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Main Index
Index:
* CCBE COMMENTS ON COMMISSION PROGRESS REPORT ON COMPETITION IN PROFESSIONAL SERVICES
* Specialised Intellectual Property Courts and Tribunals
* Solicitor and strategic communications
* CCBE COMMENTS ON COMMISSION PROGRESS REPORT ON COMPETITION IN PROFESSIONAL SERVICES
C o u n c i l o f B a r s a n d L a w S o c i e t i e s o f E u r o p e
association internationale sans but lucratif
Avenue de la Joyeuse Entre 1-5 B 1040 Brussels Belgium Tel.+32 (0)2 234 65 10 Fax.+32 (0)2 234 65 11/12 E-mail ccbe@ccbe.org www.ccbe.org
Reprsentant les avocats dEurope
Representing Europes lawyers
CCBE COMMENTS ON COMMISSION PROGRESS REPORT ON COMPETITION IN PROFESSIONAL
SERVICES
I. Introduction
The Council of Bars and Law Societies of Europe (CCBE) represents more than 700,000 lawyers
through its member bars and law societies.
This paper represents the CCBEs response, from a European-wide perspective, to the Commissions progress report on competition in professional services, titled Professional Services Scope for more reform, Follow-up to the report on competition in professional services, COM(2004) 83 of 9 February 2004 (hereafter the progress report1). The approach followed by the European Commission in this field has raised serious concerns in several other European and national Institutions.
This paper is divided into four parts. First, there are some preliminary comments with regard to the Commissions exercise and the reform of the legal profession in general. Second, the CCBE recalls its comments in response to the Commissions first report on this subject of February 2004. Third, the CCBE sets out its views with regard to the Commissions progress report. Fourth, the CCBE indicates briefly that it will produce another response in due course to the progress report to show that further deregulation may not in all respects have economic advantages that can match the serious negative impacts on society.
II. Preliminary comments
At the outset, it should be noted that the legal profession has been and will continue to be open to
reforms, subject to the protection of core values and the necessities of the judicial systems of the
Member States. These reforms are in any case undertaken periodically in the light of comments
received from a variety of sources, such as ministries, courts, citizens, clients, national legislators or academics and lawyers themselves. Such reforms are of importance and take place in a constantly evolving society.
At a European level, the lawyers Directives provide a model of a liberalised market for professional services in the EU2. At national level, national regulators, together with the self-regulatory bodies of the profession, carry out revisions of professional rules on a regular basis in order to keep up with changes and developments within society which affect the legal profession3.
The CCBE welcomes the Commissions recognition that reforms are best carried out at a national
level and that the relevant national authorities are best placed to take into consideration the national specificities of the national legal system. Member States have to take into account the various public interests at stake and not only the competition interest and economic analysis.
They also have a duty to ensure that access to justice is effectively delivered to their citizens when reviewing the relevant professional rules.
The way in which the Commission has taken forward its own exercise has raised a number of deep concerns amongst national bars and law societies, and other institutions such as national ministries and the European Parliament.
First, the CCBE notes that the scope of this Commission exercise, which aims at reshaping the
regulatory framework applicable in each Member State, goes beyond the mere application of EC and national competition rules to professional services. The Commission gives only very limited
information on the underlying legal framework for the planned reforms, preferring to promote a general principle of less regulation, better regulation, regardless of whether this principle or any obligation to promote it exists in the EC Treaty or EC competition rules and, we believe, without sufficient knowledge of how these markets operate.
In fact, the promotion of this principle is nowhere stated in the competition rules or elsewhere in the Treaty. It is moreover important that the competition rules, if applicable, are applied in compliance with the case-law of the European Court of Justice. The application of competition rules should be kept separate from regulating a market and the responsibilities for the enacting of regulatory frameworks. Regulatory reviews should always - if found appropriate - be carried out by the relevant competent bodies and authorities. These are in a better position to evaluate the implications and consequences of changes for the national legal order and in particular the administration of (and access to) justice.
