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2019 Trends in Legal Marketing, Including Ethics

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Changes to the ABA Model Rules and Texas Disciplinary Rules for attorney advertising, as well as a discussion of marketing tips and trends for 2019.

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2019 Trends in Legal Marketing, Including Ethics

  1. 1. + 2019 Trends in Legal Marketing, Including Ethics Stacey E. Burke
  2. 2. + The Disconnect
  3. 3. + Public Policy Considerations With Regard to Attorney Advertising  Traditionalists maintain that ethics rules protect the public and mitigate risk. The futurists counter that protectionism is only a virtue if the thing it shelters from change is worth preserving in the first place.  There was a time, before 1977, when the rules prohibited lawyers from advertising their services.  Legal advertising has come a long way in the last 40 years, but the rules still suffer from decades-long lag.
  4. 4. + Do Lawyer Advertising Restrictions Protect the Public?  It is hard to tell. At a minimum, no available empirical data supports these various limits.  Worse, they very obviously hinder lawyers’ ability and willingness to risk reaching people most in need of their assistance.  And the cynicism is apparent: lawyers left unbridled will mislead the public and otherwise violate the rules.
  5. 5. + The lag between the technology adoption lifecycle and ethics regulators’ prescience about lawyers’ use of that technology in legal advertising is incapacitating and getting worse. For example, most states have still not issued specific guidance on how lawyers can use social media ethically.
  6. 6. + Our Duty to Stay Up-to-Date  Lawyers have a duty to keep themselves informed of changes in the law, including the benefits and risks associated with relevant technology.  In today’s world of social media, relevant technology includes Facebook, Twitter, Instagram, LinkedIn, SnapChat, and more.
  7. 7. + ABA Model Rules
  8. 8. + In August 2018, the ABA Adopted Changes to the Model Rules The ABA approved long-awaited changes to its Model Rules on legal advertising at its 2018 House of Delegates meeting. While the rule revisions do not go as far as some had hoped, they serve to simplify, streamline, and modernize the guidelines for lawyers looking to advertise their services in the Internet era.
  9. 9. + Sample ABA Model Rule Revisions:  Model Rule 7.2 was revised to now allow lawyers to:  Simply post “contact information” such as a website or email address instead of an “office address” on marketing materials. This is a nod to virtual law practices.  State that they are “specialists” in a particular area based on experience, education, and training rather than needing a certification, provided that this assertion does not run afoul of the “false or misleading” standard in Model Rule 7.1.  Give “nominal” thank you gifts to people who recommend them to clients, as long as the gift is not expected or received as payment for the recommendation.  Use “all media” (a change from “written, recorded or electronic communication, including public media”).
  10. 10. + ABA Model Rule Revisions, continued:  Model Rule 7.3 was revised to now allow lawyers to:  Forego labeling written marketing materials as “advertising,” based on the notion that consumers are used to receiving paper and electronic ads and can distinguish them from other types of correspondence without a written notice.  Model Rule 7.3 defines “solicitation” in new subsection (a), continuing to prohibit live solicitation, which includes in-person or other real-time visual or auditory communication, but now permits real-time electronic solicitation via means such as texts or tweets on the theory that these methods are more like written advertisements than in-person solicitation because consumers can pause before responding and/or ignore them.
  11. 11. + Texas Advertising Rules
  12. 12. + State Rules Reign Supreme Lawyers must comply with the state rules that govern their conduct and not the ABA Model Rules, unless, of course, when their state rules mirror the Model Rules.
  13. 13. + What do we have to submit for review? Most public marketing efforts must be submitted to the Advertising Review Committee as required by Part VII of the Texas Disciplinary Rules of Professional Conduct. But not all advertisements are required to be submitted for review. Some ads are exempt from the submission requirements.
  14. 14. + 2019 Proposed Updates in Texas  Trade Names: Probably the most significant departure from the current rule is a revised rule that would allow law firms to use trade names. But you still can’t be false or misleading.  Old way: Stacey E. Burke, P.C.  New way: Burke Business Lawyers  Board Certification: At the first instance of referencing this credential, it must be spelled out entirely, i.e., Board Certified in Family Law by the Texas Board of Legal Specialization. But after that, an attorney can simply say ‘Board Certified’ without the full text. Lawyers have not been required to say “not” board certified since 2005.
  15. 15. + 2019 Proposed Updates, cont.:  Submission Timeframes: Lawyers currently have 10 days to cure violations, but the update will increase this to 15 days. This is a great change because lawyers frequently receive the letter requesting the change just a few days before the 10-day period is up, causing unnecessary anxiety and stress. Extending the deadline by five days helps.  Electronic Submission Filing: The Ad Review Committee has traditionally operated under the ‘technology is bad’ mindset, requiring all submissions be printed and mailed into the Austin office. Recently, they began allowing follow-up communications by email, but the majority of correspondence was conducted by snail mail. Under the proposed revisions, an online ‘portal’ will be created by an outside vendor that would allow firms to submit and pay for their Ad Review applications online, as well as track the status of the review process.
