Q. As a high-volume accident lawyer, I've been approached by a marketing firm with "proprietary tools" that can send me at least a dozen cases per month. May I use this service?
A. Though you may delegate certain marketing tasks to non-lawyers, you cannot delegate your duty to comply with the Rules of Professional Conduct.
Beware of those who guarantee you a certain number of accident cases over a specified period or use "proprietary" methods that they won't disclose.
Many successful businesses guard their trade secrets. KFC, Coke and Pepsi keep their secret formulas to themselves, locking them away in a vault to which few have a key. But one can sell fast food and drinks without worrying about legal ethics rules or the marketing restrictions that come with them.
Lawyers are different. Encumbered by significant regulation, we may not take the same liberties as our lay counterparts.
Unlike other business people, we may not "talk to strangers" who need specific legal services unless they approach us about them first. Such "solicitation," whether we initiate the communication ourselves or have someone do it for us, is expressly prohibited in Rule 7.3.
Coke and Pepsi may pay celebrities to endorse their products. We may not. Rule 7.2 forbids lawyers from paying anyone to recommend their services.
Other industries may run comparison ads to show why they're better than the competition. But advertising our superior skills, boasting of verdicts and awards that we've never actually achieved, or promising outstanding results have no place in legal advertising. Madison Avenue thrives on hyperbole and "puffing" as means of capturing attention and boosting business. If we do likewise, we may capture the attention of Bar Counsel in ways that may ultimately kill our business.
Whether or not we think of ourselves as marketers, we cannot avoid these restrictions by outsourcing these tasks to unsupervised laymen. If these marketers use tactics which violate the Rules of Professional Conduct, we won't escape sanctions by pleading ignorance of their secretive "tools."
So while we wouldn't ask Kentucky Fried Chicken to reveal its seven herbs and spices or demand the formula for Coca-Cola, we cannot retain salespeople who keep their marketing methods to themselves. To ensure ethical compliance, we must insist on transparency. Exactly how will they attract prospective clients? How will they communicate with them? What "pitch" will they may make on our behalf? How can they guarantee a dozen referrals per month? Who will be involved in these efforts?
When salespeople sell their "proprietary tools," the ingredients of their secret sauce often include:
➤ "Runners" who chase ambulances, arrive at crash scenes and canvass hospital emergency rooms in search of accident victims who need lawyers
➤ Cutting deals with shady health care providers to steer patients in your direction
➤ Pulling motor vehicle collision reports to identify accident victims for direct solicitation
➤ Kickbacks to referral sources
➤ Placing advertisements in print, online or broadcast media which have not been vetted for ethical compliance
These tools are as effective as they are dangerous. By using them, or retaining outsiders to use them for you, you can build a large client base in record time — one that will last until one of these clients calls these tactics to Bar Counsel's attention.