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Attorney’s Guide to Ethical Marketing: Alabama

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

  • Relevant Citations: Ala. RPC §§ 7.1–7.6
  • Limitations on Direct Contact with Prospective Clients (Y/N): Yes
  • Permitted Forms of Marketing
    • Traditional Media (Y/N): Yes
    • Inbound Marketing (Y/N): Yes
    • Social Media Marketing (Y/N): Yes
    • Email Marketing (Y/N): Yes
    • PPC Advertising (Y/N): Yes
  • Mandatory Language (Y/N): Yes
  • Opt-Out Requirement (Y/N): Yes
  • Retention and Record Keeping Requirement (Y/N): Yes
  • Non-Surname Branding (Y/N): Yes
  • Date of Last Revision: 2009

Comments:

All printed communications must be marked as advertisements in red 14-point text and indicate the name of at least one attorney responsible for the content thereon. If a contract is included, it must be watermarked indicating that it is a sample contract. All advertisements must be sent to the Office of the General Counsel of the Alabama State Bar Association and retained on file by the advertising party for six years.

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My New Series: An Attorney’s Guide to Ethical Marketing Across the United States

Beginning this week, I will be publishing a series of posts that summarize the legal rules that govern attorney marketing. This series came out of working with a client that wanted to market his law firm aggressively but was afraid the Washington Rules of Professional Conduct tied his hands. In June 2018, I prepared a guide for Washington lawyers on how they could engage in effective marketing yet still comply with the Rules of Professional Conduct. My guide was part of helping him understand that he had a lot of leeway in how he approached marketing and branding his business.

After writing the guide, I became intrigued by the question of how legislatures and courts regulated attorney marketing in the US, where there were critical differences in marketing rules across the states, and whether there were trends in attorney marketing regulations. (As you may expect, finding that sort of thing intriguing doesn’t exactly make me exciting company at a cocktail party.)  This project came out of those questions, and I hope it will help law firms asking the same questions as my client was back in the summer of 2018.

What to Expect

Each post provides a “baseball card” of sorts to lawyers looking for a quick reference on the rules governing how they can market their legal practice. It provides an easy-to-reference link to the governing law (well, laws, in the case of California), and quickly answers the following questions:

  • Can I directly reach out to potential clients in my jurisdiction?
  • Can I use traditional print, radio, and television marketing in my jurisdiction?
  • Can I use inbound marketing in my jurisdiction?
  • Can I use social media marketing in my jurisdiction?
  • Can I use pay-per-click advertising on either search engines or social media sites in my jurisdiction?
  • Do I need to include special language in attorney advertising?
  • Do I need to have an “opt-out” provision for people that don’t want to see my law firm’s ads?
  • Do I need to keep a copy of my ads for a particular length of time?
  • Do I need to use my last name as the name of my law firm, or can I make it something more memorable and appealing to clients? (As someone who grew up with a Polish surname that people found difficult to pronounce, let alone spell, I can understand this desire.)

When appropriate, each post will also provide a short commentary addressing common pitfalls and concerns related to attorney advertising.

Why Publish This Guide

As a former litigator, I understand that while any attorney worth their license could do this research themselves, they find themselves swamped with a million different responsibilities for clients to occupy their billable hours. As a result, a lot of attorneys neglect the marketing of their legal practice because it is just one more thing to do; worse, it is one more thing that happens to be rife with ethical pitfalls and compliance issues.

Marketing in highly regulated professions is a niche in which I specialize. I enjoy the challenge of combining my legal knowledge with my experience in creating psychologically compelling content that persuades people to take action. If you are interested in developing a coherent, strategic approach to marketing your business, or if you have a few questions you need answered about digital marketing, I’m happy to help. We can set up a time at your convenience to go over your questions and concerns. I promise it won’t feel like a pitch for a used car or a timeshare, and, no matter what, you will walk away with marketing intelligence you can use. Here’s a link to my schedule if you want to set something up.

