A while back, Carolyn Elefant at Legal Blog Watch raised the question of whether it’s appropriate to give Continuing Legal Education credit to lawyers for programs on legal marketing. While Carolyn isn’t a fan of compelled CLE in the first place, the issue of teaching lawyers to market isn’t as intrinsically troubling:
The Wisconsin Law Journal piece quotes Law Marketing Blog author Larry Bodine, who criticized the omission of marketing courses from CLE as “a major shortcoming.” Likewise, many solo and small firm lawyers believe that incorporating marketing and practice management courses into CLE programs can help these lawyers succeed, says Christopher L. Strohbehn, a member of the CLE committee. Stohbehn also points out that Internet marketing and social media are fast replacing Yellow Pages advertising and lawyers need to understand their ethical obligations when using 21st century technologies to market their practices.
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So if CLE is going to be mandatory anyway, bars should allow lawyers to take courses on practice management and marketing to enable lawyers to run ethical, profitable practices. Moreover, in the long run, courses that help lawyers do well financially prevent the kind of desperation that may lead them to “borrow” money from client trust accounts, or do far worse.
This assumes, obviously, that marketing is an acceptable and necessary component of practicing law, and that it will be done in conformity with our ethical considerations.
Putting aside, for the moment, my concern that this is a total load of nonsense, that lawyers should spend their time packaging and selling themselves like the latest designer fashion, an email received the other day clarified how naive this belief that lawyer marketing is appropriately included in CLE.
The email came from Public Relations and Media Group, touting their “upcoming event.”
Putting aside, for the moment, my concern that this is a total load of nonsense, that lawyers should spend their time packaging and selling themselves like the latest designer fashion, an email received the other day clarified how naive this belief that lawyer marketing is appropriately included in CLE.
The email came from Public Relations and Media Group, touting their “upcoming event.”
CLE Lecture – PR and Marketing for LawyersThere’s no mention of who will be the instructor, and clearly this isn’t a law firm, bar association or law school, but an entity whose purpose is to selling marketing. How the heck did this group obtain authorization to provide continuing legal education? Who in their right mind would give an PR firm the power to confer CLE credits for teaching ethics to lawyers? Apparently, the State of New York did so.
Extended Lunch & Learn
One CLE Credit Hour — Ethics & Professionalism
(Three hour program. The course is appropriate for both newly admitted and experienced attorneys)
This program will help ensure that the strategies for growing or maintaining your practice conform with ethical requirements. You will gain practical tips for choosing marketing methods that are suited to your practice, personality, and your means.
To the extent that mandatory CLE makes any sense at all, it’s to keep lawyers abreast of the law and their professional responsibilities. It is not, despite Larry Bodine’s self-interested perspective, to teach lawyers how to cash in. CLE was never intended to help lawyers achieve “financial success,” except in the extended sense of improving their competency so that potential clients will desire their services because they are better lawyers for it. Obviously, that purpose has been lost.
I realize that it’s much easier to put up a glossy website telling potential clients what a great, experienced, aggressive, passionate lawyer you are than to actually be one. The latter takes time and effort. The former can be done in minutes. I also realize that for every lawyer who puffs his abilities and worthiness, a client is deceived. While this can certainly help the new solo to get business that he would otherwise not get, it comes at the expense of ethics and integrity, not in conformity with it.
Ultimately, marketing puts lawyers who actually have experience, competency and ethics at a clear disadvantage to those who are happy to be unscrupulous to make a quick buck. The competent lawyer can’t distinguish himself online because the incompetent need only use the same words to tout himself to the unknowing legal consumer. How would the consumer know the difference?
The ethical lawyer would never puff his qualifications or deceive people to score a case. The ethically challenged lawyer has no qualms about doing this at all. And contrary to those who argue that marketing is pro-consumer by providing information they would otherwise be denied, marketing isn’t informative. It’s deception and manipulation. And ethics are not facilitation, but a restraint on deception and manipulation.
That said, how in the world can ethics be trusted to be taught to lawyers for CLE credit by the people whose business it is to sell marketing to lawyers? It’s insane.
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But it reveals the sham of mandatory CLE. It’s a cash cow for the providers and a PR effort for the profession.
Those of us who are going to stay on top of our fields, will regardless. Those who just get hours to satisfy the rules will pick up whatever’s convenient and cheap and maybe sexy (like marketing), regardless of whether it’s of even marginal interest or relevance to their practice.
