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Law Firm Marketing Regulation: What’s Hot and What’s Not — a Tribute

By William Hornsby

Bob Denney was a kind, generous and insightful man who had his finger on the pulse of the legal profession like no one else. For nearly 30 years, Bob published a newsletter under the banner of “What’s Hot and What’s Not” in the legal profession. When the reports went digital, several of them were featured on Attorney at Work. In a few lines, he would use the breadth of his insights to clue us in on recent developments and upcoming trends.

Bob passed away in October. In his honor, I would like to borrow his format as I look back over the recent past and a bit into the coming year. I lack both the breadth and depth of his knowledge and tend to more narrowly focus here on law firm marketing and its regulation. As every Elvis performer says, it’s not an imitation; it’s a tribute, one I hope he would have liked.

Red Hot Law Firm Marketing Trends

  • Marketing staff compensation. The first wave of law firm marketers were often high-performing administrative staff. They lacked respect, authority and the compensation they deserved — still true in many firms today. However, a talent war has pushed salaries for in-house marketers up 20% since pre-Covid times, recently cracking the $1 million mark.
  • DEI. Years ago, the Association of Corporate Counsel (ACC) encouraged in-house counsel to include a law firm’s pro bono commitment when considering engagements. Today, perhaps more organically, corporate clients are starting to look at a firm’s commitment to diversity, equity and inclusion as a criterion for engagements.

Hot

  • Changes to state advertising rules. The past year has seen several states amend their ad rules, most of which bend toward more permissibility. Some states have adopted minor changes, e.g., New Jersey now permits TV ads to include music and animation. Other states, such as Arizona, have cut the rules to the bone. Louisiana, on the other hand, is more restrictive, requiring lawyers to include the file number of their state-reviewed ads.

Not Hot

  • The ABA Model Rules. While the states are changing their rules, they are not adopting the most recent version of the ABA Model Rules governing law firm marketing per se. One of the goals of the Model Rules is to create uniformity among the states, and that would be a blessing for multistate firms, but it is not happening, yet.

Hot

  • Lead generators. The ABA gave lead generators the green light when it amended comments to its Model Rules several years ago. Since then, plaintiff’s PI lawyers have leaned into this low-risk, armchair model of client development and lead generators have flourished.

Not Hot

  • For-profit lawyer referral services. While states are liberalizing their ad rules, the vast majority continue to prohibit lawyers from paying to participate in for-profit referral services. California permits for-profit models but has cracked down on those that do not meet its strict standards. Watch for the ABA to update its Model Rules for Lawyer Referral Services. That said, we should keep in mind the world’s largest lawyer referral service is, no doubt, Google.

Hot

  • Deregulation of law firm trade names. New York and Texas are among the last states to drop the prohibition of law firm trade names, as long as the names are not false or misleading.

Not Hot

Hot

  • Some tech. Law-related podcasts have become essential listening. Bots have been hot for high-volume intake and are now taking client interface further. Metaverse is reinventing the Second Life model, with law firm offices in virtual space. Data-based competitive intelligence tools are better enabling law firms to know a potential client’s legal needs and target those opportunities.

Not Hot

  • Use of tech to practice law by those who are not lawyers. Trade protection is in high gear but unevenly pursued.

No Reading Yet

  • Regulatory reform. Slightly more than a handful of states are exploring reforms designed to increase access to legal services. These include a “sandbox” that puts otherwise impermissible models under a microscope, lay ownership of law firms, and independent paralegals. While lots of recommendations have surfaced, only a few states have crossed the finish line, most notably Arizona and Utah.
  • In-person conferences. Bar associations, conference sponsors, and those who attended them pre-Covid are looking forward to the networking and socialization that we don’t find over Zoom. But the waves of the pandemic make the timing of well-attended in-person conferences hard to gauge.

Cool

  • Alternative fee arrangements. Some have supported AFAs for decades, but the billable hour continues to rule. There are some pockets of change, for example, in law fee subscriptions and the Chicago-based Justice Entrepreneurs Project, where participants agree not to charge by the hour. But in the big picture, it’s not changing.
  • Legal fees paid by cryptocurrency. Rules governing the reasonableness of legal fees combined with the erratic fluctuation of cryptocurrency seem to dissuade law firms from accepting this form of payment.

Thank You Very Much

Thanks to those who shared their thoughts as I reached out for ideas. And thanks to Bob for creating such an engaging format. I hope I did him proud.

You can read Bob Denney’s most recent “What’s Hot and What’s Not” reports and his timeless articles on the ABCs of marketing, how to get paid, how to turn trends to your advantage and more, here on Attorney at Work.

Illustration ©iStockPhoto.com

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William Hornsby William Hornsby

Will Hornsby is an attorney focused on the professional responsibility of innovative and tech-based legal services. After serving as staff counsel in the ABA’s Division for Legal Services for 30 years, Will now champions access to legal services through his law firm at www.willhornsbylaw.com. He writes and speaks extensively on issues of ethics, technology and client development. Follow him on Twitter at @willhornsby.

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