The CCBE recognises the Commissions expertise in the field of EC competition law, but also believes that, as far as national professional rules are concerned, the authorities of the Member States, notably the legislative bodies, are in the best position to define the rules and regulatory frameworks that apply to the liberal profession. The latter must indeed take into account a variety of factors of a legal and non-legal nature which are of relevance at a national level, such as constitutional principles, rules related to the administration of justice and the application of the rule of law within the different national legal orders. As far as the Commission is concerned, it is a point of concern that DG Competition suggests reforms of laws and regulations within the Member States without participation of other Directorates of the Commission, such as the one responsible for Justice and Home Affairs, which deal with other public interests that have to be taken into account.
As such, the CCBE suggests that a more appropriate approach for the review would have been to
make a clear distinction between the various liberal professions concerned. It has applied this kind of logic to other previously tested sectors (electricity, telecoms, etc.), where reforms were undertaken based on comprehensive market studies. This failing is compounded by a failure to take into account the higher values of European societies that the liberal professions promote and protect. This is all the more important from a competition point of view, since the different professions work in different markets and are subject to different national and legal traditions and legal frameworks, which have an impact on the needs and types of regulation and deregulation in these particular markets.
The CCBE would also like to re-state in this context its concerns with regard to the Commissions fact finding exercise. Our member bars have pointed out in the past a number of errors in the facts on which the Commissions first report was based, but there does not appear to have been any attempt to correct those mistakes, nor the assumptions which flowed from the earlier errors. The CCBE asks the Commission to take account and correct any mistakes, since they have serious repercussions on future assumptions, as the follow up report shows. The CCBE also shares the concerns expressed by other professions on the need for a more transparent and real dialogue. Similarly, the CCBE would welcome more concrete information on the activities and conclusions of the European Network of Competition Authorities in this context.
As the CCBE has pointed out repeatedly to the Commission, the legal profession is one which serves the administration of justice and the rule of law. The values in its sector are not only economic ones, and it is incorrect and simplistic, in our view, to base a review of the legal profession solely in economic terms. There appears to be no recognition of this in the review. One example of the Commissions approach in this area will suffice to show the error which underlies the whole. In paragraph 13 of the progress report, the Commission describes the main users of professional services as being businesses and the public sector. This betrays the fact that the Commission, quite wrongly in our case, is looking at lawyers only economically. No lawyer, from whatever sector of the legal profession, would consider businesses and the public sector to be the main users of lawyers.
They may account for the most by way of value of business, but every lawyer, and probably every
citizen, would consider that the rights and liberties of those accused of crime (and its victims), those seeking a divorce (and the children affected by it), those seeking to make a will or to contest a claim by the state in relation to immigration or social security, those seeking compensation for loss of employment, and millions of people in similar categories have at least as great a claim to be considered as main users, if not a greater claim. But the Commission appears to overlook their value because its economic value to lawyers is not so much as that provided by businesses and the public sector, despite the contribution to the rule of law that is represented by their right of defence. By serving a private user or the public sector, the lawyer is ultimately serving the administration of justice.
By developing case law, ensuring access to justice at fair prices, enabling the citizen or an economic entity to make full use of available rights, the lawyer is serving a fourth user, which is the rule of law, which is the cornerstone of every democratic state.
III. CCBE comments on the commission report of 9 February 2004
In June 2004, the CCBE provided the Commission with a detailed commentary on the Report on
competition in professional services of 9 February 20044. The CCBE paper, after providing some
general comments on the background to the Commissions work on competition in the liberal
professions, focused on the Commissions analysis of the Community legal framework.
The CCBE regrets that the Commission did not take into account the remarks and suggestions put forward by the CCBE at the time, and that its approach has remained substantially unchanged.
Therefore, the CCBE believes it important to recall the main points of its previous comments, which, in the CCBEs view, are still valid:
The Commission - rather than describing the current state of the law regarding the scope for the application of EC competition rules to professional regulations - advocates a change in the
regulation of certain liberal professions in the EU Member States without providing the required
underlying analysis to support that change.
