Corante

CONTRIBUTORS

Denise Howell Denise Howell
( Profile | Archive )

Dennis M. Kennedy Dennis M. Kennedy
( Profile | Archive )

Tom Mighell Tom Mighell
( Profile | Archive )

Marty Schwimmer Marty Schwimmer
( Profile | Archive )

Ernest Svenson Ernest Svenson
( Profile | Archive )

Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect. We take you behind the firewalls and conference room doors to show you how experienced lawyers deal with these issues and help you prepare for the new challenges we all face. For more, see our introductory post.

Between Lawyers

Category Archives

« Legal Education | Legal Ethics and Advertising | Legal Technology »

March 15, 2007

More Questions About Recent Legal Marketing Restrictions

Email This Entry

Posted by Dennis M. Kennedy

Legal marketing guru Burkey Belser takes a few stabs at the recent New York and Florida efforts to restrict legal advertising and communications in his post "Rotten to the Core." I agree with his assessment that the law of unintended consequences will apply many times over with these rules and the risks of arbitrary enforcement are quite high.

The money quote:

One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.

There's good practical advice in the post and a helpful chart you can download.

Comments (0) + TrackBacks (0) | Category: Legal Ethics and Advertising

January 8, 2007

New NY Advertising Rules Are Out There

Email This Entry

Posted by Dennis M. Kennedy

Well, the new New York advertising rules for lawyers are out. They are quite extensive. Fortunately, there are some analytical pieces and summaries out already ready.

As a good starting point, check out Allison Shields' extensive summary here. Larry Bodine does not mince words in his reaction. Carolyn Elefant at Law.com summarizes a few posts. John Caher takes a gentle approach in the New York Law Journal..

I'm sure we'll see more commentary later, but there's a lot to read and digest.

My first quick read gave my the odd feeling that I was reading a new Miranda marketing warning for legal marketing ("You have the right to remain silent. Anything resembling marketing that you or your law firm may do may be treated as an ethical violation."), but I'll reserve judgment until I can read the rules more closely.

Two thoughts: First, I think that my characterization of the proposed rules as "micromanaging" is even more true of the final rules. Second, I believe that this type of state regulation, which undoubtedly will be picked up by other states, all but begs the FTC to step into lawyer regulation.

I understand that the next item on the New York agenda is a lawyer dress code. ;-) Hmm, maybe that's not so far-fetched. Consider this quote from the Caher article:

Finally, the new rules ban advertising "techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence." That provision was added partially in response to advertisements run by a Long Island, N.Y., attorney who permitted herself to be filmed in provocative poses to tout her real estate practice. Those ads generated complaints from Long Island practitioners who noted that the attorney's cleavage had nothing to do with her legal abilities, officials said.

The one element of these new rules I really like is the use of the all-but-forgotten word "moniker." I assume that the rules on use of monikers may bring the end to Morrison Foerster use of the term of endearment "MoFo." Heh.

I'm quite curious to see what the response of New York lawyers will be to these rules.

Comments (1) + TrackBacks (0) | Category: Legal Ethics and Advertising

October 17, 2006

Breadcrumbs, Not Ads

Email This Entry

Posted by Dennis M. Kennedy

Bar regulators in New York and many other states will be on the phone scheduling meetings to stamp out some of the new and innovative marketing ideas in Ari Kaplan's new article, "Lawyers Must Get Creative About Marketing."

There are some great ideas and insights in the article. I personally would be afraid to try them in today's increasingly "Lawyers Must NOT Get Creative ABout Markeing" environment. The biggest danger: since the suggested methods are reasonable and recommended by marketing experts outside the legal profession, they might work.

As we continue to keep our eyes on the proposed regs in New York and elsewhere and the ongoing efforts of regulators to cause the FTC to regulate the regulators, it might be useful to think about Between Lawyers' own Denise Howell's quote in this article:

Blogging reaches a broader, more distributed audience, and provides a search-friendly, enduring archive of knowledge-oriented breadcrumbs.

Comments (0) + TrackBacks (0) | Category: Legal Ethics and Advertising

October 16, 2006

October 9, 2006

October 7, 2006

September 26, 2006

September 17, 2006

September 15, 2006

June 22, 2006

June 15, 2006

If Lawyers Can Advertise in New York, They Can Advertise Anywhere . . . But They Probably Can't

Email This Entry

Posted by Dennis M. Kennedy

Anyone else flummoxed by the proposed new advertising rules for lawyers in New York? Take a close look at this Law.com article and the text of the proposed amendments to the rules and let me know what you think.

