ABA Drops The Ball On Attorney Marketing

This post is about some lousy advice given by the ABA Journal regarding legal marketing, some of which may actually be an ethical violation in New York.

I have something to add to the skewering of the ABAJournal article done by Ken @ Popehat, but go read that first and then return: Plumbing The Depths of Legal Marketing: What Does the ABA Think You Should Do To Get Clients?

Welcome back. Before going on, let me agree with Ken and say that not all of the advice is bad. As per the ABA advice on how to market, for instance, this is good:

11.) Don’t adopt a false marketing persona. Be yourself, and figure out the best way to present yourself in a way you find appealing.

OK, I like that, and it fits with ways that I market.

But this is one thing that Ken discussed about that article where he missed a critical point, and it’s important because it actually may be an ethical violation depending on your jurisdiction:

13.) Providing they label it attorney advertising, personal injury lawyers may send ad letters to accident victims.

Blech. Lets leave out, for a moment, that this is degrading to the profession as Ken notes, and makes all lawyers look like Sunday morning whores, even if we don’t conduct ourselves in such horrid fashion. But in New York, this might actually be an ethical violation as it could violate our 30-day anti-solictitation rule. See, for example, NY Lawyer Solicits Snowbound Subway Victims (Does He Violate Ethics Rules?)

This is Rule 4.5:

No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So part of the ABA advice could actually lead to an ethical violation depending on when it is sent. Shouldn’t that article have been peer-reviewed before publication?

But there is another downside to doing this, even if it might fall on the correct side of many/most codes of professional conduct.

You see, some lawyers have blogs, and I don’t mean the kind that are designed for search engines to read, but the kind that humans like to read. And some of those same lawyer-bloggers like to call out others for scummy conduct, even if it might appear to be on the correct side of the code of professional responsibility.

You shouldn’t assume that, merely because something might be legal, someone else might not take offense and decide to call you a scumbag for having done it.  I could use a more polite word than scumbag, but the critic writing about you might not, so you might as well deal with that fact now and consider the consequences.

And that lawyer-blogger might do it with your name in the very Google-friendly headline and url, like this.

You know why I do it? When people in my niche go to pick juries, we don’t like it when jurors look down their noses at us and our clients during jury selection. When jurors dislike us, the scales of justice are imbalanced before we even start the trial.

So if you do something scummy that tarnishes the reputations of lawyers, I have no problem flaying you alive.

The ABA article says has this pearl of wisdom:

33.) Never criticize a company by name in a blog post. You never know when that company might be in a position to hire you.

And guess what? Some of us don’t give a damn about that, and we aren’t interested in our blogs being bland bits of pablum. See, for example, the heading on this post that you are now reading, as well as a few others:

Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law?

Martindale-Hubbell: Now Sending Comment Spam? (How Does That Rate?)

Shpoonkle – A Lousy Idea for Lawyers and Clients

FuneralHomes.Com Digs Down Deep For Personal Injury Lawyers

Yodle and Attorney Advertising

Dropping comment spam, for example, might be legal. But look at the list of bloggers in this post who are more than happy to call you out on it.

It’s worth noting, by the way, that writing posts like those — the kind that the ABAJournal says not to write that criticize companies — are part of what put me in the ABAJournal Blawg 100 for the last five years and into its Hall of Fame. Ironic, no?

Marketeers beware. You’ve been warned. Yet again.