With regard to the liability of members of the professions under EC competition rules, the
Commissions approach does not fully reflect the importance of case-law of the European Court of Justice in the Wouters case5. Therein, the Court found that the possible anti-competitive effects of professional regulations may be justified by public interest considerations; it acknowledged that
the core values of the legal profession do qualify as public interest considerations for such
purpose. A distinctive feature of the Wouters judgment is the Courts recognition of a margin of
discretion of a bar association in deciding what it deems appropriate and necessary to protect the
proper practice of the profession, which need not necessarily be the least restrictive means, taking account of the relevant national legal framework and of the prevailing perceptions of the
profession in the Member State in question6.
The case law concerning Member States liability under Articles 3(1)(g), 10(2) and 81(1) of the
Treaty does not require State measures to pursue legitimate public interest objectives, and to be
proportionate to the achievement of those objectives. There is no basis in EC competition law for
the proportionality test for state measures as proposed by the European Commission, and
therefore Member States are not under a duty under EC competition law to amend their existing
regulations in order to comply with such a test.
IV. CCBE comments on the commission report of 5 September 2005
A. Lack of traditional competition law analysis
Just as with the initial report of 9 February 2004, the new progress report does not provide any
traditional competition law analysis, as mandated by the case law of the ECJ, nor does it state that such an analysis must be conducted. Such an analysis would start by an identification of the relevant market (one or more service markets, one or more geographical markets), followed by an analysis of the competitive conditions prevailing in such relevant market(s), and by analysis of the effect on competition of the rules that the study and the reports identify as potentially problematic from a competition standpoint.
Further, in paragraph 29 of the follow-up report, the Commission states that Members States should initiate analytical work to review existing restrictions. The Commission notes that a more substantial structural analysis should begin for example of regulatory structures - to assess the need and open the way for wider reforms.
As stated in our Preliminary Comments above, the CCBE believes that this should be considered as outside of the scope of competition law. Such a proposal to Member States has a direct impact on national structures of public or private law which play a key role in the maintenance and promotion of the rule of law at national level, and which are regulated by national laws. Such a general statement by the Commission, without providing sufficient background of the relevant markets and the legal frameworks, is, in our view, inappropriate, particularly given the possible consequences for the protection of clients.
B. Proposed distinction between categories of users
In section 2 of the report titled Better defining the public interest, the Commission states in paragraph 13 (already quoted above) - after referring to some partial analysis in three different segments for legal services - that The key finding is that one-off users, who are generally individual customers and households, may need some carefully targeted protection. On the other hand, the main users of professional services businesses and the public sector may not need, or have only very limited need of, regulatory protection given they are better equipped to choose providers that best suit their needs.
First, and as already stated, the CCBE would like to put into question the declaration that businesses and the public sector are the main users of legal services in all European Member States. Next, the CCBE opposes the Commission findings in this respect. The CCBE notes that the distinction, for the purpose of defining the need for regulation, is based solely on how well-equipped the client may be to choose a provider, as if that is a ground for greater or lesser protection of clients. However, regulation of services exists not only because of the supposed sophistication of the people using the services, but to protect the general public and to guarantee the right of defence and access to justice in other words, lawyers are regulated in the public interest. In the recent financial scandals which shook the US business world Enron, Worldcom the users of professional services have been very sophisticated repeat purchasers of these services, but the victims of the crimes committed were ordinary people, such as shareholders, employees, and pensioners, often numbered in thousands. These victims often suffered devastating financial losses, which ruined their lives.
The lawyers in important commercial cases are not regulated just so as to protect the sophisticated business executives who use them (although they will also need protection), but in the public interest, which will include people who may have a direct or indirect stake in the outcome of the transaction, even though they are not the actual client. The CCBE is disappointed that the Commissions current approach does not reflect this concern.
