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If you’ve turned to the web to shop, reserve a hotel room or even sign up for a guest pass to your local gym, you’ve likely become a recipient of the vendors’ e-newsletters. From mega-corporations like Kellogg all the way down to one-person flower shops, businesses across a multitude of industries are spending big bucks on e-newsletter campaigns. The reason: E-newsletters are a highly efficient way for businesses to stay top-of-mind with members of their target markets.
Yet despite that, law firms have been slow to adopt this marketing strategy. In speaking with hundreds of lawyers, I’ve heard dozens of explanations for the reluctance. Quite often, solos and small firms say they just don’t have the time to produce and manage an effective e-newsletter campaign. For those who do have the resources, the overwhelming concern is a fear of violating the ethics rules with weekly or monthly e-blasts. With the right content, mailing list management and good software, however, you can lead an effective e-newsletter campaign that allows you to connect with contacts while carrying out your professional due diligence.
To fully understand the various ethical considerations that come into play, it’s important to explore whether an e-newsletter campaign falls into the category of solicitation or advertisement. Of course, each state has its own rules and applicable ethics decisions, but since it’s not possible to cover each jurisdiction here, I’ll refer to the ABA Model Rules of Professional Conduct, which have been adopted in whole or in part by 49 states and the District of Columbia.
Advertising. Rule 7.2(a) states: “Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public.”
The accompanying comment further explains that “lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising.”
Surely by this limited definition, it seems that e-newsletters composed of high-quality content on various topics pertaining to your area of law may constitute an organized informational campaign that may serve to educate contacts and members of your community. Provided that all information in the correspondence is not in any way false or misleading to a layperson — and the communication clearly identifies the firm or attorney, and the office location, responsible for the communication — it seems this form of marketing is permissible. But as with most matters of law and ethics … it depends. The major differentiation between an advertisement and solicitation is, of course, entirely dependent on the intended recipient.
Solicitation. Rule 7.3(1) states: “A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.”
In contrast to advertising then, which is typically directed to the general public, solicitations are directed to individuals known to be in need of legal services (and not a contact of the attorney) and, in turn, come with greater restrictions to protect the public. So depending on the scope of your e-newsletter campaign, you may need to implement different systems and messages to meet your jurisdiction’s ethics requirements.
Connecting with Clients, Colleagues and Contacts. If your e-blasts will only be sent to current and former clients, industry colleagues and contacts who have signed up to receive notifications from your firm, your e-newsletter isn’t likely to be considered a solicitation, even if the message is sent with a motive of pecuniary gain. Still, even though you may not be required to follow the strict guidelines set forth in Rule 7.3, it’s important that you take the following actions:
Connecting with Prospective Clients. While an attorney cannot solicit professional employment by in-person, live telephone or real-time electronic contact, comment (3) to Rule 7.3 states that “communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations.” Attorneys can ethically send e-newsletters to prospective clients known to be in need of legal services provided that solicitation requirements are met. It’s important to note, too, that not all emails to prospective clients may qualify as a solicitation. If a prospective client has requested more information from your firm or signed up to receive your e-newsletter, informational e-blasts may qualify as advertisements.
Of course, if you are sending out an e-blast to prospective clients with whom you’ve had no prior communication and are simply doing so for pecuniary gain, you should be aware of the potential ethics issues, including these:
While e-newsletter campaigns do carry some risk, they also present a great opportunity to generate referrals, reconnect with past clients and engage prospects. To minimize the potential risk to your practice, make sure you develop a sound strategy that delivers value while addressing ethics concerns. And if you’re outsourcing the campaign, make sure all third-parties are familiar with your jurisdiction’s guidelines, and that an attorney at your firm has final say over all copy and mailing lists.
Fred J. Cohen is CEO of Amicus Creative Media, a leading website development and online marketing group for attorneys. His management and leadership experience spans across the information technology, legal and marketing sectors, from founding a tech startup that was acquired by a NASDAQ-traded company to practicing trusts and estates law as a partner at a Long Island firm.
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