July 7, 2017 nº 1.882  - Vol. 14

"Success is not final. Failure is not fatal. It is the courage to continue that counts."

Winston Churchill

In today's Law Firm Marketing, "Teach prospects how to hire a lawyer so you increase credibility and attract more new clients".

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Read Migalhas LatinoAmérica in Spanish every Tuesday and Thursday. Visit the website at www.migalhas.com/latinoamerica

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What constitutes obstruction? A tax case may narrow the definition

Prosecutors have enormous discretion in the American criminal justice system, aided greatly by catchall provisions in statutes. Congress often adopts broadly worded laws to catch a wide range of conduct, especially for white-collar crimes, and regularly tacks on a section to catch actions that might otherwise slip through the cracks. Over the past few years, the Supreme Court has shown a conspicuous concern when the Justice Department seemed to push the envelope of what constitutes a crime in a way that could reach ostensibly innocent acts, or at least conduct that does not deserve the severe punishment meted out under federal law. Last week, the justices agreed to review the conviction of Carlo J. Marinello II for obstructing the administration of the tax laws, presenting another opportunity to cut back on the scope of white-collar prosecutions under a catchall section. The issue in the case was not the failure to file tax returns, which he essentially admitted despite being told to do so by a lawyer and an accountant. He objected to the obstruction charge brought under a provision known as the "omnibus clause", making it a crime for a person who "corruptly" or by force or by threats of force “obstructs or impedes, or endeavors to obstruct or impede, the due administration of” the Internal Revenue Service laws. This is a felony offense that can result in a sentence of up to three years in prison, unlike the failure to file charges, which are only misdemeanors. Marinello asked the trial judge to instruct the jury that the government had to prove he knew about an I.R.S. investigation or audit when he destroyed records and failed to provide the required information. The judge refused, and after the conviction sentenced Marinello to three years in prison. The general obstruction of justice statute, about which we have heard much lately, applies to conduct that affects the "due administration of justice", which means a pending judicial proceeding or grand jury investigation. The tax obstruction provision applies to actions affecting the administration of the tax laws, but it is unclear whether it requires that the I.R.S. be scrutinizing a person's taxes at the time or only that the conduct somehow touch on the filing of returns and payment of what is due.

EU court advisor: notification not needed to prohibit and punish 'illegal exercise of a transport activity'

The Advocate General of the European Court of Justice (ECJ), Maciej Szpunar, on Tuesday declared that EU member states were entitled to "prohibit and punish the illegal exercise of a transport activity such as UberPop without having to notify the Commission of the draft law in advance." Uber France firmly argues that the France law "constitutes a technical regulation which directly concerns an information society service within the meaning of the directive on technical standards and regulations," thereby requiring EU members to notify the Commission of any draft law or rules placing technical regulations on these types of services. Uber France maintains it cannot be prosecuted because the French authorities did not provide such advance notfication. Szpunar disagreed, stating in a non-binding opinion that services such as the UberPop service, which provides a transportation service through non-professional private drivers using their own vehicles, can be prohibited and punished by member states without notifying the Commission of the draft law, because the UberPop service is not an information society service.

Hopes of ‘Trump Bump’ for US economy shrink as growth forecasts fade

After a once-heady outlook, estimates for the second quarter are being revised downward, and this year is looking more and more like the last several.

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• MiMIC Journal

China's first operational aircraft carrier arrives in Hong Kong

China's first operational aircraft carrier Liaoning has arrived in Hong Kong. Its first trip outside mainland China is part of the events marking the 20th anniversary of Hong Kong's handover from Britain to China. Its follows Xi Jinping's visit last week, his first as Chinese president. During his trip, which was marred by protests, he warned that any challenge to the Beijing central government was "impermissible". Hong Kong's political climate has grown tense in recent years with increasing calls for self-determination and even independence.