  16. 16. + According to Gene Major:  On average, the Advertising Review Department handles about 3,500 advertisements and solicitation communications per year. Many submissions have initial problems that we clearly identify. This provides the opportunity for individual attorneys and firms to make necessary changes so their ad or solicitation is compliant with the Texas Disciplinary Rules of Professional Conduct.  Roughly 80% of the ads and solicitation communications submitted to the State Bar of Texas are eventually approved for public dissemination.  If a firm or individual lawyer is communicating with current and former clients, others lawyers, or other professionals, then they are NOT required to make an Ad Review submission as long as the communication is not false, misleading or deceptive.
  17. 17. + Weird Things in Texas:  Board Certification: The advertising lawyer or law firm must be competent in the advertised field of law and cannot say they are specialized or certified unless they or their entire firm have been certified by the Texas Board of Legal Specialization.  Past Results: Must provide information dealing with the nature of the case and further details into the type of amounts stated in the ad. A disclaimer does not cure the violation.  Cumulative Results: Cumulative results amounts CANNOT be presented in ads without each case fulfilling the required items mentioned above.
  18. 18. + Legal Marketing Trends
  19. 19. + Social Media  Having a social media presence humanizes you and your law firm by showing your audience what you care about.  Which social media sites should you use? It depends.  Personal injury and/or divorce lawyers should be on Facebook to reach individual consumers.  Lawyers servicing business clients might be better served by focusing on LinkedIn.
  20. 20. + Original Graphics A great way to engage potential customers on social media is to create original graphics. They need to be simple and to the point.
  21. 21. + Manage Your Local Listings:  When a prospective client is deciding if they should contact your firm, they will look you up online. What will they find if they search for you?  While the attorneys at your law firm and the firm itself should have a variety of digital mentions, social proof via online reviews on local listings sites like Yelp or the Better Business Bureau have a huge impact on consumer decision making.
  22. 22. + Video Video is a good way to show off your law firm and connect with your audience. Videos can be engaging, shareable, and used in many different ways. You can add them to website pages, social media channels, email newsletters, and they will allow you the opportunity to rank for terms within video communities.
  23. 23. + Marketing Trends
  24. 24. + It’s All About That Mobile  Adapt all of your digital marketing efforts to mobile devices. Even better – design for mobile first!  Understand that most people are going to be viewing your website on a small screen. So having a responsive website that looks perfect on a mobile device is critical.  When it comes to interacting with clients, many want to communicate via a mobile device – and that doesn’t mean they want you to call them. Clients prefer to communicate by text message, email, and social media and expect a quick response. So it’s not just digital assets that have to be mobile, law firm communications do too.
  25. 25. + Live Video / Social Video Worthwhile professional interactions happen on social media everyday. And, research shows users prefer video and imagery to text and BIG TIME. Live video is still valuable after it’s “live” as video that you can repurpose for other uses.
  26. 26. + Voice Search Voice searches tend to be more conversational than written searches. Instead of two to three keywords, vocal searches are often made in complete phrases. This will change the way we think about keywords: instead of a heavy focus on two-word keyword phrases, firms will need to consider longer phrases, anchored in a more conversational tone.
  27. 27. + Web Accessibility  During the first six months of 2018, more than 5,000 lawsuits were filed in federal court alleging businesses were in violation of the 1990 Americans with Disabilities Act (ADA), according to a mid- year report from Seyfarth Shaw. In most cases, these lawsuits were about websites.  For a website to be accessible to disabled people, the content must be coded so that screen-reading software can convert the words to an audio translation. Video that appears on a website must include descriptions for the deaf. Also, all interactive functions must be operable through keyboard commands for people who can’t use a mouse.  No formal government standards exist for private businesses to follow to ensure their websites comply with the ADA, although a consortium of web innovators has created guidelines, known as the Web Content Accessibility Guidelines, to make websites more accessible to disabled people. Government websites already follow those guidelines.
  28. 28. + Web Accessibility + SEO  Google grants websites that meet accessibility standards a higher ranking in search. The way a search engine like Google “reads” a website is similar to how blind person would: not being able to view an image, Google “reads” the alt text. When you incorporate accessibility features into your firm’s web design, your site’s Search Engine Optimization (SEO) benefits!
  29. 29. + Connect with Stacey:  Facebook: @MarketingLawyers  Twitter: @staceyeburke  Instagram: @MarketingLawyers  LinkedIn: /company/stacey-e-burke-p-c  Website: www.staceyeburke.com  My e-newsletter: http://bit.ly/StaceyMail

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