Where to Find Other Posts in this Series

I plan on covering all fifty states and will include analysis and commentary as well. I will collect these posts in the Attorney’s Guide to Ethical Marketing during the process of creating this series, and then release them as a standalone eBook at its conclusion. If you want to be notified when I cover your jurisdiction, subscribe to The Dead Drop, my monthly newsletter has updates from this site and beyond on marketing, law, and the psychology of persuasion.

Jurisdictions Covered

  • Alabama
  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Florida
  • Georgia
  • Hawaii
  • Idaho
  • Illinois
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Vermont
  • Virginia
  • Washington
  • West Virginia
  • Wisconsin
  • Wyoming
  • Territories
    • American Samoa
    • District of Columbia
    • Guam
    • Northern Mariana Island
    • Puerto Rico
    • United States Virgin Islands
  • Relevant Federal Regulations
  • Comparison with the Model Rules of Professional Conduct and ABA Guidance
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Presentation for Northwest University

This is a copy of a presentation I am giving for marketing students at Northwest University in Kirkland, WA, on October 23, 2018.  Thanks go to  Professor Sarah Nelson, and to the students for their time.


Anything you say can be used against you – Created with Haiku Deck, presentation software that inspires

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Be the Authority

Demonstrating authority to customers often means they will trust you more with their business.

Psychology has recognized that when the same information is presented by someone with a position of authority and by someone without a position of authority, the information is more likely to be believed when presented by someone in a position of authority.  For example, Stanley Milgram, in his landmark study of obedience, was able to use authority to persuade multiple test subjects to engage in what they thought were the administration of dangerous electric shocks to others.  See Stanley Milgram, Obedience to Authority, (Harper & Roe, 1974).  What does this human trait of relying on others in authority have to do with marketing?

Authority is a tool that can be used to persuade people in advertising, just as it is in any other field.  For professionals that offer intangible services, such as lawyers and accountants, demonstrating that they are the authority on a particular topic, whether it be men’s rights in custody disputes or valuation of closely-held corporations, means that potential customers will trust them more with their business than they would others.  This is why it is increasingly important for professionals to not only seek formal authority, such as industry awards, but also to seek informal marketing authority.  Professionals need to focus on creating content that demonstrates they are an authority not only because they are knowledgeable, but also because their search engine optimization (SEO) efforts put them on the front page of a Google search.  Professionals need to ensure they are being linked to by others writing about their field.  Finally, professionals need to create content that gives off those subtle, subconscious clues that they are authorities in their field.  

If you’d like to know more about how authority works for persuasion, here’s a link to a fantastic 2001 Harvard Business Review article by Robert Cialdini, entitled Harnessing the Science of Persuasion. Cialdini, author of the book Influence: The Psychology of Persuasion, is one of the leading experts on the subject, and is regularly taught to interrogators and crisis negotiators in the military intelligence community.

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Ad Equivalency: How the Press Can Work Just Like Paid Advertising for Businesses and Non-Profits

Team Rubicon members taking part in flood relief operations

One of my passion projects is working on the marketing and public relations needs of Team Rubicon, the veteran-led disaster response organization. I manage this department for the Northwest United States, from Alaska to the Dakotas. 

In particular, I focus on using the media to spread Team Rubicon’s message, to recruit volunteers, and encourage donations.  This past month, Team Rubicon has been actively engaged in responding to wildfires in Utah and Colorado.  Working with media outlets in both states, I was able to generate press coverage for Team Rubicon equivalent to paid advertising in the amount of approximately $2.1 million dollars across online news, blogs, and television news.  

All for the price of a few emails and a few hours of drafting press releases.

Small to Mid-Sized Businesses can use the same tactics, particularly when engaged in charitable work, to market their products.  A business can – and should – reach out to media outlets to encourage others to join in helping at a homeless shelter, to offer matching donations to help in response to a local tragedy, or to encourage others to work with larger charities, such as local chapters of Habitat For Humanity.  The act of helping others, in itself, generates goodwill for businesses, and the postive media exposure provides the sort of attention that paid advertising does not – and cannot – generate.  By spending money on working with non-profits instead of on paid advertising, businesses can also benefit from the tax savings related to charitable donations.  

Click here to schedule a meeting for us to discuss how you can use media relations and non-profit work to market your business.

