Successfully Marketing a Consumer Bankruptcy …tw2marketing.publishpath.com/Websites/tw2marketing/Blog/2791687/CA...Successfully Marketing a Consumer Bankruptcy Practice: ... (619)

Successfully Marketing a Consumer Bankruptcy Practice:

the melodrama of lawyer branding

Teresa Y. Warren – TW2 Marketing, Inc. (the professional) J. Scott Bovitz – Bovitz & Spitzer (old-school)

Peter L. Fear – Law Offices of Peter L. Fear (modern marketer)

May 19, 2012 3:30 to 4:30 p.m.

24th Annual Insolvency Conference

Westin Mission Hills Rancho Mirage, California

v. 10.0

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Peter L. Fear Peter L. Fear Law Offices of Peter L. Fear 7750 N. Fresno St., Ste. 101 Fresno, CA 93720 (559) 436-6575 (559) 436-6580 (fax) [email protected] http://www.fresnobklaw.com Follow me on twitter: @PeterFear

Represents debtors, creditors and trustees. Chapter 7 bankruptcy trustee. Member, Fresno County Bar Association, Central California Bankruptcy Association, American Bankruptcy Institute, Federal Bar Association, Federalist Society, and National Association of Consumer Bankruptcy Attorneys. Board of Directors, Central California Bankruptcy Association (2007-2011); Second Vice President (2007); First Vice President and Institute Chair (2008); and President (2009). Board of Directors, California Bankruptcy Forum (2008-2011); Treasurer (2011).

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Judicial Advisory Committee, United States District Court for the Eastern District of California. Clerk's Advisory Committee, Eastern District of California Bankruptcy Court. Frequent speaker at continuing legal education events. Contributing author, bankruptcy chapter, Advising Minnesota Corporations and Other Business Organizations. Contributing author, Fresno Bankruptcy & Credit Blog (bankruptcy and credit issues). Before entering the legal field, Peter Fear spent a year working with juvenile delinquents and troubled families in the inner city. Mr. Fear has also worked on civil rights litigation protecting families from unlawful government intrusion. Webmaster of consumer friendly site, FresnoBKlaw.com.

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Teresa Y. Warren TW² Marketing, Inc. 5694 Mission Center Road Suite 503 San Diego, California 92108 (619) 582-5750 [email protected] @teresawarren

More than 30 years of experience working in the areas of marketing, media relations/visibility, public relations. and training. Founder, TW2 (1992); company named as one of the Most Admired Companies in San Diego County (SD Metro, December 2011). In-house marketing director for a large San Diego law firm (where she gathered extensive knowledge about the legal system and legal services). Worked for several years in agencies servicing clients in various industries, including a major New York based financial institution and multiple real estate entities. Expert in professional service marketing. Regular speaker and author on marketing and media issues. 4

Former board member, State Bar of California Board of Legal Specialization. Former board member, San Diego County Bar Foundation. Member of San Diego Press Club, Lawyers Club, Run Women Run, and the San Diego County Bar Association. Mentors young professionals who are seeking careers in marketing and/or starting their own businesses. TW2 primarily represents professional service clients (law firms, real estate service and development firms, insurance companies, financial services companies, not-for-profit companies, and public agencies). TW2 services include consultation on: media; public and community relations; marketing planning and implementation; media and marketing training; litigation publicity strategy and implementation.

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J. Scott Bovitz Bovitz & Spitzer 880 W. First Street Suite 502 Los Angeles, California 90012-2430 (213) 346-8300 [email protected] bovitz.com bovitz-spitzer.com

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Board Certified, Business Bankruptcy Law, American Board of Certification (abcworld.org). Director, American Board of Certification. Chairman, State Bar Liaison Committee. Certified Specialist, Bankruptcy Law, State Bar of California Board of Legal Specialization (californiaspecialist.org). Past officer and chair of the Board of Legal Specialization. AV Preeminent rating, Martindale Hubbell (martindale.com). Jointly selected by Los Angeles Magazine and Law & Politics Magazine as a "Southern California Super Lawyer" in bankruptcy and creditor/debtor rights (superlawyers.com). California Committee of Bar Examiners.

Executive editor, Personal And Small Business Bankruptcy Practice In California (CEB.com); contributing author, Norton Bankruptcy Law and Practice, 3d (store.westlaw.com). Recording engineer, Los Angeles Lawyers Philharmonic (lalawyersphil.org). Published photographer; composer/producer of 310 songs (bovitz.com). Former Adjunct Professor of Law at Loyola Law School in Los Angeles (lls.edu). Past president of the Los Angeles Bankruptcy Forum (labankruptcyforum.org); past education and conference chair, California Bankruptcy Forum. Regularly quoted on television (KCAL and KCBS) and radio (KNX 1070, KFWB 980). Regular guest on talk radio show, "Money 101" with Bob McCormick. Quoted in the Los Angeles Times, the Los Angeles Daily Journal, the Recorder, the Los Angeles Business Journal, the New York Times, the Seattle Times, the Charlotte Observer, the Dow Jones Daily Bankruptcy Review, Business Week, legalweek.com, law360.com, abajournal.com (ABA Journal -- Legal News Now), and lawyersusaonline.com (Lawyers USA).

