When lawyers engage in content marketing and publish thought-leadership marketing content, they must ensure that content does not conflict with the work they and their colleagues do for their clients.
Are you and your law firm running conflicts checks on your and your colleagues’ thought-leadership marketing content?
Yes, really, I am talking about running conflicts checks on your and your colleagues’ blog posts, bylined articles, and client alerts before they’re published.
If you are not running conflicts checks on this marketing content, you and your law firm run the risk of that content coming back to bite both of you in the rear in two distinct ways.
Admittedly, it is highly unlikely that a piece of thought-leadership marketing content will create a positional conflict under a jurisdiction’s rules of professional conduct. But that doesn’t mean your opposing counsel or their client won’t make that argument to a court.
Let’s back up for a moment.
A positional conflict arises if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s (or their law firm’s) effectiveness in representing another client in a different case.
A classic example of this is when Lawyer A makes a legal argument before an appellate court on behalf of Client A that is inconsistent with how Lawyer A’s colleague at their firm, Lawyer B, is arguing for another firm client, Client B, in a separate matter at a trial court that is bound by that appellate court’s decisions.
Obviously, if Lawyer A prevails at that appellate court, Lawyer B has a problem (if Clients A and B haven’t already given informed consent to their lawyers’ continued representation of them). That’s because Lawyer A’s action materially limited Lawyer B’s effectiveness in representing Client B in a different case from Client A’s.
You can read more about positional conflicts in Paragraph 24
of the Comment to Rule 1.7 of the American Bar Association’s Model Rules of Professional Conduct.
(You should of course check your local jurisdiction’s rules of professional conduct to see what they have to say about positional conflicts of interest. But chances are good that your jurisdiction’s rules will echo the ABA’s.)
So what does this have to do with thought-leadership marketing content?
If a law firm does not perform conflicts checks on its thought-leadership marketing content, Lawyer C could write a blog post or client alert advocating for Position X without realizing that their colleague Lawyer D is currently arguing the exact opposite of Position X on behalf of Client D before a trial court in an active lawsuit.
Rest assured that if Lawyer D’s opposing counsel or Client D’s adversary read Lawyer C’s blog post or client alert, they would consider asking the court or the official presiding over the proceeding to disqualify Lawyer D from representing Client D due to a purported conflict.
While this could cause a headache for Lawyer D and Client D, and perhaps some drama between them, this situation is unlikely to be considered a true positional conflict. That’s because Model Rule 1.7 (and maybe your jurisdiction’s equivalent) envisions positional conflicts arising only in litigation, stating that such a conflict exists when a “lawyer’s action on behalf of one client will materially limit the lawyer’s [or a colleague’s] effectiveness in representing another client in a different case.”
Because Lawyer C was merely writing thought-leadership marketing content and not taking “action on behalf of one client,” it is unlikely that Lawyer C’s blog post or client alert could trigger a positional conflict under the rules of professional conduct.
However, in a situation with the perfect set of facts, a court could hold that a piece of thought-leadership marketing content was “action on behalf of one client” if the author of the content was publishing the content in order to influence the Court of Public Opinion to get a better legal outcome for the client. But given the nature of most law firm thought-leadership marketing content, this particular situation seems unlikely.
Providing opposing counsel and adversaries with support for their arguments against you and your clients
The second way a failure to run conflicts checks on your firm’s thought-leadership marketing content could come back to bite you and your firm in the rear is by creating content that is cited by your or your colleagues’ opposing counsel in support of their clients’ legal positions against your firm’s clients.
Imagine how thrilled your firm’s clients would be to learn that you or your colleagues are creating marketing content that is inconsistent with the positions you or your colleagues are taking in those clients’ active lawsuits.
Now imagine how doubly thrilled they would be to learn about the existence of this marketing content by reading citations to it in court papers by their adversaries in support of the adversaries’ arguments.
This situation is not as severe as a positional conflict that runs afoul of your jurisdiction’s ethics rules. But this situation is both more likely to happen and more likely to impact your firm’s bottom line by potentially upsetting clients to the point that they fire your firm.
I’ve seen this situation happen firsthand. The law firm involved was lucky that its clients were not so upset that they fired the firm.
In the mid-2010s, lawyers in the employee benefits practice group at a large international law firm wrote a client alert about a recent U.S. Supreme Court case.
The lawyers’ analysis in the alert was not fully consistent with the arguments different lawyers at that same firm were making on behalf of the firm’s clients before the Second Circuit regarding a related issue.