To Hell With The Slow Season

The Carbon River, just outside Mount Rainier National Park, WA.

Summer is – supposedly – the slow season for businesses. “Everyone’s on vacation,” newspapers tell us. This is nonsense. While customer behavior may change, regardless of whether your business is a B2B or B2C enterprise, your business’ operational tempo shouldn’t change. Slow times are great opportunities to reflect on strategy, review social media analytics for patterns or outliers, or develop a new marketing campaign.

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Spring Creek Wildfire

TWW press release directly copied into article

TWW press release directly copied into article

Valley Courier Article Regarding Team Rubicon’s work in response to the Spring Creek Fire

Read more

Why Not Market to Everyone?

“Why not market to everyone? We want the most number of customers possible.” Frankly, this is a valid point. All businesses want to maximize the number of potential sales they can make. However, in order to maximize the number of potential sales, it is critical that businesses don’t market to everyone.

Photo by Kim Gorga on Unsplash

When we market to everyone, we create generic content with the hopes that it will have the widest appeal. We also create content with the least chance of having any value to any one group of people. It’s a bland diet of white bread and skim milk. In the 1950s, it may have been possible to say that anyone in a particular geographic area would constitute a target market, because there were fewer purchasing options available to consumers. Now, though, there are an infinite number of purchasing options for consumers, whether in the form of local brick-and-mortar shops or online retailers.

“Adopting a general approach – assuming your customers will come essentially equally from all segments or demographics – is no longer enough to support a new business, because the marketplace has become too differentiated. In courting potential customers, owners must consider age, gender, lifestyle and technological sophistication….”

Ralph Heibutzki

Photo by Kyle Loftus on Unsplash

While marketing to everybody is as useful as marketing to nobody, identifying a target market or markets to market to based on what makes these markets unique, what speaks to them, and what reflects their experiences and values, allows a business to focus their marketing on what works with those target customers. Identifying a target market can also help a business that knows it has a viable product but does not know how to differentiate itself from its competitors.

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Digital Marketing for Washington Attorneys

Television, the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public.

RPC 7.2 (Comment 3) (2016).

Few professions are as heavily regulated as law when it comes to advertising in the United States. However, attorneys in Washington State have a great deal of flexibility when it comes to advertising in accordance with the applicable ethics rules. See RPC 7.1–7.5. This piece addresses the Rules of Professional Conduct (RPC) applicable to digital marketing of legal services.

Under the RPC, Washington attorneys are prohibited from the following sorts of advertising:

  • advertising that misrepresents either facts or the law (RPC 7.1);
  • advertising that makes a true statement that is still misleading (RPC 7.1(2));
  • advertising that states a lawyer can reproduce past outcomes in future cases (RPC 7.1(3));
  • advertising that compares a lawyer favorably to other lawyers without justification (RPC 7.1(3));
  • advertising stating a lawyer can inappropriately influence a government official (RPC 7.1(4) and RPC 8.4(e));
  • claims of special certifications without basis and attribution (RPC 7.4); and,
  • generally, direct contact with most potential clients to seek employment (RPC 7.3).

Thus, many attorneys feel that they can engage in general television and radio advertisements, a basic website, and little else. When considering the high costs of print, radio, and television advertising, many attorneys forego it all together. Similarly, many avoid it because it appears cheap and schlocky.

However expensive traditional media may be for advertising, there are cost-effective options available to attorneys wishing to seek new ways to bring in potential clients.  Inbound content marketing, focusing on informative content that attracts potential litigants or other potential clients, works hand-in-hand with the algorithms that guide Google’s search engine results.  As attorneys publish more information on their practice areas, they become more likely to be found via a Google search, now the primary means that consumers search for professionals.

The Marketing Funnel is Broken. Think Like a Spy Instead.

While there are traditional marketing approaches that come from business school, these approaches – particularly the marketing funnel – are not consistent with behavioral science.  An approach based on the psychological techniques taught to interrogators is able to flexibly respond to the emotional states of customers.  This piece will show you how.

