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LAWYER MARKETING 101

Sponsor: Young Lawyers Division CLE Credit: 1.0

Thursday, June 18, 2015 8:30 a.m. - 9:30 a.m.

Thoroughbred 4 Lexington Convention Center

Lexington, Kentucky

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A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

Printed by: Evolution Creative Solutions 7107 Shona Drive

Cincinnati, Ohio 45237 Kentucky Bar Association

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TABLE OF CONTENTS

The Presenter ... i

Lawyer Marketing 101 ... 1

Goals ... 1

Career Development ... 1

Key Relationships ... 2

Marketing and Advertising ... 3

Client Interactions ... 4

Productivity and Time Management ... 5

Individual Attorney Marketing and Business Development Plan ... 7

Frequently Asked Questions – Attorneys' Advertising Commission ... 11

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THE PRESENTER

Mark Guilfoyle Dressman Benzinger LaVelle, PSC 207 Thomas More Parkway Crestview Hills, Kentucky 41017-2596 (859) 341-1881 mguilfoyle@dbllaw.com

MARK GUILFOYLE is a partner with Dressman Benzinger LaVelle PSC in Crestview Hills and practices in the areas of administrative and health care law. He received his H.A.B., summa cum laude, from Xavier University and his J.D., with honors, from George Washington University. Mr. Guilfoyle is admitted to practice before the United States District Court for the Eastern and Western Districts of Kentucky, the United States Court of Appeals for the Sixth Circuit and the United States Supreme Court. He is a member of the Northern Kentucky and Kentucky Bar Associations and the National Diocesan Attorneys Association. In addition, Mr. Guilfoyle serves on the Northern Kentucky University Foundation Board of Trustees.

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LAWYER MARKETING 101 Mark D. Guilfoyle

I. GOALS

A. Individual Business Development and Marketing Plans

1. Set realistic but meaningful goals that can be defined, prioritized and tracked.

2. Create a step-by-step plan for achieving them and be accountable.

3. Identify your target market, ideal client, and how you can effectively reach them.

4. Update regularly – don't just file your business plan, use it as a working document.

B. Define Your "Brand"

1. What you have to offer your clients is a "product" of your "brand" – what are your features and benefits?

2. Align with your firm, specific practice area, contacts and your strengths, to identify a niche and/or market opportunities.

3. Identify your growth strategy.

Diversification, "product" development, market penetration, market development.

II. CAREER DEVELOPMENT A. Personal Growth

1. Understand your strengths and weaknesses as a marketer.

One-on-one interaction, networking, public speaking, writing articles, etc.

2. Identify a personal mentor within your community.

3. Engage the community in which you live and work.

Church, community organization, etc.

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B. Professional Growth

1. Look for opportunities and define your niche area of practice.

2. Identify a professional mentor within your firm or professional network.

Rainmaker, respected partner with similar practice, etc.

3. Engage professional networks and membership groups.

a. Local chamber, various associations, etc.

b. Offer to serve on committees, present, volunteer time, donate resources, etc.

4. Understand who your competition is and what sets you apart.

III. KEY RELATIONSHIPS

"The law is built on trusted relationships uniquely informed by the personality and skill sets of the individual professional." Keith Ecker, "Trending: Why Storytelling is the Hottest Legal Marketing Tactic," Nat’l L. Rev. (March 9, 2015), http://www.natlawreview.com/article/trending-why-storytelling-hottest-legal-

marketing-tactic.

A. Build a Good Base Referral Network

Law school classmates, family, friends, business colleagues, etc.

B. Develop and Nurture Those New and Existing Relationships

Build trust, confidence and top-of-mind awareness in your referral network and reciprocate.

Understand that your contacts may not be in a position to give you work now, but eventually they may be in a decision-making role C. Understand the Life Cycle of the "Sales Process"

1. Prospecting; making contact; qualifying; presenting; addressing concerns; closing the sale; asking for referrals.

2. Know how to qualify a lead and determine if it's a potential client that will have a good return on investment.

3. Realize that the second and third steps in the "sales process" can vary in length of time, depending upon the client and their business.

