Now that I’m free from the chains of having to please my masters, something I obviously didn’t do very well, I can address the continuing onslaught in the battle between reason and the almighty dollar.  As Colin Samuels at Infamy or Praise twittered yesterday, are new solo practitioners to be taught that their “gap” is in skills or marketing?  The answer turns on who’s doing the answering.

A paper circulated yesterday that high levels of intestacy (that’s people who die without wills for those of you who slept through trusts and estates in law school) are due to inadequate lawyer marketing.  This paper couldn’t have come at a more propitious time, as it makes a very clear point on the lawyer marketing front.

Seizing the opportunity, Mark Merenda embraces this paper to show that marketing is not merely good for the pocketbooks of those who sell marketing services to lawyers, but in fact a public benefit.

In light of the recent brouhaha between me and another blogger, I thought this article in the Elder Law Journal was interesting (tip of the hat to Jeremy Richey). It says, in effect, lawyers aren’t doing enough marketing of wills, and that is a disservice to the public:

From the abstract :

Disappointing rates of intestacy may be as much a business problem as a legal one. In this interdisciplinary law and business article, the authors investigate whether widespread intestacy may be attributable in part to the failure of the legal industry to market wills effectively. Although attorneys can market within the boundaries of the Model Rules of Professional Conduct, the majority do not take full advantage of the range of permissible marketing strategies. This Article suggests that attorneys learn the basics of marketing strategy and rely on guidance from marketing experts in order to structure effective programs to educate the public on will drafting services. By integrating both law and business, estate planning lawyers can better serve current and future clients.

Lest there be any confusion, I of course am “another blogger.”  The paper relied upon, written by Michael McCunny of CEPHEI Consulting, LLC and Alyssa DiRusso of Cumberland Law School at Samford University, begins with the assertion that too many people are dying without wills, which I will assume to be valid and agree is problematic.  While not dying at all might be a better solution, if one has to die, testate is better than not.

The paper, according to the abstract, contends that ending widespread intestacy could be helped by using marketing to better educate the public.  Here’s where we get into trouble. 

The underlying assumption is that lawyers are and will market, without regard to anything else.  How do we know this?  From the clause, “the majority do not take full advantage of the range of permissible marketing strategies.”  The paper thus pursues the issue by arguing that if lawyers are going to market anyway, at least do so in a way that does something useful, like educate the public.  How do we know this?  From the clause, “[t]his Article suggests that attorneys learn the basics of marketing strategy . . . in order to structure effective programs to educate the public on will drafting services.”

This is the difference between reality and marketing.  A vulnerable lawyer, hungry for business, would glance at this post and be seduced by the idea that he can justify a marketing campaign because he’s really providing a public service.  That’s not what the paper says, nor the reasoning the suggested.  Indeed, even the mere non-critical repetition of this paper is dubious.  Just because someone writes something doesn’t make it true, unless one is so deeply inclined to embrace it because it comports with one’s financial interest.

So why would a marketer give this paper such unquestioned love?  Because of the highlighted portion of this sentence:

This Article suggests that attorneys learn the basics of marketing strategy and rely on guidance from marketing experts in order to structure effective programs to educate the public on will drafting services.

Naturally, lawyers (not being marketers) need the help of marketing pros to devise effective programs.  It always seems to come back to the same thing.  As Michael McCunny is a business consultant, it’s hard to fault him for pushing his own agenda, particularly when he makes a good point:  If you are going to market, at least do something useful for the public.  But this point doesn’t have anything to do with the preliminary question of whether lawyers should engage in advertising campaigns in the first place, and what impact such campaigns have on the dignity and professionalism of lawyers. 

There is one glaring omission in the papers point.  There is absolutely nothing to suggest that lawyers cannot educate the public without engaging in an overt marketing campaign.  I stand 100% behind the idea that lawyers should educate the public, which happens to be an ethical responsibility as well.  There is no requirement that this be done by television commercial, however.  And even if television commercials were the most effective way to do so, why not have the Trusts and Estate Bar Association put out a public service announcement about wills to fight widespread intestacy?  Would it be because there are already so many lawyers already hocking their wares?

This marketing effort to market marketing might be sufficient to seduce the hungry lawyer alone, but marketers apparently tend to travel in packs for protection.  A comment to this post by Ben Glass, who just happens to have his own blog called Great Legal Marketing for Personal Injury Attorneys, readily agrees that lawyer marketing is really for the benefit of the public.

Mark: you are right and this is something that other guy who was ranting about marketing will never get. Most of the ethical rules around the country start with a preamble about a lawyer’s duty to educate the public and make the news about the availability of legal services known. Its a duty to market effectively.

Now it’s your duty as a lawyer to market.  He’s right.  I don’t get it (yes, I’m “that other guy who was ranting”).  I must be particularly bone-headed, because I am unaware of any ethical rules that start with the preamble that lawyers have a duty to market.  Of course, if a hungry lawyer, one who needed business but was conflicted by his desire to start up a practice but maintain a modicum of self-respect because he hoped one day to hold himself above late-night cable TV advertising, was to be fed this ethical duty, would he get it?

But Ben is gracious in his view, acquiescing to the notion that every lawyer may not favor being a top-notch marketer.

Hey, some will disagree with you and me and some will never get it.. that’s OK too, the world is big…everyone’s entitled to their opinion even if they show the shallowness of their thought by speaking in such disrespectful tones.

While the connection between shallowness and my refusal to continue to tolerate the multiple attempts to use my blawg to push the marketing agenda may be suspect, I appreciate that Ben concedes that I’m allowed to differ with his view.  And I certainly appreciate yet another opportunity to demonstrate the insipid rationalizations and logical twists that shift money from the pockets of hungry lawyers to the pockets of seductive marketers.  I hope I’ve done so this time with sufficiently respectful tones to meet Ben’s approval.

Update:  I took for granted that the basic premise, that intestacy problem, were a product of lack of public education.  Carolyn Elefant, on the other hand, didn’t.  In her Legal Blog Watch post, Carolyn suggests that this whole “marketing to serve the public” claim is a red herring.

As for me, I disagree with the underlying premise that the high level of intestacy is attributable to lack of education. In this day and age, most people realize that it’s a good idea to have a will, just like it’s a good idea for women over the age of 40 to have an annual mammogram or for men to undergo checks for prostate cancer. Yet often, even the best-educated don’t take these actions, either because they flat out don’t have the money, or figure that they don’t have enough at stake (i.e., a large enough estate or family history of cancer) to justify the time and cost associated with preventative measures. Lawyers can educate the public about wills all they want, but until they can actually prepare wills inexpensively and conveniently, many people will continue to forego them.

So maybe marketing isn’t a panacea?