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This is the first day of the rest of your professional career

Managing your personal PR to increase your visibility with these goals: • Gain name recognition and credibility.

• Attract new clients

• Avoid problems with the State Bar (advertising rules).

• Become a finder (not just a minder or grinder) -- control your career!

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Set a rainmaking goal Development of new clients is valuable to every law firm, even if your firm does not "require" (or discourages) this talent. Your clients are the best insurance against law firm mergers, recessions, and political turmoil. So allocate at least 10% of your time and your new paycheck to making new acquaintances and developing clients. Three years from now, you should be bringing in enough work to keep yourself fully occupied. Five years from now, you should be bringing in enough work to keep yourself and a few associates fully occupied.

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Aim to be a good lawyer and person Become an expert in your field. The law is (like many professions) just one long apprenticeship. Learn about your partners and their areas of expertise (and cross-market). Prepare for meetings. Read about each client's business (client web site, google.com). Attend MCLE classes/dinners every month. Meet two new people at each meeting (24 people a year). For Los Angeles programs, visit bankruptcydog.com (calendar of events). Read at least one monthly periodical on the law and one in your field, cover to cover. The ABI Journal is a good start (ABIworld.org). Read the daily newspaper, as well. Aim for perfection in every letter and pleading; you are the editor and publisher! Your written work (briefs, letters, and e-mails) will live forever. Be civil. Be polite. Follow the Golden Rule. (According to wikipedia.org, the Golden Rule is, "One should treat others as one would like others to treat oneself."). Smile!

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Study your clients Learn about your clients (the people). Study your clients (the businesses). Keep in touch. If you read a story in a magazine about your client's industry or hobby, cut it out and mail it to the client. You might send a one line cover letter which says simply, "I thought you might find this to be of interest." If you read about something which might have an impact on the law firm or a key practice area, circulate the article to your partners. (Warren: "Cover letter? That’s so 1999. Wouldn’t you just e-mail? Do you want to use social media here? It is a great way to keep in touch." Bovitz: "Hey, a letter is more personal and I can't send my bovitz.com guitar picks through e-mail!")

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Run a tight legal practice Answer your e-mail and telephone calls that day. Always take calls from the press. (Warren: "Hmmm…agree but there are a lot of caveats to this, too.") Be on time to court, appointments, and dinner. Allow enough time for traffic and such. Do what you say you are going to do, on time, and within budget. Don't make promises that you can't keep. Bill promptly. Address billing questions in short order. Manage your projects and clients; don't just react. Don't bill every second of time; put a few "no charge" entries on the monthly bill. Be considerate. Give the client and team members sufficient lead time to review and comment on your drafts before the filing deadline.

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Personal PR...eh...what it that?

PR = Public Relations Public = Those you want to be in front of Visibility = Credibility It’s about you, your skills, expertise and potential. What are you "about"? PR is not just getting your name in the papers. PR is not a substitute for being a good professional.

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First steps “Borrow” what others are doing (e.g. Fear's outstanding and up-to-the-minute web site, Fear's blogging, Bovitz' rose in his suit lapel, Bovitz' guitar picks, Warren's public service in in San Diego business community). Always carry a business card (or guitar pick). Life is full of random introductions. (Do you have a business card on you RIGHT NOW?) Feel free to break the standard mold, but...if you are a working in a law firm, work within the law firm marketing plan.

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Lawyers can advertise In re RMJ, 455 U.S. 191, 199, 102 S.Ct. 929 (U.S. Mo., 1982):

In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977),...The Bates Court held that indeed lawyer advertising was a form of commercial speech, protected by the First Amendment, and that "advertising by attorneys may not be subjected to blanket suppression."

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But lawyer advertising is closely regulated

But the decision in Bates nevertheless was a narrow one. The Court emphasized that advertising by lawyers still could be regulated. False, deceptive, or misleading advertising remains subject to restraint, and the Court recognized that advertising by the professions poses special risks of deception -- "because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising."

In re RMJ, 455 U.S. 191, 200, 102 S.Ct. 929 (U.S. Mo., 1982):

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Lawyers may send letters to consumers with pending legal troubles

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 469, 108 S.Ct. 1916 (U.S. Ky., 1988):

Kentucky wanted to stop a lawyer from mailing the following targeted solicitation to financially troubled debtors: “It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them. You may call my office anytime from 8:30 a.m. to 5:00 p.m. for FREE information on how you can keep your home. Call NOW, don't wait. It may surprise you what I may be able to do for you. Just call and tell me that you got this letter. Remember it is FREE, there is NO charge for calling.”

