Marketing Attorney Blog

As part of my monthly contributions to Web Marketing Today, I'm slowly working my way through the major social media sites. I started with LinkedIn, which has the most relevance to the most attorneys. In future months, I'll tackle Twitter. But this month, I address what is arguably the most powerful website on the planet--Facebook. Search Engines aside (i.e. Google), there is simply no website with more users and higher traffic. And, let's be honest, how can you do serious internet marketing and not be on the biggest site?

So, is Facebook right for you and your law practice? READ ON...

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.

When creating the "Internet Marketing Attorney" moniker in 1997, I would scour the web for the most innovative law firm websites, eventually rating and ranking them in five categories--design, content, usability, interactivity and intangibles. If you were listed among the 250 largest U.S. law firms, you were then ranked accordingly. Many small and midsize firms from around the world submitted themselves for consideration as well, and while I did not review all of them, I also had the annual Nifty Fifty list of innovative legal website components. But times changed and just like technology, I had to adapt.

There were three key factors that led me to stop presenting the IMAs--as they are known throughout the legal industry. First, the large law firm sites become homogenized. There were so few substantive differences to the sites that it made finding those differentiators quite difficult. I would write the same notes and comments over and over again. Second, my "for-profit" business (HTMLawyers, my law marketing consultancy) did not provide enough free time to properly conduct these evaluations. Because I never solicited those law firms I reviewed, it was a great branding tool but not necessarily a revenue generator. My time was always "sold out", but it was tough to equate new business with the time needed for the IMAs. Finally, any free time or "down time" is now owned by my children--who do not find law firm websites all that fascinating. Luckily, my monthly contributions to Web Marketing Today allow me to continually monitor and teach best practices for law firm internet marketing.

Which is a long-winded way of introducing this month's WMT column, Law Firm Websites: A Developer's Review, where in essence I turn the tables slightly by asking the web site developers to tell me what site they like best and why (obviously, their own handiwork). I invited some of the more prominent names in law firm website development to participate--just give me a site and what makes it special. The end result is a handy tutorial for any law firm looking to identify key components for their next website.

The cited sites offer a nice mix of law firm geography and size. Included in this column are websites developed for McElroy, Deutsch, Mulvaney & Carpenter, Freeborn & Peters, Sideman & Bancroft, Nixon Peabody, and Jeffer Mangels.

Thanks to Inherent, Saturno Design, Duo Consulting, Bothwell Marketing and Justia for taking part. Each provided me with a website, some background and key features. In my 17 years of working on law firm website projects, I've had the opportunity to work with hundreds of developers throughout the world. In many cases, I've reviewed their RFP responses to law firms in helping select the right provider. In others, dozens of law firm website developers keep me informed of their newer launches and products--helping me pass that information along to my IMA and WMT readership. This month's column is a map of the newer online features that merit consideration in building or upgrading a law firm website.

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.

For lawyers, there is so much more to LinkedIn than creating a profile, getting some connections and joining a few groups. The real value of participation is from the other products and services they offer. In this month's Web Marketing Today column, I try to address some of the components that go "beyond the basics."

Personally, I probably don't use LinkedIn the same way as many other marketing professionals or attorneys. I find the tool extremely valuable--but more as a super-powered directory of contacts for lead generation, competitive intelligence and a better source of data about people and companies. I find it very useful when following up with someone, learning more about a business card picked up at a networking function or refining a list of prospective clients. Others, however, spend hours on end building a network and doing a slightly more sophisticated method of cold calling.

As noted in the column, there is no disputing the power of LinkedIn. It is the second search result when looking myself up on Google--behind only my own website. With 200 million-plus users, there is a pretty good chance that the professional I'm looking for is in the network. He or she may have a skeletal profile and three contacts--but they are there nonetheless.

Like many friends and colleagues, I'm on Facebook multiple times each day. But I'm there to show you what my kids are up to, talk Phillies, Eagles, or Temple Owls basketball. My wife--a master at the "check in"--makes it easier for me to get served with a subpoena, since you know what restaurant to find me in on Saturday night. While I do mix personal and professional contacts, it is clearly a social environment. Depending on your practice area, it might be fertile ground for marketing. And with recent changes in design, it is becoming a more viable advertising option for law practices as well. But it is not for everyone.

