Peace in the Desert, Veteran Paranoia, and the Hills of Palouse

Peace In The Desert

I spent last week visiting the Desert Southwest, a place near and dear to my heart. I don’t normally talk about my personal life here, but the trip itself was beautiful. The desert in May is in full bloom, not desolate like many assume. The peaceful scenery of Mesa Verde National Park, of the ruins of the Anasazi civilization dating back millennia, worked like meditation to clear my mind.

Spruce House, Mesa Verde National Park, Colorado

Veteran Paranoia

Prior to this trip, like any trip I take, I over-prepared. I drafted a project plan, and packed things that I had only a remote likelihood of needing. One of those things was a full trauma kit. My wife watched as I slipped foam and metal SAM splints, tourniquets, quick-clot bandages, and medical tape into a bag that also included camping and survival gear. “I know it’s paranoid,” I said to her, “I just feel like I need to bring it.”

The Hills Of The Palouse

Cresting the hills of the Palouse as I returned home, just north of the Columbia River and the Oregon-Washington Border, I could see a cloud of dust plume up from the side of I-84. Ahead of me, drivers slammed on their brakes. A vehicle had flipped. The driver, an intoxicated woman who wasn’t wearing her seatbelt, was ejected.

Responding to a vehicle rollover on I-84, near the Washington/Oregon Border

I hesitated when I saw the driver laying on the ground. The avoidance of violence and stress that I seek, post-Iraq, was telling me to drive on. I don’t want to do this, I thought. I don’t want to see this. I pulled over, and grabbed my trauma kit from my camping/survival bag, and ran down the median of I-84. Other volunteers – one, a dentist, a few paramedics, and a nurse – also stopped. We began working on treating the woman, cobbling together solutions to her head wounds, for immobilizing her neck, and for her degloved foot, with its multiple fractures, missing toes, and exposed metatarsals and tendons. In shock, the driver kept trying to get away, moaning that she thought we were trying to kill her. I worked with another volunteer to elevate and treat her foot. I could see the yellow of subcutaneous fat exposed from a bone-deep laceration that passed the driver’s ankle. There was a smell, a greasy combination of raw meat and fat. I remembered that smell from Iraq.

I don’t want to do this, I thought. I don’t want to see this.

After she seemed stable, I stood up. I realized none of us had approached her vehicle. I tried to peer in from the passenger side, but the curtain airbags blocked my view, so I went around to the driver’s side. I tried calling out, “Anyone in here?” I tried banging on the window with the pommel of my pocket knife before realizing I should try the door handle. I opened the door just enough to wedge it against the ground, so that, if I went into the vehicle, it wouldn’t roll over on me. I then crawled into the vehicle. I could see a faux fur-lined child’s coat resting on the inverted ceiling of the car, and felt nauseous. I started moving the scattered possessions blocking my view out of the way, trying to see if there was someone in the gap between the back and front seats or in the gap between the dashboard and the front seats. There was no one there. The dust and chemical residue from the airbag deployment made me cough. I grabbed a purse that was laying on the ceiling and threw it out the door behind me. After moving the purse, I saw pills on the ceiling in a little plastic bag. I picked them up. Kratom, I read. I grabbed a utility bill that I saw next to the pills. It had the driver’s name on it.

I realized the vehicle was still running, so I tried to remove the key from the ignition before realizing that the vehicle was still in drive. I shifted it into neutral, unable to move the shifter to park, and turned the engine off. I paused for a moment, looking at all the possessions scattered on the ceiling of the vehicle. I shimmied out of the driver’s side doorway. I could see a young trooper from the Washington State Patrol had arrived. He was taking notes while contacting emergency medical services on his radio. I handed him the kratom. “What is it?” He asked. “Think of it as something in between weed and meth. It’s an opioid,” I said.

Kratom can cause effects similar to both opioids and stimulants. Two compounds in kratom leaves, mitragynine and 7-α-hydroxymitragynine, interact with opioid receptors in the brain, producing sedation, pleasure, and decreased pain, especially when users consume large amounts of the plant.

National Institute On Drug Abuse, DrugFacts: What Is Kratom (Rev. Apr. 2019).

After the emergency medical services crew arrived, the volunteers worked with them to prep the driver for transport. I took a step back. I don’t need to be in their way, I figured. I snapped a photo of what I saw. At least I have that, I thought.

I kept thinking about how self-conscious I was about packing my trauma kit as the paramedics prepped the driver for her ambulance ride and the trooper read the driver her Miranda Rights. After Iraq, I was driven by a sense of anxiety to create a replacement for the IFAK, the individual first aid kit that I carried in Iraq, along with additional trauma care items. When others noticed me prepping things, I was embarrassed. I was “one of those” veterans; “I don’t want to be not ready if something happened,” I would explain to people.

