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The Practice: When Nothing’s Working

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There’s no lack of advice these days about what lawyers should be doing to get clients or run their practices. And you take it. You take the advice of the former lawyers with no clients or practices, or the perennial failures who understand that lawyers are gullible when it comes to advice about making money. But still, you take it, or God forbid, pay for it.

So you create a Facebook Fan Page for your law firm and ask everyone to “like” your page. You go on LinkedIn and join groups. You go on Avvo.com and ask lawyers to endorse you. Your website is “awesome” and you’ve got an e-mail newsletter campaign going. Offline, you do the Bar association networking circuit. You’ve met some people for lunch, and you even had an article published. By the way, you’re also a good lawyer and have some happy clients.

But the phone isn’t ringing, or isn’t ringing enough. You get to the point of frustration, and start thinking of discontinuing part of your marketing, or worse, closing your practice.

Let’s be honest, some of you won’t make it. You’re decent lawyers but have no business sense. Some lawyers need to work for someone else. That’s why we have Biglaw, so really smart people with no ability to make a buck on their own can pretend they are superior.

Let’s say though that quitting is not an option, but neither is continuing on this path. You’re just trying to figure out which of the half-dozen things you’re doing is worth continuing, and what else you need to do.

So I’ll take a stab at it. My apologies for being a lawyer with clients and a practice, as I know I’m not the typical guru selling you on the dream….

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Everyone’s Freaking Out Over Instagram’s New Money Filter

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Instagram is adding a monetization filter to its precious photo-sharing service. In a change to its privacy policy that has everyone in my Twitter feed freaking out, Instagram has given itself the right to lease users’ names, likenesses, and photos out to advertisers. That means the Kelvin-filtered photo of your polished finger nails might wind up being used by the responsible salon; or that the craft cocktail bar where you Hefe-filtered your Chewbacca Jacuzzi may throw it into an ad; or that the vintage market where you Walden-filtered that top-hat-wearing boar’s head might pay to promote it.

The change comes on the heels of corporate owner Facebook giving itself the right to dip into the data Instagram has on its users, which means Instagram’s photos will start being fed into Facebook’s well-oiled advertising platform.

“Dear @instagram @facebook – You have the right to run your business as you choose. But screw you,” tweeted one privacy advocate.

Here are the offending terms of the new Instagram terms of use:

[Y]ou hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, except that you can control who can view certain of your Content and activities on the Service…

In other words, Instagram recognizes that it shouldn’t screw over users who have private accounts by using their photos in ads aimed at the general public (though they can put them in ads aimed at your friends).

But will Instagram screw over its users anyway?

Continue reading at Forbes….

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SEC’s Netflix Probe Is No Blockbuster

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Last week, Netflix announced that it received a Wells notice from the SEC. Apparently, while the SEC was cruising Facebook (what else is there to do while neglecting to investigate Wall Street?), someone noticed Netflix CEO Reed Hastings posting that Netflix had surpassed one billion hours of streaming old episodes of Facts of Life to shut ins.

The SEC staff thinks Hastings disclosed material information in this Facebook post, possibly violating Reg FD, the 2000 regulation that put a stop to companies giving an advantage to small subsets of investors by disclosing material information between blowing rails of coke off strippers.

But Facebook isn’t a seedy strip club full of free drugs and prostitutes (read: Christian Mingle). Reed Hastings has over 200,000 “fans,” many of whom are analysts and reporters. In pursuing enforcement without exercising a little discretion, the SEC ignores these facts.

Netflix is arguing that the disclosure was not material and that most investors knew that the CEO’s Facebook page is recognized as an avenue for public disclosure.

Regardless of the specific resolution of this matter, this is one more reminder that the SEC is woefully behind when it comes to adapting to technological developments. Like, oh I don’t know, HFT perhaps?

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Morning Docket: 12.07.12

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* “Did the imperative use of the F-bomb … threaten judicial authority?” Wow, seriously? This is perhaps the most entertaining question presented for review in a Supreme Court certiorari petition in the history of man. [National Law Journal]

* Boy, Dewey have some expensive paintings for you to buy! This failed firm’s art collection will be hitting the auction block in February, and the entire LeBoeuf lot is supposedly worth $2.3M, but most pieces are pretty damn ugly. [WSJ Law Blog (sub. req.)]

* When anonymous commenting goes wronger-er: Jim Letten, U.S. Attorney for the Eastern District of Louisiana, has resigned amid the scandal caused by his underlings’ obnoxious comments. [Times-Picayune]

* Your employers really don’t want pictures of your office holiday party antics going viral online (but we do). Here are some of the many ways they’ll try to keep you from becoming internet famous. [Corporate Counsel]

* George Zimmerman, the man accused of killing Trayvon Martin, is suing NBCUniversal, alleging that the network and Today show reporters committed serious “journalistic crimes.” [Media Decoder / New York Times]

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The Practice: The Future of Law Is Officially a Joke

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There is a notion (held mostly by the unemployed and unhappy people in the comments section) that I may be the only person writing about the possibility that the internet and those that “sell” the internet to lawyers, as well as this notion of “branding” and spending your day reading self-fulfilling predictions on “the future of law” from the losers of our profession is, well, maybe not the be-all and end-all in the practice of law.

