Should State Bars Regulate Marketing?
“The State Bars should get out of the business of regulating marketing because it is something they know nothing about.” – Larry Bodine
That jolted me out of my seat at the MyLegal Case for Social Media Conference last month. It’s no secret that some state bars have struggled to understand new technology and Avvo has run into this on more than one occasion. But, this quote came from Larry Bodine, the venerable law firm marketing consultant who has spent the past few decades working with Big Law Firms on foundational business development concepts. It seems that both Larry and Avvo have run into similar concerns with the regulation of marketing from state bars and are experiencing first hand how that regulation is damaging an industry already hurting from the economic crunch. Across the legal industry there is a growing consensus that the regulation of marketing is causing much more harm than good. While it was appropriate (and brave) to include a counterpoint to social media at the MyLegal conference by including a presentation from a state bar regulator; but I was aghast by the fear mongering put forth including:
- Don’t use Facebook, your computer will get hacked with malware, keystroke capture and your bank account numbers will be stolen. (Shouldn’t we toss email too while we’re at it along with the Internet in general?)
- Your competitors surf social media looking for opportunities to turn you in to the State Bar.
- You can have your law license suspended for blogging.
- All content you put on Facebook is saved on your computer and State Bars can get to it.
- State bars spend lawyer dues proactively trolling social media looking for ethics violations.
The room drew a collective breath, sat up in fear and started scribbling notes madly. A few, including Carolyn Elefant, the esteemed author of Solo By Choice, challenged openly – “you are putting your own constituents at a competitive disadvantage.” Marketing opportunities brought about by online marketing can level the playing field, helping small firms compete with the deep pockets of Big Law. After all, it only costs $9.95 a month to host a blog if you are Wilson Sonsini or Ross-Johnson-I-Just-Got-Out-Of-Law-School. Limiting small practices’ ability to engage with consumers on Facebook, Twitter or Avvo is curtailing their ability to build their business. The connection some have drawn is that these anti-technology social media rules being pushed by the bar are protectionist for the Big Law firms trying to defend their turf.
Frequently, ethics rules are brought about in the name of the (apparently extremely stupid) purchaser of legal services. Do consumers really need to be protected from the opinions of other consumers about the quality of service? Are they really so stupid that they think an online rating saying “Bill is the best lawyer” means that Bill is absolutely the best lawyer? As Carolyn writes: “I am not aware of a single complaint by a consumer alleging that he or she was mislead or deceived about a lawyer’s quality due to customer rating sites.” Why does the legal industry, that already has an image trouble among the general populace, quash that same populace from saying nice (even great, wonderful, awesome, stupendous) things about the legal industry?
False or misleading advertising doesn’t belong in the legal profession. That simple standard should apply to lawyers on Facebook or Avvo just as it does to lawyers at a cocktail party or golfcourse. The FTC has repeatedly pushed the bars to be less specific around lawyer advertising rules and regulations and we can see why when considering the Florida bar’s latest directive. All Florida attorney websites may soon need to be redesigned to require every page beyond the homepage to be accessed only after affirmatively clicking on a disclaimer. We call this the Florida Website Developers Employment Act. Can you imagine only accessing a book on Amazon or a trip on Expedia after reading an interstitial legal warning off the home page? Limiting access to information about lawyers and the law by these types of firewalls hurts both lawyers and consumers. Larry Bodine is absolutely right – most bars don’t understand marketing (let alone technology marketing).
More Reading
Red Alert: The ABA Wants to Regulate Online Lawyer Marketing
ABA, Social Media and a Time to Panic
To The Whining Online Marketers: You Started This (counterpoint from Brian Tannebaum)
“The State Bars should get out of the business of regulating marketing because it is something they know nothing about.”
That jolted me out of my seat at the MyLegal Case for Social Media Conference last month. It’s no secret that some state bars have struggled to understand new technology and Avvo has run into this on more than one occasion. But, this quote came from Larry Bodine, the venerable law firm marketing consultant who has spent the past few decades working with Big Law Firms on foundational business development concepts. It seems that both Larry and Avvo have run into similar concerns with the regulation of marketing from state bars. In fact, across the legal industry there is a growing consensus that the regulation of marketing is causing much more harm than good. It was appropriate to include a counterpoint to social media at the MyLegal conference by including a presentation from a state bar regulator; but I was aghast by the fear mongering put forth including:
· Don’t use Facebook, your computer will get hacked with malware, keystroke capture and your bank account numbers will be stolen. (Shouldn’t we toss email too while we’re at it along with the Internet in general?)