A veteran waits outside one of the buildings at the Puget Sound Veterans Administration, American Lake, WA.

I think I had gotten used to the paranoia that made me carry these things as just that: paranoia. Yet here I was, and I needed those things. I thought of the woman’s foot, the exposed muscle, tendons, and bone, and the dangling, nearly-amputated toes. I thought of the smell. I know in the past this would have been soul-shaking for me to see again after Iraq.

I walked over to the trooper, now accompanied by an older member of the local Sheriff’s Office. I fished out a card from my pocket and handed it to him. “If you need my name for the chain of custody on the Kratom,” I said, sheepishly. I didn’t know if he needed it. I didn’t know if handing it to him made me seem like some weekend warrior who wished he wore a uniform again. He shook my hand and I drove off.

Marketing a Therapy Practice: My Presentation for the NASW Entrepreneurial Therapist CEU Seminar

On April 27, 2019, I had the pleasure of taking part in a seminar on how social workers and other mental health professionals can establish their private practices. Thanks go to my client, Tiffany Chhuom, of Lucy In The Sky Therapy and EthTech, and Amber Rice for inviting me. While time ran short, here’s a summary of my presentation for attendees that wanted to follow up or dive deeper into any of the topics.

Topics Covered

  • Targeting your ideal client
  • Marketing only to your ideal client (niche/specialty)
  • The Fundamentals of Getting Your Brand Out There and Marketing Your Practice

The Delicate Art Of Stalking: Finding Your Ideal Client

  • Your marketing – really your business’ public voice – should be targeted toward your ideal clients. This seems self-evident, but often we get caught up in all the other “shoulds” of marketing:
    • I’ve got to post 30 times/day (not true… and, frankly, terrifying)
    • I’ve got to make sure that anyone that’s looking for a provider knows I am out there, regardless if they are who I want to treat
    • I’ve got to make sure I post something for National Eating Disorder Week even though it’s not my niche (i.e., I only work with clients that deal with learning disabilities)

If Everyone Is Your Target Audience, No One Is.

  • You have limited time to see clients. You want them to be the right clients.
  • You only have limited time to market to potential clients. Your marketing should be targeting only those you want to work with.
  • Pareto Principle – 20% of your efforts will get 80% of your results
  • The Niche-SEO Ouroboros – When I focus on my target audience, I improve my SEO. When I improve my SEO, I improve the number of people within my niche that visit my content, which improves my SEO….

Successful Marketing Means You Are Naturally Appearing In Front of the Right Audience

The Unabomber’s Cabin
  • How do you target your ideal potential clients on Facebook or Instagram when 1.7b people are on Facebook and 1b people are on Instagram?
  • You profile, just like the CIA and the FBI.
  • You profile someone’s patterns of life, and then find ways to intersect with those patterns.
  • You need to target your desired audience, then work to bring them into the customer journey/marketing funnel.

What’s the Marketing Funnel

  • There’s a psychology to purchasing decisions more commonly thought about in behavioral economics than in the therapeutic fields of psychology and mental health. Marketing has applied this psychology and referred to it as the marketing funnel.

The Stages of the Marketing Funnel

Are Consumers Really That Linear and Rational?

The Consumer’s Journey

Clients need to be able to find you and learn about you to know if you are the right fit for them. If you aren’t speaking to your desired clients, they can’t do that.

The clients you want to help? They need to find you. They won’t find you unless you know who they are and how to get your content in front of them.


If you aren’t speaking to your potential clients, you can’t help them.

How To Target Your Desired Clients

Take a look at the three core components of your hypothetical ideal customer:
– their core demographics,
– their core identity, and
– their patterns of life.

Core Demographics

“I have no desire to purchase your Big Gulp, kind sir.”
  • Gender Identity
  • Age
  • Location
  • Heritage/Ethnicity
  • Income
  • Profession/Industry
  • Type of Household (single/married/children/pets)

Core Identity – what are their triggers?

“His peers soon learned not to bring up the topic of CrossfitTM in front of Bradley.”
  • Religious Beliefs
  • Political Beliefs
  • Love
  • Hate
  • Fear
  • Desire
  • Pride/Ego
  • Comfort/Convenience
  • Security/Protection
  • Hobbies/Interests

Patterns of Life – where will you intersect with your audience?

Don’t just guess, use data to determine this.