The CCBE also notes that the new 8th Company Law Directive on statutory audit which aims at
reinforcing and harmonising the statutory audit function throughout the EU clarifies, inter alia, the
duties of statutory auditors and introduces a much more rigorous ethical audit process for company accounts. It also defines sound and harmonised principles of independence applicable to all statutory auditors through the EU.
As indicated, the CCBE believes that the Commission should have carried out a comprehensive
analysis on a separate basis for each profession. It has not provided any information on how users may benefit from less regulation, but merely asserts it, contrary to recent experience.
C. Proposed use of Article 86 The CCBE notes that in paragraph 23 of the progress report the Commission states that it is conceivable to use Article 86 in conjunction with Articles 82/81 as a legal base when the conditions, as established by the case law are met.
The CCBE would like to point to its comments of June 2004, where it raised with the Commission the issue of the Commissions attitude towards the relationship between Article 86(2) and the legal profession. The CCBE also notes that the Commission offers no explanation as to which professions
are granted special or exclusive rights and their role in society. The CCBE regrets that the
Commission does not offer an explanation of these issues, and hopes that the Commission will
provide this in the near future in order to ensure that the legal basis of such action is sufficiently
understood by all stakeholders.
V. Economic approach
The CCBE is aware of the fact that there are national studies produced by economic experts
supporting the views of the CCBE that further deregulation may not in all respects have economic
advantages that can match the serious negative impacts on society. The CCBE is in the process of putting together a further document in this respect which will be submitted to the Commission shortly.
VI. Conclusions
The legal profession has been, and always will be, open to any reasonable reform process. However, it would like to emphasise the importance of such reforms being carried out by the competent institutions within the relevant legal framework and with the appropriate tools for analysis having first been carried out. The CCBE disagrees with a call to governments Europe-wide for reforms within the legal profession without further justification. The issues raised in relation to regulation of the legal profession go well beyond competition law into the field of freedom, security and justice, and more broadly into the protection of the rule of law in the European Union. A constructive approach to reform of the legal profession requires recognition of this special context.
Economic analysis demonstrates that less regulation may have significant negative effects on society.
Public interest and economic analysis do not support the suggestion by the Commission that
differential regulation of the legal profession and its services is justified depending on the supposed sophistication of the instructing client.
-------------------------------------
1 The Commission progress report is available at the following website address:
http://www.europa.eu.int/comm/competition/antitrust/legislation/#liberal. The link also provides access to the Commission staff working document which is part of the report. The Commission report of February 2004 is available at the same address.
2 The free provision of lawyers services was recognised and has been governed by Directive 77/249 since 1977 (Directive
n77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services). Then, through the application of the 1988 Diploma Directive, the integration of the migrant lawyer was organised in the Community (Directive n89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years duration). Finally, the right for lawyers to establish in another Member State was recognised by Directive 98/5 in 1998 (Directive n98/5/EC of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained).
3 In Germany, e.g. the reform of the statute on lawyers tariff system referred to in the Commission progress report was realized on the basis of discussions between the professional bodies with the government. Furthermore, the so called Regulations assembly (Satzungsversammlung) continuously concretises and adapts the statutory provisions of lawyers within the powers conferred to it. France has carried out on its own initiative a review of its advertising regulations, amongst other rules of professional conduct. A new decree on the rules of the profession was published on 12 July 2005.
4 The CCBE comments to the Commission report of February 2004 are available at the following website address:
http://www.ccbe.org/doc/En/competition_legal_critique_300604_en.pdf. The CCBEs critique of the IHS study which is referred to in the paper is available at the following website address: http://www.ccbe.org/doc/En/rbb_ihs_critique_en.pdf.
5 Case C-309/99, Wouters, Savelbergh, Price Waterhouse Belastingadviseurs v. Algemene Raad van de Nederlandse Orde van Advocaten, [2002] ECR I-1577.