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Targeted or mass mailings

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 473, 108 S.Ct. 1916 (U.S. Ky., 1988):

Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public. See, e.g., Bates, supra (newspaper advertising); id., 433 U.S., at 372, n. 26, 97 S.Ct., at 2703, n. 26 (equating advertising in telephone directory with newspaper advertising); In re R.M.J., supra (mailed announcement cards treated same as newspaper and telephone directory advertisements). Thus, Ohio could no more prevent Zauderer from mass-mailing to a general population his offer to represent women injured by the Dalkon Shield than it could prohibit his publication of the advertisement in local newspapers. Similarly, if petitioner's letter is neither false nor deceptive, Kentucky could not constitutionally prohibit him from sending at large an identical letter opening with the query, "Is your home being foreclosed on?," rather than his observation to the targeted individuals that "It has come to my attention that your home is being foreclosed on."

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Slate & Leoni (California case) Leoni v. State Bar, 39 Cal.3d 609, 613-614, 623-624, 628 (Cal. 1985):

What is the standard for determining whether a lawyer's solicitation of clients by mass mailings and informational pamphlets is misleading?... The California Constitution declares: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." ... We base the analysis equally on this provision, although throughout this opinion we will refer to the First Amendment to the United States Constitution which provides that Congress shall make no law... abridging the freedom of speech....All are advertisements. We conclude, therefore, that petitioners' letter campaign must be analyzed pursuant to the commercial speech concepts...the rule cannot constitutionally be invoked to totally prohibit all future mass advertising which, due to disclaimers or clarifying language, is not false or misleading.

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Time limits on attorney mailings Florida Bar v. Went for It, Inc., 515 U.S. 618, 115 S.Ct. 237 (U.S. Fla.,1995):

We believe that the [Florida] Bar's 30-day restriction on targeted direct-mail solicitation of accident victims and their relatives withstands scrutiny under the three-pronged Central Hudson test that we have devised for this context. The Bar has substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered.

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ABA rule American Bar Association Rule 7.3 states that every written communication "soliciting employment from a prospective client" must include the phrase "Advertising Material" on the outside of the envelope.

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California Rule of Professional Conduct 1-400 (A) For purposes of this rule, "communication" means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following: (1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or 2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or (3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or (4) Any unsolicited correspondence from a member or law firm directed to any person or entity.

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(B) For purposes of this rule, a "solicitation" means any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and (2) Which is: (a) delivered in person or by telephone, or (b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication.

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(C) A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member's or law firm's professional duties is not prohibited.

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(D) A communication or a solicitation (as defined herein) shall not: (1) Contain any untrue statement; or (2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or (3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public; or (4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or (5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct. (6) State that a member is a "certified specialist" unless the member holds a current certificate as a specialist issued by the Board of Legal Specialization, or any other entity accredited by the State Bar to designate specialists pursuant to standards adopted by the Board of Governors, and states the complete name of the entity which granted certification.

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(F) A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar evidence to support any factual or objective claim contained in the communication.

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Bovitz: Does the "Wayback Machine" (archive.org) obviate this rule for web sites? From archive.org: "Browse through over 150 billion web pages archived from 1996 to a few months ago. To start surfing the Wayback, type in the web address of a site or page where you would like to start, and press enter. Then select from the archived dates available. The resulting pages point to other archived pages at as close a date as possible. Keyword searching is not currently supported."

Pursuant to rule 1-400(E) the Board of Governors of the State Bar has adopted the following standards, effective May 27, 1989, unless noted otherwise, as forms of "communication" defined in rule 1-400(A) which are presumed to be in violation of rule 1-400: (1) A "communication" which contains guarantees, warranties, or predictions regarding the result of the representation. (2) A "communication" which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as "this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter." (3) A "communication" which is delivered to a potential client whom the member knows or should reasonably know is in such a physical, emotional, or mental state that he or she would not be expected to exercise reasonable judgment as to the retention of counsel. (4) A "communication" which is transmitted at the scene of an accident or at or en route to a hospital, emergency care center, or other health care facility.

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(5) A "communication," except professional announcements, seeking professional employment for pecuniary gain, which is transmitted by mail or equivalent means which does not bear the word "Advertisement," "Newsletter" or words of similar import in 12 point print on the first page. If such communication, including firm brochures, newsletters, recent legal development advisories, and similar materials, is transmitted in an envelope, the envelope shall bear the word "Advertisement," "Newsletter" or words of similar import on the outside thereof. (6) A "communication" in the form of a firm name, trade name, fictitious name, or other professional designation which states or implies a relationship between any member in private practice and a government agency or instrumentality or a public or non-profit legal services organization. (7) A "communication" in the form of a firm name, trade name, fictitious name, or other professional designation which states or implies that a member has a relationship to any other lawyer or a law firm as a partner or associate, or officer or shareholder pursuant to Business and professions Code sections 6160-6172 unless such relationship in fact exists.

