Marketing Attorney Blog

Recently, a California State Bar committee discussed a controversial proposal that would put a red warning label on attorney profiles for those facing disciplinary charges. This would take the concept of a website disclaimer to new heights. Only in California. Actually, I'd say only in Florida. But, indeed, this comes out of the left coast.

The proposal came from State Bar prosecutor Jayne Kim. It prompted an outcry from defense attorneys that felt accusations that had not been fully litigated and proven in court would lead to a serious hit on a law firms' business.

The state delayed voting on the proposal until after a 60-day public comment period. Kim had argued that it was unnecessary, claiming it was simply an extension of a 2011 policy that required consumer alerts on profiles of attorneys formally charged with misappropriation of client funds or improper loan modification activities.

Reporter Saul Sugarman, writing in the San Francisco Daily Journal, said that some committee members wondered why consumer alerts only appear on pages of attorneys while formal charges are pending. In the current system, the alerts go away once lawyers are found culpable of misdeeds, though the details of discipline still appear at the base of their profiles.

Different states have different requirements as to what an attorney can and can't do before, during or after a disciplinary proceeding. The concept of a red warning label simply because an attorney is facing a charge does not seem to be reasonable. Maybe it is because I see what I personally consider unfair outcomes in some of these matters, while more flagrant transgressions often go unaddressed. This is certainly not a blanket concern. The majority of disciplinary counsel come to the proper conclusions. Yet, I still see some serious head scratchers, especially in my area of focus--advertising, marketing and solicitation regulations. Attorneys--defense or otherwise--are right in that a red warning on a website profile is a death knell of sorts. Who is going to use an attorney with a red flag right on their own website bio? Nobody. You'd likely look to minimize your existence online until the matter was resolved. And even then, state bar listings and attorney profile sites on some high profile legal directories might also show the pending discipline.

While the overarching concept of "deceptive and misleading" is my mantra in looking at law firm website marketing from an ethics perspective, I also believe in certain components of "real world" promotion. A discerning consumer will look beyond the glossy, polished profile the attorney writes for him or herself and seek comments from more objective sites. A plumber's website does not say anything about the dozens of BBB files opened up. I guess you go to Angie's List, or in this case, the state bar.
I can't imagine that the plaintiffs' bar will sit back and see this proposal come to fruition. There could be room for a compromise in putting this data into the "disclaimer" component of a website, where a little additional due diligence by the end user is required. Placement on the biography itself would be quite the hardship.

This is a conversation worth watching.

After more than five years of deliberation and challenges such as Harrell v. Florida Bar, the Supreme Court of Florida's new advertising rules take effect today, May 1, 2013. While Florida remains a "sticky state" when it comes to advertising ethics rules, the state does a great job of providing guidance for compliance on the state bar website.

Among the interesting areas to note is the loosening of restrictions as it relates to television, print and billboards, while there are stricter standards for websites and online marketing. The growth of directories, referrals services, social media and use of video (often through online use) over the last few years necessitated a tweaking and revisiting of some ethical obligations.

Why do I care so much about Florida when it comes to examining the RPC and ethics opinions for lawyers in that state? First, many other states follow Florida's lead, not only in regard to guidelines and rules, but in terms of compliance and proactive examination. Second, many of my large law firm clients (especially in the northeastern United States) have a Florida office location--meaning the rules significantly impact marketing efforts. Finally, many law firms find that retiring attorneys, retiring clients and matters (sometimes tied to retiring too) find their way south to the warmer weather--the impact of Florida is felt by many law firms, thus the need to comply and be aware of the issues is necessary.

Earlier this month, the Ohio Supreme Court's ethics board ruled on the issue of lawyers soliciting clients by text message. Before you get all excited about sending out that next text to a prospective client, you'd better familiarize with the part of the opinion that mentions...so long as the advertising rules of the state are followed.