“Jeeves, if anyone calls, explain that I am perusing the Internet for dank memes concerning kittens and am not to be disturbed. Good day.”

If there is no one type of demographic or identity that matches your target audience, ask whether that means something or if it means you do not know your potential clients well enough. This information isn’t to discriminate unlawfully. This is to learn what you should be saying that will speak to the hearts of the people you want to serve.

Yelling For Fun And Profit

Getting Your Brand Out There

The Marketing Cycle

All marketing can be broken down into

  • logistics
  • strategy
  • execution
  • analysis
  • iteration

Logistics

  • Your Budget
    • Small Business Administration recommends 8-10% of your gross revenue should be dedicated to marketing
    • Budget decisions should also factor your more critical resource: time
      • when you have money but no time: outsource
      • when you have time but no money: DIY
        • it won’t be as good, but it’s better than radio silence
  • What platforms will you use?
    • Social Media – limit yourself to where you will find your client and to those platforms that match how you like to create.
    • Website – essential; all social media is dependent on the good graces of others; your website allows you to decide what gets seen
      • DIY – much easier now than ever before, but you need to know your limitations; you will need a good graphic designer to do your logo and branding; you might as well package that with a WordPress site
      • needs to connect to an analytics platform; nowadays Google Analytics is the best if not only game in town
      • content creation doesn’t mean content created by you; you can outsource blog posts, videos, infographics to reasonably priced professionals
      • Essential Marketing Components to a Website
        • Home Page (duh)
        • A way to contact you
        • A way for you to communicate with your audience – videos, blogs, static pages, etc.
        • A way to identify people that visit your site that may be interested in becoming clients (i.e., a sign up for a mailing list, or to have a document emailed to them) – Landing Pages and Lead Magnets
        • A way to tell potential clients who you are and why your story makes you right for them
    • PPC/Paid Advertising – traditional print/radio/TV (expensive); social media and search engine ads (much cheaper);
    • Email Marketing – if you have an email list, you have a list of people saying they want your services; this is the next level from blogging and social media, and a natural way to encourage people to purchase
    • Search Engine Optimization – by using words that your target audience commonly use (according to data on sites like semrush.com or serpstat.com) while trying to solve their problem, you encourage the algorithms used by Google to direct people to your site
      • Don’t neglect Google My Business; 73% of purchases from physical locations start with a mobile search for businesses via Google Search or Google Maps
    • Reputation Management/Earned Media – Yelp.com; AVVO.com; psychologytoday.com
      • don’t try to hide bad reviews; show other potential clients your passion for customer service by responding with kindness and a desire to serve
      • don’t pay for reputation management programs

Strategy

  • Establish your foundations – your platforms
  • Create a content plan
  • Pregame Your Content
  • Consider Using Social Media Schedulers
    • Sendible
    • Buffer
    • Hootsuite
  • Determine how you will quantify success. Don’t go with your judgment, come up with a hypothesis, and identify key performance indicators (KPIs) that you will evaluate to determine the outcome of your experiment.

Execution

  • Publish your content
  • Engage with your audience; be responsive
  • Don’t forget that asking your audience questions is a form of content (just don’t encourage them to violate HIPAA or post HSPII)

Analysis

  • Meet or Exceed Your KPI goals? Great. What are you going to do next campaign to keep the momentum or increase your performance. Don’t slack off.
  • Fail to Meet or Exceed Your KPI goals? Great. What did you learn didn’t work? You don’t win an experiment. You learn from it.
  • Evaluate objectively
    • what was supposed to happen
    • what did happen
    • what you would sustain for future experiments
    • what you want to improve in the future

Iterate

Take the lessons you learned, revise your plan, and develop a new strategy. Then execute that strategy.

No one wins an experiment. You test your hypothesis. Don’t be afraid to fail fast and break things.

Illinois Attorney’s Guide to Ethical Marketing

ethical marketing in illinois

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: Illinois Rules of Professional Conduct (IRPC) of 2010, M.R.P.C. 3140, IRPC 7.1-7.5.
  • 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): No
  • Non-Surname Branding (Y/N): Yes
  • Date of Last Revision: 2016

Comments:

Illinois has recently revised its Rules of Professional Conduct, and the commentary to the relevant portions of the IRPC show a greater familiarity with and acceptance of digital marketing. See, e.g., Commentary to IRPC 7.2 and 7.3 (expressly authorizing pay-per-click advertisements and limiting attorney-initiated real-time contact with prospective clients).