As I read the rules, EVERY public communication is an advertisement and any communication that isn't an advertisement is probably a solicitation. That should cover almost every communication between lawyers and the public.

In either case, a shocking number of draconian and micro-managing rules will apply.

I'll let others consider the free speech and other aspects of these rules, but I'd love to see some marketing experts analyze what the actual marketing effectiveness of any communication that satisifes these rules will have. My tentative conclusion is that if an "advertisement" or "solicitation" might in even a limited way be effective, it will violate the rules. If it has even been recommended as an effective form of marketing, it will probably cause you trouble.

This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era.

Should you care? Well, consider this quote from the rules: "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this state if the lawyer provides or solicits any legal services in this state." Take a quick look at the definition of "computer-accessed communication" in the amended rules and consider how a website or blog located anywhere is likely to be treated by the plain language of these proposed rules.

Once again, we see a concern about a limited problem being turned into wide-ranging regulations that will have enormous unintended consequences and seem designed primarily to protect established, successful practices from new competition.

Are we seeing the last gasp of an attempt to apply 19th century concepts to a 21st century world, or will lawyers be the only group able to roll back the changes the Internet has brought to the rest of the world? I'm betting on the Internet, but I'm quite curious about what others think about these proposed rules and others like them. It might be a good discussion topic for a summer Friday.

Comments (2) + TrackBacks (0) | Category: Legal Ethics and Advertising | Practice of Law | Provocations

May 19, 2006

May 18, 2006

January 26, 2006

December 2, 2005

No Pit Bulls or Other Creativity(?) in Legal Ads in Florida

Email This Entry

Posted by Dennis M. Kennedy

David Hudson's article, "Florida Muzzles Pit Bull Ads," in the ABA Journal eReport tells the detailed story of the recent Florida Supreme Court ruling that the law firm Pape & Chandler's use of a marketing logo and campaign featuring the image of a pit bull violated Florida's Rules of Professional Conduct. It does a great job of talking with people involved in the case and analyzing the arguments and the ruling.

I mention this decision because it iillustrates how difficult it is for lawyers and law firms to do "creative" advertising and, indeed, use the normal types of advertising techniques that are commonplace in advertising for other goods and services. This case should show those outside the legal profession why lawyers seem so reluctant to try standard advertising and marketing approaches and why many inside the profession think the rules create a minefield of potential problems for both the unwary and the well-intentioned.

The money quotes;

[T]he Florida Supreme Court reversed the referee’s ruling, finding the pit-bull ads "demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice."

The state high court relied in part on the comment to Rule 4-7.1, which provides: "A lawyer’s advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements using slogans … fail to meet these standards and diminish public confidence in the legal system (Note: emphasis mine; quoting the material quoted in the article, which uses the ellipsis)."

The law firm plans to appeal the case to the U.S. Supreme Court. It might be interesting to hear Judge Alito's answer to a question about this type of regulation of the legal profession.

My own opinion, for what it's worth, is that rulings such as this one provide a real disincentive for lawyers who want to innovate in almost any aspect of the practice of law, whether they are in Florida or elsewhere, because of the "chilling effect" that they create. I'm curous what others think.

The opinion does seem to only address actual advertisements. As you may have noticed, many law firms have marketing slogans these days. It'll be interesting to see how other Florida firms change their ads in light of this ruling.

Comments (4) + TrackBacks (0) | Category: Legal Ethics and Advertising

September 6, 2005

Boies Will Be Boies

Email This Entry

Posted by Marty Schwimmer

The other good firm in this part of Westchester, Boies Schiller, is running into problems relating to its use of a document management firm, Amici, in connection with matters it handled, such as that of the Adelphia bankruptcy. David Boies' children have a financial interest in Amici which interest was apparently 'inadvertently' not disclosed.

Adam Smith. Esq. has a commentary, noting that Boies' high-profile in corporate governance matters makes this matter particularly embarrassing.

An interesting point to consider is proper procedure for 'selling' ancillary services (note: even the act of recommending another lawyer within your firm to a client is conceivably 'conflicted' advice).

Question for discussion: The law places a lot of stock in disclosure. Is disclosure sufficient protection when a lawyer gives advice where his or her interests or not necessarily aligned with those of the client?

