April 2015 • Volume 103 • Number 4 • Page 44
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Pitching: Bring Your ‘A’ Game
There's nothing wrong with pitching yourself to a prospective client - as long as you keep key ethics rules in mind.
As the MLB 2015 season gets underway, let's talk about pitching. Ethical pitching to clients, that is.
We'll first assume your conversation is starting on the right side of the ethical line. The prospective client saw your advertisement, or a friend told them about you. Or an existing client is considering you for additional work.
Regardless of how the prospect ethically came to be in your office (or sitting across from you at lunch or standing next to you on the 16th or 19th hole), you have an opportunity to tell them about your skills and experience and how you can help them with their legal problem. But as you begin your windup, keep these three ethical fundamentals in mind.
First, RPC 7.1 (Communications Concerning a Lawyer's Services), dealing with all types of lawyer communications, provides broadly that your pitch must be truthful and not misleading. Comment  to the Rule highlights a couple of important areas.
Do not create unjustified expectations on the part of your client about what you can do for them. This is particularly important where the outcome is not totally within your control, such as litigation or petitioning a governmental body. Do not sell a particular result. Keep your thoughts on the time tested phrase from a different profession, "past performance does not guarantee future results," and make sure the client hears it.
Also, by focusing on your skills, abilities, and legal judgment apart from specific results, you will be prepared for the inevitable question from the prospective client (which new lawyers may fear - but don't have to): "Have you done this kind of case before?" If the answer is "no," sell your knowledge of the law, both substantive and procedural, but most importantly your legal judgment (built in part on your experience in similar or other matters, which you can refer to if you do so truthfully).
Comment  also directs you not to compare your services with that of another lawyer, unless it can be substantiated. This can be tempting in today's competitive legal marketplace. But disciplinary bodies routinely find such comparisons inherently misleading. Comparisons have also been found to undermine the public's confidence in the profession.
Beyond that, a prospective client may view your negative comments about other lawyers more as a reflection of your character than your competitor's. Be cautious.
Second, RPC 8.4 (Misconduct) addresses a critical but often overlooked issue that can come up when a prospective client's matter involves a tribunal or interaction with government bodies. RPC 8.4(e) provides that it is improper to "state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct."
This rule clearly prohibits any reference to direct means of influence, such as various kinds of payments. In re Gorecki, 208 Ill. 2d 350 (2003). But, as a recent federal case explains, this prohibition also extends to more ambiguous language, such as where a lawyer describes and implies a "special relationship" with a judge or decision-maker that might help secure favorable results. In re Reines, 771 F.3d 1326 (D.C. Cir. 2014).
In Reines, a lawyer was sanctioned for touting (via email) his special relationship with a judge. The court said the email improperly implied that the special relationship was an important factor that should be taken into account by prospective clients. See also In re Allen, 470 N.E.2d 1312 (Ind. 1984).
Nevertheless, this is a grey area. For instance, merely commenting that you have access to a government official may not be the same as implying an ability to influence that government official. In the Matter of C.J.W., 02-CH-59 (ARDC Review Board, Nov. 3, 2005) Administrator's petition for leave to file exceptions denied, M.R. 20663 (Mar. 20, 2006).
Like testing the edges of the ump's strike zone on a bases-loaded 3-2 count, mentioning your connections to decision-makers is risky. The consequences for guessing wrong are harsh.
Finally, RPC 1.5 (Fees) needs to be considered not only for its ethical requirements, but also to address what all prospective clients are probably wondering: what's this going to cost me? Although RPC 1.5(b) requires that the basis or rate of the fee be communicated "preferably in writing" before or not long after commencing the representation, you should make it part of your pitch. It provides necessary information, and it also makes it easier for a client to ask a question that he or she may feel uncomfortable asking. As such, it builds trust and rapport.
For both new and old lawyers, pitching can be tough. It takes focus and practice, and not every pitch will be a strike. Keeping in mind the above rules may help you pick up a win, but it will assuredly help you avoid an ethical balk.
Charles J. Northrup is the ISBA general counsel.