6 Wouters, para. 108.
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* Specialised Intellectual Property Courts and Tribunals
| The German Approach in Patent Matters |  |
at the International Bar Association Annual Conference in Chicago, 20 September 2006
by Dr. Klaus Grabinski
Presiding Judge, Dsseldorf District Court
I. Court System
1) Strict division of court competence for infringement and validity.
Infringement courts have to accept the patent as granted or amended or partially nullified in opposition or nullity proceedings.
2) Infringement Courts:
District Court (Landgericht)
Court of Appeal (Oberlandesgericht)
Federal Supreme Court, 10th Civil Senate (Bundesgerichtshof, X.
Zivilsenat)
Only12 District Courts (roughly 1 District Court in each of the States) are competent to hear patent infringement cases
Most frequented District Courts are those of Dsseldorf (about 50
% of all patent infringement cases), Mannheim and Munich.
In 2005 more than 500 lawsuits in patent matters were lodged before the Dsseldorf District Court.
Judges at the Infringement Courts have a legal background and only occasionaly a technical background. At the more frequented courts, however, they are experienced in dealing with technical matters.
3) Validity Courts
Federal Patent Court (Bundespatentgericht)
Federal Supreme Court, 10th Civil Senate (Bundesgerichtshof,
10th Zivilsenat)
The Nullity Devisions (Nullity Senates) of the Ferderal Patent Court are composed of 2 judges with a legal and 3 judges with a technical background in the technology of the case.
The technical judges are mainly former examiners of the German Patent- and Trademark Office.
II. Proceedings before the District Court
the Dsseldorf example
Formal oral hearing about 1 to 2 months after service upon defendent (terms for the briefs and date of the main oral hearing are set, etc.)
Written preparation: Each of the parties files two briefs (including the writ of complaint), which are supposed to deal with all problems of the case in order to prepare the main oral hearing.
Prepared Judges: Judges read all briefs and discuss the case before the main oral hearing .
In the main oral hearing the presiding judge gives an introduction to the facts and the main legal implications of the case followed by councels pleadings.
Duration of the main oral hearing in an average case: about 1 hour.
About 3 to 5 weeks after the main oral hearing a decision is handed down.
The decision can be:
A judgement (about 80% of all cases)
A decision to take evidence (about 10 % of all cases)
A decision to stay the proceedings with regard to a pending opposition or nullity proceeding (about 10 % of all cases)
Duration of an average patent infringement litigation
before the District Court with no decision to take evidence or to stay: about 10 12 months after service upon defendent.
In very complex cases (difficult technology, several patents, etc.) the duration can extend to 1 year.
Duration of a patent infringement proceeding when expert evidence is taken: 2 3 years
III. Costs
There is a statutory fee regimen in Germany.
Parties are free to agree upon lawyers and patent attorneys fees higher than the statutory fees by written contract.
The court awards necessary legal costs to the losing party. This includes court costs and reimbursement of lawyers and patent attorneys statutory fees.
Court costs and statutory lawyers and patent attorneys fees are listed in a schedule based on the value oflitigation.
Costs and fees are an irregularly decreasing percentage of
the value of litigation.
Example: Total costs of a proceeding before the District
Court (first instance):
value of litigation: 1.000.000 Euro
court costs: about 13.400 Euro (if the action is withdrawn or settled: reduction to 1/3).
lawyers fees (one party represented): about 13.100 Euro (incl. VAT)
patent attorneys fees (one party represented): about 13.100 Euro (incl. VAT)
expenses are not included
lawyers and patent attorneys fees for pretrial representation (e.g. warning letter) are only in part included
if evidence is taken: costs of an expert opinion (usually in the range of 5.000 - 10.000 Euro but can be much higher in a difficult field of technology) or for witnesses have to be added
Result:
For a value of litigation of 1.000.000 Euro with only one plaintiff and one defendant the total cost risk of a first instance proceeding amounts to approx.
70.000 - 80.000 Euro.
IV. Claim to Inspection
German law does not provide discovery proceedings or saisie contrefaon proceedings.