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a. Always be respectful of existing relationships and sensitivity around "selling" yourself and your services.

b. "…as much as we might want to dismiss emotion from the practice of law and the selling of legal services, emotion counts." Keith Ecker, "Trending: Why Storytelling is the Hottest Legal Marketing Tactic," Nat’l L. Rev. (March 9, 2015), http://www.natlawreview.com/article/trending-why- storytelling-hottest-legal-marketing-tactic.

IV. MARKETING AND ADVERTISING

A. Effective Communication of your Message 1. Social media.

a. Engage content marketing – make a strategic marketing approach that is focused on creating and distributing valuable, relevant and consistent content.

i. Attract the digitally savvy client and drive traffic to your firm/profile.

ii. Create targeted educational content that leverages search and social media to get you and your firm found.

b. LinkedIn, Twitter, Facebook, firm blogs, website, etc.

2. Authoring publications.

Be recognized and identified as a subject matter expert in your area of practice.

Association publications, firm newsletters, chamber alerts, etc.

B. Storytelling

1. Produce content that draws your client or prospective client in and wanting more.

Appeal to emotions.

"The legal industry is so rooted in the logical that you would think there is little need to appeal to the emotional."

Keith Ecker, "Trending: Why Storytelling is the Hottest Legal Marketing Tactic," Nat’l L. Rev. (March 9, 2015), http://www.natlawreview.com/article/trending-why-

storytelling-hottest-legal-marketing-tactic.

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2. Once upon a time…

a. Humans are wired to react much more positively to information contained within a story rather than information explained through bullet points and slides.

b. Transmitting ideas and experiences from one person to another.

c. When you use storytelling, your audience automatically puts themselves into your story.

d. Your audience is more likely to recall your message and with greater accuracy.

V. CLIENT INTERACTIONS

A. Be a Valued Partner to your Client

1. Demonstrate your knowledge of the company's business and industry.

2. Provide a meaningful and valuable service to your client.

3. Understand the process at arriving to a satisfactory outcome for your client – know the details and steps involved.

Awareness, Understanding, Connection and Solution.

4. Have a desire to grow with your client.

B. Understand Your Clients' Needs

1. Be proactive – understand the issues and challenges.

2. Ask questions – What can we do for you?

C. Engagement

1. Get out of your office ("YCPGLSOYA").

2. Look to engage and re-engage on a frequent basis.

3. Communicate with frequently.

4. Be responsive and thought provoking.

5. Propose solutions.

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D. Deliver Top Notch Service

1. Always deliver a "product" that your client will not only be satisfied with, but will let them know you understand and value their needs.

2. Bring solutions to your clients in a timely and efficient manner.

3. Assess the risks and value of the problems or opportunities and arrive at solutions as a partner of the client.

4. Identify potential issues before it's too late.

5. Ask more questions – How are we doing? What can we do better?

VI. PRODUCTIVITY AND TIME MANAGEMENT A. Be Aware of Expectations

Billable vs. non-billable

B. Effectively Managing Interruptions and Distractions C. Creating Work Life Balance

D. Time Management

Prioritize, delegate, document time (billable and unbillable), and plan your day.

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INDIVIDUAL ATTORNEY MARKETING AND BUSINESS DEVELOPMENT PLAN

ATTORNEY NAME:

DATE:

AREAS OF PRACTICE:

LIST TOP FIVE CLIENTS YOU INTERACT WITH – Include any other important details to define this client (i.e. description of their business, nature of your relationship, last contact, and/or any recent legal engagements).

1.

2.

3.

4.

5.

Now, with regard to the top five clients above, think of other potential needs they may have for legal services, cross-selling and potential opportunities in the next twelve months. Consider introducing each client to a colleague of yours. If it's been a while since you've engaged the client, consider an opportunity to get in front of them and ask about their business (i.e. lunch, happy hour, seminar invite, open house, phone call, etc.).

DESCRIBE AT LEAST THREE POTENTIAL OPPORTUNITIES FROM ABOVE – and establish a specific strategy with tasks and calendared deadlines.

1.

2.

3.

LIST YOUR TOP FIVE REFERRAL SOURCES – 1.