I've long discussed the ethics issues involved in a lawyer using text messaging as a communications tool with clients and prospective clients. There are plenty of lawyer ads and billboards that invite you to text. The area I had never put a lot of thought into was the proactive text--from the lawyer to the potential client offering up legal services. Even someone like me that is engaged in developing marketing strategies for law firms every day had not really embraced the initial touch of a text as a method of advertising communication.

Just as lawyers cull various public records to send direct mail to prospective clients--for criminal defense, tax issues, bankruptcy, personal injury--many are now taking a no-mail-barred approach and going right to the cellphone. It is quicker and cheaper, and likely as effective as the "cold call" letter. In many marketing efforts, we are quickly finding out that the mobile device is the most effective means of communication--through mobile sites, apps, tablets, etc. Why wait for snail mail when you can reach a person right now, wherever they may be? The cell phone is often available right on those accident reports and other potential sources of new business.

The Ohio opinion (2013-2, April 5, 2013) starts by addressing that is fits into both the "electronic" and "written" communication categories. It also discusses the difference between "real time" (which is a no-no) and something more akin to an e-mail (OK). However, while coming to the conclusion that texting as an advertising tool is permissible, the related compliance issues make it a non-starter for most that might be interested in trying it out. Among the items that merit consideration and concern are:

You must let the recipient know how you became aware of their situation.

The term "ADVERTISING MATERIAL" or "ADVERTISEMENT ONLY" must appear in the body of the text.

You must follow the 30-day solicitation rule of the state. Ohio's is much looser than many, but requires specific disclaimer language--which can't simply be delivered via a website hyperlink.

You must ensure that the recipient is not charged for the text.

You must follow applicable telemarketing laws (including the do not call registry).

I applaud Ohio for addressing the texting issue in rather quick fashion. It seems like many states have been slow to hit some heavily used areas of technology marketing, including blogs, social media and referral services. For some reason, many have been quick to address the "daily deal" sites (such as Groupons). However, as is often the case in the area of law marketing ethics, these opinions become the framework for many other states. If you are considering the use of texting or are already doing so, this opinion provides a solid framing of the issues and concerns.

For more than a decade, I've provided the Pennsylvania Bar Institute with an annual ethics program on a law marketing or advertising topic. Over the years I've focused on a different theme each year--starting with Internet marketing ethics in the late 90s to years where I've focused on Supreme Court cases, social media, rankings & ratings--whatever was new and "hot." This year, I simply pick 13 current areas that have recently been addressed or still come into play.

This year's program will likely change from the first presentation (April) to the second and third compliance period presentations in August and December. However, there are plenty areas of interest to go around. Included in this year's program is discussion of trade names, websites, blogs, social media, Groupons, specialization, ratings & rankings, direct mail, mobile marketing, video and whatever new ethics opinion comes across my desk this week.

In April, I will present live for PBI in Pittsburgh on April 24 and home in Philadelphia on April 26. Check the PBI website for video replays and additional live dates later in the year.

On February 28th, the Virginia Supreme Court held that a disclaimer was required under the state's advertising rules when posting results on a website. This is the latest outcome in the seemingly never-ending battle between Horace Hunter and the Virginia State Bar. This has been a widely watched case among ethics attorneys like myself that follow the bouncing ball of state bar advertising restrictions and first amendment scholars looking at the "free speech" argument. Is the next stop the U.S. Supreme Court?

Last April (2012), I was part of an ABA CLE panel that discussed "Is Your Legal Blog Compliant? Ethical considerations in the wake of Hunter v. Virginia State Bar." The panel included Mr. Hunter, myself, employment law blogger Molly DiBianca and noted Virginia ethics attorney Tom Spahn. We discussed and debated the many issues in the case. It is effectively a case of first impression in the law blogosphere. That was prior to the case heading up the ladder to the state supreme court. Read more about the program in Your ABA's e-news--Blogs can be legal minefields.

