RUSHING BACK TO THE PAST

The Proposed NYS Bar’s Rules on Advertising In A Time Warp

The sad thing about the proposed advertising regulations  put forth by the New York State Bar Association is that it proves the fallibility of memory.

History, which is supposed to inform the present and guide the future, seems not to be our favorite subject. As a result, thirty years after the Bates Decision  opened the professions to marketing,  and after thirty years of gradually and painfully getting the country’s bar and accounting associations to accept the realities of marketing, New York State is trying to move us back to life before Bates.

Now, there are some who dismiss Bates as history, but then, so too is the Declaration of  Independence history.  And Bates was the Declaration of Independence for professionals. And interestingly, for clients, too.

For those who were not with us (us old fogies, I guess) in those early years, every advance in the ability to market was achieved with blood and sweat (the tears come now, with these new proposed regulations.) What did we actually do?

The few of us who were in marketing back then realized that the future of the professions resided in understanding that Bates introduced frank competition where it had been forbidden before. Bates, which was essentially an advertising decision, really said, “Now you can go after my clients and I can go after yours.”  Unheard of in the annals of the professions.  Of course firms competed with one another before, but in soft and subtle ways, as a result of which firm growth, with notable exceptions, grew slowly. Clients were wed to their lawyers and accountants, who rarely switched firms. It was almost Dickensian.  Slowly – but surely – Bates changed all that.

Marketing, as we practice it today, had its roots in that competition. Competition changed the landscape of the professions.

It didn’t happen overnight, and it was accelerated by a growing client sophistication, and their increasing demands for more and better professional services. It’s significant that the major beneficiary of three decades of marketing practices has been the clients, because the competition is best fought not by advertising and brochures and the like – they’re just the vehicles for communicating better practice techniques – but by the improved client services, and by new services that are more responsive to client needs.

Have there been excesses? Of  course. There has been some excessive enthusiasm by trial lawyers, for example, which rankles a once staid profession. There have been, for example, accounting firms pushing the envelope on tax shelters. And certainly, there have been too many examples of chicanery in both professions. But these and other such events have been overwhelmed by the improved professional practice in the service of demanding clients.

How were the post-Bates advances achieved? By pushing the envelope. By momentum from professional marketers who understand the need to compete professionally, and not just in the clubs and on the golf courses. By learning to listen to the needs of clients.

To ignore these factors today is to be tone deaf.  To consider legal blogs as mere promotional devices is to ignore the significant contributions the legal bloggers make to the practice. And if, in the course of dissemination of information and informed opinion somebody gets the idea that one lawyer’s blog indicates that the blogger’s view of law is more thoughtful than the firm currently being used,  there’s more benefit than harm – to both the profession and the clients.

I can’t imagine who would think that the proposed regulations would help anything or anybody except those who don’t understand what the ability to compete has meant to the advancement of both law and accounting. That’s why every advance since Bates was fought for and won.

How do you wake up a bunch decadent of lawyers?

Comments

[Andy Havens]

Excleent post. I agree completely. The whole point of communicative freedom is to allow the customer to have more choice. Without marketing, there are very many fewer ways with which a legal client can have any clue as to which firm/lawyer to use. Yes, some marketing is bad. But *no* marketing or *less* marketing is infinitely worse.

I agree that advertising and marketing in the legal industry should be regulated differently than in retail. But guess what? There are other industries, for example health, pharma and utilities, where additional requirements are handled without the sturm-und-drang that bar associations seem to feel is still necessary.

Lawyers and bar associations need to grow the heck up. Ther real offenders -- firms/lawyers that advertise truly unethically and inacurately -- should be the ones under scrutiny. All this effort to clip the wings of folks using colored business cards... feh.