Much has been written about the skill of making rain, that is, generating revenue for your law firm. For most attorneys, “rainmaker” is a much sought-after title, since the more rain they make, the more valuable they become and the higher their compensation will be.
Most advice on rainmaking focuses on the how-to: joining various organizations, networking, developing personal relationships with your clients and the like. But that approach tends to lose sight of the fact that making rain, like practicing law, should be governed by a set of ethical principles.
In fact, the “Ethics of Rainmaking,” though not set forth in the Rules of Professional Conduct or court rules, are implied from the rules of honesty, fairness and respect that are inherent in relationships between attorneys.
The Ethics of Rainmaking do not typically apply to solo practitioners who generate their own clients, handle the work and develop relationships with their own clients. Instead, the Ethics of Rainmaking apply to attorneys in any law firm where two or more attorneys practice law together and the rain that is generated by one attorney is cultivated by other attorneys.
Before we discuss the rules, let’s define some terms. The attorney who brings the client into the firm is the “originating attorney.” The client’s legal business is the “origination.” The attorney who works on the case and helps cultivate the relationship with the client is called the “responsible attorney.”
Here are some rules for responsible attorneys:
1. Don’t “steal” a client from the originating attorney in your firm. Some responsible attorneys believe that once they start representing a client, the client becomes their client or becomes fair game for their personal marketing efforts.
Not true. The client remains the client of the originating attorney until the originating attorney offers to share the origination with the responsible attorney or the responsible attorney asks the originating attorney to share the origination and the latter consents or makes some other relevant arrangement.
The idea is not to steal the origination, but rather to earn the right to share the origination, depending on the effort made to cultivate the client’s legal business; the length of time the responsible attorney has been interacting with the client and handling the client’s legal matters; the relationship with the client; the client’s affinity with the responsible attorney, and other factors.
2. Don’t wine and dine a client whom you did not originate behind the back of the originating attorney. There may be times — such as before a deposition, during a trial or at a closing — that having a meal or a drink with a client is necessary. But doing so for the purpose of wrestling the client from another attorney in your firm is inappropriate. If you handle a matter for one of the originating attorney’s clients and then, months after the matter is over, you invite the client to lunch, without telling or inviting the originating attorney, and then proceed to ask the client for more business, this is a clear violation of the Ethics of Rainmaking.
3. Don’t ask a client whom you did not originate to contact you, instead of the originating attorney, if he or she needs an attorney in the future. When the originating attorney finds out that you did so, he or she will no longer trust you. Moreover, the client might sense that you are being disloyal to the originating attorney and might tell the originating attorney or take his or her legal work to another firm.
4. If the client contacts you with more legal work, suggest that the client contact the originating attorney and let the originating attorney know immediately. Alternatively, obtain details about the nature of the new matter from the client and let the originating attorney know immediately. Doing so will build trust and rapport between you and the originating attorney and will add strength to your argument that the originating attorney should share future originations from this client with you.
5. If the client invites you to a social event, dinner or golf outing, let the originating attorney know immediately. Consider asking the client if the originating attorney has also been invited. This will make it clear to the client that you consider the originating attorney to be part of the client’s legal team. It will also build more trust and respect between the originating attorney and you.
6. Communicate with the originating attorney concerning not only the case’s status but also any actions by the client, or by you, that might violate these rules. For example, let the originating attorney know that oral argument on a motion for summary judgment went well and that afterwards, you had lunch with the client.
As for originating attorneys:
If you are the originating attorney and if the responsible attorney has been instrumental in cultivating the client’s business (and has followed the rules discussed above), offer to share the origination of future business with that attorney. Go out of your way to thank the responsible attorney, not only for his or her efforts in cultivating the business, but also for his or her knowledge and adherence to the Ethics of Rainmaking.
More than 100 years after his death, Abraham Lincoln is still known as “Honest Abe.” Honoring the rules of honesty, fairness and respect inherent in relationships between attorneys might not earn you a place in American history, but it will earn you a valuable reputation at your firm and among the bar.
Jeffrey W. Pompeo is of counsel to DiFrancesco Bateman Coley Yospin Kunzman Davis & Lehrer in Warren, N.J., concentrating in estate planning, estate administration, litigation, contract law and representation of nonprofit organizations.
This article first appeared in the New Jersey Law Journal, a Legal affiliate. •