However, sec. 809 German Civil Code provides a claim to inspect a thing in order to ascertain whether a claim against the possessor of the thing is justified.
It is established law that sec. 809 is applicable in IP infringement cases.
According to a decision of the Federal Supreme Court from 1985 (IIC 1987, p. 108 - Pressure beam) the claim to inspection requires a substantial degree of probability of a patent infringement.
With regard to Art. 43 and 50 of the TRIPS Agreement the Federal Supreme Court took a less restrictive view in a 2002 decision concerning a copyright infringement (IIC 2003, p. 331 - faxcard).
Persuant to the faxcard-decision the court has to weigh the interests of both parties and consider in particular:
whether an infringement is probable (a substantial degree of probability is no longer mandatory),
whether the creditor has other reasonable means of proving the infringement of his rights,
whether the debtor has a justified interest in secrecy,
whether an impairment of the debtors justified interests in secrecy can be circumvented by the intervention of a third person (e.g. neutral expert) obliged to secrecy.
This approach from the faxcard-decision is also applicable in patent infringement cases.
Directive 2004/48/EC (enforcement directive) provides in Art. 7 measures for preserving evidence. The Directive has not yet been implemented in German national law.
V. Community/European Patent Court
Community Patent Court
1975 Community Patent Convention, not enacted
1989 Community Patent Convention, not enacted
2000 Commission Proposal on Community Patent Regulation
3 March 2003 Council Common Political Approach on the Community Patent:
Establishment of a centralized Community Patent Court
Specialized judges
Technical experts
Language of proceeding ist the language of the state where defendant domiciled
2005 Consultation initiated by the Commission
12. July 2006 Commissioner McCreevy at a public hearing on
future patent policy in Europe:
A vast majority of you stakeholders do not find the proposed
language regime, as well as the jurisdicitonal arrangements,
satisfactory. ... I will go for one big, last push on the Community
Patent. I still have to decide when the time is ripe.
http://europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/
06/453&fo
Draft European Patent Litigation Agreement
1999 EPC Member States set up a Working Party on litigation concerning European patents
19 20 November 2003 last meeting of the Working Party at which was adopted:
Draft Agreement on the establishment of a European Patent litigation system
Draft Statute of the European Patent Court
Main features of the European Patent Court:
Facultative Agreement for Contracting states.
Court of First Instance comprising:
Central Devision (language of proceedings before the EPO)
Regional Devisions (official language of the EPO, that is the official or one of the official languages of the State where the Regional Devision is located or that has been designated by that State).
Court of Appeal (language of the first instance proceedings)
Cases will be heard by panels of an odd number of judges of which at least two are legally qualified judges and one is a technically qualified judge; the legally qualified judges shall be at least from two different nationalities.
Up to now the European Commission did not participate in the
EPLA initiative.
However, on 12 July 2006 Commissionar McCreevy said:
The European Patent Litigation Agreement is seen as a
promising route towards more unitary jurisdiction. Therefore, I
will ask my services to explore the possibilities of moving this project forward. However, you should be aware that there are some institutional hurdles to be tackled if the Community is to become involved in the EPLA initiative. Furthermore, stakeholders differ on the degree of centralisation or the nature of the local first instance courts.
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* Solicitor and strategic communications
Chicago September 19th 2006
Session on advertising and naming clients
Notes from Sue Stapely, Solicitor and strategic communications
consultant with Sue Stapely Consulting and with Quiller
Consultants
Why advertise? Most clients regard it as sleazy when lawyers
advertise their services.
- In the US and the UK lawyers have a tarnished image and in both countries this has been further degraded by ambulance-chasing ads for personal injury work. Why make matters worse?
But Burkey Belser, whose ad agency in DC ha worked with more than 200 law firms just says, Were letting a little air in.