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(8) A "communication" which states or implies that a member or law firm is "of counsel" to another lawyer or a law firm unless the former has a relationship with the latter (other than as a partner or associate, or officer or shareholder pursuant to Business and professions Code sections 6160-6172) which is close, personal, continuous, and regular. (9) A "communication" in the form of a firm name, trade name, fictitious name, or other professional designation used by a member or law firm in private practice which differs materially from any other such designation used by such member or law firm at the same time in the same community. (10) A "communication" which implies that the member or law firm is participating in a lawyer referral service which has been certified by the State Bar of California or as having satisfied the Minimum Standards for Lawyer Referral Services in California, when that is not the case.

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(12) A "communication," except professional announcements, in the form of an advertisement primarily directed to seeking professional employment primarily for pecuniary gain transmitted to the general public or any substantial portion thereof by mail or equivalent means or by means of television, radio, newspaper, magazine or other form of commercial mass media which does not state the name of the member responsible for the communication. When the communication is made on behalf of a law firm, the communication shall state the name of at least one member responsible for it. (13) A "communication" which contains a dramatization unless such communication contains a disclaimer which states "this is a dramatization" or words of similar import. (14) A "communication" which states or implies "no fee without recovery" unless such communication also expressly discloses whether or not the client will be liable for costs. (15) A "communication" which states or implies that a member is able to provide legal services in a language other than English unless the member can actually provide legal services in such language or the communication also states in the language of the communication (a) the employment title of the person who speaks such language and (b) that the person is not a member of the State Bar of California, if that is the case.

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(16) An unsolicited "communication" transmitted to the general public or any substantial portion thereof primarily directed to seeking professional employment primarily for pecuniary gain which sets forth a specific fee or range of fees for a particular service where, in fact, the member charges a greater fee than advertised in such communication within a period of 90 days following dissemination of such communication, unless such communication expressly specifies a shorter period of time regarding the advertised fee. Where the communication is published in the classified or "yellow pages" section of telephone, business or legal directories or in other media not published more frequently than once a year, the member shall conform to the advertised fee for a period of one year from initial publication, unless such communication expressly specifies a shorter period of time regarding the advertised fee.

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Rule of Professional Conduct 5-120 (A) A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (B) Notwithstanding paragraph (A), a member may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) the information contained in a public record; (3) that an investigation of the matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto.... (C) Notwithstanding paragraph (A), a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

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Business & Professions Code § 6157 As used in this article, the following definitions apply: (a) "Member" means a member in good standing of the State Bar and includes any agent of the member and any law firm or law corporation doing business in the State of California. (b) "Lawyer" means a member of the State Bar or a person who is admitted in good standing ...and includes any agent of the lawyer, law firm, or law corporation doing business in the state. (c) "Advertise" or "advertisement" means any communication, disseminated by television or radio, by any print medium, including, but not limited to, newspapers and billboards, or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member, and is directed to the general public and is paid for by, or on the behalf of, an attorney. (d) "Electronic medium" means television, radio, or computer networks.

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Business & Professions Code § 6157.1 No advertisement shall contain any false, misleading, or deceptive statement or omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not false, misleading, or deceptive.

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Business & Professions Code § 6157.2 Prohibited contents or references. No advertisement shall contain or refer to any of the following: (a) Any guarantee or warranty regarding the outcome of a legal matter as a result of representation by the member. (b) Statements or symbols stating that the member featured in the advertisement can generally obtain immediate cash or quick settlements. (c) (1) An impersonation of the name, voice, photograph, or electronic image of any person other than the lawyer, directly or implicitly purporting to be that of a lawyer. (2) An impersonation of the name, voice, photograph, or electronic image of any person, directly or implicitly purporting to be a client of the member featured in the advertisement, or a dramatization of events, unless disclosure of the impersonation or dramatization is made in the advertisement. (3) A spokesperson, including a celebrity spokesperson, unless there is disclosure of the spokesperson's title.... 36

Business & Professions Code § 6158

Advertising by electronic media. In advertising by electronic media, to comply with Sections 6157.1 and 6157.2, the message as a whole may not be false, misleading, or deceptive, and the message as a whole must be factually substantiated. The message means the effect in combination of the spoken word, sound, background, action, symbols, visual image, or any other technique employed to create the message. Factually substantiated means capable of verification by a credible source.

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Business & Professions Code § 6158.1 There shall be a rebuttable presumption...that the following messages are false, misleading, or deceptive within the meaning of Section 6158: (a) A message as to the ultimate result of a specific case or cases presented out of context without adequately providing information as to the facts or law giving rise to the result. (b) The depiction of an event through methods such as the use of displays of injuries, accident scenes, or portrayals of other injurious events which may or may not be accompanied by sound effects and which may give rise to a claim for compensation. (c) A message referring to or implying money received by or for a client in a particular case or cases, or to potential monetary recovery for a prospective client. A reference to money or monetary recovery includes, but is not limited to, a specific dollar amount, characterization of a sum of money, monetary symbols, or the implication of wealth.

