Mark Bennett refers to them as “letter lawyers”; they are the lawyers who, with the hopes of securing new clients, send out advertising materials to the people whose names and addresses have been listed on public arrest records.

A friend of ours was charged recently with a misdemeanor traffic offense and received over 20 letters in the mail.  She shared them with me, and it was interesting to see what my competition has been up to.  She was particularly annoyed with the postcards: I don’t really want my children, neighbors, and postman to know that I have been charged with a crime, she said.

The best letters, I thought, were low-key and informative. We understand you have an upcoming court date. If you already have an attorney, please disregard this letter. Feel free to visit our website for information on the charges facing you. And feel free to call our office to talk with one of our attorneys.

The other letters – the ones that made ample use of capital letters, underlining, bold-faced type, and exclamation points – tended to fall into one of several categories.

First, there is the “emotional appeal” to scare potential clients:

Dear Friend:

Public records indicate that you may have been charged with a SERIOUS TRAFFIC/CRIMINAL OFFENSE.  If convicted you may face a possible jail sentence, substantial fine, criminal record, and suspension of your driving privileges . . . depending on the charge!

In addition, if convicted, you may be assessed “negative demerit points” against your driving record and your automobile insurance company may terminate your insurance coverage, refuse to renew it, or substantially raise your premiums. 

But, if handled properly, it is often possible to avoid some or all of these very unpleasant results . . . or at least to understand and minimize their impact upon you!

Some of the letters go after the competition:

Our firm is located in Fairfax and only Fairfax (right next to the courthouse). Our lawyers are in court in Fairfax nearly every day of the week appearing before judges and dealing with the prosecutors that will be handling your case. Hiring a lawyer from a neighboring county can put you at a disadvantage. Much like the saying that “all politics is local,” the practice of law in this area is local as well. There are 10 different judges on the Fairfax General District Court and over 20 prosecutors. Not being familiar with the players involved and the decisions they make puts your lawyer at a disadvantage. A lawyer that divides his time between multiple jurisdictions, or “moonlights” in Fairfax, may not be able to offer this to you.

Some lawyers emphasize the willingness to fight:

Do not hire an attorney whose goal is to settle a case easily, without trying to find way to obtain an acquittal. 

Others seem to be setting prospective clients up for a plea:

If you are properly represented by an attorney, there exists the chance to reach an agreement with the Commonwealth’s Attorney about an agreed recommendation of the disposition of the case before the case is heard by the judge.  This way you have a good idea of the outcome before you go before the judge.  The judge will have a few simple questions for the Commonwealth’s Attorney or the defense attorney and the proceeding just takes a few minutes (you normally do not have to say anything). 

There are the casual, folksy letters:

I would like to help you win your case. That’s it. It’s that simple. I don’t want to scare you into a plea bargain. I don’t want to tell you what you did wrong. I want to help you win. Period. So please accept this invitation to meet with me for a FREE LEGAL CONSULTATION.

There are the lawyers who seek to distinguish themselves from the competition:

We do not waste your time with gimmicks like colored paper, pretend booklets, or office appointments. 

And then, of course, there are the caring lawyers:

Because I have seen the devastating consequences that can result when people are charged with DUI, reckless driving, and other serious traffic and criminal offenses, I care about my clients.  My goal is to help them get their life back.  I walk with clients through the often complicated process of defending their case, protecting their reputation, and guarding their future . . .

My client’s concerns are my concerns and I make them a top priority,  I try to treat every client as if their case was my most important case, because I know it is their most important case. That’s why I am available 24 hours a day and return my client’s phone calls promptly!

While there are many former prosecutors in the bunch, one of the lawyers felt the need to drive home his ability to curry special favor with judges and prosecutors:

As a former Fairfax County prosecutor, I have an inside understanding of the system in Fairfax County.  I know how to defend Reckless Driving cases because I once prosecuted these same cases.  On a daily basis, I practice before the very Fairfax judges and prosecutors that will handle your case.  I have handled thousands of Reckless Driving cases – on both sides of the system.