Baidu boss investigated for riding in self-driving car

The head of Chinese online search giant Baidu is being investigated, after riding in one of the firm's driverless cars on a Beijing ring-road. Robin Li was in the passenger seat when he made a video call to an artificial-intelligence developers conference in the Chinese capital. But while autonomous vehicles are tipped as the future of motoring, they are banned from China's public roads. Police began an investigation after the video went viral.

China court finds for gay man in conversion therapy case

A Chinese court has ordered a mental hospital to issue a public apology and pay compensation to a 38-year-old man after forcing him to undergo conversion therapy. The man was committed to the institution by his wife in 2015. He was subjected to forced medication and injections for 19 days after being diagnosed with "sexual preference disorder."

International NGOs' China operations hit by registration delays under new law

Some international non-governmental organizations (NGOs) in China are suspending operations, cancelling events and losing partnerships in the country six months after the government introduced a law requiring them to register with the police. To register, the groups must first approach a government ministry from a provided list and ask it to become a "supervisory body" that will vet financial and operational details of the NGO’s work before filing them with the Ministry of Public Security. Beijing says the law boosts Chinese state support for foreign NGOs and only need worry a handful of illegal groups whose political and religious work harms China's national security. But a dozen of surveyed NGOs say the law, which came in on Jan 1, has been a bureaucratic nightmare and appears to be aimed at making it more difficult for them to operate in China.

• Law Firm Marketing

Teach prospects how to hire a lawyer so you increase credibility and attract more new clients
By Trey Ryder

Every marketing message should contain a section about how to hire a lawyer in your area of law.

Prospects who don't often hire lawyers appreciate learning how an attorney would hire another lawyer. At the other end of the spectrum, you might assume that prospects who hire lawyers on a routine basis won't read this information. But that assumption is not always correct.

Prospects who regularly hire lawyers know the criteria they use to make their choice. When they see that you offer information about selecting a lawyer, often they will read what you write (1) to see if your criteria are as tough as their own, and (2) to see if you've suggested anything they can add to their list. Bottom line: Most genuine prospects read (or at least scan) what you write about hiring an attorney.

To gain the greatest marketing benefit, write your suggestions so they appear reasonable and objective, and build the criteria you recommend around your own competitive advantages.

BUILDS CREDIBILITY AND RESPECT

Teaching prospects how to hire a lawyer is important because it proves that you're not trying to pressure prospects in any way. In fact, it goes to the opposite extreme by saying that you will teach them how to interview lawyers so they can talk with several before they make their choice.

Here's an analogy: From birth, the mother bird feeds and shelters her babies in the nest. Then, at a certain age, she ejects her chicks from the nest so they learn how to fly. After all, they must know how to fend for themselves in the real world. They can no longer enjoy the safety that their mother has provided in the nest. But when the mother bird starts to expel the chicks, they struggle to hang on to their nest, which has been their only shelter.

Your prospects read your marketing message like baby birds. The more educational information they digest, the more they acknowledge you as the authority. Soon, they grow warm and comfortable as you spoon-feed more and more information. Near the end of your marketing message, you prepare to set your prospects free so they can go into the real world and hire a lawyer. The problem is: For their entire adult lives, they have heard stories about good lawyers and bad lawyers, honest lawyers and less-than-honest lawyers. Then you provide them with information about how to hire a lawyer -- and you wish them well.

How do they respond?

They grab for your coattails. They hang on to you. Your prospects appreciate that you're not trying to influence their choice of a lawyer, which causes prospects to trust and respect you even more. As a result, your efforts to send prospects into the marketplace to find a lawyer often strengthen their bonds to you.

Still, not all prospects will hire you. In fact, some will choose to interview other lawyers, as you suggest. Even so, the fact remains: You have educated them. You have taught them how to hire a lawyer. And you have told them what most lawyers will say. Then, when lawyers say those things you predict, they appear to be actors in the drama you described.

The result? You remain the ultimate authority because you accurately predicted and explained everything that would happen when those prospects interviewed other lawyers. And the fact that your predictions came true will sometimes cause prospects to return to you because now they trust you even more than before.