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Business & Professions Code § 6158.2 The following information shall be presumed to be in compliance ...provided the message as a whole is not false, misleading, or deceptive: (a) Name, including name of law firm, names of professional associates, addresses, telephone numbers, and the designation "lawyer," "attorney," "law firm," or the like. (b) Fields of practice, limitation of practice, or specialization. (c) Fees for routine legal services, subject to the requirements of subdivision (d) of Section 6157.2 and the Rules of Professional Conduct. (d) Date and place of birth. ... (o) Foreign language ability of the advertising lawyer or a member of lawyer's firm.

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(e) Date and place of admission to the bar of state and federal courts. (f) Schools attended, with dates of graduation, degrees, and other scholastic distinctions. (g) Public or quasi-public offices. (h) Military service. (i) Legal authorship. (j) Legal teaching positions. (k) Memberships, offices, and committee assignments in bar associations. (l) Memberships and offices in legal fraternities and legal societies. (m) Technical and professional licenses. (n) Memberships in scientific, technical, and professional associations and societies. 40

Business & Professions Code § 6158.3

Required disclosure in advertising by electronic media. In addition to any disclosure required by Section 6157.2, Section 6157.3, and the Rules of Professional Conduct, the following disclosure shall appear in advertising by electronic media. ... If an advertisement in the electronic media conveys a message portraying a result in a particular case or cases, the advertisement must state, in either an oral or printed communication, either of the following disclosures: The advertisement must adequately disclose the factual and legal circumstances that justify the result portrayed in the message, including the basis for liability and the nature of injury or damage sustained, or the advertisement must state that the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts.

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Business & Professions Code § 6158.4 Filing of complaint with State Bar. (a) Any person claiming a violation of Section 6158, 6158.1, or 6158.3 may file a complaint with the State Bar that states the name of the advertiser, a description of the advertisement claimed to violate these sections, and that specifically identifies the alleged violation. ... The advertiser shall have nine days from the date of service of the complaint to voluntarily withdraw from broadcast the advertisement that is the subject of the complaint. ... (b) (1) Upon a State Bar determination that substantial evidence of a violation exists, if the member or certified lawyer referral service withdraws that advertisement from broadcast within 72 hours, no further action may be taken by the complainant. (2) ...if the member or certified lawyer referral service fails to withdraw the advertisement within 72 hours, a civil enforcement action brought pursuant to subdivision (e) may be commenced within one year of the State Bar decision. ...

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Business & Professions Code § 6159.1 A true and correct copy of any advertisement made by a person or member shall be retained for one year by the person or member who pays for an advertisement soliciting employment of legal services.

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Two paths to bankruptcy certification Two primary certification paths: 1. State Bar of California Board of Legal Specialization (californiaspecialist.org) certification in bankruptcy law. 2. American Board of Certification (abcworld.org) certification in business bankruptcy law, consumer bankruptcy law, or creditors' rights.

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Who should seek certification? Certification is a professional achievement and makes your mother proud. For an associate, certification is tangible proof to law firm management that she is ready for an equity position at her law firm. For a junior partner, certification is a demonstration to the law firm’s senior management that he is ready for increased law firm responsibility (cases and management). For a senior partner, certification is a means of distinguishing herself from the non-lawyer competition (e.g., CPAs, workout consultants). In some public agencies, certification is a criteria for advancement. Certification is a statement to colleagues, referral sources, opposing counsel, and the entire Ninth Circuit that you are a proficient bankruptcy practitioner. For thrifty lawyers, certification can result in discounts on legal malpractice insurance (10% for some California and Florida attorneys).

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For all bankruptcy lawyers, certification is one of the elements to be considered by the court when awarding legal fees. 11 U.S.C. §330(a)(3)(E) (“with respect to a professional person, whether the person is board certified…”). Extra continuing education and training is encouraged (or required). This benefits the lawyers and the public. Certified specialists are sued less often for simple bonehead errors. For all lawyers, specialization provides ethical advertising and a good source of referrals. For example, the State Bar “attorney search” provides information about a lawyer’s certifications (http://members.calbar.ca.gov/fal/MemberSearch/QuickSearch). Some directories include a legal specialist section. A lawyer may be more comfortable referring to a legal specialist (as opposed to a friend of a friend). You can use the logos of the ABC or BLS.

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Checklist for lawyer web sites • a useful web address (“URL”), e.g., tw2marketing.com, fresnobklaw.com, bovitz.com • attorney long form (Warren: "No!" Bovitz: "Yes!") biographies and photographs • street address • telephone and fax numbers • e-mail addresses (monitor e-mail!) • driving directions and map to office • hours • description of firm services • languages spoken • simple, obvious navigation • disclaimer • updated, focused articles/content for the prospective clients (search engine optimization, SEO) -- think geography, area of law, and user needs • rates (Fear: "Pros and cons -- are you competing on price alone?") • charge for initial consultation, and how to contact the law firm Types of client • links to social media • all pages are landing pages (due to search engines) so each page could be the ‘first’ page

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Questions to ask (web site planning)

Patrick J. Lynch and Sarah Horton, Web Style Guide, Yale University Press (1999), p. 5: • What are the purpose and goals for the site? • Who is the target audience for the site. What do they want? • Will your site production team be composed of in-house people, outside contractors, or a mix of the two? • Who will manage the process? (Bovitz: Are you too busy as a lawyer to work on it every week?) • Who are your primary content experts? • Who will be the liaison to any outside contractors? • Who will function long-term as the Webmaster or senior site editor?

