Marketing: Marketing Ethics Compliance Continues to Confound

Let’s face it: For all the planning and best-laid plans, the most lucrative practice areas sort of just happen. We devise clever marketing strategies and invest in business development, but the money will flow from an unexpected source—some of it is “making your own luck” and other times it is just plain “right place, right time.”

My fellow Law Practice magazine marketing columnist Greg Siskind recently shared a story with me during a cocktail reception at the Law Practice Division meeting in Nashville, Tennessee. I’ll leave the particulars to him (and perhaps one of his future columns), but it went back to what I might refer to as a “grunt work” project handed to young associates at a BigLaw firm a few decades ago. Turns out the grunt work led to a book, which led to expertise in a niche area—one attorney took his newfound knowledge and made a fortune; the other (Greg) used the money to finance leaving the firm and starting his own immigration practice.

So, for the junior lawyer spending countless hours on a seemingly innocuous research project, know that there are some hugely successful lawyers out there still living off that work. In retrospect, I’m sure there are some senior partners who are thinking maybe they should have just done it themselves.

This all leads to my own very niche practice area. When I’m not working with law firms on marketing and business development strategies by day, by night I’m an ethics attorney focused solely on issues relating to law firm marketing and advertising ethics compliance, typically as it relates to state bar regulations. My clients are law firms of all shapes and sizes—from small, aggressive plaintiffs’ practices that invest millions into client and case generation to large, Am Law 100 firms with offices and licensed attorneys in dozens of states needing to comply with a multitude of regulations. Some are law firms that don’t want to be embarrassed by a disciplinary letter (perhaps, again). Others are very creative but wary of crossing any lines. And I have clients that sell various products to lawyers: lead generation programs, rankings and ratings companies, and various entrepreneurs looking to connect attorneys to prospects—without violating rules as they relate to advertising, communications and solicitation. They want to avoid the unauthorized practice of law, while not getting their attorney customers in hot water (because in the end, the attorney needs to answer for any violation, not the vendor).

The beauty of legal marketing ethics is in the inconsistency, confusion and varied enforcement from state to state. Simply knowing whether you need to comply with a particular state’s regulations is often difficult to interpret: Do you have an office there? Is an attorney licensed there? Are you soliciting clients in a place you shouldn’t be? Ethics attorney Tom Spahn at McGuireWoods in Tysons, Virginia—the guy I go to when I don’t know the answer—warns me that at some point in the not- too-distant future, the law marketing ethics practice will dry up. States will finally be consistent with an approach. But that day is not now, and hopefully not very soon.

Back in the late 1990s, all I really wanted to do was teach some CLEs on law firm marketing. I was so naïve. I had no idea that was not an accredited nor substantive legal subject. I was perplexed as to why a legal research product demo, a program on accounting practices or a myriad of law practice topics was kosher, but anything remotely called “marketing,” “business development,” “rainmaking” or “sales” was not. I was told, however, that if I spoke on law market- ing “ethics” (whatever that was), it would count as a CLE. So, I started reading the Rules of Professional Conduct (RPC), ethics opinions and case law—and boom—20-plus years later I have a unique niche practice area that is still very much in demand.

Do You Care? Do They Care?

If a billboard falls in a forest, does anyone hear it? More accurately, if the message on the billboard violates the RPC and nobody does anything about it, what should you do? It is quite a quandary for many law firms. I see advertising all around me that does not comply with the RPC. Should I just ignore them as well, or put myself at a competitive disadvantage by following the letter of the law? Understanding the mindset of the state bar often guides the response.

At the same time, it takes me milliseconds to find law firm marketing that is in violation of all sorts of ethics rules. I’m convinced some attorneys are ignorant to their mere existence and others just put blinders on. My law firm clients want to follow the rules—and count on me to guide them in the right direction. I typically interact with a firm’s general counsel to strategize how to effectively but ethically market.

Loosening Regulations

Many states have adjusted their advertising rules in recent years to catch up with technology, multijurisdictional practices and an ever-increasing competitive global marketplace. Last year, Texas made significant updates. A bunch of states have changes in the works. But there are still lots of variables and nuances in prohibitions and required disclaimer language from state to state.

Deregulation of law practice in places like Utah and Arizona— designed to improve access to justice and increase innovation— has some law firms opening offices simply to take advantage of nonlawyer ownership and the benefits that accompany it. For years, among the benefits of having an office in Washington, D.C., was the ability to fee share with nonlawyers.

What Is ‘Solicitation’ Exactly?

A recent ABA ethics opinion (Formal Opinion 501) felt the need to revisit exactly what “solicitation” is and is not—the continued quest to determine what is “live person-to-person contact” in a world of texts, Facebook Live and various referral networks. The competition in mass tort cases, class actions and personal injury cases is huge, huge business, with firms often spending in the tens of millions of dollars annually to generate clients.

Often, when I’m researching a practice for a law firm client, I find myself subsequently receiving emails offering legal counsel for those specific matters. They are all over my Google page and feed on my Facebook page—which I’m usually OK with. However, getting email solicitations without my asking is not OK. Sometimes they are directly from a law firm, but more likely from a lead generation company that will sell my “lead” (if I were to respond) to an attorney somewhere. It is tough to track, and even harder for a state bar to enforce. But it is all what makes issues of compliance so tricky.

The Model Rule 5.5 Debate

At a recent meeting of the ABA’s Ethics and Professional Responsibility Committee, we spent the good part of an hour debating the April 2022 proposal by the Association of Professional Responsibility Lawyers advocating that a lawyer admitted in any U.S. jurisdiction should be able to practice law without regard to the geographic location of the lawyer or the client. While I admired the try, I laughed at the likelihood of implementation. Yes, it might sound perfectly sensible. But states are not giving up control over the profession and the courts. While I know Spahn is right about the future of law marketing ethics (I never doubt him), I’ll thank CLE accreditors for making me learn something new in the meantime—and remind law firms that profitable practices can come from anywhere. Sometimes, even done ethically.