Comments (2) + TrackBacks (0) | Category: Legal Ethics and Advertising

August 31, 2005

June 17, 2005

June 16, 2005

Denise re: Real Estate for Lawyers

Email This Entry

Posted by Denise Howell

Commenting on a post at my other blog about the session on "The Law Now" that will be part of next week's Gnomedex, Enrico Schaeffer writes:

The thought that new business models in the law can thrive is starting to take hold. I have launched a firm, branded, marketed and implemented around the concepts of technology and service. We use flat fee, project-based and shared risk billing models which clients love. Our blog generates several new clients per month and will certainly generate six figures in revenue this year. Within 4 months, we have grown from one attorney and one secretary to include one additional office staff person, three virtual law clerks and one virtual paralegal. We have already grown out of our space.

I attribute our success to our alternative business model. How hard is it to distinguish yourself from a bunch of stuffed suits who can't see beyond hourly billing?

Good for you, Enrico! (Careful about those wacky and endlessly confusing lawyer advertising rules though.)

[Update:] And see Enrico's comment to an earlier BL post.

Comments (4) + TrackBacks (0) | Category: Legal Ethics and Advertising | Virtual Lawyers

May 10, 2005

Denise re: The Wacky and Endlessly Confusing World of Lawyer Advertising Regulations

Email This Entry

Posted by Denise Howell

Dennis writes that, despite his far from meager intellect and his best efforts to be a good soldier, he doesn't "have a clue about what you can and can't do anymore" regarding being a lawyer and being on the Web, and prays for rules that make sense for 2005 and beyond. Amen to that. Two quick hits as well in response:

Comments (5) + TrackBacks (0) | Category: Legal Ethics and Advertising

The Wacky and Endlessly Confusing World of Lawyer Advertising Regulations

Email This Entry

Posted by Dennis M. Kennedy

On The Trademark Blog, Marty recently pointed to a story about a "controversial" ad by a Florida law firm that was originally determined to be iimpermissible, at least until cooler heads prevailed.

In the ad, the Florida firm had the unmitigated audacity to use a print ad that featured a row of ice cream cones, with the final ice cream cone in the row (note to lawyers: this ice cream cone metaphorically represented the law firm) having three scoops of ice cream rather than the single scoop found in the other cones.

However, it was neither the use of pictures nor the use of metaphors that caused the concern.

The ad had a tagline that said: "expect more from your law firm." No, it wasn't even the lack of initial capitalization that caused the problem.

Instead, the problem was this: "the phrase 'Expect [sic] more from your law firm' created 'unjustified expectations about results the attorney can achieve' and 'compares the services of one attorney to another without factually substantiating the comparison.'"

In a nutshell, there you have the lay of the land in the sometimes incomprehensible world of lawyer advertising.

The good news is that the Florida authorities reversed their decision. The bad news is that there is a regulatory environment that provides disincentives for lawyers and law firms to use any kind of normal (meaning "effective") advertising methods while seemingly ignoring what would seem to be violations of advertising rules if you could even figure out what the rules mean.

I've complained about this state of affairs before (here, here and here, for example). My belief is that it is too difficult for a well-intentioned law firm or lawyer who wants to comply with all of the rules to have any confidence that they have done so with any level of confidence.

I've also studied and tried to comply with the advertising rules for lawyers for the ten years that I've had a website. I wrote about and spoke about these issues nearly ten years ago. I think I know the rules and the decisions interpreting these rules pretty well.

And I don't have a clue about what you can and can't do anymore. The wheels on this train went off the track a while back and it's time to give some thought to getting things back on a track that makes sense for 2005 and beyond. Who was being protected by the first decision of the Florida authorities about teh ice cream cone ad?

Let's discuss.

Here's a quiz. Can you spot at least three issues raised by the following seemingly innocuous description of a law firm and its services under common interpretations of the ethical rules covering lawyer advertising?

XYZ law firm is a national full-service law firm with offices in the eastern United States. XYZ has the breadth and depth of resources to deliver the highest quality legal services to a broad range of individual, corporate, nonprofit and government clients.

ANSWER:

(1) Use of term "national" when they only have offices in eastern US.

(2) "full-service" has been considered an inaccurate, misleading term, based on the reasoning used with ice cream cone ad.

(3) "highest quality" is, of course, not objectively provable and at least implies a comparison to other lawyers.

You may have additional answers.

What, then, is the purpose of these rules and do they (and state-based regulation in general) make sense in 2005? I simply ask the question.

Comments (2) + TrackBacks (0) | Category: Legal Ethics and Advertising