Blogs have been around since the late 1990s, yet this cyberspace battle in Virginia is the first real challenge by a state bar to the often cloudy areas of interpretation. Is a blog advertising, marketing, editorial, personal, or business? Where does the First Amendment end and the Model Rules of Professional Conduct begin? Should a state bar look at a blog as marketing or something else?

I've found that heavy bloggers and those that sell blogs to law firms are often quite vocal in the opinion that the blog is somehow "media" and exempt from rules under "marketing." As a former journalist, I've always been disturbed by the concept that someone with a blog is suddenly a "reporter." Clearly, there are blogs that have become popular enough in the mainstream that they become influencers and sometimes garner "media" status for credentialing and access. I can't tell you how many times I've been asked to credential bloggers for various conferences. Usually they are just too cheap to register. And in most cases, I've never heard of them. There are blogs that are clearly online media. But they are usually a standalone entity and not promotional in the sense that the goal is anything more than traffic generation. The goal of most lawyer blogs is to generate business as lawyers--whether it is direct or in many cases, helping with search engine optimization, increasing media inquiries or branding visibility. Any way you slice it, we are not doing it as a personal "dear diary."

The ethics attorney part of me clearly believes that a law firm or lawyer blog is advertising, marketing or a communication that falls under the respective RPC. It is simply ridiculous to differentiate between a law firm website and a law firm blog (with, of course, exceptions). When doing an ethics compliance review of a blog, I look at numerous factors--including disclaimers, links to the main site, bar states of contributors and various other criteria in making sure a law firm blog is compliant--based on advertising and solicitation rules, not based on the concept that the attorney is an objective journalist making a comment.

Of course, if you are reading this, you realize that this is a blog! I do it for all the aforementioned reasons. But if you think the underlying goal is anything less than business development...please. We blog to get attention--for our practice, for our business. Not that there is anything wrong with that. We give advice, opinions and provide news for our niche targets.

It will be interesting if Hunter gets to the U.S. Supreme Court. Because a ruling there would likely elevate or dilute the level of restriction and requirements accompanying the thousands of law firm blogs out there. A good blog offers expert opinion--but it is marketing. This is not The New York Times.

Recent rulings and advisories by the National Labor Relations Board regarding social media policies in the workplace impact law firms in a variety of ways. Today's New York Times article by Steven Greenhouse reviews how the NLRB is basically telling employers to scale back limitations as it relates to many social media policies that might be seen as illegal blanket restrictions.

Can you really stop Facebook and Twitter from happening in today's workplace? Nope.

The NLRB says workers have a right to discuss work conditions freely and without fear of retribution, whether you are in the employee cafeteria or on Facebook. Although Facebook might have better food options (I said that. It is not in the article).

The bottom line--many companies are rewriting social media rules. If you want to read about social media in the workplace from an employment law perspective, you are better off going to Molly DiBianca on The Delaware Employment Law Blog. I'm here to discuss the potential impact on the law firm from an ethics compliance and business development perspective.

Having taught social media courses at many law firms, written a few of the policies myself, and conducted ethics compliance reviews for a number of the AMLAW 200, I can tell you that some of the policies--both written, unwritten and suggested--are somewhat out of whack with recent developments. I often remind some firms that they might "suggest" or "guide" employees (lawyers and staff alike), but some of the policies I've seen have been overbroad and overreaching. The Rules of Professional Conduct take care of many of the ethics issues for the lawyers. However, there are plenty of gray areas as they relate to LinkedIn profiles, Facebook posts and tweets.

Be sure your law firm's approach to social media is appropriate. Because it is one thing to read about a corporation coming out on the short end of these rulings; it is another for a client to see you listed as one of the offending parties.

In today's Law360, reporter Bibeka Shrestha writes on Insurance agents taking Jacoby & Meyers LLP to task over advertising relating to Hurricane Sandy. In her article, she interviews me about my take on the complaint filed with the state court disciplinary committee by the Professional Insurance Agents of New York.