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Search Engine Optimization (SEO) Search engines use algorithms to determine what the searcher would most like to see. Google was the pioneer in the field of these advanced algorithms and is still the king. There are tricks and things you can do to increase your web site’s SEO, but those items change constantly as the search engines update their algorithms. The busy consumer bankruptcy attorney may wish to pay someone to optimize her web site. She will also want to follow a few basic principles to help the search engine placement: spell things out in the URL; use headers and solid keywords in the headings; be careful about flashy graphics, as these might not be read by the search engine spiders; and regularly post lots of quality content.

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Pay-per-click? If you want to be at the top of the listings, Google Adwords is the best way to do it. Google Adwords lets you sponsor search results, so that your advertisement comes up early in the search results. Since the advertisement is placed in a separate frame, this may not be as valuable as a high ranking organic search result. But you only pay if someone clicks on your link. There are many other websites that offer pay-per-click, but Google can give one the broadest coverage with the least amount of work on the front end because Google has numerous affiliates. Pay per click can be expensive, but you can tailor the budget and limit your expenditure. It is important to have web site optimized for Google Adwords. Landing pages should refer directly to the searched content. That gives you a better chance of having your ad come up on the first page. The other thing that controls where your ad lands is how much you are paying per click.

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SEO optimization, RIP? Jay Fleischman, Practice Pro News, at www.legalpracticepro.com, March 23, 2012: Google Announces The Death Of SEO . ... According to Cutts [a Google Bigwig], this "is something we are working in the last few months and hope to release it in the next months or few weeks. We are trying to level the playing field a bit. All those people doing, for lack of a better word, over optimization or overly SEO -- versus those making great content and great site. We are trying to make GoogleBot smarter, make our relevance better, and we are also looking for those who abuse it, like too many keywords on a page, or exchange way too many links or go well beyond what you normally expect. We have several engineers on my team working on this right now."

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What happens when clients find your site? Create a user-focused web site. Have lots of informative and helpful content. Establish credibility as someone who is knowledgeable in the field. Use easy navigation. For example, once they decide that they want to set up an appointment, you want a link that is easy to see to set up that appointment. Do not speak in legalese. If you were a potential client, what would you be looking for? 11 U.S.C. §528(a). A debt relief agency shall... (3) clearly and conspicuously disclose in any advertisement of bankruptcy assistance services or of the benefits of bankruptcy directed to the general public (whether in general media, seminars or specific mailings, telephonic or electronic messages, or otherwise) that the services or benefits are with respect to bankruptcy relief under this title; and (4) clearly and conspicuously using the following statement: "We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code."

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Should a lawyer give "free samples"?

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David M. Ward, The Attorney Marketing Center (attorneymarketing.com): "Give prospects a sample of what you sell and they will buy more of what you sell. Not only is there a mountain of empirical evidence to support this, it’s also been documented by psychologists. It’s called 'the law of reciprocity' which says that when you give something to someone, they are psychologically compelled to reciprocate. The more you give away, the more you get in return." Like what? Free articles and checklists on the law firm web site (e.g., "The Consumer's Guide to Bankruptcy" on newyorkbankruptcyhelp.com, the law firm site of Shaev & Fleischman). Free advice to would be clients on the telephone. (But send a "nice to meet you/we are not your lawyers yet" letter or e-mail to each caller.) Free one hour consultation in the office. Free and willing community, charity, bench/bar service.

Blogs Blogs are a good way to drive traffic to your web site, establish you as leader/expert and share others’ content (as associating yourself with others helps your credibility). Like many marketing methods, if you are going to do it yourself, you really have to like doing it and want to do it for reasons other than marketing. Write good stuff! See http://www.businessinsider.com/guy-kawasaki-explains-how-entrepreneurs-are-getting-social-media-all-wrong-2012-3, Guy Kawasaki Explains How Entrepreneurs Are Getting Social Media All Wrong: "My recommendation for SEO is very simple. It’s Write Good Stuff. In my mind, Google is in the business of finding good stuff. It has thousands of the smartest people in the world, spending billions of dollars to find the good stuff. All you have to do is write the good stuff; you don't need to trick it. Let Google do its job and you do your job."

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Lawyer referral services Do lawyer referral services (e.g., legalfish.com/bankruptcy) work? What about directories (e.g., martindale.com)?

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Television and radio advertising

TV was successful for Slate & Leoni in 1980. Today?