How many people sit through the seminars reading a book (or the newspaper or a transcript or doing a crossword puzzle?
Give me real CLE, but take away the mandatory, and you’ll put the scam artists out of business.
We’ve been through the whole mandatory CLE sham in the past. This post addresses the specific problem of a non-lawyer PR firm running an Ethics CLE on marketing, a new wrinkle.
Sure, but there’s a causal (or at least enabling) relationship.
Absolutely. Then again, I’m a believer in Chaos Theory too. Merry Christmas, Jeff.
Spot on post and necessary conversation. Yes, rigorous debate regarding the merits of mandatory CLE has been hashed out and is not the issue here.
It’s the failure of states supreme courts and CLE commissions to amend CLE rules and regs to effectively reflect changes in the legal profession.
A practice management or marketing course (including the use of social media) for lawyers should be accredited on its own merit. Ethics is only one component. But the rules bind CLE providers bringing about the situation in the second part of your post. I don’t agree entirely with your position there but totally get your point.
The CLE Association (ACLEA) is having their mid-year conference next month. I’ll post a link to this post on the internal email listserv today as a possible issue to be discussed there.
One problem, Tim, is that those who favor marketing will argue for ethical marketing and against snake oils salesmen. I’ve yet to hear a definition that works to distinguish between the two. I do, however, hear ethical marketers who inform young lawyers to leave their graduation dates off their “about me” page so no one knows that this “highly experienced” lawyer has only been in practice for 12 minutes, 9 of which for the other side. I read the same adjectives describing the best and worst lawyers. In fact, the worst tend to put more effort into their marketing since the best already have business.
This is not consumer centric or friendly, no matter how marketers spin it. Truth is good, but truth can be harsh. “Ethical” marketing, whatever that may be, seems at best to highlight the positive and conceal the negative. This isn’t truth.
Couldn’t agree with you more, Scott. The two issues are “…marketing and practice management courses…can help lawyers succeed” and “…ethical obligations when using 21st century technologies to market their practices”. And as you summarized, I’m making the assumption “that marketing is an acceptable and necessary component of practicing law, and that it will be done in conformity with our ethical consideration”.
My point is let’s get the difference between these two defined and included in standards of accreditation so that lawyers can correctly instruct on ethical issues and marketers, on their area of expertise. Then we can work on the substance and quality of those presentations.
“The ethical lawyer would never puff his qualifications or deceive people to score a case. The ethically challenged lawyer has no qualms about doing this at all”. This excellent point you made is, in a nutshell one of the huge issues I have with the arduous, even punitive CLE rules that govern, for instance, the verification procedures for viewing and earning credit for non-live courses. The overwhelming majority of lawyers take CLE to learn. The few that try to cut corners will continue to find a way regardless of the rules, in the process “punishing” the rest. I suggest that the same applies to the ethically challenged lawyer as snake oil salesman.
While my best answer, at least for now, is that there is good way to control/limit marketing in a high tech world, even if we could differentiate between ethical and not. But maybe, with the right definition, it could be accomplished.
So, do you have a definition, or a way to distinguish ethical from unethical marketing?
Good question. Hadn’t taken the idea far enough to consider defining the difference.
Perhaps for clarity and consistency, traits no CLE governing body holds dear, “Marketing” can be considered the “how to”, the tools, the non-ethical, if you will, with the knowledge of course that all marketing is bound by ethics. But that’s a “life” acknowledgment. And, the ethical part, labeled “Advertising”, the details and parameters of which can be pulled from that state’s Rules of Professional Conduct.
On the one hand, I always understood advertising to be one facet of marketing. On the other hand, defining ethics as the “details and parameter of . . . state’s Rules of Professional Conduct” doesn’t offer much guidance at all. Let me know when you’ve got a hard definition. I am very interested, and can’t begin to figure it out myself.
Fair enough. I started an MCLE LinkedIn Group. Perhaps that may be the platform to start a discussion and link here for information and hopefully generate additional meaningful dialog. Cool?
Yes, advertising is considered a component of marketing but I was suggesting the distinction above for the purposes of identifying and defining each. I muddled that a bit.
Sounds good to me. I only ask two things: First, that it be in comprehensible language without jargon, and second, that it draw a clear line between ethical and unethical marketing. None of that fuzzy, vague, meaningless stuff that sounds nice but informs no one.