HOW TO PRESENT HIRING CRITERIA

Include at least three types of information in your section on how to hire a lawyer.

FIRST: Include "## Costly Mistakes to Avoid When Hiring a (type of) Lawyer."

Identify each mistake and then explain in a few sentences what your prospect can do to avoid making that mistake. The mistakes you identify should be the ways prospects often choose lawyers. These can include a referral from a friend, an office near the prospect's home, or a glitzy website.

After each mistake, explain why your prospect should not hire a lawyer based solely on that one criterion. Suggest instead that the prospect needs to get specific information about the lawyer's background, qualifications and experience -- information prospects almost never have, and often hesitate to request.

This helps your prospect realize that he knows almost nothing about the lawyers he is considering. Plus, he realizes that he knows a great deal about you, thanks to the information you provided, such as your biography, case histories and success stories. As a result, by providing this information, you find yourself far ahead of competing lawyers, about whom your prospect usually knows nothing.

SECOND: Include specific hiring criteria in a section called, "How to Choose a Qualified Lawyer."

In this segment, include an itemized list of things to look for. By offering these criteria, you can greatly increase your credibility because you're pointing out your strengths -- and identifying other lawyers' weaknesses. (Your prospect assumes that you meet or exceed all the criteria you list, concluding that if you didn't meet these criteria, you wouldn't list them.)

For example, one of your hiring criteria might be: "Choose a lawyer who provides excellent service." At this point, your prospect has no first-hand knowledge about whether you provide good service. Still, he assumes that your service is excellent because you have told him not to accept anything less. He suspects that you would not raise a criterion you yourself could not meet.

In addition, you can include in your hiring criteria your competitive advantages. For example, if you offer free seminars, you could recommend: "Choose a lawyer who offers free educational seminars." This reinforces that you provide this service and that most lawyers don't. Plus it adds a new element to the criteria that your prospect might not have considered. Now, when your prospect interviews other lawyers, if those lawyers don't provide educational seminars, they will not measure up to your standards.

THIRD: Include specific questions to ask lawyers in a section called, "## Tough Questions to Ask a Lawyer Before You Write a Check" (or before you sign a contract, depending on your area of law). Then list individual questions.

Start with questions that are fairly general, such as how long the lawyer has practiced and how much of his practice is devoted to this area of law.

Then, as you go down the list, ask questions that are specific. For example, let's say that you are a member of the Association of Trial Lawyers of America. And let's assume some of your competitors are not. One question on your list would be:

Are you a member of the American Association for Justice (formerly ATLA)?

This question reinforces your membership as a competitive advantage. And if the other lawyer is not a member, this question raises a perceived weakness.

List as many questions as possible to which you can answer "yes" -- and to which competing lawyers will answer "no". Every time your prospect gets a "yes" from you, he sees another reason to hire you. Every time your prospect gets a "no" from a competitor, he has identified another reason not to hire the competing lawyer.

Summary: Since you are teaching your prospect how to hire a lawyer -- and since this marketing message is yours -- you enjoy the luxury of defining the playing field. For the greatest marketing benefit, design the playing field based on your competitive advantages. In this way your message identifies perceived weaknesses in competitors -- and shows you in the most positive, persuasive light.

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© Trey Ryder
FREE LAWYER MARKETING ALERT: If you'd like to receive Trey Ryder's weekly Lawyer Marketing Alert, send an e-mail to [email protected]. Write "Subscribe LMA" in the subject line and write your name and e-mail address in the body of the message.

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Tell your friends and colleagues you've read it in Migalhas International

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• Brief News

Panama Papers: Germany 'pays millions' for leaked data

Germany has paid millions of euros for the so-called Panama Papers revealing offshore tax evasion, reports say. The Federal Crime Office (BKA) said it would put the multi-million-file inventory into electronic form to allow for detailed evaluation. It did not confirm the sum, but government sources told German media 5m euros ($5.7m) had been paid. The documents leaked last year exposed rich and powerful people, who had used tax havens to hide their wealth. The leaks put heads of state, businessmen and celebrities under pressure, with some resigning over the revelations.