Illinois mostly follows the MRPC with respect to prohibiting direct solicitation of clients that are not also lawyers, members of the soliciting attorney’s family, or members of the soliciting attorney’s close personal or professional circle. See IRPC 7.3(a). Where Illinois deviates from the rules raises interesting questions for certain digital technologies. Illinois expressly prohibits direct real-time electronic solicitation in a way that may make the use of chatbots on attorney websites tricky. Attorneys who use chatbots may want to include a disclaimer that the chatbot is not intended to be real-time direct contact with a specific consumer and not intended to create a lawyer-client relationship. As with all attorney marketing, chatbot content should be clearly marked as advertising content. See IRPC 7.3(c).

Recent Podcast Appearance: Why Small Businesses Need Content Marketing

Recently, I had the pleasure of being a guest on a podcast that is essential for Puget Sound businesses, The Disruptors.  Run by Bill Lee of the Keeba Agency and Candace Thompson of Wild Child Group, The Disruptors provides guidance to Puget Sound businesses on marketing, sales, and business management that can help them grow and increase profitability.  On the Disruptors, I talk about content marketing and why it’s important for businesses.

The core reason content is so important for business is, really, the core reason doing things right matters in all areas of marketing: satisfying your audience, the customer.  

PPC advertising, retargeting, and all of the new technology-driven approaches to advertising are valuable.  However, if they do not lead to content that your customers (or potential customers) are seeking as information, entertainment, or inspiration then they are wastes of time and money.

During our discussion, Candace, Bill, and I talked about how marketing used some of the highest quality content possible to support businesses.  Specifically, businesses created content around the serialized versions Charles Dickens’ novels.  For a detailed discussion of this, check out this piece by Andy Williams, Advertising and Fiction in The Pickwick Papers (PDF), in Victorian Literature and Culture v. 38, at 319-335 (2010).  Advertisers packed Dickens’ works with advertising content that matched the tone of his works to capture the attention of his readers.

Listen to “Write or not to write…By Todd Brogowski” on Spreaker.

Show Notes

  08:00 – how to grab your audience’s attention with your content

  10:00 – on analytics and content marketing strategy

  11:00 – what sort of writing I do 

  12:00 – marketing and compliance with US and EU laws

  13:00 – what businesses should do if they use video content to ensure they are also meeting the standard for search engine optimization

  14:00 – PPC advertising on Google

  16:00 – my work on email marketing for Team Rubicon

  21:45 – Wild Child Group’s upcoming workshop on how to get the most out of your intake meetings with clients

What Charles Dickens Means For Your Content

Obviously, not every business is able to – or should – create literary content like Dickens.  Nonetheless, I would be surprised to find a business that has no business providing interesting, entertaining, or otherwise useful content.

Attorney’s Guide to Ethical Marketing in Idaho

Ethical Marketing for Lawyers in the United States

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.

Idaho Marketing Rules

  • Relevant Citations: IRPC 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: 2014

Comments

Idaho closely follows the Model Rules of Professional Conduct, with “some Idaho variations.”  IRPC, Preamble.  As with many states, Idaho blocks direct solicitation of clients that are not lawyers, the soliciting attorney’s family, or close friends of the soliciting attorney.  There are no institutional exceptions provided (as is permitted in Connecticut).  See IRPC 7.3(a).   

Attorneys are not restricted as to the platforms they use for advertising or the content therein (as they are in Florida).  See IRPC 7.1, Commentary.

They are required to retain copies of their advertisements and record when and where the advertisements are used. 

With respect to the mandatory language required for ethical attorney advertising in Idaho, all advertisements must include the name and address of at least one lawyer responsible for the content, and must be clearly marked with the words “Advertising Material” (either on the outside of written advertising or at the beginning and end of recorded advertising).  See IRPC 7.1(d) and 7.3(c). 

Attorney’s Guide to Ethical Marketing in Hawaii

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, as well as in 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: HI RPC 7.1-7.5
  • 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): No
  • Non-Surname Branding (Y/N): Yes
  • Date of Last Revision: 2014

Comments:

Hawaii follows the Model Rules of Professional Conduct (MRPC) fairly closely, and therefore its Rules of Professional Conduct (HI RPC) require little explanation (in contrast to states like Florida and Connecticut).  Hawaii prohibits direct contact with prospective clients except for close friends, family, and former clients.  See HI RPC 7.3(a).  Hawaii also permits all forms of marketing and advertising, provided – as warned in Comment 1 to HI RPC 7.3 – that the ability to directly and personally engage with potential clients via email, social media, and other platforms does not venture into “undue influence, intimidation, and over-reaching.”  (This, as might be expected, would be determined on a case-by-case basis.)