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Networking groups Turnaround Management Association. Women's Insolvency Group. Los Angeles Bankruptcy Forum. Warren: "How do you mingle in a networking group?" How about old-fashioned one on one lunches? Please pick up the bill! Send thank you letters for referrals or tips. Have a personality...and have fun!

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Carl Terzian, Carl Terzian Associates, Los Angeles Business Journal, July 13, 2009:

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Elevator speech 101 Why is it called an elevator speech? Why do you need one? Why do you need more than one? Different situations call for different messages. Different audiences call for different talking points. Features of an elevator speech. Short. Concise. Leave the listener wanting more. Elements of an elevator speech. Core message stays the same no matter the audience or situation. Differentiation; what makes you special? Your enthusiasm. Your emotional connection. Memorable points about you. Delivering your message. Don’t sound rehearsed. Maintain eye contact. Know when to stop. Don't be creepy. The end result? Create awareness. Create interest.

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Don't be a spammer!

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Advertising trinkets Photoshop User, Feb. 2012, Small Business and Freelance Coach:

Give them swag (promotional items)!

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e-mail signature blocks

XXX X XXXXXXXX, Esq. Attorney at Law Martindale-Hubbell Peer Review Rated AV (1993 to present) Pasadena Magazine's 2010 Top Attorney: Elder Law/Abuse (Peer Review) Pasadena Magazine's 2011 Top Attorney: Trusts & Estates (Peer Review) EXPERT WITNESS re: proper Medi-Cal planning See http://www.XXXXXXXXXX.com (626) xxx-xxxx Phone (626) xxx-xxxx FAX XXXXXXXXXX Centre XXXX East XXXXX Street Pasadena, CA 91106-2513

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J. Scott Bovitz Bovitz & Spitzer 880 West First Street Suite 502 Los Angeles, California 90012-2430 213-346-8300 fax 213-620-1811 [email protected] http://bovitz-spitzer.com Certified Specialist Bankruptcy Law State Bar of California Board of Legal Specialization Board Certified Business Bankruptcy Law American Board of Certification

Peter L. Fear Law Offices of Peter L. Fear 7750 N. Fresno St., Ste. 101 Fresno, CA 93720 (559) 436-6575 (559) 436-6580 (fax) [email protected] http://www.fresnobklaw.com Follow me on twitter: @PeterFear

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Social Media in a nutshell

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Social media, WTG (what the gosh)

Great potential to promote YOU! Takes time and takes commitment. Still evolving. Stuart J. Davidson, The Benefits of Social Media to Businesses, http://stuartjdavidson.wordpress.com/2011/08/26/the-benefits-of-social-media-to-businesses: "Branding...Lead Generation...Marketing and Promotion...Reputation Management...Growth...Customer Service and Feedback...Educational Asset...Research...Competitive Analysis." Biggest mistake? Trying to do it all.

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Apparently, everybody (except Bovitz) is doing it: http://blog.larrybodine.com/2012/02/articles/tech/widespread-useof- social-media-marketing-confirmed/ Think of social media as another way to connect with people. You might go to a bar association function and while there talk to 25 different people. Those are 25 connections. The idea behind social media (or micro-blogging) is similar, but you are broadcasting ideas/thoughts that you have to people with whom you already have some connection. Your friends/followers/connections look through those things and may find them useful or interesting. And they may rebroadcast/retweet your ideas to their followers. As with blogging and producing content for your own web site (or attending a bar association function), don’t do it just for marketing purposes. The people who make lots of beneficial connections through social media are interested in the people and subjects about which they are connecting.

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Cathrine Ho, Law firms get into the social media game, http://coydavidsoncre.visibli.com/share/kC08Oa: "After years of avoiding the Twittersphere, Big Law is warming up to the advertising power of social networking. Leaders at several top 100 firms are for the first time hiring full-time social media specialists to manage firms’ LinkedIn, YouTube and Twitter accounts, and many more are making a concerted effort to prioritize social media outreach in marketing campaigns. It is a marked shift for the risk-adverse legal industry, which -- as retailers and restaurants jumped on Twitter and Facebook to hawk discounts and promote products -- largely stayed away from social media as a way to pursue new business. But now, 20 percent of law firms have a full-time social media specialist on staff, and about 40 percent said blogging and social networking initiatives have helped the firm land new work, according to an ALM Legal Intelligence report released in February that surveyed 179 attorneys, managing partners and marketing directors. ... Many firms are honing in on LinkedIn and blogs, and shying away from Facebook, which they consider a personal rather than professional networking tool. McKenna Long added two new blogs in January, including one on politics, law and policy that the firm timed to coincide with the 2012 presidential election. "

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Social media

LinkedIn Great for business visibility. Build your network. Join groups and post YOUR info. Post about others & have others post about you. Start a group. Read updates. Should use consistently.