EU and Japan reach free trade deal

The European Union and Japan have formally agreed an outline free-trade deal. The agreement paves the way for trading in goods without tariff barriers between two of the world's biggest economic areas. However, few specific details are known and a full, workable agreement may take some time. Two of the most important sectors are Japanese cars and, for Europe, EU farming goods into Japan. The EU and Japan have done two deals for the price of one: a trade deal and a complementary "Strategic Partnership". One will create a major free-trading economic bloc, the second will see them co-operate in other areas like combating climate change.

Saudi-led bloc vows new Quatar measures

The four Arab states leading a boycott against Qatar have described Doha's rejection of their demands as a threat to regional security. They saiyQatar's rejection of their 13 demands "reflects its intention to continue its policy, aimed at destabilising security in the region".In a joint statement, Saudi Arabia, Bahrain, Egypt and the United Arab Emirates also warned of new measures. The four states severed ties with Qatar last month, accusing it of supporting jihadi groups. Qatar - who earlier this week rejected the ultimatum by the Saudi-led bloc - denies the allegations.

Trump and Putin eye first talks at G20

The eagerly-awaited encounter takes place on the sidelines of what is likely to be a divisive summit. They have both said they want to repair ties, which were damaged by the Syria and Ukraine crises, and also Russia's alleged meddling in the US election. Ahead of the G20, 76 police officers were hurt in clashes with protesters. Mass rallies are expected on Friday. World leaders face their own divisions over climate change and trade.

States, District of Columbia file suit against US over college-marketing rules

A coalition of Democratic attorneys general from 18 states and the District of Columbia announced a lawsuit against the US Department of Education regarding the end of Obama-era rules designed to punish colleges and universities that use deceptive recruiting tactics and charge high prices for dubious degrees.

The ALA hasn’t been captured by anybody

The American Law Institute (ALI) publishes academic volumes in the form of restatements of the law, principles of the law, and model codes and studies. It is a working group of the best of the best, who spend substantial volunteer time producing academic works, which are only influential to the extent that anyone reads them. ALI’s 3,000 elected members are drawn from the best judges, lawyers and law professors and is not dominated by plaintiffs’ lawyers whatsoever. The ALI has for decades and decades not only described the law as it is but made suggestions as to what the law should be when it is either unclear or clearly wrong, and it has always been clear when doing so. The ALI doesn’t make law, judges do. To the extent that judges year after year cite the ALI’s work in crafting their legal opinions, the ALI can simply say thank you for recognizing its good work.

ICC rules South Africa violated obligations by failing to arrest Al-Bashir

The International Criminal Court (ICC) ruled Thursday that South Africa violated its obligation by failing to arrest Sudanese President Omar Al-Bashir when he visited the country in 2015. Two arrest warrants have been issued for Al-Bashir involving numerous charges including "crimes against humanity, war crimes, and crimes of genocide." South Africa contended that because Al-Bashir has immunity from criminal proceedings under customary international law that had not been waived in Sudan the court was precluded from compelling South Africa to detain and surrender him.

US ethics chief quits amid Trump tensions

The US government's top ethics watchdog has announced his intention to resign, after repeatedly clashing with Trump. Walter Shaub, director of the Office of Government Ethics (OGE), will leave his post on 19 July. "In working with the current administration, it has become clear to me that we need improvements to the existing ethics program," he said. The White House said in a statement that it "appreciates his service". Shaub will now join the non-profit Campaign Legal Center, which advocates tougher campaign finance laws, as its senior director of ethics. Writing on Twitter, he said he would be working on "ethics reforms at all levels of government". He did not directly criticize Trump, but said it had been a privilege to work with colleagues who protect the principle of placing "loyalty to the Constitution, the laws, and ethical principles above private gain".

Tesla loses no. 1 spot in market value among US automakers

The electric-car maker’s shares are off sharply after a report of production trouble, giving General Motors back its lead after less than three months.

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