Hawaii requires that all marketing and advertising include the name of at least one lawyer responsible for the content and requires that all ads include “advertising material” at their beginning and end.  See HI RPC 7.3(c).  Additionally, attorneys using direct mail and email marketing would be wise to have clearly identified opt-out and unsubscribe options.  See HI RPC 7.3(b)(1). 

Hawaii allows law firms to be branded with trade names, including names of only deceased former partners of their law firm, provided that the name of a managing partner is kept on file with the Hawaii State Bar.  See HI RPC 7.5(b).  As with many other states, Hawaii prohibits the use of a public official’s name in a firm’s name when that public official is not actively practicing with the firm.  See HI RPC 7.5(d). 

Attorney’s Guide to Ethical Marketing: Georgia

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: GA RPC 7.1–7.5
  • Limitations on Direct Contact with Prospective Clients (Y/N): No
  • 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): No
  • Date of Last Revision: January 1, 2001

Comments:

Generally, Georgia follows the template of the Model Rules of Professional Conduct (MRPC). Georgia does deviate, however, in some areas.

First, Georgia permits direct contact (solicitation) with prospective clients provided that the communication is marked “Advertisement” on the face of the envelope and on the top of each page of the written communication.  See GA RPC 7.3(b) (however, this is unnecessary when writing to a close friend, relative, former client, or “one whom the lawyer reasonably believes is a former client”). This is a substantial deviation from the norms set forth in the MRPC and from the ethics rules used by many other states.

Attorney advertisements must include the following:

  • the name and office location of at least one lawyer responsible for the content;
  • a disclaimer regarding contingency fees when discussing such fees in the advertisement;
  • an explanation of whether a client will pay court costs and other filing fees;
  • an identification of the advertisement as such;
  • identification of the use of a referral practice;
  • disclosure of spokespersons and portrayals (when used); and,
  • disclosures regarding the fees charged for services advertised.

See GA RPC 7.2(c)(1)-(5).

Georgia does require that attorneys include the ability to opt out of attorney communication, and imposes discipline when attorneys submit communications when they are already aware that the person does not wish to receive communication. See GA RPC 7.3. Additionally, Georgia requires attorneys to keep a copy of all of the advertisements they use for two years after the date of last use, along with a record of all of the marketing channels in which they used the advertisements (and the dates in which the advertisements were used). See GA RPC 7.2(b).

Georgia deviates from the MRPC, not only by permitting direct solicitation, but also by forbidding the use of non-surname trade names. See GA RPC 7.5(e)(1)-(2). Georgia requires attorneys to use the name of at least one of the lawyers practicing in the firm, although that can include the names of deceased or retired members of the firm.   Ibid.

Attorney’s Guide to Ethical Marketing: Florida

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.

Comments:

Florida has effectively refused to adopt Rules of Professional Conduct that mirror the Model Rules of Professional Conduct used in many of the other jurisdictions covered by the Attorney’s Guide to Ethical Marketing. See In re Amendments to the Rules Regulating the Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (dismissing proposed rules that mirror the direct solicitation regulations of the Model Rules). Instead, Florida utilizes a stricter approach to attorney advertising that dramatically limits content permitted therein. Florida enforces this aggressive limitation on attorney advertising by barring attorneys from collecting fees that are generated due to non-compliant advertising. See RRTFB R. 4–1.5(a) and (d).

Florida requires that all advertisements for legal services contain the name and office location of at least one firm or lawyer involved in providing services, and whether cases will be referred to other lawyers in all languages used in advertisements and in a fashion a reasonable person would consider legible, prominent, and intelligible. See RRTFB R. 4–7.12. Use of a narrator in advertisements must not give the impression that the narrator is a member of the law firm, and should include the phrase “not an employee or member of [this] law firm.” RRTFB R. 4–7.13(b)(5). With respect to the use of actors and dramatizations in advertisements, Florida requires the use of the following language: “DRAMATIZATION, NOT AN ACTUAL EVENT” and “ACTOR, NOT ACTUAL [client/attorney/etc.].” RRTFB R. 4–7.13(b)(6). Florida allows the use of client testimonials in advertisements, provided that they are made regarding matters that the client is qualified to evaluate, that the client actually experienced, that the attorney (and presumably an attorney’s representative, such as a marketing firm) did not write, that the client was not compensated for the testimonial, and that include a disclaimer that a prospective client may not obtain the same or similar results. See RRTFB R. 4–7.13(b)(8).

Florida’s Conflicting Doctrine Concerning Personal Attributes, Pit Bulls, and Advertising

Florida's limits to ethical attorney marketing
Florida’s Supreme Court ventures into the realm of of protectionist censorship.