From Brand Concepts to the Marketing Funnel

In the past, brands were considered concepts that were evoked in the minds of consumers. Under this model, a business tried to evoke a clear idea that represented a brand. For example, Prudential Insurance Company of America (now Prudential Financial) used the Rock of Gibraltar to evoke strength and reliability in the eyes of the consumer. Nowadays, due to the influence of social media, brands are thought of as personas in a relationship with consumers. Traditionally, marketing teaches that this relationship should be developed with the digital marketing funnel in mind. Under this model, content is created to:

  • Attract attention for a brand and its platform;
  • Generate interest in the brand’s platform and the problems solved by the brand’s products;
  • Encourage consumers to engage in consideration of the brand’s products as possible solutions to their problems;
  • Nurture those consumers through the purchase process; and,
  • Encourage customers who made purchases to develop brand loyalty and recommend a brand’s products to others (a stage in the funnel referred to as the loyalty/advocacy stage).

The Traditional Marketing Funnel doesn't work because consumers aren't rational actors.

The problem with the marketing funnel model is that it doesn’t match up to how we, as consumers, really think. A 2014 piece by Mark Bonchak, published in the Harvard Business Review, noted that many top marketers (with companies such as Google, Sephora, and SAP) no longer consider the linear marketing funnel to be accurate.

The Marketing Funnel Ignores Irrationality and Lack of Attention

This is no surprise. Consumers are not rational actors. Think of simple purchasing decisions we make, such as whether to go out to lunch. No one goes through the following steps of the marketing funnel in order:

  • “I am hungry.”
  • “Hmm, perhaps there are businesses out there that have products that can satisfy my hunger.”
  • “I see that this restaurant’s food choices will make me say I’m lovin’ it.
  • “Well here’s a discount for burgers there, I guess I will go to this restaurant.”
  • “I’m going to have lunch there again, and tell others to do so as well.”

(As a brief side note, McKinsey & Co. has also suggested an alternative to the marketing funnel based on the consumer decision journey loop. This approach has some benefit, so long as it is not thought of as a linear cycle.)

People are motivated by their relationship to risk (risk-seeking vs. risk-avoidance), their emotional states that bear no connections to their product purchasing decisions, their attentiveness, and a whole host of other behavioral factors. They may think they should select a restaurant for lunch, then debate on whether they should maintain their diet or save their money and brown bag their lunch. Then they may be distracted by something on their phone that leads them to an entirely different purchasing decision. In the end, they may skip lunch and go to Target to buy kitty litter.

A Flexible Approach May Be Better than The Marketing Funnel

One flexible psychology-based way to look at branding is to think like intelligence agents, specifically, interrogators and source handlers (a field known as “Human Intelligence”). When interrogators are faced with the need to convince a hardened terrorist to give up their comrades in a terrorist group, they turn to a flexible set of approach strategies that they use to “break” a terrorist’s objections to cooperation. See Department of the Army, FM 2-22.3, Human Intelligence Collector Operations (2006), at 8-4. These approach strategies include the following possibilities:

  • the direct approach (”Tell us what you were doing on the night of the fifth.”)
  • the incentive approach (“Tell me what I want to know and I’ll make sure the judge goes easy on you.”)
  • the emotional love approach (”Do you want your family to think it was you responsible for this crime, or your buddies? Don’t you want to be there to raise your sons?”)
  • the emotional hate approach (“Those aren’t your buddies you’re protecting; those assholes got you into this mess. Unless you start talking, they’re going to get away with it and you’ll take the blame.”)
  • the emotional fear-up approach (“I’d hate to think what would happen if you were the only one held responsible for this crime. I can’t imagine how someone like you would survive prison.”
  • the emotional fear-down approach (“Look, it’s ok, it’s not like you killed someone, so why don’t we just talk about what happened and I’ll see about getting you a deal?”)
  • the emotional pride and ego-up approach (“Only a genius could have pulled something like this off; I’d love to know how you came up with this plan.”)
  • the emotional pride and ego-down approach (“Only an idiot could let himself get caught and put his whole future in jeopardy; why don’t you cooperate with me and see if there is something you can salvage from this.”)
  • the emotional futility approach (“Look, I don’t care if you tell me anything or not, because we’ve got you for this crime; if you want to tell me your side of the story, that’s fine.”)
  • the “we know all” approach (“We know you committed the crime, we even know how you committed the crime, all we want to know is why.”)
  • the file and dossier approach (A variant of “we know all,” this approach involves bringing in a huge file full of real or imaginary paperwork on a suspect and telling them they can either cooperate or the judge will only hear the side of the story that’s already on paper.)
  • the establish your identity approach (“Our records show you’re the John Doe who committed (an unrelated) horrible crime, so if you’re actually the John Doe who committed a minor offense, you’d better start talking.)
  • the repetition approach (This approach literally involves wearing down a suspect by repeating a phrase, such as “Tell me the truth now, or you will pay later. No, you’re lying; tell me the truth now, or you will pay later.”)
  • the rapid fire approach (This approach involves running through information as quickly as possible to confuse the suspect into admitting something they didn’t want to do.)
  • the silent approach (Most will remember this approach from their childhood, when a parent silently stared at them until they fessed up to something they expected the parent already knew about.)
  • the Mutt and Jeff approach (AKA “Good Cop/Bad Cop”)
  • the false flag approach (This approach involves pretending to be someone you are not to get information.) See FM 2-22.3, supra, at 8-17 to 8-69.

For anyone that has watched a few episodes of Law and Order, most of these approaches can be considered self-evident. From my experience as an interrogator in the military and as a workplace violence prevention focal, I learned that these approaches are incredibly persuasive. Walking into a room with a guy that just blew up a market and talking about how ashamed he will make his mother is frequently more effective than cleverly poking holes in his alibi.

Emotions are powerful tools for purchasing decisions

Now, of course, no one is suggesting that we should go out and start interrogating potential customers (please do not get me sued) but these approach strategies reflect a universal truth about the psychology of persuasion. Regardless of what you are selling, you can rely on core emotional states to persuade your potential customers to make a purchase. In marketing, approaches using these core emotional states are a little different than they are for interrogations, but similar rules apply. For marketing, these approaches can be understood as the following strategies:

  • the direct approach
  • the incentive approach
  • the love approach
  • the hate approach
  • the fear-up approach
  • the fear-down approach
  • the pride and ego-up approach
  • the pride and ego-down approach
  • the comfort-driven approach
  • the awe-driven approach
  • the false flag approach
  • the humor-driven approach
  • The authority approach

(I will explain these marketing approaches in detail in future posts.)

The Marketing Funnel’s Flawed Linear Strategy

There is another truth about human behavior that interrogators know: there’s no one part of an interrogation where an approach is applied to a detainee and then they forever provide information. Detainees will be cooperative following an approach for a while, then become resistant, then return to becoming cooperative. The process shifts based on mood and time. The same is true for consumers. The marketing funnel isn’t valid, as noted above, because people approach purchasing decisions from any number of emotional states, with a varying sense of urgency, and may shift to other emotional states in the future. It is better to be ready to address these emotional states that relate to a purchase decision fluidly, by developing an assessment process that helps a brand determine what influences matter to a consumer and then what steps can be taken to motivate a consumer to take a specific action. For example, understanding that a consumer has bypassed the initial stages of a marketing funnel and is just deciding whether to purchase Brand A versus Brand B means that a brand understands that it’s better to create content regarding how its products will satisfy the consumer’s emotional state than to create content designed to entertain and inform.

Conclusion

The core problem with traditional marketing approaches – particularly the marketing funnel – is that they assume that consumer behavior is rational and occurs in a linear pattern. The social sciences – psychology, sociology, and behavioral economics – have provided solid evidence that consumer behavior is highly irrational, and that consumers approach purchasing decisions from any number of emotional states. Rather than focus on the position of the consumer in the marketing funnel, brands would be better served to follow a more flexible strategy that focuses on consumers’ emotional states. One particularly successful strategy is the model used by Human Intelligence Collectors. This strategy focuses on emotional states such as love, hate, need, pride, and deference to compel action. It is a better match for the illogical, irrational human brain.

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