Also iffy from an ethical standpoint is the following:

My firm is unquestionably one of the most accomplished and aggressive firms in Northern Virginia.  Not only do I practice law, I TEACH OTHER LAWYERS the skills needed to win their cases.  You see, lawyers are required to take yearly courses to maintain their knowledge and understanding of the law.  I have taught the very courses many lawyers rely on to sharpen their skills.  This advanced, in-depth knowledge of the law sets [my firm] apart from the crowd. 

I have nothing in principle against lawyers who send out letters to advertise their services. After all, as pointed out in one of the comments to Rule 7.1 on Communications Concerning a Lawyer’s Services, the “legal profession should assist lay persons to recognize legal problems because such problems may not be self revealing and often are not timely noticed”; there is “value” in “giving assistance in the lawyer selection process”; and the “attorney client relationship should result from a free and informed choice by the lay person.”

At the same time, “[a]ll such communications should be evaluated with regard to their effect on the reasonably prudent layperson. The non lawyer is best served if communications about legal problems and lawyers contain no misleading information or emotional appeals, and emphasize the necessity of an individualized evaluation of the situation before conclusions as to legal needs and probable expenses can be made.”  Moreover,“[a]dvertising through which a lawyer seeks business by use of extravagant, self laudatory statements, or appeals to fears and emotions could mislead laypersons . . . Advertisements and public communications should be formulated to convey information that is useful to a layperson in making an appropriate selection.  Self laudation should be avoided.”

H/T Bitter Lawyer

It is an out-of-state phone number so I am suspicious even before I answer the phone.  A guy with a deep, serious voice is on the other end.  He has lots of DUI clients looking for a lawyer.  Could I possibly take on some more clients?  You know, to help them out.

Thank you very much, I tell him.  But I have far too many clients already.

*  *  *  *

“Do I know you?” is what my mother used to say.  This was back in the day before “Do Not Call” lists.

*  *  *  *

My father once invited some Jehovah’s Witnesses into our home and tried to engage them in a conversation about John Milton.  My sister said the Witnesses practically ran out of the house.

We’ll never know if my father did that on purpose. After all, he was always a pretty straight-up, sincere kind of guy and he was in fact very interested in John Milton. Maybe he saw some connection between Milton and what the Witnesses were trying to sell.

*  *  *  *

My favorite is from Jerry Seinfeld.  I’m sorry but I am busy right now, he tells the caller.   Why don’t you give me your home phone number and I will call you back when I have more time.  What’s that?  You don’t give out your home phone number?  You don’t like to be disturbed at home?   I understand exactly how you feel.

*  *  *  *

Sorry Mark Bobb, Legal Marketing Representative, DUILawyersNow.Org.  If things ever slow down, you will be the first to know.

From My Law License:  The video speaks for itself.

ROI 2011: Brian Tannebaum – Ethics and Online Marketing from Radius of Influence on Vimeo.

My wife heard a lot of terrible and heart-wrenching stories while interviewing Iraqi victims of the Abu Ghraib torture. She was always completely spent whenever she got back from one of her trips to the Middle East, and I swear that experience took ten years off of her life.

One of the stories I liked best was one that would have been funny were it not also so painful.  A doctor and his wife had left Iraq for London after the doctor had been tortured at Abu Ghraib during the Saddam years.  After the American invasion, confident that Iraq was about to enter a new era, the doctor convinced his wife to return.  He was in Iraq for only a short while before he was picked by our troops and returned to Abu Ghraib where he was again tortured, this time by American contractors.

My wife heard this story and asked him during the interview how it had affected him.  Oh, it was terrible, he told her.  My wife, expecting him to recount the emotional and physical pain that continued to afflict so many other victims, prompted him to elaborate.  To which the Iraqi doctor responded:  I can’t count the number of times my wife has reminded me she told me so.  And that, I tell you, has been absolutely terrible.

As I sit here tonight, waiting for my wife to get home so that I can tell her I have just been sued for something I wrote on this blog, I now have a deeper appreciation for just how badly the Iraqi doctor felt. How many times has my wife told me I was going to get myself in trouble for something I wrote on this blog?

I am pretty good with faces and with names.  I have always been impressed — almost flattered — by people who remembered my name after a single meeting, and at one point early in my career, I decided to make a more concerted effort to learn people’s names upon meeting them and to commit those names to memory.