This is going to get a bit in the weeds, but Florida has seemingly contradictory doctrine concerning … more “expressive” advertising. TLDR: Florida’s Supreme Court will pursue punishment against attorneys for emotional or expressive advertising.

Interestingly, in the comments to RRTFB R. 4–7.13, which focuses on deceptive and inherently misleading advertisements, and was last amended in 2018, the Florida Bar notes that,

The rule prohibits statements that characterize skills, experience, reputation, or record that are not objectively verifiable. Statements of a character trait or attribute are not statements that characterize skills, experience, or record. For example, a statement that a lawyer is aggressive, intelligent, creative, honest, or trustworthy is a statement of a lawyer’s personal attribute, but does not characterize the lawyer’s skills, experience, reputation, or record. These statements are permissible.

RRTFB R. 4–7.13, Comments, Characterization of Skills, Experience, Reputation, or Record.

While the Florida Supreme Court has adopted the 2018 revision to the Rules Regulating the Florida Bar, as recently as 2005, it has also taken a harsh stance against attorneys portraying themselves as aggressive. See Florida Bar, Updates to the Rules Regulating the Florida Bar. In a somewhat off the wall opinion, the Florida Supreme Court ruled that a law firm violated the RRTFB when they used an image of a pit bull in their logo and advertised themselves with the telephone number 1–800-PIT-BULL. See Fla. Bar v. Pape, SC04–40, SC04–41, 918 So.2d 240 (Fla. 2005). In Pape, the Florida Supreme Court went on a meandering trip through what it considered the scientific evidence showing the “malevolence, viciousness, and unpredictability” of pit bulls, and ruled that the comparison of the attorneys to pit bulls in the advertisements was barred by RRTFB 4–7.2 (since repealed in 2013). Id., at 8 (page numbers refer to the edition published on the Supreme Court of Florida website). The Supreme Court determined that the use of pit bull imagery was prohibited in Florida because it associated pit bulls with the “‘go for the jugular’ style of advocacy that some persons attribute to lawyers.” Id., at 12. Chief Justice Pariente went on to write that permitting the use of the pit bull image in the advertisement would make a mockery of Florida’s dedication to promoting the public trust and confidence in its system of justice. Ibid. She then mused that, were it allowed, “images of sharks, wolves, crocodiles, and piranhas could follow.” Ibid. The Florida Supreme Court then decided not only to reverse the decision of the Florida Bar permitting this advertising, but to also, sua sponte, decide the punishment for the two attorneys who used this advertising (even though the issue was not briefed by either the defendant attorneys or the State Bar).

Chief Justice Pariente is still presiding on the Supreme Court of Florida (which is proof of either the Dunning-Kruger Effect or the Peter Principle, or both), and while her 2005 decision was based on a version of the RRTFB that was repealed in part and dramatically modified in 2013, the commentary to the current version of the RRTFB offers contradictory reactions to the Pape opinion. As noted above, characterization of an attorney as aggressive was defined as permissible. See RRTFB R. 4–7.13, Comments, Characterization of Skills, Experience, Reputation, or Record. However, the comments also state, citing Pape, that implying that an attorney would engage in combative or vicious tactics would violate the RRTFB. SeeRRTFB R. 4–7.13, Comments, Implying Lawyer Will Violate Rules of Conduct or Law (as an aside, there is nothing in Pape that indicates the ad in question implied the firm would violate the law; advertisements of the firm in question, Pape & Chandler, are rather ‘tame,’ if you will pardon the pun, and can be found on YouTube).

Without delving too deeply into the First Amendment issues presented by the Pape decision, it’s worth noting that legal writers described the decision as a “ridiculous anti-advertising case” and asked “When will the profession see that it will earn the respect of the public through the personal integrity of lawyers and the provision of quality services for reasonable fees — not through some phony notion of ‘dignity’ or by treating the public like children?” David Giacalone, Fla. High Court Puts Down Pape & Chandler’s Pit Bull, f/k/a (Nov. 17, 2005).

If the Florida Bar had not cited to Pape in its most recent version of the RRTFB, the decision could be ignored as being applicable only to the older version of the law. As it stands, because the current law both seems to contradict Pape, in its commentary concerning characterizations, and embrace Pape, in the commentary concerning advertisements that imply an attorney will violate the law. As nothing in the ads, in which the two attorneys discuss their focus on personal injury litigation and affinity for motorcycles, implicates a willingness to violate the law, and as the body responsible for both enacting the RRTFB and interpreting it is the Supreme Court of Florida, on which sits the author of Pape, a cautious attorney would likely act on the assumption that the decision in Pape is still controlling.