The opposing parties in the Second Circuit case cited to the law firm’s client alert as a sword against the law firm’s clients in the case. Because the appeal was high-profile, there was a good chance that more people than normal were reading the briefs.
In this case, the citation did not move the needle as the firm’s clients prevailed in the appeal. And as far as I know, this situation did not cause a conflict of interest, nor did it cause a malpractice claim. But it was intensely embarrassing to the law firm to see its client alert used against its own clients in a federal appeal.
While it did not happen in this case, you could see how a client could be incensed by its own law firm taking a public stand in a blog post or client alert that is inconsistent with the legal arguments the firm is making on that client’s behalf in active litigation. Some clients could be so incensed that they end their relationship with their law firm over it.
Putting aside the positional conflict issue I described above, the potential for this particular situation to happen in your law firm is reason enough to consider conducting conflicts checks on your law firm’s thought-leadership marketing content.
Building a conflicts check system for your firm’s thought-leadership marketing content
By now it should be clear to you that if your law firm is of a certain size, it is worth conducting conflicts checks on the firm’s thought-leadership marketing content.
My recommendation is to create a pre-publication conflicts check system. This system will necessarily be different than a client conflicts check system because you will need to do more than reviewing your firm’s previous and current clients, adverse parties, etc.
Here’s one way to build that system.
First, you or your law firm deputizes a lawyer, paralegal, marketing professional, or another administrator to serve as the director of this process.
Then, whenever a lawyer contemplates writing marketing content concerning a particular legal development or topic, that lawyer notifies the director of their intent to write about that particular development/topic and provides a brief overview of what they intend to say about the development/topic.
Next, the director emails all lawyers at the law firm with a short message along the lines of:
John Smith wants to write a client alert about the recent Seventh Circuit decision, A.B. v. C.D. In the alert, John will argue that the court’s decision in the case means that lawyers arguing EFG will be facing an uphill battle from now on.
Does anyone in the firm currently have a pending case in the Seventh Circuit, its district courts, or elsewhere where they are arguing for EFG and/or whose case could otherwise be impacted by the A.B. v. C.D. decision?
If so, please contact John immediately to discuss your case and ensure that his planned client alert will not be inconsistent with your legal position(s) in your pending case(s).
If John does not hear from anyone within 24 hours, we will assume his client alert will not be inconsistent with any legal positions the firm is taking in pending client matters.
Finally, the director and the would-be author of the thought-leadership marketing content can make a decision, based on the responses to the email, whether to move forward with drafting and publishing the content.
While your law firm could tweak this process to fit its culture and structure, what’s important is building a process in the first place at your firm to conduct conflicts checks on its thought-leadership marketing content before it is published.
A necessity for law firms of a certain size
Realistically, if you are a solo practitioner or a lawyer at a small law firm, it is unlikely that you or your colleagues will be creating thought-leadership marketing content that conflicts with the work your firm does for its clients.
But at medium-sized and large law firms, especially those with diverse practices, it is conceivable that one lawyer’s blog post or client alert could be inconsistent with a colleague’s arguments on behalf of a client in a pending lawsuit.
While such an inconsistency may not rise to the level of a true positional conflict under the applicable rules of professional conduct, there is a chance that the inconsistency could lead to embarrassing citations and arguments by opposing counsel, a hit to the law firm’s reputation, and worst of all, unhappy clients who may soon become unhappy former clients.
Lawyers’ content marketing generally, and thought-leadership marketing content specifically, are meant to do good. They’re meant to inform the public about legal issues and legal topics. They’re meant to help you and your law firm bring in business and increase your revenues and profitability.
They’re not meant to cause problems.
But if your law firm does not have a conflicts check system in place for your thought-leadership marketing content, you and your firm run the risk of that thought-leadership marketing content shifting from helpful to harmful, and posing problems for your firm that you may never have previously contemplated.
Bottom line: When lawyers engage in content marketing and publish thought-leadership marketing content, they must ensure that content does not conflict with the work they and their colleagues do for their clients.
Wayne Pollock is the founder of Copo Strategies, a legal services and communications firm, and the Law Firm Editorial Service, a ghostwriting service for lawyers and their law firms. The Law Firm Editorial Service crafts BigLaw-quality lawyer-written thought-leadership marketing content for lawyers so that they can market themselves while staying billable.
Do you have any idea how much revenue your law firm is missing out on by its lawyers writing their own blog posts, bylined articles, and client alerts? Visit WriteLessBillMore.com for instant access to a free Law Firm Thought-Leadership Cost Calculator.