The problem, I realized, is that there is the natural tendency to focus on the greeting part of an introduction:  the eye contact, for example, and the handshake.  This might help make a good first impression. But, unless you are careful, it often means you miss the name.

I once sat in a meeting with a cabinet-level official in the U.S. government who had an amazing system for remembering people’s names. I wish I knew what it was.  There must have been 30 or 35 of us in the room, all of us meeting him for the first time. He went around the table and had each of us introduce ourselves while jotting something down on a piece of paper. Then he put the piece of paper away.  From that point on, whenever any one of us made a comment, he addressed us by name.   And when I ran into him a couple of weeks later in the elevator, he still remembered my name.

This system, I thought, must be the secret to his success.

My own system is far more simple.  I roll the name over in my mind upon meeting someone.  And I attach some connection, some significance, to the name to solidify it in my mind.

My name-remembering efforts came in particularly handy when I was a public defender.  Having far too many clients on any given day, my colleagues and I suffered from the natural distrust of people who were convinced we had no clue who they were. It was always gratifying to prove them wrong.

Court clerks love it when you address them by name.  It contradicts their perception of us criminal defense lawyers as self-important jerks.

The skill is also helpful if you, like me, are a tad competitive.  This is awfully passive-aggressive, and, yes, I know, I should be in therapy.  But I take some perverse pleasure in remembering the names of other lawyers who can never remember mine.

There is, for example, a D.C. Superior Court criminal defense attorney who almost cringes every time she sees me coming down the hallway towards her. Because she knows I am about to address her by name – loudly and with exaggerated friendliness — and she knows that she won’t be able to remember mine, no matter how many times I have given it to her.

You could say, in fairness, that I have a somewhat unusual first name that could be difficult to remember. But then so does she. I thought about the way the name appeared on her card.  I thought about how the name was pronounced, even going so far as to produce a phonetic spelling in my mind.  The name is now solidified in my mind:   “Janaa!” I exclaim every time I see her.  (It is pronounced “Ja – NAY.”) “It is SO GOOD to see you!”

And now I find myself competing with my business card.  I am such an impressive and memorable person that some people seem to have no recollection of having ever met me before.  That is, until I hand them my business card.  Oh yes, they say, I remember meeting you.

My very talented younger sister developed the logo.  She also designed my business card and stationary around it.  Michael Bruckheim tells me he modeled his business card after mine, something I take as a tremendous compliment to my sister.  While other people might think that the non-traditional design – the bold-faced logo on glossy white background – is a tad much, I like it.  At least people remember it.  Even when, for the life of them, they can’t remember my name.

“We really didn’t check him out.  He said he was this and could do that.  We thought he was telling the truth.”

— Henrietta Watson, grandmother of defendant Dontrell Deaner

The blogosphere has been abuzz the past week with the story of Joseph Rakofsky, a 33-year-old lawyer two years out of law school who took on a murder case in D.C. without ever having gone to trial before. Included among those who expressed consternation and disbelief were Jeff Gamso, Carolyn Elefant, Eric Turkewitz, Eric Mayer, Scott Greenfield, Brian Tannebaum, Max Kennerly, Antonin Pribetic, Mirriam Seddiq, Mark Bennett, and, most recently, Blonde Justice.

Have you ever before seen this many bloggers all cover the same issue?

As someone put it, Rakofsky’s name is bound to become synonymous with a form of ineffective assistance of counsel depending on the predilections of the person assigning the label. Was it hubris for thinking he could effectively represent the defendant on a first-degree murder case despite the lack of any experience whatsoever? Was it false advertising on the Internet?  Or was it in-person misrepresentation of his qualifications to the family of the accused?

As it turns out, it was all of the above.  And more.

With information drawn from the Washington Post article that broke the article along with tidbits from Rakofsky’s Facebook page, the problem with all of these blog entries is that we were dealing with a deficit of information. How had an out-of-state lawyer with only two years of experience as a lawyer and not a single trial under his belt come to the attention of a family in D.C.?  And why would the family ever decide to hire him?

Today’s Washington Post provides answer to many of these questions.  According to the Post, Dontrell Deaner’s grandmother Henrietta Watson was standing in a Manhattan courtroom waiting for a grandson to be released from custody when she was approached by a young lawyer who asked her if he could help.  While Watson declined Rakofsky’s offer of help on the New York case, she told him about another grandson facing murder charges in D.C. and how her family was unable to afford the $25,000 to $30,000 fee normally charged in such cases.