· Your competitors surf social media looking for opportunities to turn you in to the State Bar.
· You can have your law license suspended for blogging.
· All content you put on Facebook is saved on your computer and State Bars can get to it.
· State bars spend lawyer dues proactively trolling social media looking for ethics violations.
The room drew a collective breath, sat up in fear and started scribbling notes madly. A few, including Carolyn Elefant, the esteemed author of Solo By Choice, challenged openly – “you are putting your own constituents at a competitive disadvantage.” Marketing opportunities brought about by online marketing can level the playing field, helping small firms compete with the deep pockets of Big Law. After all, it only costs $9.95 a month to host a blog if you are Wilson Sonsini or Jim-Jones-I-Just-Got-Out-Of-Law-School. Limiting small practices’ ability to engage with consumers on Facebook, Twitter or Avvo is limiting their ability to build their business. The connection some have drawn is that these anti-technology social media rules being pushed by the bar are protectionist for the Big Law firms who need to protect their turf.
Frequently, these ethics rules are brought about in the name of the (apparently extremely stupid) purchaser of legal services. Do consumers really need to be protected from the opinions of other consumers about the quality of service? Are they really so stupid that they think an online rating saying “Bill is the best lawyer” means that Bill is absolutely the best lawyer? As Carolyn writes: “I am not aware of a single complaint by a consumer alleging that he or she was mislead or deceived about a lawyer’s quality due to customer rating sites.” Why does the legal industry, that already has an image trouble among the general populace, quash that same populace from saying nice (even great, wonderful, awesome, stupendous) things about the legal industry?
False or misleading advertising doesn’t belong in the legal profession. That simple standard should apply to lawyers on Facebook or Avvo just as it does to lawyers at a cocktail party or golfcourse. The FTC has constantly pushed the bars to be less specific around lawyer advertising and we can see why when considering the Florida bar’s latest directive. All Florida attorney websites may soon need to be redesigned to require every page beyond the homepage to be accessed only after affirmatively clicking on a disclaimer. We call this the Florida Website Developers Employment Act. Can you imagine only accessing a book on Amazon or a trip on Expedia only after reading an interstitial legal warning off the home page? Limiting access to consumers by these types of firewalls hurts lawyers and consumers. Larry Bodine is absolutely right – most bars don’t understand marketing (let alone technology marketing).
More reading
Red Alert: The ABA Wants to Regulate Online Lawyer Marketing
To The Whining Online Marketers: You Started This (counterpoint from Brian Tannebaum)
November 5th, 2010 at 12:01 pm
At Conrad’s request, I am re-posting my comments on the situation, which I shared on a private listserv to which we both belong:
I think I have some perspective on this matter as an active, and what
I believe to be responsible, user of the services in this medium in my
law practice. My simple response is that the old rules work just fine.
I propose that nothing new needs to be done because the medium has suddenly changed.
There are any number of rules that govern commercial solicitations by attorneys, and although they change from state to state in their implementation, the fact remains that they center on a few principles. The first principle is that you may not engage in false advertising. Simply, you may not lie. By extension, you are prohibited from making any representations about guaranteed outcomes or similar results, your personal ability to do a job better than another attorney, etc. And on the one hand, this means that it’s difficult to engage in the kind of self-promotion that compares the level of your service with another attorney–on the other hand, lawyers have been doing just fine parsing this rule without misleading the public when the medium being used was paper, radios, & television. A second principle is that you may not actively solicit someone you know
is in need of legal services. In my experience, the implementation of
this principle is a bit scattershot. I don’t know how it’s different
running a television commercial on a constant loop offering your
services as a personal injury attorney, given that your message will
hit home at a time when the person is looking for or needing an
attorney, and placing a phone call to an individual to whom you’ve
been referred by a trusted advisor who tells you that this person is
in need of legal services. I guess, one could make the distinction
that the person being referred has authorized the communication, but there seems to be no question these days that the television ad that’s on permanent loop is acceptable. In the context of the proposed ABA guidelines, what’s relevant is the fact that the medium has not affected the availability or the impact of the messages being sent. We’ve gotten to a place where the rules have been able to handle these situations without having to be specially formulated.
Let’s take a look at the situation where the medium has made it
substantially less expensive a proposition to engage in commercial
solicitations. Specifically I’m talking about how you can spam people
by e-mail, or if spam is too harsh a word–collect their information
and trip market to them until they make plans to burn you in effigy.
