for
guidance.
I’m a firm believer that the ethics Rules create a wonderful guide for attorneys.
The Rules aren’t merely a listing of prohibited activities, rather they can be used as a
road map that leads us in our practice and helps us hone our skills so we can become
highly effective attorneys. A great illustration of that idea is a group of three ethics rules
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that I call the “Grand Troika,” specifically, Rule 1.1, “Competence,” 1.3 “Diligence” and
1.4 “Communication.”
RULE 1.1 COMPETENCE
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
RULE 1.3 DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a
client.
RULE 1.4 COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to
which the client's informed consent, as defined in Rule 1.0(e), is required by these
Rules;
(2) reasonably consult with the client about the means by which the client's
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct
when the lawyer knows that the client expects assistance not permitted by the
Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
If you break down the Rules you can see that the basic elements are: legal
knowledge, skill, thoroughness, preparation, diligence, promptness and the need to
inform and consult the client. A wise counselor would take the elements that are set
forth in the “Grand Troika” of Rule1.1, 1.3 and 1.4 and formulate a checklist. If you do
so, you’ll see that the contents of these Rules don’t just serve as a list of minimum
standards for “acceptable” representation, rather, they provide direction for attorneys to
give “complete” representation to clients as well. Follow these rules like a roadmap and
you will be on the way to becoming an expert in some part of the law.
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4. Promote a sense of community
“We are all in this together” should be a mantra of the Principled Practice. This
can be approached from two different angles: we have to get all role players in our
office to believe that they both are part of a “local” team and also part of the larger legal
community. One of the ways to foster that sense of community in the office is to
embrace pro bono work.
All of the rules in Section 6 address the lawyer’s requirement to take on voluntary
pro bono assignments. Well, it’s not a hard requirement, though it should be, Rule 6.1
states that, “Every lawyer has a professional responsibility to provide legal services to
those unable to pay.” Providing this service will obviously benefit the affected client, but
it will also have an effect on the people in your office. Enlist them in the effort and make
them understand that the team is helping those who need assistance. It will foster a
sense of community in the office and lead to a more collegial atmosphere. That feeling
will certainly spill over to how the team members interact with your paying clients. They
will see the client as an extension of the team and the relationship between client and
firm will grow stronger.
5. Develop a relationship with the client based on trust, candor and loyalty.
Honestly, I don’t think we even need to discuss this concept at length because
it’s just that obvious. What I will say, however, is that we can see that a significant
source of our duty of loyalty comes from conflict of interest analysis. As I’ll discuss in
the program, the two biggest concepts that we’re concerned with when evaluating
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conflicts are loyalty and confidential information. Here’s the rule on concurrent conflicts
that we’ll be discussing in the program.
Rule 1.7. Conflict of interest: Current clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concur-rent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer's responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
6. Foster a sense of pride—let the client feel that their lawyers supports
some greater good. That they serve some higher purpose, meeting higher
standards that are consistent with socially responsible practices.
I know I’ve already mentioned pro bono activity, but I want to explain one other
way that it could be a good thing. Granted, this is a bit self-serving, but I still think it’s
okay. A lawyer who voluntarily engages in pro bono work is sending a signal to the
client that they serve some greater good. Clients are attracted if they believe that their
lawyer serves some cause that’s greater than themselves. Thus, why not brag about
the pro bono work we do? I mean, if we’re giving up our time to help others, shouldn’t
we be able to get some marketing mileage out of it? And if self-promotion actually
motivates us to perform this very important activity, isn’t that a good thing?
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7. Pursue it all with a sense of authenticity.
Clients can sense a sham. They can see someone who is disingenuous a mile
away and when they encounter that type of person, the client runs the other way.
Clients today are not the same people as our father’s or mother’s client. Whether it’s
because the number of scams they’re subjected to on the internet or how growing up
with 24 hour news cycles has sensationalized everything in life, the one thing we know
about today’s client is that they are more cynical, more savvy and they can sniff out a
fake in an instant.
From an ethical point of view, the idea of being genuine is as fundamental
element as any. Honesty and integrity are the watchwords of our profession and they
are exactly what I mean when I say, “be authentic.” You’ve got to honestly believe in all
of these elements and if you don’t genuinely believe them, the client will surely notice it
immediately and they’re going to bolt.
I hope this program has opened your eyes to how you can pursue a “Principled
Practice.” I believe that if we all lead a business development program that is inspired
by concepts set forth in the rules of professional conduct, we can ensure that we will
have the type of long term success and enduring satisfaction that so many of us crave.
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