Rakofsky offered to handle the case for $10,000.  He followed that offer up with a phone call.  And then another, telling her that he had “worked on criminal cases before.”  Impressed with his tenacity and willingness to work on the case at such a low fee, Watson said she eventually decided to “give him a chance.”  She was just as surprised as anyone else when he informed the jury during his opening statement that he had never done a trial before and said she confronted him in the hallway afterward:  “I was shocked. I told him he lied to me,” she said.

The Post did not mention whether or not Ms. Watson or another member of her family had ever checked Rakofsky out on the Internet. Even if they had, they would have found nothing on Rakofsky’s site that would raised a red flag or otherwise dissuaded them from hiring him. You could visit the site and conclude from representations made there that he would be qualified to handle the case. This is the point that Tannebaum and others have been hammering home forever.  To my embarrassment and chagrin, I have found myself on the wrong side of that debate.

In the end, the lesson from this story seems to have as much to do with the demand side of obtaining legal representation as with the supply side.  While Rakofsky’s conduct will clearly be the subject of future law school study (see if you can spot all the ethical violations), nothing he did is new to those who monitor lawyer conduct and enforce the rules of professional conduct.  And, despite the best efforts of state bars and “do-it-yourselfers” like Tannebaum, there will always be unethical lawyers who violate these rules.

As a result, the burden is also on the party hiring the lawyer to perform due diligence.  Says Saul Singer, senior legal ethics counsel for the D.C. Bar:  “Web sites and bar licenses don’t provide enough information.  Potential clients need to get references and check out a lawyer’s reputation.”  Singer continues:  “I don’t trust the Internet, because anybody can go on there and say anything.”

The Post also reported that Rakofsky has refused to pay the investigator who performed work on the case and, adding insult to injury, has declined to refund his fee to the Deaner family.  I was also interested to read that, while the court has appointed David Benowitz to represent Deaner in his new trial, the family is looking into the possibility of hiring new counsel.  While making no judgment about new counsel, I can say that the family should apply the same degree of diligence to this decision.  As one of the most respected criminal defense lawyers in town, Benowitz would be on my short list of lawyers to call if a member of my family or I ever got into trouble.  And you can get his services for free?

A friend of mine walked into a store intending to buy a bottle of perfume for his girlfriend. While he knew that the particular type of perfume he was intending to buy was expensive, he had no idea exactly how expensive it was until the clerk started to ring up his purchase.

My friend is a proud guy who can also be kind of an idiot sometimes. Instead of telling the clerk that he couldn’t afford the perfume at that price, he asked her whether she didn’t have anything more expensive because, well, his girlfriend deserved only the very best.

No, the clerk responded, I’m afraid that is the most expensive perfume we carry.

My friend thanked her, nodding at her with a look of disappointment, and exited the store with both his pride in tact and his money.

I often feel like the store clerk when dealing with potential clients over the phone.

I know that there are a lot of lawyers who refuse to talk with potential clients over the phone.  Whatever works for them is fine.  I myself prefer to save both myself and the potential client the time of having them set up an office appointment if, in the end, they will not be able to afford my fee.

So I get that out of the way on the phone, usually after we have talked about the case somewhat.  If they say they are interested and would like to talk with me in person, then fine, we set up an appointment.  If they thank me for my time but say they need to speak first with their spouse, girlfriend/boyfriend or parents, that is usually a good indication that I will never hear from them again. But, like my friend, few of them will ever admit that they can’t afford my fee.  In fact, I can occasionally hear them trying to disguise the surprise in their voice.

I will occasionally lower my fee to take on a client or a case that for whatever reason I really like, but for the most part I don’t like to haggle: bargain hunters usually don’t make the best clients.  I far prefer clients who understand the seriousness of what they’ve been charged with and who are willing to pay for the legal representation they need.  If that is me, great, thank you.  If not, then I wish them all the best.

Two stories in today’s Washington Post illustrate the growing role of Facebook in facilitating the prosecution of criminal offenses in the D.C. area.