The PIA's complaint stems from an ad that says, "If your business lost business due to the storm your insurance policy should cover it. If it doesn't, your agent made an error. We'll work to correct it." The complaint cites 7.1(a)(2) of the NY RPC...the all-purpose "false, deceptive or misleading"...in regard to the advertisement's content and message.

While I'm far from an expert on insurance law, I have trouble believing that every policy covers business interruption. I can see where agents might take offense to the suggestion that they are at fault, acting improperly or erroneous in every instance where a claim for such coverage is denied. I suggest in the article that a slight tweak from "your agent made an error" to "your agent might have made an error" would likely rectify the situation and not dilute the ad's impact. Of course, I've had my fair share of fights over the years with insurance agents over what is and is not covered in a policy--so I'm not going to be a staunch defender of the industry. I'm talking to you buddy--the guy that claimed I could continue to sleep on a mattress in which a squirrel died and decomposed. "You don't need a new one. We can just get it steam cleaned." Yes, I got a new mattress. And, yes, I utilized my law degree in doing so. I totally get retaining counsel if you feel provisions of a policy are not being carried out.

My perspective comes from that of an ethics attorney that looks at (and creates) lawyer marketing for a living. In the Law360 piece, Marc Mayerson of Orrick Herrington is an insurance attorney and did not see this ad as a serious legal advertising violation. Now, his Orrick biography says he "specializes" in complex insurance-coverage disputes. And the use of "specializes" is a violation of the rules in many states. A "serious" violation? No. Luckily for Orrick, they don't have offices in the sticky states that are vigilant about the "bad" words (specialize, expertise, leaders in, etc.) or a state might have brought it to their attention already.

As many law firms know, some state bars are not particularly interested in whether the violation is serious or not--simply that it is a violation. You know--the whole slippery slope and parade of horribles sort of stuff. What makes this particular situation unique for me is that it is not a state bar bringing the complaint, or a consumer client. It is a third party outside the usual scope of examination. It will be interesting to see how New York's disciplinary committee chooses to address this complaint.

Now I see ads that are far more potentially egregious than this Jacoby & Meyers one--as a resident of Southern New Jersey, I have seen a ton of law firm ads seeking Sandy "victims"--some of which make me wince. Sandy was not a bad guy or gal, but a product of Mother Nature--who may be subject to litigation herself. Shame on you Mother Nature. I hope you have good counsel.

In August, I wrote about the Consumer Reports evaluation of online do-it-yourself legal sites (Legal DIY sites no match for a pro). This week, Wall Street Journal reporter Jennifer Smith writes on "No-Frill Legal Services Grow," addressing many of the same DIY websites.

The impetus for the article is the lawsuit filed last month by LegalZoom.com against up-and-coming rival Rocket Lawyer. It is ironic that these entities are now fighting over what is and is not "free" in terms of form filing and other stuff where you apparently either don't need a lawyer, or perhaps just need one that works for them at really cheap rates. Interesting side note: Both LegalZoom and Rocket Lawyer have real lawyers doing the fighting--I don't think they are using their own self service offerings.

The debate often revolves around the potential "unauthorized practice of law." Regardless of the semantics involved, the consumer is thinking this is a cost-effective way to resolve a legal issue. It is not like this business is new. Strip malls stores (Divorce! Bankruptcy! Wills!) have provided similar services for decades. Storefronts such as "We the People" have largely evaporated (thanks in part to the Internet and in part to State Bar issues with unauthorized practice). In recent years, the online offerings have changed the language in describing offerings to something akin to providing documents and/or providing a lawyer somewhere that can answer questions.

I've rarely seen any (non-anecdotal) data that shows the bottom line impact on the lawyers that practice in many of these consumer and small business spaces. My guess is that many of these companies will (accurately) tell you the amount of revenue opportunities they are generating for solo and small law firm attorneys that might be hurting for business should not be discounted. "We are hiring lawyers and getting them clients!"