Twitter, the third major player in today's social media circles, skews a little younger. The audience is huge, and loyal followers are avid. But, once again, the interest in participating among law firms is not always there. Somebody has to be tweeting all the time, and that does not work everywhere.

You may or may not choose to engage in Facebook or Twitter, but any business professional should maintain a level of activity on LinkedIn.

My marketing column in the March/April issue of Law Practice focuses on the many ways that charitable involvement--be it time or money--can also pay significant dividends for a law firm's marketing efforts. Too often it is not fully embraced (or simply ignored) as a tie-in to everything from image branding to professional development.

If you have a law firm marketer, is s/he aware of and involved in charitable contributions? Is this discussed by the marketing partner and marketing committee? There are so many ancillary benefits that come from "doing good" that unwittingly get overlooked. Is there an internal list that shows charitable involvement--financial contributions, pro bono, board appointments, events, relevancy to clients? "Giving back" is a hallmark of law firm involvement in a community. Being recognized for those efforts is far greater "branding" than a promotional advertisement or marketing campaign. Read the article to see if your law practice is making the most of your philanthropic endeavors.

In this month's Web Marketing Today column, I discuss the uses and value of video as an Internet marketing tool for attorneys. Video provides both enhanced web content as well as improved search engine optimization results.

Among the things that have changed in video production over the last five years or so is the importance of making sure that the quality is there. Lawyers should not look like they are facetiming each other on an iPad. That is left for my kids harassing relatives with video chat. Getting seasoned professionals to produce, tape and edit is critical.

My column discusses the ABA Golden Gavel Video Awards, created by Infinite PR's Nicholas Gaffney. I also talk about web video marketing tools such as those developed by TheLaw.tv and an example of law firms moving often-stilted webinars to a polished video product. The use of video impacts every type of law practice. Brown Rudnick's Charitable Foundation uses video to enhance the site for their Center for the Public Interest.

Of course, it would not be my take on video without pointing to my own humorous production from a few years back. If everyone loves it, then it is not really edgy or out-of-the-box. From Delaware corporate law to Carly Rae Jepsen, video has numerous uses in the law marketing toolbox. Some work better than others.

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.

The ABA Section of Family Law has dedicated its entire winter 2013 issue of the Family Advocate to the topic of marketing your practice in the digital age. The feature that the publication asked me to author, Finding the Magical Mix for Your Digital Marketing Plan, presents a wide range of options for the family law practitioner--including websites, blogs, use of video, search engine optimization, mobile sites, social media, directories and ratings. In other words, there are a lot of options and a lot to think about.

Among other features in the issue is an article on Common Ethical Pitfalls of Digital Marketing, authored by my ABA LPM colleagues Sharon Nelson and John Simek. While ethics rules should not discourage or hamper an attorney's involvement on social media and lawyer referral websites, compliance is critical. As an ethics attorney myself, I've worked to get a few attorneys out of digital "jams", not to mention implementing lots of preventive medicine.

Simply noting that the ABA Family Law Section has dedicated an entire one of its quarterly issues to this subject should be enough to wake up any family lawyer not paying attention to the World Wide Web. The bottom line is that like many consumer-oriented practices, competition is fierce and ever-increasing. Family law is such an interesting animal. Perhaps no other area of practice is likely to impinge on life more than divorce--if not directly on your household, indirectly through a relative or friend. In regard to advertising, you are often targeting a more sophisticated client base than might be the case for a plaintiffs' practice. Visibility is a necessity. No other area of practice is represented more in many of the lifestyle and regionally-based print publications I peruse from the mailbox. The radio and billboards tout family law practices (not so much on television). Facebook is both a contributing cause and effect of many divorces--meaning that a target audience is right there for the taking. The use of mediation and forms of alternative dispute resolution bring in other competitive marketplace issues. A few years ago, I presented a marketing ethics CLE program at the ABA Annual Meeting for the ADR section, with many of the examples coming from issues relating to family law attorneys competing with huge, non-law firm divorce mediation services.

