Law Practice Today

There was an irony to this past “summer of discontent” in law firm marketing circles. On one hand, we were celebrating the 30 th anniversary of the seminal U.S. Supreme Court case, Bates and O’Steen v. Arizona, which effectively opened the door to law firm marketing. At the same time, the legal profession continued to grapple with issues of ethics, professionalism and reputation in the way that attorneys chose to market their services.

A few cases in point:

• A Chicago billboard touts “Life’s short. Get a divorce.” The titillating images combined with the message brought an outcry from legal and non-legal communities about taste and appropriateness. However, outside of being offensive to some, did it really violate any rules of professional responsibility?
• The continued proliferation of “honors” and “awards” stoked the debate about whether it was appropriate to use such distinctions in advertising—from inclusion in a biography to mentions on billboards and television commercials. Are some of them “deceptive and misleading,” and if so, which ones? Who gets to make that call? The world of the rated and the ranked became cloudier still.
• New York became the latest state to try and significantly amend its state bar advertising requirements. After lengthy debate, a number of controversial rules were put into place. Before the summer was out, a bunch of those changes had been declared unconstitutional and the continued attempt to understand Bates was renewed.
• A Pittsburgh law firm’s immigration seminar on YouTube brought the kind of unwanted publicity that rankles the anti-advertising lawyers—instead of the seminar being hailed as a unique marketing tool in our conservative business, YouTube now features dozens of news clips about the seminar—and the accompanying negative images heaped on the reputation of lawyers.
• A New Jersey ethics opinion addressed the gray line that often exists between providing a non-legal service and practicing law. In this case, the big business of mediation—which may or may not be a “legal service” thus may or may not be “practicing law.” For the lawyer competing against non-lawyers in offering mediation, the question is whether or not the bar rules create an unfair business advantage for the non-lawyer.
• States are grappling with where blogs and other forms of web 2.0 fit in the scheme of things. Are they advertising? Are they editorial? The answer is a resounding, “yes.”
• We continued to hear about the demise of the billable hour (please!), alternate-fee arrangements, the impact of diversity on the dissemination of work, partner de-equitization and the portability of your book of business—who does the client belong to, the practitioner or the firm? And what about the results of the cases and clients? Are they the historical work product of the firm or the practitioner?

There was a time when many lawyers dismissed the impact of Bates as not affecting their own practices. Lawyer marketing was the Yellow Pages, billboards, TV, radio and newspaper advertising. Many of us scoffed that was not the way “we” practiced law. Today, the multi-billion dollar law marketing industry means web sites, podcasts, blogs, trade shows, sponsorships, public relations, market research and a litany of other categories that affects virtually anyone with a JD. The country’s largest law firms invest $10 million or more annually; the midsize will invest a few million as well. And those are the firms that “don’t advertise.”

The increase in multi-jurisdictional practices and ancillary businesses clouds the line of enforcement—in which states are you practicing, do you have an office, do you solicit business? And if there is an issue with the way you market, who is policing and enforcing? The Florida Bar continues to be among the nation’s leaders in creating strict rules and policies, but also in backing those up with enforcement procedures and proceedings.

The World Wide Web alone creates a set of possible ethical conundrums that go well beyond advertising restrictions, and often need to examine issues of attorney/client relationships, competence, confidentiality, conflicts, unauthorized practice of law, multi-state jurisdiction, and issues regarding referrals, references and fee-sharing.

In commemoration of Bates hitting the big “3-0”, and to address the needs of law firms trying to better spend time, money and resources on business development, the ABA’s Law Practice Management Section will present its first-ever conference dedicated to the topic on November 8-9, 2007 in Washington, DC. The LPM Law Firm Marketing Strategies Conference will do for marketing what ABA TECHSHOW has done for the understanding and use of technology.

The event features a number of all-attorney panels that will provide practicing lawyers with the most comprehensive look at how law firm marketing has evolved and where the profession is heading, as well as programs aimed at assisting lawyers and firms with improving their business development strategies.

The two-day event will feature some of the most relevant and integral law firm marketing experts in the country, including Van O’Steen from Bates to talk about legal ethics; former White House media specialist Chris Lehane talking about crisis communications, as well as a program on the impact of diversity initiatives on law firm business.

For more information about the event and how to register, please visit http://www.lawpractice.org/marketingconference.