If you can't beat them, join them

Many lawyers and law firms are getting into the business of online delivery of legal services. My ABA colleague Stephanie Kimbro (quoted in the WSJ article) provides web-based services to clients. The article mentions Jacoby & Meyers as entering the online legal forms business. For practitioners, there is a realization that automation and use of online delivery services will be one way to combat lost business (and generate more by charging less). However, the dollars will need to be competitive. As an attorney, it is hard for me not to suggest that these "online legal document" businesses--which most customers see as an adequate law firm substitute--are not damaging to both the lawyer and the client. I'm not only a lawyer, but I'm a client. I've gone to colleagues over the years for assistance in real estate matters, estate planning, intellectual property, employment law issues, and for friends (not me, friends), criminal and family law issues--all what I would call consumer-based matters. In every instance, I can think of a component that simply would not have been identified or resolved properly without a sharp lawyer's eye. Documents don't issue spot. They try, but they don't.

This leaves us with the dilemma of where these online services belong in the legal spectrum, whether it is proper or realistic for the ABA or a State Bar to play much of a role in their existence, and many lawyers that are walking a fine line--providing many of the exact same services online, but arguing that they are positioned to do so as licensed attorneys and not simply a "not a law firm" business. One thing that can't be debated, in looking at LegalZoom and Rocket Lawyer--they would not be fighting over these issues if there were not huge bucks on the table. And based on previous governmental and political responses to Joe Consumer being provided with affordable legal services, there will be continued growth. And much of it will be attorneys recognizing that they need to operate in this space as well.

In my monthly column on internet marketing for lawyers in Web Marketing Today, I tackle the sticky issue of ethics and compliance for law firm websites. If you had told me when I started teaching ethics CLEs on this subject in 1997 that I'd be this well-versed on the subject--and it would become a niche area of expertise for my practice, I'd have laughed. But lo and behold, the Rules of Professional Conduct have become my Ten Commandments. There are plenty of golden calves and false idols--but I won't name names. Let's just say that websites are now the tip of the iceberg in a land of Groupons and "ask the lawyer" sites, getting the disclaimer language right should be child's play.

If you are like me-- seemingly spending half your life reviewing state bar rules, regulations and ethics opinions for my clients that seek to ensure compliance in the states in which they practice--I'm sorry to hear that. Hopefully, like most attorneys, you are more of a casual observer. In August, the House of Delegates of the American Bar Association approved a series of changes to the Rules of Professional Conduct. Many in my realm of marketing and business development circles ask how it will impact them and what, if anything, they should be doing about it.

For starters, I remind you that these are "model rules" as opposed to "rules." As someone long involved in various aspects of ethics and professionalism in the ABA, I can assure you that the time it will take many states to implement all or some of the rules will be "not tomorrow." I'm pretty sure some states are still mulling over pieces of the ABA's Ethics 2000 initiative. But it is only 2012 now, and you really just want to update your rules before the year 3000 hits or risk being seen as behind the times. And these changes come from Ethics 20/20, which is 20 years longer than 2000, divisible by 20.

Of course, the impetus for the ABA changes is simple--technology has far outpaced the long arm of the professional conduct law. The Ten Commandments would be delivered today via cloud computing, as opposed to having a long hike and getting stone tablets. Oy veh!
While the changes address areas of confidentiality, outsourcing, job changes and jurisdictional issues, I'm only focused here on those regarding changes related to client development. The continued massive growth of internet marketing and clever entrepreneurial spirit among lawyers far outpaces what is currently on the books. Rule 1.18 better defines prospective clients in a world of pay per click, social networking, question and answer sites, etc...and the need to put in safeguards to properly avoid creating an unwanted or unintended attorney-client relationship.

My age-old favorite, 7.2, or ADVERTISING as the devil calls it, adds the tricky topic of not paying others for "recommendations" via online lead generation services. The original 7.2 from many moons ago was written for yellow page ads (what are yellow pages, my kids ask?), billboards and other distasteful mechanisms that--god forbid--might provide your law firm's name and contact information to a consumer in need.