The current rules would suggest that if you were going to engage in
that type of marketing in print, there would be one set of rules if
the communication was not authorized and welcome (namely, that you put a disclaimer in place that the attached is a solicitation, etc.) and another set of rules if the communication was so authorized. Why does it need to be any different if it comes in bits and bytes?
This was part of a point I was making on another thread about websites in general and the impact of the Internet on the availability of creative services at a discount, but what I mean to say here is that
the Internet has not changed the playing field when it comes to how
people acquire information. People are still reading, watching, or
listening to information. These are the same senses that are being
used when you evaluate information that comes on a different medium.
Consequently, the rules do not have to change simply on account of the new medium. In fact, if the rules ever do change, it should be a
global change that affects the message no matter what medium is used.
And, although this is probably a few paragraphs too long already, one of my chief complaints about rules like this is that they never take into account how the public has matured in its ability to receive the message. These rules are largely based on an assumption that the public is naïve about what legal services are, what effective results may be obtained, and how such services are delivered. That assumption plays on to complementary, and negative, principles. The first principle seems to suggest that the public is child-like and requires care and parenting. I find that assumption to be insulting as a member of the public. The second principle is that somehow attorneys have been granted entry into a kingdom in which what we talk about, how we talk about it, and how we say it to our clients is somehow different than how our clients might say it to each other. I think that notion was antiquated once the educational level of the general public when up in the 1980s (citation available if you want it), and it’s really out of place today when factual information and the ability for the public to discuss items with each other is so easily facilitated by way of the Internet.
You know, it would be one thing if the lawyer world was still The
Guild it was back when only men practiced and there were three
attorneys in the center of town who handled all of the business. But
much of the law has become commoditized. And when you regulate
commodities, you cannot do it as though you were regulating a world of professional services. The two just don’t jive. And don’t get me
wrong, I haven’t moved from my position that commoditization is evil
and that we should fight it on every level. However, the fact remains
that much of the public views it this way and if the rules were meant
to protect them by encouraging good behavior on our part, you cannot create those rules from the vantage point of seeing the public as anything other than enlightened to legal services generally.
Anyhow that’s as much as I can muster on a Friday afternoon with other things to do. I’d be more than happy to discuss these items more with everyone here, and with you specifically, Joe. My ego aside, I think I do the Internet thing really well. And by that, I mean that I do it ethically, I mean that I do it effectively, and I mean that if ABA guidelines make me change how I do it, then I will believe that the reason for the change will be misguided and inappropriate. There are certainly elements of a free-speech argument here, but I’ll leave those constitutional arguments to the 3 lawyers who graduated from Harvard in the 1970s.
Best,
Victor
November 5th, 2010 at 4:43 pm
Like Brian Tannebaum, I do not chafe at lawyers being subject to ethics rules, provided that they are (a) uniform, (b) reasonable and (c) sufficiently broad to allow lawyers to exercise discretion in compliance. I also believe that where activity borders on person-to-person solicitation as opposed to advertising/pure speech, a different standard may be required. For example, I am troubled by some of the pay-per-click ad schemes – not enough to ban them, but to require disclaimers. I also think that by ethics standards, it is very deceptive when a law firm sets up a chat room or social media site masquerading as a “victims support group.” That kind of stuff may pass muster under FTC rules, but I don’t think it is appropriate for law firms.
But for advertising, the bar needs to trust that the public are not morons and that there is a public interest in conveying information. As for third party sites, that’s something that ought to be entirely outside of the scope of bar jurisdiction. The bar has no business prohibiting clients from expressing opinions about lawyers, or trying to do so underhandedly such as making lawyers remove the testimonials if they know about them.
In short, I do not think that taking the ABA or state bars entirely out of the equation is the answer, but I do oppose regulators’ efforts to micromanage lawyer advertising, which imposes additional costs and hobble lawyers’ ability to compete with quasi-legal providers.
November 6th, 2010 at 2:51 pm
This is a really interesting post, I had no idea that social media did more harm than good for law firms. This does make sense, the legal world has been operating just fine without help from social media marketing, and maybe it should stay that way. Facebook, and other social networking outlets work great for many businesses, but perhaps law isn’t one of them. It seems as though there is far too much regulation for law firms to ever conduct an effective social media marketing campaign.
November 8th, 2010 at 12:04 pm
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