Richard Levick who handles the PR for more law firms than any other US-based consultants says robustly: Dont be so precious about the clients. Commercial clients all understand advertising and use it. The only people in this room who havent been to business school will be the lawyers. If lawyers were really so concerned about ethics the most recently cited argument against advertising by law firms they would dispense with chargeable hours and the relentless pursuit of being the biggest and best law firms.
Research by Levick Strategic Communications shows that lawyers sell their services the way they themselves buy services.
- 37% use word of mouth
- 13% use newsletters and updates
- 12% use the media/PR/editorial
- 12% use seminars and conferences
- 8% call or visit or invite clients to do so
- 6% use directories
- 4% use brochures
- 2% use formal referral services
- 2% obtain referrals from the Bar
- 2% get work from competitors who are conflicted out
What are you trying to achieve by marketing your practice?
- more work, more clients?
- bigger, better work and bigger, better clients?
- to attract laterals and trainees?
- to build or preserve your profile in the marketplace?
- to madden your competitors
- to reassure your existing clients and referrers?
- to follow the herd?
Who are you trying to talk to?
- General Counsel/Heads of Legal, the sophisticated commercial client?
- the nervous, unsophisticated private client?
- those in your community who refer clients to you
Reality check: where does your work come from?
Do a client base audit, so you really know what works and what doesnt at present? When did your firm last get any worthwhile business from an ad in Yellow Pages?
Why do your clients stay? Why do they leave?
Do some client loyalty research.
Who really knows your firms name?
Do some perception research take the market pulse.
Advertising as part of the marketing mix:
A short analysis of the various marketing tools and tactics available to lawyers and law firms and their respective merits
- naming, branding and design
- the directories
- web-based solutions
- direct mail
- public relations
- corporate hospitality
- advertising
- networking
- training your team to be marketers
- using professionals wisely
- maximising the experience premises and front of house
- follow up
- client relationship management Initially, a law firms letterhead was all there was by way of advertising, together with the sign outside the office. Then came sober print ads, then late night spiels. Its been quite a jump to Brobeck, Phelger & Harrisons 2001 television ads on CNN of a horde of lemmings jumping off a cliff, hampered by their lack of counsel, or the one with the giant hand reaching down from the sky bringing miraculous assistance. That firm had 950 lawyers and spent $3.5m on its campaign.
Letterhead
Make it work for you. In 2003 89% of clients had noticed law firms letterhead. In 1991 it was only 54%. When my company designed a sleek big cat as the first law firm logo
in the UK, for Osborne Clarke, it generated enormous interest and speculation. The clients loved it and one even sent a weeks supply of cat food. The design press featured the branding exercise and a modest West of England firms profile rose disproportionately as a direct result of attracting unprecedented media interest.
The cost of advertising the large firm solution: only do it if you have a lot of money. Decide what you think is a lot and quadruple it to get a proper idea of what you need to spend.
The types of advertising:
o national
o local
o television
o radio
o print
o flyers
o outdoor (billboards)
o transport-related (tubes, buses)
No law firms advertise as they should. The budgets in law firms for advertising are always inadequate: law firms on average spend 3% of their budget on advertising; their
commercial clients spend on average 15% - the unrealistic expectations put on marketing directors by law firms only prepared to commit this sort of spend explain why so many of
them are under stress and the turnover is so high.
Think of global brands and how they are promoted Coca Cola is a marketing company not a product company.
In those jurisdictions where advertising by law firms hasnt started, or where no firm has yet named its clients in an advertisement, all the benefits will accrue to the first firm to do it. E.g. In 1991 Howrey & Simon mounted the first advertising campaign here (in the US), The Human Side of Genius.
Remember the ad, One Whale Per Week, reminding us of this story: A young man wrote to Mark Twain. He said he heard that eating fish stimulated the brain and could help him
become a successful writer. He asked Twain if he thought this was true. Twain replied that he had heard about the theory, and perhaps it might work. In your case, however, wrote Twain, if your lengthy letter is representative of your literary skill, may I suggest you get started right away. I recommend you begin with one whale a week. This ad got cut price rates in the American Lawyer and two other journals as the publications saw the beginning of a valuable new market, the firm achieved acres of free additional editorial coverage, including comments about their enigmatic ads and commendations from other lawyers who saw them as groundbreakers. For about ten whole years this firm was seen as being innovative, creative and ahead of the field.