And, of course, with prospecting for clients and advertising comes the need to better define "solicitation" and exactly what that means in a world with technology. We know about letters, phone calls and runners. What about all things Internet that flow through the clouds, DSL, broadband and the one guy still dialing up on AOL (buddy, you make me laugh, you cheap skate). Solicitation has been expanded to "a targeted communication initiated by a lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood to provide, legal services," as opposed to communications with the general public.

OK, so you feel like I've told you nothing to this point. What should you do about these rule changes? First of all, if they are not adopted in full or part by the states that matter to you (where you are admitted, where you practice, where your firm has offices, etc), then at this point in time, it does not.

Keep an eye out for RPC changes that are adopted over the next 6-36 months, depending on how quickly your state bar gets off its' you-know-what.

What you should always remember--and I'm in an ongoing debate with some over this topic--is that such "communications" stretch the cybersphere--whether it is a web site, a blog, a Facebook page, a Twitter post, a Yelp profile, maybe even your JDate profile (not really). The rules don't need to state the technology by name for it to fall in the realm of prospects-solicitation-advertising. If you've followed my commentary on the Virginia Bar blog case, you know about the sensitivity to revealing too much about a client or his/her matter--even if it is in the public domain. I'll repeat for the umpteenth time that just because a statement is true does not mean you can say it. Bart Simpson should write "deceptive or misleading" 1,000 times on the chalkboard. Technology is not an end-around for the rules and comments in place from 7.1...to 7.? (depending on your state). In my opinion, the new rules don't change anything, they simply clarify. The real key is not in the rules themselves, but in understanding the technologies you are using--and how misuse can lead to discipline and worse--people knowing you can't figure out Twitter for your life.

If you are a PA lawyer, and it feels like you've been hearing me deliver marketing ethics CLE hours for the Pennsylvania Bar Institute for more than a decade now, it is because you have. My very first ethics CLE ever was given in Philly, New York and Houston in the summer of 1997. I opened with some lame canned joke involving Morgan Lewis and domain names. Trust me, I've gotten better. But the even weaker handout is now a collector's item. I still have an original (see "Hoarders" and related illnesses).

Each year, I change the focus and try to cover hot topics, and changing rules, as they relate to areas of law marketing ethics. Quite honestly, some years my "show" (as I call it) is better than others. Last year's focus on ethics of social media was very well received. But this year's focus on ratings, rankings and reviews might be the best one yet. I mean, really, who does not debate the value, interest and impact on the multi-zillion dollar "sell stuff to attorneys" industry?

I've written and spoken on the rankings & ratings subject for many years, including multiple ABA Annual Meetings, as a focus of the ABA Law Firm Marketing Strategies Conference, for PBI and in at least a half dozen publications. I'm not sure if the publishers of these companies will tell you they love me or hate me (it is probably a mix, leaning more toward the negative), but it is a market that continues to fascinate. This holds true in my marketing roles, in my ethics roles, and certainly in speaking as a leader in law practice management circles.

The program--always presented in the Pennsylvania compliance months of April, August and December--returns to Pittsburgh on August 23rd and Philadelphia on August 30th (or as my wife calls it, "the pro bono CLE program you do that ruins our vacation schedule each summer").

Here is a program description. If you can't see it "live", PBI usually makes them available at some point via webinar or podcast.

There may not be a bigger "industry" in law firm marketing and business development circles than the continued growth and proliferation of rankings and ratings. The impact on the profession is significant--from the time and money spent to the permissible uses for promotion. The Rules of Professional Conduct and ethics opinions have tried in vain to develop workable ethics barriers and parameters. Learn about ratings and their methodologies, and the ethical considerations voiced by various state and national bar associations. From long-time services by Martindale, American Lawyer Media, Best Lawyers and Super Lawyers; to relative newcomers such as Chambers USA and Avvo; and the thousands of other companies that have recognized there is a lot of money to be made in the business of lawyer rankings. Are they helping buyers of legal services make more informed decisions or hindering the profession as a whole? You decide.

