A motto for the lawyer business in the early 21st century.

In the 19th century the “drummer” or traveling salesman was so despised that legislation was passed that required them to be licensed and pay large fees.  A large part of motivation was certainly protection of local merchants but would such legislation have been possible without the 19th century’s cultural norm emphasizing  privacy?  Probably not.  People wanted to rest easy in their own homes without being bothered.  When they needed something and could afford it, they made a trip to their local mercantile.  When they needed legal help, they went to the local lawyer, who they knew from church and trusted.   The merchant, the lawyer and the “consumer” (in quotes because such a designation would be puzzling to anyone from that time) were part of a community based on proximity and common culture.

In our time, the average American consumer (so-called because we define ourselves now by how much and what kind of goods and services we devour)  is exposed to anywhere from 1,600 to 3,000 advertising messages a day, depending on whose figures you want to accept.  You can’t avoid being bombarded with advertising; it has become ambient.  It is only a matter of time until we are renting advertising space on our clothes, a la NASCAR drivers.   The Hidden Persuaders are not so hidden anymore;  it is a challenge delivering your message against such background noise and advertising has for a long time relied on humor, irony and self-reflection to try to stand out from the crowd.  Advertising today acknowledges with a funny wink its nature as advertising, full of hype and something of a con;  for a contemporary example see the Dos Equis campaign with “The Most Interesting Man in the World.”

Anyone who clicked on that link will appreciate that the adoption of digital technology has created whole new opportunities for digital drummers.  With a little luck, your campaign becomes a cultural icon that anyone can participate in (my entry: ” I don’t always practice law but when I do, I prefer to do it in my briefs.”)  It hardly matters that I don’t like Dos Equis.   The campaign and culture reference have little to do with with the merits of  the beer and everything to do with creating something that will stick in the consumer’s overloaded brain.

This may be painfully obvious.  But then we come to the law business, and specifically where the law business collides with the legal profession.   The ethics rules regarding solicitation, advertising and marketing date from the early part of the last century and reflect some of same features of the anti-drummer laws, including protecting the home turf and the concept of privacy.   Even after the United States Supreme Court found that truthful lawyer advertising could not be prohibited under the First Amendment (Bates v. Arizona, 1977 , it found that states could prohibit in person solicitation (Ohralik v. Ohio State Bar Assoc., 1978) and could enact regulations prohibiting written communication with accident victims (Florida Bar v. Went for It, 1995) and their survivors within a certain time period after accident because of the “intrusion upon the special vulnerability and private grief of victims or their families” (Went for It, 515 U.S. at 625.)

Went for It, the last significant US Supreme Court case on lawyer advertising, came down in 1995, the year when the Netscape IPO launched the era of mass use of digital technology.  The world looks much different, just 16 years later.  Digital technology has created multiple new channels to bombard the consumer with information.   Perhaps even more important is that the technology works both ways.  In the old days you saw the billboard;  now the billboard sees you, too, and it wants to know everything about who you are, so it can figure out what stuff you are most likely to buy.   You may think that you are searching Google but Google is really searching you.  So called “social networking” sites take this process even further.  The goal is nothing less than the commodification of social relationships:  most everybody knows that Facebook Friends aren’t really friends at all but part of an effort to get inside your head and figure out what you will buy.

The law business has been slow to adopt this new technology but it is making up for lost time.   Digital media have long been considered an essential part of law business marketing.  The arrival of  latest iteration, the social network, coincided with the collapse of the economy, more than a whiff of desperation seems to accompany the modern push to Face, to Link, to Twit (or is that Tweet?).   The business of marketing consultants is thriving.  I get a least one solicitation a day from someone who had trouble finding my web site and really wants to help, proclaims an earnest affiliation with the magic word Google, or can deliver clients directly to my door.   (Of course, the appearance of robust business health may itself just be good marketing.)   These world of consultants exists in a different plane of reality than bar regulators,  as the June 2011 program in Memphis with the wonderfully named Kathy Bible, the Florida Bar’s advertising ethics counsel,  and almost equally well named marketing consultant Burkey Belder, illustrated (“The Ethics of Advertising: Regulating the New 2.0 Frontier“.)   The numbers of clients seeking advice from me on marketing ethics as gone up in the last few years, many of them seeking to understand the parameters of their marketing relationships with non-attorneys, the multi-jurisdictional limits on internet advertising, and to what extent their content can engage in traditional advertising puffery.

Because of all this activity, it was surprising to some that the ABA Ethics 20/20 Committee did not propose substantial changes to the Model Rules regarding advertising.   The new digital media really are just new vessels for old wine in the eyes of regulators.   Whether this will prevent the profession from going the way of the “buggy whip” seem dubious.   Can the legal profession and the law itself stand as a rock against the tsunami of this rapid economic and technological change?  It seems more likely that it will be swept along with the rest of our society to unknown parts.