For the second firm to try it, there was half the interest and for the third half of that half interest and so on. It really pays to be first.
More and more firms are opting for limited liability partnerships, producing annual reports, disclosing their profit figures, if not the partners drawings and behaving like
corporates. They market themselves more like corporates too.
Orricks recent ad campaign was very similar to that of a financial services provider or a major global manufacturer.
Yet creativity abounds. Womble Carlyle had a lovely campaign with a bulldog logo to show the firms tenacity and photos of individual lawyers with their dogs, to show their human side, while flaunting the technical expertise of the firm. Eye-catching and different.
Differentiation is everything in law firm marketing.
In England the first Make A Will Week was mounted like a consumer campaign as the person responsible for this campaign, I will provide details. The public loved it. The
profession loathed it.
While commercial clients fully understand and accept that their law firms will want to market themselves aggressively, the private clients on the whole dislike it.
Advice: In the US where smaller firms have $20,000 to $30,000 to spend on an advertising campaign, dont use it on advertising. Use it on web optimisation. Hire clever web designers who really understand how those searching for information on the web operate. Research amongst your target client groups what key words they use when searching for services and service providers on the internet. Then design the
firms web landing pages to maximise on those words. When the firm gets editorial mentions, re-do this process so that the landing pages are reconfigured to include the newer key words. In 1991 a major law firm generated no business through its web site and electronic marketing. In 1998 it generated 63% of new business and in 2000 it was 77%.
38% of buyers search for legal services weekly or more on the internet.
69% search for industry expertise on the internet.
Those firms which can push information as well as waiting for clients to pull it, will win.
Public relations the next best thing:
Jones Day in 2002 had 1,800 media mentions. Sidley Austin had 1,600.
Baker & Mackenzie in Chicago achieved 1,600 media hits in 2002 against 1,500 in 2001.
Naming clients in advertisements and other marketing materials
Naming clients: is it the limit of your creativity to say we act for Proctor & Gamble in that $5m deal or we secured 2m for this private client, or were handling Paul McCartneys divorce?
Be very clear about the rules. In the UK check the Law Societys Publicity Code (set out in full in Media Relations for Lawyers by Sue Stapely, published by the Law Society and available from amazon.com and others; a further draft code is being finalised to cover LLPs and the internet).
Rule 7 of the Code of Conduct for Solicitors in England and Wales: covers
o Misleading or inaccurate publicity
o Clarity as to charges
o International aspects of publicity
o Responsibility for publicity
o Letterhead
o The identity of the lawyer
o The geographical scope of the rule
o Local law society involvement in dealing with minor breaches
o Statutory requirements and voluntary codes
o Commission from third parties
o Fees for conveyancing services
o Discounts and free services
o Name of the firm
o E-commerce, e-mail and websites
o Unsolicited e-mails
o Mailshots
o Financial promotions
o Data protection
o Naming non-partners
o Salaried partners
o Partners in an LLP
o Naming staff
o Naming clients *
o Fee-earner leaving a firm.
* The fact that you have acted for a client and details of the clients transactions are subject to the duty of confidentiality see Rule 4 (confidentiality and disclosure) and you will therefore normally need the clients consent before disclosing such information in any publicity.
In every case it is essential to ensure not just that the client to be named consents to their name being used, but is comfortable with the way in which it will be used.
Very different rules operate in different jurisdictions - dont forget that advertisements can cross boundaries and need to be very carefully created not to transgress the rules.
For more information see Media Relations for Lawyers
by Sue Stapely published by the Law Society of England and Wales
Available from law.society@marston.co.uk
www.amazon.co.uk, or www.hammickslegal.co.uk
Sue Stapely
www.suestapely.com
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