Personally, I enjoy marketing family law practices. There is a mix of general law practice marketing principles with non-law firm specific avenues of consumer marketing targets. The challenge is often to out-"visible" the other guy or gal, while being in the right places at the right times. Like it or not, the prospective client is highly likely to utilize the Internet as a source of information, referral and attorney selection. Failure to appear is simply a lost opportunity.

For examples of some solid online efforts by family law attorneys (all noted in the ABA feature, and a reverse disclaimer - none are clients and I've never met any of them), see the links below:

Blogs - www.sandiegodivorceattorneyblog.com and www.fortlauderdaledivorcelawyerblog.com
Video - genxsmartie.blogspot.com and thelaw.tv/Kansas/Divorce+Law
Social Media inclusion - www.sblumenthallaw.com
Niche - Cordell & Cordell

In this month's Law Practice magazine, my colleague and alternating "marketing columnist" Greg Siskind provides an outstanding primer on the benefits and how-to of trade show marketing for the law firm. Greg's immigration law practice, Siskind Susser, has successfully used trade show participation as a significant marketing tool for many years.

In the article, Greg discusses budgeting, show selection, booth planning, working the booth, follow-up and ethical issues. Depending on the practice and the personalities, I've been a fan of trade show participation for lawyers--when appropriate. The breakdown is often in the lack of strategic planning, the people sent, and the all-important follow through. When you start adding up everything up from the organization sponsorship, to the booth development or rental, travel & entertainment, promotional giveaways and proper follow through, it can be a big nut in a practice group's marketing budget. However, if done right, and tracked properly, it can be a lucrative leader in generating new clients and matters. In most cases, attending a trade show is not a one-off event. It is usually the culmination of many other activities related to the specific trade, and often, a multi-year effort before a real payoff.

Many years ago, I authored a similar (but not as good) article on trade show marketing for lawyers. I discussed my own experiences and what I'd witnessed in visiting some law firm booths at a local Chamber of Commerce event. In reading Greg's piece and rereading my own, I'm reminded that in the right situation, trade show participation continues to often be an underutilized or under strategized component of a law firm marketing plan. However, if the target market is on-point and there is proper access to the attendees, it provides an opportunity often lacking in this age of social media and virtual society--in-person, real time contact with decision makers and buyers of legal services. But make sure that participation in a trade show is well planned and thought out, or the results can be detrimental instead of positive.

Last month, at the invitation of Joshua Peck and the Law Firm Media Professionals organization, I attended their monthly program in New York City, at the offices of Dechert. As always, the topic of "Surveys and Rankings" attracted significant interest (and conversation) from the many law firm communications and public relations people in Manhattan.

On the panel were Reena SenGupta, representing "FT Innovative Lawyers" for the Financial Times; Anne Szustek, Deputy Editor of the Benchmark Litigation survey, run by Euromoney; and Steven Naifeh, President of Best Lawyers, which also publish the US News & World Reports "Best Law Firm" rankings.

The audience questions (and skepticism) reminded me that nerves are still raw when seeing the friction that exists between these businesses and the law firm professionals that choose to participate in them (or not). Everyone continues to preach "separation of church and state" as it relates to the editorial evaluation versus the advertising opportunities that are offered. I made particular note of the Benchmark folks reminding everyone that they are journalists and researchers, not lawyers. That just makes me give second thought as to how good they can be in evaluating the leaders in litigation. I can't say that either FT or Benchmark did anything to increase credibility, based on their presentations. If you buy in, you are probably still in. But if not, I doubt opinion shifted at all.

What I find interesting in looking at the Best Lawyers business is how they have been able to maintain their place in the rankings "market", while shifting and rebooting to reflect the growing competition. The addition of the U.S. News law firm rankings was a brilliant response to the entry of Chambers USA to the field. In the meantime, Martindale has slowly responded to reworking AV ratings--but it was slow to react and the business both suffered and allowed competition to eat a big slice of what was their pie. The good news for Martindale and Best Lawyers is that they have stemmed the Chambers tide. As everyone shifted the way they evaluated lawyers and law firms for ratings, rankings and surveys, Chambers slowly increased the "buy" opportunities, so that the tables at awards dinners, increased publishing buys and profiles make them look like a cross between an American Lawyer "awards" dinner and an AV-rating (or "Top Rated Lawyer" as now referenced in most cases). Getting ranked, and what you do with the ranking continue to be a fluid space in law firm circles.