If there is any proof that the Pape decision is poorly written and has a negative effect, its that this was supposed to be a brief summary of the rules concerning advertising by attorneys in Florida, not a lengthy discussion that implicates

  • an attorney’s First Amendment Rights,
  • the wisdom of a judicial body having final enacting power and interpretation over laws that limit the ability of attorneys to solicit clients and cases before that court’s bench,
  • the scientific basis for some jurisdictions claiming that pit bulls are a distinct breed of dog that is inherently dangerous (and the merits of a judge conducting an independent investigation into that issue, even though it is only marginally relevant to the issues in the underlying case),
  • the folly of a court that is willing to enact what it describes as a finding of guilt (as if this were a criminal case), and sentence the defendant-attorneys to punishment even as it acknowledges that neither party to the matter briefed the issue of guilt and sentencing and without hearing testimony and directly receiving evidence, as it was not the trier of fact (instead of remanding the matter to the Bar Referee for reconsideration).

Thus, I think it’s best to simply acknowledge that Florida is a jurisdiction in which attorney advertising is policed based on the personal beliefs of its Supreme Court.

Florida’s RRTFB also bars the use of appeals to emotion and celebrities in attorney advertising (although local radio personalities can record narration for advertisements provided they do not appear to endorse the advertising attorney). See RRTFB R. 4–7.15.

Florida allows direct contact with prospective clients only when they have been prior clients of an attorney or are members of that attorney’s family. See RRTFB R. 4–7.18(a). Written communications must be marked as “‘advertisement’ in ink that contrasts with both the background it is printed on and other text appearing on the same page.” RRTFB R. 4–7.18(b)(2)(B) (Assuming Florida is not concerned about the use of invisible ink, this merely means that, if the general text of the advertisement is in black, then “advertisement” should be in red or some other contrasting color.) Additionally, all written communications regarding a specific occurrence should begin with “If you have already retained a lawyer for this matter, please disregard this letter.” RRTFB R. 4–7.18(b)(2)(E). Exceptions to these requirements are made for communications between attorneys, between attorneys and their own past and current clients, between attorneys and their family, or communications requested by clients. See RRTFB 4–7.18(b)(3).

Florida requires attorneys to not only retain a copy of an advertisement for three years after its last use, along with a record of all forums in which it is used, but also requires that attorneys submit a filing of that advertisement (or a transcript/translation thereof for electronic advertisements and advertisements not in English) 20 days prior to the lawyer’s first use of an advertisement, along with a fee of $150 ($250 if submitted less than 20 days prior to intended first use), and a listing of all media in which it will appear, the schedule of its intended use, and the duration of its intended use. See RRTFB R. 4–7.19(a), (b), and (h). Attorney advertising filings will then be judged for their appropriateness under the RRTFB. The information contained on the attorney’s website and advertisements containing only the name of the firm and other administrative information referenced in RRTFB 4–7.16(a) is exempt from this filing requirement. See RRTFB 4–7.20. The RRTFB does not address whether an attorney’s social media platforms would be considered part of their website, but it is safe to assume that they would not be considered exempt from the filing requirements given the overall strictness of Florida’s advertising regulations.

Florida permits attorneys to use trade names for the names of their firms. See RRTFB 4–7.21. It prohibits the use of the name of an attorney in public office being part of a firm name unless that attorney is “actively and regularly practicing with the firm.” RRTFB 4–7.21(e).

Attorney’s Guide to Ethical Marketing: Delaware

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: Del. RPC 7.1–7.6; 8.4(e)
  • 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, with caution
    • PPC Advertising (Y/N): Yes
  • Mandatory Language (Y/N): Yes
  • Opt-Out Requirement (Y/N): Yes
  • Retention and Record-Keeping Requirement (Y/N): No
  • Non-Surname Branding (Y/N): Yes
  • Date of Last Revision: 2013

Comments:

Delaware follows the Model Rules relatively closely and has minimal restrictions on attorney advertising. Direct contact with prospective clients is prohibited other than with lawyers, past clients, family (sorry, relatives of Delaware attorneys), past clients, and those with personal relationships with the attorney. See Del. RPC 7.3.