Sometimes I think maybe I’m wrong (no I don’t). Maybe the goal of all lawyers should be to be first on Google, maybe these LinkedIn endorsements will result in something, anything. Maybe I do need to pay some 28-year-old former fired lawyer to teach me how to use the internet. Maybe I’m not using Facebook in a way that will get high-net-worth clients calling my office every day. Maybe instead of building a practice by doing well for clients, I need to be a brand like Coca-Cola or Amazon.com.

There’s a reason all these future-of-law people have an effect on lawyers: lawyers want to make money. Lawyers want to believe. We want to continue to hope that what we convinced ourselves of is true — that a law degree is a ticket to wealth and fame. If it’s not happening for us, we will seek out those that say we’re doing it wrong, and for a fee, they can make everything peachy….

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Tweet of the Day: Ask Your Co-Author, Justice Scalia; He’s an Expert on Benchslaps!

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Bryan Garner

How old is “bench slap”? Should I put it in Black’s Law Dictionary? How would you define it?

– Legal writing guru Bryan Garner, editor of Black’s Law Dictionary and co-author (with Justice Scalia) of Reading Law (affiliate links), asking on Twitter about a possible addition to Black’s.

(Information about the origins of “benchslap,” after the jump.)

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Facebook Laughs as Peon Users Attempt to Reclaim Their Privacy and Copyright Interests

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By now, we’re sure you’ve seen the ridiculous copyright notices that have been popping up on Facebook status updates left and right — and if you haven’t, then perhaps your friends are simply more intelligent than the masses who’ve been fooled into believing they can override the social media giant’s terms of use.

We’ll put this simply to avoid further confusion: stringing together nonsensical bits of pseudo-legalese cannot save you from succumbing to the rules and regulations of the Facebook gods. On the other hand, stringing together nonsensical bits of pseudo-legalese is sometimes what law blogging is all about, so we’ll help our readers debunk the myths of privacy and intellectual property rights on Facebook.

Aww, you thought Facebook couldn’t use all the things you posted on the site because of your privacy settings? Well, isn’t that just precious….

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Truth Is Not A Defense On Twitter
(Or, why Phill Kline is a total tool.)

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I was born and raised in Kansas. No big whoop. That state is where I took my first dump, drank my first beer, and felt my first boob. So, y’know, lotta fine memories. It’s where I first embraced my own mediocrity, never rising above third chair in a middle school band that had four trumpets. I have stories in which hay bales feature prominently. The town I was born in, Manhattan, is nicknamed the Little Apple. The more cosmopolitan among us always get a kick out of that last one.

Yesterday, a research attorney for a Kansas Court of Appeals judge was fired for tweeting the sentiment you see in the headline above these words. She was fired for getting all fired up and telling the world what she thought about one of the more irksome characters to pass through Kansas jurisprudence in the past many years. Sarah Peterson Herr, the lady who was fired yesterday for the tweets, learned an invaluable life lesson. Namely, that truth is almost never a defense. That you cannot, and probably should not, speak the truth whenever the mood strikes.

Even if it is about a man who doesn’t know how to spell his own first name…

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(Or, why Phill Kline is a total tool.)”

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Moonlighting: #Twitter and Lawyers in 140 Characters or More

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It’s annoying when people talk about stuff they know little about. (Unless it’s on a law blog, in which case this is assumed.) Take Twitter. Most people I know who’ve decided that Twitter is a waste of time have either never used it or tried it out briefly and given up. It’s particularly annoying when you’re attending a social media CLE and one of the panelists says, “I don’t get Twitter.” I’ve seen this happen more than once and automatically think, “And I’m listening to you why…?”

Twitter is partly to blame for this. The site launched eight years ago with a prompt for users to answer the question, “What are you doing?” This led to the assumption that users would post stuff like they just had a soup and sandwich for lunch. As if any of us would care. Twitter has since updated the question to “What’s happening?” which is a more accurate reflection of the variety of content that’s actually shared on Twitter.

I’m one of those people who created a Twitter account some time ago and promptly forgot about its existence. Then, about two years ago, I decided to try Twitter out in earnest for two reasons: one that was related to work and the other that was much more selfish….

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Non-Sequiturs: 11.08.12

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Say goodbye to your security deposit…

* If Twitter reset your password yesterday, don’t worry. Looks like someone at the company just had an itchy trigger-slash-reply-all finger. [Consumerist]

* A disbarred Dallas attorney ended up in jail for allegedly trashing his office and drawing penises all over the walls when he got evicted last month. Apparently he’s also been watching too much Workaholics recently. [Dallas News]

* The Electronic Frontier Foundation has filed a lawsuit on behalf of registered sex offenders, hoping to block a new California law that allegedly curtails their internet rights. It’s a dirty job, but someone’s gotta do it. [Wired / Threat Level]

* Social networks: the newest part of George Zimmerman’s defense team? [New York Times]

* A useful new tool to help law firms in recruiting and placing laterals. [Attorney Search Group]

* Jared Loughner, who shot Rep. Gabrielle Giffords last year, was sentenced to life in prison without parole today. Here’s what Rep. Giffords and her husband had to say to him. [Althouse]

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