In April, I organized a CLE teleconference for the ABA Center for Professional Development entitled, "Is Your Legal Blog Compliant? Ethical Considerations in the Wake of Hunter v. Virginia State Bar". The roundtable featured me, Virginia legal ethics legend Tom Spahn of McGuireWoods, big-time blogging employment lawyer Molly DiBianca of Young Conaway, and the man himself--Horace Hunter of Hunter Lipton. While the case, and the discussion, touched upon a number of legal ethics issues, the one that I personally paid the most attention to was the ongoing debate as to whether a lawyer blog constitutes advertising (thus, marketing) under the Rules of Professional Conduct.

As many of you know, as a marketing ethics guy, I've argued for years that a blog constitutes advertising, in the same way that any other web site would. The marketing part of me would love to agree with those that claim a blog is an editorial vehicle of sorts, and not necessarily promotional in nature. Hint: If a blog was not a marketing vehicle, I would not be writing this post! However, Micah the Ethics Lawyer will argue vehemently that a blog is unquestionably a form of marketing. You simply can't start evaluating every online presence--a web site, a blog, a microsite, a Facebook profile, a tweet--to determine "on a case by case basis" if the content is marketing or not. If you've read hundreds of ethics opinions, disciplinary letters to firms, state by state versions of the model rules, you know that most state bars are simply incapable of effectively and accurately making those distinctions.

Recently, a three judge panel reaffirmed what I believed. The blog is advertising. Thus, an appropriate disclaimer was necessary on the web site. Mr. Hunter did prevail on the charge that probably was more serious in nature (for him) on whether client confidences were violated in the posts themselves. But in this case, Virginia has spoken--a blog is a web site and requires disclaimer language in step with what you would include on any other similar advertising component. Of course, this interpretation is limited to a single state. But everyone was watching to see this outcome, as a lawyer pushed the envelope and challenged the bar. According to Horace Hunter, though, he will appeal...and this story is not yet over.

What better place to repeat the ever-popular "online marketing ethics" course for lawyers than in my old stomping grounds, before a Sixers game at the Wachovia Center...where I was an in-house attorney back in the day.

This new PBI program includes an hour of ethics CLE and a Sixers game against the San Antonia Spurs. To learn more or to register, visit the PBI Site.

The possible tools are endless - web sites, blogs, LinkedIn, Facebook, search engine optimization, referral resources, e-mail, etc. - and so are the ethics opinions, rules and interpretations of state bars coast-to-coast. Thinking about the states where you are licensed, where you have offices and where you seek clients...and staying compliant is enough to make your hard drive crash. This one hour program will examine the tools and the rules, so you can go out and use the business development opportunities on the Internet without running astray of the Rules of Professional Responsibility.

OPINION
Archaic rules hobble attorneys
Businesspeople and consumers would laugh at advertising limits on lawyers.

Micah U. Buchdahl

September 7, 2009

As the economy sputters and every morning's inbox is greeted with news of law firm layoffs and "out of business" signs, it highlights an obstacle to the business of law that is unique to this profession -- often-stringent state bar rules of professional conduct related to advertising and marketing. For the past 30 years, state bars have taken a roller coaster approach to regulating lawyer advertising. However, the rules continue to block entrepreneurial lawyers and firms from soliciting and acquiring business at a time when "anything (ethical) to survive" should be the mantra.

Consumers and businesspeople alike would probably laugh at the regulations that are in place nationwide. In what essentially amounts to a federalist debate, attempts at national uniformity by entities such as the American Bar Association are met with resistance by the real owners of power, those who regulate all of our law licenses at the state level.