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Social media Twitter Don’t mix (too often) professional & personal messaging. Follow others who interest you, can influence your career track, companies that you want to work with/for, etc. Use TweetDeck or similar program. Share interesting info. Use hash tags (‘#’). Retweet. Should you send confidential communications to a client through a social network (no) or by a direct message (yes) on Twitter?

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Social media How to write a good Tweet. Something to grab attention + who + verb + what + link: Moving on up! I just was named partner. (link) Status + what your are doing: Attending CA Bankruptcy Forum this weekend in Palm Springs. #Bankruptcy (link)

And when you retweet, add your voice: So enjoy going to CA Bankruptcy Forum programs. Good info and great folks! (link)

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Social media

FACEBOOK

Always an option -- but be careful. Don’t combine personal with professional (too much). Personal & professional pages. Business page. If you "friend" someone on Facebook and thereafter post something telling people about your services, is that a solicitation? What about if you direct message them? What if they friended you first?

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Pinterest

What is it (pinterest.com) and do lawyers need it?

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Can’t ‘pin’ your work but you can ‘pin’ what interests you. Warren: "Bovitz could ‘pin’ his photography!" Fear: "My wife uses it for decorating ideas and I had not seen much use beyond that." Bovitz: "Oh, please!?! Not another silly social media thingie!"

YouTube

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http://blog.larrybodine.com/2012/05/articles/tech/boost-your-practice-with-youtube/

Larry Bodine, author of Boost your practice with YouTube, says: "Business and consumer clients love video: 100 million viewers take action on YouTube every week; 500 years of YouTube video are watched every day; millions of YouTube subscriptions occur every day. With numbers like that, can you afford not to use YouTube?"

Ethics issues with social media

NYSB Ethics Opinion Synopsis: Its okay to use publicly available information on social networking sites for impeachment. http://www.nysba.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=43208 CalBar Ethics Opinion Synopsis: If people are submitting questions to an attorney via a web site, any waiver of confidentiality has to be very clear. http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=Hqf7ODIElk0%3d&tabid=838

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SDCBA Legal Ethics Opinion 2011-2, http://www.sdcba.org/index.cfm?pg=LEC2011-2: Social media sites have opened a broad highway on which users may post their most private personal information. But Facebook, at least, enables its users to place limits on who may see that information. The rules of ethics impose limits on how attorneys may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel. We have concluded that those rules bar an attorney from making an ex parte friend request of a represented party. An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party. We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request. Represented parties shouldn’t have “friends” like that and no one -- represented or not, party or non-party -- should be misled into accepting such a friendship. In our view, this strikes the right balance between allowing unfettered access to what is public on the Internet about parties without intruding on the attorney-client relationship of opposing parties and surreptitiously circumventing the privacy even of those who are unrepresented.

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Pam Wilson, San Diego Lawyer, Nov./Dec. 2011

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Awards

•Organizations/Media.

•Get someone else to nominate you.

•Quid pro quo.

•Do you meet the criteria?

•Hire a professional.

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Award writing •Start early.

•Follow directions.

•Write to the criteria.

•Be specific.

•Use language that creates excitement & interest.

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Writing 101 Tom is terrific. Tom is terrific because he volunteers at moot court.

Tom is terrific because he volunteers with the San Diego County Bar Association’s Moot Court Program that teaches high school students about the legal system and strategies for dispute resolution among one’s peers.

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Award writing Then keep adding MORE!

Facts & Figures: Tom has also mentored six students in the past two years that want to be lawyers (thanks to his work with moot court).

Honors: Tom was named the Bar Associations Volunteer of the Year in 2011.

Quotes: Susie Smith, Executive Director of Moot Court, says, “Tom’s enthusiasm and commitment far exceeds even our greatest expectations.”

But don’t go over the word limit!

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Award winner Now what? E-mail/Constant Contact. Post (or be posted about) on LinkedIn. Tweet it. Facebook it. Pin it? Talk to your law firm about a news release.

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Join and contribute to organizations Join a cross section.

Go to meetings and make contacts. If you volunteer to serve on the board of the local symphony, but you don't really enjoy classical music, you will not enjoy your tour of duty. Pick something that you like for your community efforts.

Target specific people.

Lead an effort or start a new one: education; philanthropic, cross venture. But if you decide to volunteer, do it because you like it and because you are going to treat this work like a real (though non-paying) job.

Smaller groups = more targeted pool.

Tap into groups’ social media.

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Write and publish Organizations’ newsletters and publications.

Mainstream media.

Blogs.

Have someone review and edit.

Recycle! (But be aware of copyrights.)

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Speaking opportunities How to get started?

Internal presentations.

Peer education.

Create your own gig.

Use social media to invite people and post-visibility (including YouTube).

Give them more than they ask for -- research, prepare for the speech, give materials, and knock their socks off with the presentation.

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Your speakers gladly accept all speaking opportunities. We enjoy speaking and we think that it gives an opportunity to pass on information others have given us. The session sponsor is going to send out our names on a flyer to a whole bunch of folks.

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Publicity and reprints

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Final thoughts

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