In the first, the Post describes how a 25-year-old Arlington man was arrested after threatening on his Facebook page to set off pipe bombs on metro cars or in Georgetown during rush hour.  In conversations with another Facebook user, the man talked about putting bombs on the third and fifth cars of a Metro train, where he said they could cause the most damage:  “Christmas trees were going to go boom,” he said.

In the second, columnist Marc Fischer talks about how a man went onto his son’s computer while burglarizing the house, snapped his own photograph while brandishing the cash he had just taken, and then posted the photo on the son’s Facebook page. Not too smart, unless of course the burglar wanted to be caught:  “Full frontal photo,” one of the police officers said. “That’s just great.”

Who knows whether, by arresting the Arlington man, the police averted a crime that could have killed hundreds of people or whether they brought into the criminal justice system a crackpot who, but for Facebook, would have remained forever anonymous to law enforcement.  I suppose it’s better to be safe than sorry.  At the same time, as one person put it, “A real terrorist who is going to blow up the Washington Metro wouldn’t put an advertisement on Facebook.  He’d just do it.”

It is also unclear if the police will ever catch the Facebook burglar. According to Fisher, the police rarely push too hard in investigating burglaries “because the courts almost always let thieves go with nothing more than probation.” At the same time, the photo is now on the front page of the Metro section, where the burglar can be easily recognized by his friends and family.  This should help with his apprehension. And, assuming the government can overcome a number of procedural and evidentiary hurdles, the prosecution of the case should be fairly clear cut.

All of which just goes to show you, although Facebook may not cause stupidity, it sure can facilitate it.

In a couple of hours, I am going to put aside the motion to suppress I have been working on.  I will shower and shave, and put on a jacket and a tie.  I will leave the comfort of my warm and cozy home study and step outside into the cold, where this year’s first snowflakes have just begun to fall.

I will drive across town to Tragara’s, an Italian restaurant in Maryland, where I will sit with a group of other lawyers at a set of tables arranged into a square.  We will each introduce ourselves by naming our practice areas and the jurisdictions in which we are licensed to practice.  Someone will throw out a question or two, and we will discuss it.  A few people will do most of the talking. We will pass out our business cards.  We will then get up, shake hands, and return to our work.

I have very little in common with most of these lawyers.  I have very little interest in most of their practice areas.

So why do I do it?

In forcing myself go to one of these networking event, I always need to remind myself that I have met many of my favorite lawyer friends in this area through some type of networking function. I first met Matt Kaiser and Chris Guest and Mirriam Seddiq, for example, at Tragara’s. An awkward handshake and some small talk turned into lunch. One lunch turned into two lunches and two lunches turned into a poker game. And the poker game has turned into a friendship.

Through other networking events, I have met Dan Gross, Carolyn Elefant, Tom Spiggle, and many, many more.  Andrew Flusche has been an enormous source of information and support for me as I have expanded my practice into Virginia.  If he is that responsive to me, I can only imagine how responsive he is to clients.

Kimberly Schaeffer helped me overcome problems with Microsoft in setting up my letterhead.  And it is always a pleasure to run into Michael Bruckheim or Jon Katz in D.C. Superior Court.  We trade information.  We talk football and gossip.  We cover cases for each other.

And we refer clients to each as well.

After all, wasn’t that the whole point of the networking thing?  Wasn’t that what we all learned we should do in the how-to books we read on running a business?

The fact is, we don’t refer clients to people because we remembered their faces from Tragara’s and managed to keep their card.   We refer clients to these people because we have gotten to know them.  We know that they are good people and good lawyers.  And we know that they will do right by the people we send their way.

I referred my banker to Andi Geloo on a traffic case.  A couple of weeks later, my banker called me back.  I was concerned that there was some problem with my account.  No, she laughed.  I just wanted to thank you for giving me Geloo’s name.  That woman is absolutely phenomenal.

Solo practice can be pretty lonely.  Starting a business can be a challenge.   Other people going through the same thing can be an important source of moral support.  In that respect, the referrals you get through the networking cease being an end in themselves. Referrals become instead just an added benefit.

With those wise and saccharine words, I am off to Tragara’s.  I’m thinking I will go with the salmon this time.  And who knows, maybe I will meet someone I like.