There is a laundry list of requirements in some states that range from preapproval filings of all lawyer ads to clumsy disclaimers. Enforcement arms of the state bars range from near-fanatical oversight to general uninterest. In a multi­jurisdictional practice world, firms need to monitor changing rules in dozens of states, with the result being that practice capabilities and competitiveness are hampered in a major market because of the need to comply in a small "satellite office" state. For example, a 500-lawyer firm with 495 attorneys in Washington, D.C., three in Florida and two in Connecticut would have to comply with the two latter-named states, even if the practice there was limited to a particular client or practice group. In a world dominated by online communication, this is more troubling than it might appear.

Attempts at heavy-handedness meet with mixed results in states such as Florida, New York, Connecticut, Louisiana, Missouri and New Jersey (to name a few). In recent years, some of the world's largest and most prestigious corporate law firms were forced to either scrap or change the way they sent out informational client alerts, due to the implied need to slap the phrase "ATTORNEY ADVERTISING" on the subject line of an e-mail. Pardon me, but I highly doubt the recipient, perhaps the general counsel of General Electric Co. or Johnson & Johnson, is hornswaggled (a legal term of art) by the trickery of a tax law update from Sullivan & Cromwell. I think the "this is not legal advice" disclaimer on the bottom probably would suffice.

Historically, through a slew of ethics opinions and court challenges, nobody has ever been able to show any data that suggest people have been harmed by lawyer advertising -- accurate, misleading or otherwise. The concept that a loud and splashy TV ad for a personal injury firm, a law firm-sponsored "divorce seminar" at the Holiday Inn, or simply a brand-identity print ad in an industry publication involves varying degrees of trickery is simply unsubstantiated. And the underlying anti-advertising critics at many state levels are simply attorneys who just do not like it -- and get on a small committee that can do something about it. Such is the way that law firms and the bars that regulate them operate.

Listen -- (some) lawyers are smart people. We specialize (a word you better not use in your lawyer advertising...lots of words are violations) in the art of finding loopholes in laws, statutes and cases. The result is that the controls do not work anyway. Those harmed are often the average Joe or Joan Attorney just trying to promote his or her practice. A review of rules and opinions shows that those on the regulating committees are often out of touch and far removed from the realities of business development. Even in traditional advertising circles, trying to make sense of Facebook, Twitter, blogs and search engines can be a challenge. For old-tyme practitioners, it is just ridiculous. The opinions often show a lack of understanding. They are still stuck on Yellow Pages advertising (now that is archaic). The results are often laughable. Marketing methods continue to evolve -- these folks are way behind the curve.

What exactly am I advocating here? Let ambulance-chasing lawyers run amok? Isn't that the real image and concern behind these arcane rules? Open the floodgates with distasteful and unprofessional billboards, Web sites and commercials? No -- just let law firms market the way nearly every other business does. There are state and federal regulations that address consumer fraud and misleading claims. Let them deal with it. Many lawyers and law firms are trying to survive and prosper. The very people who should be helping them should start thinking about not being obstacles to their ability to earn a living. (Some) people are smart. They know the difference between a commercial and the news. I think they can figure it out.

Micah U. Buchdahl would like to say that he is an attorney who specializes in law firm marketing and business development, with particular expertise in advertising ethics. However, the words specialize and expertise would be a violation of lawyer advertising regulations. He is chairman of the American Bar Association's Sec­tion of Law Practice Manage­ment. He can be reached at micah@htmlawyers.com.

Who would have thought the docs would beat the lawyers to the courtroom? Well, in Camden County Superior Court in New Jersey, two hospital behemoths - Virtua Health and Cooper Health System - are battling over the use of local rankings and ratings in advertising and promotion.

The argument goes to the heart of many similar debates in the law world over rankings and ratings, methodologies and research. In this case (which happens to be in my backyard...and I have no idea if my doctors are on any of these lists and could care less). Just the "local" versions include four magazines that have taken advantage of the popularity of publishing lists and generating advertising.

Read the article and ask yourself if these arguments sound familiar?