With the American Bar Association, I've worked on numerous programs related to the rankings and ratings industry. The Pennsylvania Bar Institute program I conducted in 2012, "Lawyer Rankings & Ratings: The Impact on Ethics and the Profession" was one of the best received and responded to programs I've conducted in the last decade. It is important to know the players and understand the business models.

The real question for the law firm in 2013 is which rankings, ratings, reviews and surveys will you participate in, and why? And which "honors" will be used for marketing purposes, and how much are you going to spend with these companies to tout those awards? The answer varies significantly, based on your practice, your firm and client base. You can't say yes or no to all.

In this month's Web Marketing Today column, I address the importance of having a proper mobile marketing plan to accompany your law firm's Internet marketing efforts. Regardless of a law firm's audience, practice groups, size or location--"mobile" is a critical component.

Some law firms are still at stage one--trying to get some sort of compatibility for an iPhone or Android device. Others have moved well past that toward development of applications that serve purposes ranging from "marketing" to uses for partner retreats, recruiting and access to files and billing.

The strategies, however, do differ based on a law firms' audience and clientele. As is the case with a typical website--what you develop for a Baker McKenzie is going to differ from what you develop for Sokolove Law. Although as of today, a quick look at both of those websites on my Droid were not online presences built for mobile. This column features firms that built a solid online mobile presence. It also addresses related issues tied to SEO and online advertising considerations as well.

I point out that a simple look at your own website's traffic reports should be all the evidence you need that the mobile audience is already huge, and rapidly growing.

What is it our parents always told us? If your friend jumped off a bridge, does that mean you should do the same? In this case, it is more like "Match Game 2012" than it is about "follow the leader." So the question becomes, how necessary is it for a law firm to match another's year-end bonus? And in my business, what are the marketing implications for a law firm that does or does not choose to follow suit?

As reported by Peter Lattman in The New York Times this week, "Cravath sets the tone for law firm bonuses." Law firms don't have NFL salary caps or MLB luxury taxes to help keep things competitive. In many ways, Cravath is like the New York Yankees of law firms--old, venerable and wealthy. They generate a lot of revenue that others can't, and can spend accordingly. But most other teams simply don't generate the same revenue and can't pay out the same amounts. Spending more does not mean you always win, but you are usually in the game.

If the process holds true that Cravath sets the scale, then you could argue they could do it to squeeze others as much as it might be to reward the associates that spend the year billing the night away. If you think about it, if they force less profitable firms to profit less, are they not creating an even stronger market advantage for themselves?

And what does this say about all the surveys and reports we keep reading? Corporate counsel cutting spending. A soft economy. Revenue is down. Are those reports really not accurate barometers? (I've often felt that a significant amount of that data does not accurately reflect reality.) In many cases, the answer is reflected in the fact that most firms are simply not in the same boat. Those that had already chosen to match by week's end--Paul Weiss, Proskauer, Simpson Thacher, Skadden, among them--are playing in the same pond. The reality is that those firms are in a position to match without concern. The problem is that the same conversation goes on in a hundred firms that are not.

I often cringe in having the "match" conversation with law firm management. Will we remain competitive? Will we be seen as second tier? Can we afford not to match? Will the short term pain outweigh what is perceived as long term gain? What will others think? Will we lose out in associate retention and recruiting wars? Many of those questions lead a firm to just say "yes" regardless of whether the feared impact is true. I don't believe in almost every instance that matching is necessary. It comes down to semantics. In a working world where the bottom line dollar is less and less important to those that are living large either way, there are so many other determining factors that can make your law firm the place to be. After all, didn't the St. Louis Cardinals and San Francisco Giants just win the last three World Series? And did Dewey & LeBoeuf match last year? I'd ask, but nobody is answering the phone.