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The LSO's rules for marketing legal services

How do law society rules impact the type of marketing you can use? The Law Society of Ontario recently added to its advertising rules, which state that a lawyer may market legal services only if they can show it to be demonstrably true, accurate and verifiable. Further criteria ensures that the marketing does not mislead, confuse or deceive and that it should be in the best interests of the public and consistent with a high standard of professionalism.

Marketing includes advertisements and other similar communications in media as well as firm names (including trade names), letterhead, business cards and logos. Of course, advertising comprises a small portion of what marketing does include such as market research, segmentation, promotions and other aspects. Promotions include the gamut of advertising, personal selling, public relations and general communications.

Law firms mainly market themselves by presenting at seminars, distributing newsletters and creating social media content. Some law firms include substantial media on YouTube that can humanize some of the lawyers and make them more approachable. The greatest return on investment for marketing still appears to be the referral. Although referral marketing sounds old school, this likely remains one of the greatest returns on investment. One of the reasons for this would be the worry of an individual member of the public trying something new. Thaler’s work on how behavioural economics impacts choices can be seen at work here. Individuals like to be part of the crowd. They feel more comfortable with some choices that have been chosen by others. This has the perception of reducing risk in a choice.

The law society expanded its rules since a number of law firms have increased their marketing efforts along with their level of advertising. This increase also resulted in the increase in complaints. Advertising particularly attracts the attention of the law society. For example, in 2015, the law society received 53 complaints and initiated 88, for a total of 141, which means the society started about 62 per cent of the investigations. This seems to demonstrate a high degree of rigour. The law society’s main focus appears to ensure that ads are demonstrably true, accurate and verifiable.

To create the new rules, the LSO’s Advertising & Fee Arrangements Issues Working Group went into a fair amount of detail and did its own market research to find out what the public and the members of the bar thought about advertising, which is the crux of the issue. One major concern expressed involved the public being persuaded by information that may mislead it. And, of course, the intent of all advertising is to inform and ultimately persuade people.

In the U.S., for example, advertisements include statements that the firm is “management’s lawyers” when it came to employment law issues. This seems to be a practice preference. However, a situation where a firm might call itself “Toronto’s Lawyers” would be a major attribution claim and extremely difficult to quantify or verify.

Other concerns included law firms claiming expertise in areas that could not be objectively ascertained. Firms could try to get around this by advertising certain awards they may have won. However, some awards can essentially be purchased or may fall along the lines of “participant” awards that we all used to get simply for appearing. Mind you, Woody Allen did say that 80 per cent of success is showing up.

Ensuring that advertisements are true, accurate and verifiable does alleviate a number of concerns such as claims that are mere puffs. Can anyone see the word “puff” and not be taken back to Carbolic Smoke Ball? Were we ever that young?

Ads such as “We will beat any advertised price” when it comes to a land transaction will not be shown any time soon. But we will likely get there when some aspects of the law become completely commoditized. The future use of blockchain pretty much ensures this.

Further problems include the question of taste — or, rather, the lack thereof. Does mass advertising detract from the rule of law? It most likely does not. Does it bring the law into disrepute? It probably does not. But it may detract somewhat away from the perception of lawyers themselves. This does potentially impact the entire lawyer brand, which incorporates everything lawyers do or say. The LSO eventually decided that trying to regulate taste became too problematic.

Washroom advertising demonstrates focused marketing for criminal firms. Not only do they have a captive audience, but they have captured their particular market segment where legal services could be of value. In a tavern, the time association between seeing the ad and requiring legal assistance in an impaired driving situation could potentially be very short, which creates a stronger association for this particular firm. These ads could also be providing a public service in that people reading about legal services in a tavern may have a greater disinclination to drink and drive.

Law firms should avoid using emotional appeals. Auto manufacturers use certain associations to make an emotional connection with a potential purchaser. Does this emotional associative aspect somehow detract away from the overall branding of lawyers? We would likely not see ads claim that a law firm was faster, smarter or angrier than any of its competitors.

The law societies’ codes of conduct suggest law firms need to consider more of a societal type of marketing. This goes beyond the traditional marketing model of having the client’s interests at the centre and surrounded by a law firm’s resources along with a profit motive. A fourth aspect found in societal marketing would be the larger public interest, the rule of law. LSO codes of conduct generally include a duty to the client while maintaining an overall mandate within the limits of the law. This fourth aspect brings legal marketing into the realm of societal or mission-based marketing.

A mission-based marketing concept has an even larger potential crossover. Some mission-based organizations engage in behavioural modification to have clients modify their behaviour in order to facilitate the mission of the not-for-profit. In this case, we would be referring to the rule of law.

However, some types of legal advertising can detract from this mission-based aspect of societal marketing. It does help with the individual associative marketing and the individual lawyer, but it can detract from the overall lawyer brand.

What are the potential upsides of additional marketing? Does overregulation somehow detract from the rights of the client? Does this somehow reduce the level of competition that might otherwise drive innovation? This may not be the case right now, but when the use of Artificial Intelligence and alternative business structures becomes more commonplace, then the ability to market these new processes and ventures would create competition and drive innovation even further.