Delaware attorneys are allowed to use all forms of traditional and digital marketing, from direct mailers to PPC advertisements on Google. However, attorneys must include an opt-out provision for their advertisements. See Del. RPC 7.3(b)(1). The commentary to Del. RPC 7.3 cautions that, even without a formal opting out, sending multiple communications to a party without a response from that party may violate Del. RPC 7.3(b)(1). For this reason, Delaware attorneys need to make sure that the email marketing system they are using, if any, is taking recipients off their mailing list when they are not interacting with their emails (this is a good practice, in general, as it avoids the potential of an email address being listed as a spam address). All advertisements – unless follow-up communications with potential clients – should be marked as “advertising material” in accordance with Del. RPC 7.3(c), whether on the outside of a mailer or at the beginning and end of an email marketing newsletter. Unsurprisingly, no advertisement should include claims of an ability to improperly influence the outcome of a government decision. See Del. RPC 7.4(e).

Delaware allows attorneys to use non-surname branding, provided, of course, it does not imply a connection with a government or non-profit organization. See Del. RPC 7.5. As with other states, Delaware prohibits the use of the surname of an individual holding public office in a law firm name unless that individual is actively practicing with the firm. See Del. RPC 7.5(c).

Attorney’s Guide to Ethical Marketing: Connecticut

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: Connecticut Rules of Professional Conduct 7.1-7.5 (“CT RPC”); Connecticut Superior Court Rules 2-28A, also known as the Connecticut Practice Book § 2-28A (“Ct. Prac. Bk.”) (the CT RPC are contained within the Ct. Prac. Bk., both of which can be found at State of Connecticut Judicial Branch, Connecticut Practice Book (last visited Dec. 12, 2018) (direct link to PDF); Connecticut General Statutes (“CGS”) § 51-86; CGS § 51-87; CGS § 51-87A; CGS §53-340A
  • Limitations on Direct Contact with Prospective Clients (Y/N): Yes, in part.
  • 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: 2014

Comments:

Before delving into the substantive restrictions on attorney advertising in Connecticut, it is worth addressing the structure of Connecticut’s laws concerning attorney advertising.  Connecticut incorporates civil and criminal limitations on advertising for legal practices in both its statutes and Court Rules, with discrepancies between the two for disciplinary matters.  See Office of Legal Research, Connecticut General Assembly Report 2006-R-0577, Attorney Discipline (Oct. 20, 2006) (viewed at https://www.cga.ct.gov/2006/rpt/2006-R-0577.htm).  In what is never a good sign for clear and unambiguous regulations, the state’s legislative office in charge of legal research reported that the reason the Court Rules were controlling when discrepancies existed between them and the statutes was not because of a governing decision or statute addressing controversies of law, but rather because “in practice, the rules are followed.“  Ibid. (It might just be time for the Connecticut legislature to eliminate those laws superseded by the Rules of Professional Conduct.)  Per the guidance of the Office of Legal Research, it will be the “practice” to focus on the Rules of Professional Conduct, as incorporated into the Connecticut Practice Book by the Connecticut Judiciary. 

Connecticut prevents attorneys from directly soliciting clients, for the most, when those clients are private citizens and not also friends, family, or former clients.  See CT RPC 7.3(a).  However, Connecticut permits direct solicitation of a wide range of institutional clients, including non-profits, trade organizations, and for-profit businesses.  See id. This makes sense, as public policy’s desire to protect private individuals from manipulative legal solicitations is no longer served when addressing solicitations directed at organizations that often have sophisticated officers, to include their own attorneys.

Consistent with the Model Rules of Professional Conduct, Connecticut permits attorneys to advertise across all traditional and electronic mediums, and the commentary to the Rules of Professional Conduct even describes more advanced forms of digital advertising, such as PPC and in-app advertisements.  See CT RPC 7.2(a) and commentary.  Due to Connecticut’s record retention and filing requirements (which will be discussed below), however, attorneys must ensure that some form of record remains for all advertisements that they can submit for filing (sorry, early adopters, that means no disappearing content marketing on Snapchat).

In Connecticut, advertisements must include the name and address of at least one lawyer admitted in Connecticut responsible for the content of the advertisement, along with language addressing contingency fee details.  All advertising should be marked as “‘Advertising Material’ in red ink on the first page of any written communication and the lower left corner of the outside envelope or container, if any, and at the beginning and ending [sic] of any communication by audio or video recording or other electronic means.”  CT RPC 7.3(c). 

Connecticut requires that attorneys retain records of their advertisements, along with a record of when and where used for three years.  See CT RPC 7.2(b)(1).  Additionally, attorneys must comply with the mandatory filing requirements imposed by Section 2-28A of the Connecticut Superior Court Rules, which requires attorneys to submit their advertisements to the Connecticut Attorney Grievance Committee prior to or at the same time as an advertisement is first used.  Connecticut includes a procedure where the State Bar Counsel randomly selects advertisements for an audit or review procedure.