So you're not the best attorney in your field. You didn't finish first in your class. You're not the best presenter, writer, or negotiator.

You're just you, someone who loves being a lawyer and helping people.

And you know what? That's enough.

You don't have to be the best to have a very satisfying and rewarding career. In the long run, your passion for what you do will attract everything you need. You can learn what you need to know and get better at what you do.

But you must be willing to grow.

Unfortunately, many lawyers stop growing the day they receive their license. The got school "out of the way" and then switched gears to focus on building a career.

Oh they go through the motions of continuing their education but mostly because they have to, not because they want to. Soon they find themselves in a rut, a career rut where billable hours and overhead and moving up the ladder are job one. In time, many such lawyers find themselves dissatisfied with their careers, but often they don't know why.

It's because they've stopped growing.

Charles Darwin said, "It is not the strongest of the species that survives, nor the most intelligent. It is the one that is most adaptable to change." Lawyers who stop learning stop adapting to the changes around them. If they're not careful, they'll find themselves on the endangered species list.

Learning and growth aren't limited to the law, however. There is much more to being a lawyer. You need to learn marketing. You need to understand human psychology. You should be able to read a balance sheet. And much more.

I heard someone say (on LinkedIn, I think) that it's no longer acceptable for an attorney to say they are "computer illiterate". Yet many attorneys are functionally so. Yes, you can hire people to do what you don't want to do, but in the wired world we live in today, someone who refuses to learn some basic computer skills might as well waive a white flag and call it a day.

Never stop learning. Never stop growing. Never stop adapting to the changes around you. That's how you will survive in this jungle.

Oh what fun, lawyers (and their clients) have new regs to comply with and new exposure if they don't. Civil damages, administrative penalties, and even criminal charges are possible under these new rules. But this emerging field also provides new marketing opportunities. You can advise (and bill), you can represent damaged parties, and you can defend parties charged with failure to comply. And, if you practice in any related field, you can attract new business by speaking and writing about these new regulations. You can also earn profits beyond your legal fees by offering non-legal identity theft protection to your clients and their employees. I work with many attorneys who do this and the income is not only substantial, it is residual. If you're interested in learning more, send me a personal message. dw

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By Susan D. Oja and Alex De Grand

April 1, 2009 — Lawyers who bill their clients after services have been rendered are expected to implement a written program guarding against the theft of their employees' and clients' personal information under a new federal law.

The Federal Trade Commission will begin enforcement of the "red flags rule" on May 1. The rule is part of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), a congressional response to spikes in reported identity theft. Identity thieves assume a person's entire identity or synthesize one from parts of various victims. Because more than half of identity thefts occur in the workplace, businesses are required to implement safeguards.

Those subject to the rule are "creditors" and financial institutions who maintain consumer-type accounts or other accounts at reasonable risk of identity theft. The FTC noted that identity thieves look for opportunities to obtain products or services that do not require payment up-front.

As interpreted by the FTC, "creditors" has a broad definition, encompassing professionals such as lawyers and doctors who defer payment of a client's bill. The American Medical Association protested that other federal laws and professional ethical duties to maintain patient confidentiality precluded the new rule. But the FTC held in a letter that the statute borrows the sweeping definition of "creditor" from the Equal Credit Opportunity Act (ECOA). Agency interpretation of the ECOA specifically includes doctors and lawyers within the meaning of "creditor."

What is expected

Under the new rule, lawyers must implement a written policy specifying how they will watch for the warning signs — the "red flags" — that indicate an identity theft may be occurring and how they will respond to prevent or mitigate the crime if uncovered.

Policies are supposed to be tailored to the amount of risk. The FTC acknowledges there is no bright-line rule to distinguish between high and low-risk. But the rule suggests a lawyer consider such factors as how easily an account is opened or accessed and previous experience with identity theft.

If a lawyer finds there is little risk, an appropriate program might comprise no more than checking photo id at the time services are sought and a policy against collecting from an identity theft victim or reporting it on the victim's credit report.

In its letter to the AMA, the FTC stated that it does not foresee the new rule imposing a great burden. "For example, a small medical practice with a well-known, limited patient base might have a lower risk of identity theft, and thus might adopt a more limited Program than a clinic in a large metropolitan setting that sees a high volume of patients," the letter read.

What to watch for

The Appendix of the "red flags rule" provides examples of incidents putting a creditor lawyer on notice of potential identity theft. In addition to fraud alerts from consumer credit agencies or the client's complaint, this list includes suspicious documents, perhaps altered or forged. A creditor lawyer may receive fishy personal information such as an unexpected change of address. Creditor lawyers are also directed to look for unusual use of an account.

A creditor lawyer's policy should address the detection of "red flags" at the time an account is opened by obtaining identifying information about the new client and verifying it, the rule instructs.

What to do

Responses to "red flags" should be in proportion to the risk posed and a creditor lawyer is advised to consider any "aggravating factors" such as a data security breach that may exacerbate the threat. The rule Appendix suggests appropriate responses could be alerting law enforcement, monitoring the account for evidence of identity theft, changing passwords or other security devices controlling account access, reopening an account with a new account number, or closing an account. Under certain circumstances, the rule states that a creditor lawyer may determine no response is necessary.

These written policies should be updated periodically to account for changes in risks to clients' information or innovations in detection of identity theft. A subsequent merger, acquisition, joint venture, or service provider arrangement may also prompt the need for an updated written policy.

The rule also requires appointing a senior management person to implement the program; appropriately educating employees; and overseeing any service provider arrangements. Liability follows a creditor lawyer's data, so due diligence is necessary to confirm vendor compliance before outsourcing payroll or hiring an office cleaning company.

More information from the FTC: The Red Flags Rules: Are you complying with new requirements for fighting identity theft?

Susan D. Oja, a solo practitioner in Middleton, is a certified identity theft risk management specialist through the Institute of Fraud Risk Management. Alex De Grand is a legal writer for the State Bar of Wisconsin.

Kiyosaki (see previous post) says leverage is "doing more and more with less and less". One way to accomplish this is by making the time you spend in Continuing Legal Education do "double duty" for you, as the following letter from one of our subscribers attests:

"I then added a quick blurb about how this is precisely what we do proactively for our business clients to keep them on the cutting edge of their field.
   
"This practice keeps me alert to my client's needs, motivates me to stay on top of "hands-on" CLE information, and lets the client know about my concern, competency and desire to excel."

"91% of Lawyers Unhappy about Lack of Marketing Training in Law School," says the headline of a report of a recent poll. "We must have struck a nerve because the responses were overwhelming and many lawyers even took the time to make pointed comments," said Daniel Guttman, MBA, principal in the firm that conducted the poll.

And while we're comparing notes, tell me if your state (province, jurisdiction) allows you to earn continuing legal education credits for classes in marketing. Last time I checked, most jurisdictions allow credit for ethics and certain law office management topics, but not marketing.

I taught myself how to market my services. I had to, to survive. At the time, there were very few resources available to attorneys who wanted to learn marketing and the practical side of running a law practice. There was Foonberg's book and little else. (That's why I wrote Referral Magic.)

In 1977, Bates vs. Arizona made it possible for attorneys to advertise, officially blessing the notion that the law is a business as well as a profession and suggesting that the "business of law" might be something we want attorneys to know. Unfortunately, I don't think much has changed since then, and this poll says most attorneys agree. Here's how the author summed up the results:

• 41% don't get good marketing results, don't know how to market or don't bother to do any marketing at all.
• 37% manage to just generate enough business for themselves.
• Only 22% of respondents consider themselves rainmakers

The article, along with lawyer comments and a link to the complete poll results can be found on this page.