2.

3.

4.

5.

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Consider opportunities to network and attend events with these referral sources/contacts and be introduced to other potential clients. Consider opportunities for the firm to get involved and potentially co-sponsor events with referral sources (i.e. accounting firms, banks, etc.) to gain access to like-minded clients.

DESCRIBE AT LEAST THREE POTENTIAL OPPORTUNITIES FROM ABOVE – and establish a specific strategy with tasks and calendared deadlines.

1.

2.

3.

LIST YOUR TOP FIVE PROSPECTS – List your top prospects, noting your relationship with this individual/business, potential opportunities, and how you plan to market your services and the firm.

1.

2.

3.

4.

5.

Remember that other people within the firm may know a contact or have a relationship with your prospective client (i.e. similar organizational involvement, neighbor, law school colleague, etc.)

DESCRIBE AT LEAST THREE POTENTIAL OPPORTUNITIES FROM ABOVE – and establish a specific strategy with tasks and calendared deadlines.

1.

2.

3.

FIRM BIOGRAPHY – Please take this time to review your firm bio (attached) and make any necessary adjustments to the copy. If you've recently joined a board, given a presentation, expanded your capabilities or would like for your bio to reflect a certain focus, please consider adding content. Your bio helps to tell your story and introduces you to potential clients. Content from your bio is also an important SEO driver to our website and subsequently your bio page.

Please also take a look at your current photo and advise if you'd like to schedule a session to have it retaken.

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MAILING LISTS – The firm actively pushes out alerts, invitations, seminars, and announcements through our mailing list of provided contacts. While some outreach are specific in nature to a practice (alerts, newsletters, etc.), others may be broad in spectrum (i.e. open house, firm news, etc.). Consider new additions to be included on our lists and remove any outdated contacts that may no longer be active.

Please make an inquiry to review a certain mailing list or simply submit your new additions with this plan.

ORGANIZATIONAL INVOLVEMENT – Bar associations, industry associations, philanthropic, and other. Please list the organization, your current involvement and any goals for enhancing your leadership, visibility and/or commitment within the organization in the next twelve months.

1.

2.

3.

4.

5.

SPEECHES AND SEMINARS – List any speeches or seminars you intend to present or would like to look further into getting involved. Mention if this is a new opportunity or annual occurrence. This may include in-house training opportunities with clients, externally focused CLE seminars specific to a particular industry, etc. Consider relevant topics that will create interest and speak to your particular capabilities within the firm.

1.

2.

3.

4.

5.

Consider using a new platform for presenting, as opposed to simply updating an existing PowerPoint presentation. There are new platforms that have the ability to create visual interest in your presentations and are able to better catch the attention of your audience.

Also consider ways to repurpose your speeches and seminar materials (pitch to a similar industry, repurpose for an article, etc.)

BY-LINED ARTICLES – List any by-lined articles you are interested in writing during the next twelve months. Consider listing relevant topics, target audience, desired publication, and additional ways to repurpose (blog, multiple publications, etc.) with specific deadlines for completing.

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1.

2.

3.

4.

5.

ONLINE PRESENCE AND SOCIAL MEDIA – Indicate below the online networks and directories where you maintain a current and active professional profile.

Best Lawyers _____

Chambers _____

Facebook _____

FindLaw _____

JD Supra _____

LinkedIn _____

Martindale-Hubbell _____

Twitter _____

Other _____ _________________________________________

YOUR STRENGTHS AS A MARKETER – Please rate what you think your strengths are as a marketer on a 1-10 scale, with 10 as the highest score.

One-on-One Interaction 1 2 3 4 5 6 7 8 9 10 Client Origination 1 2 3 4 5 6 7 8 9 10 Organizational Involvement 1 2 3 4 5 6 7 8 9 10 Personal Networking 1 2 3 4 5 6 7 8 9 10 Cross-Selling 1 2 3 4 5 6 7 8 9 10 Public Speaking 1 2 3 4 5 6 7 8 9 10 Writing Articles 1 2 3 4 5 6 7 8 9 10 CLE Preparation 1 2 3 4 5 6 7 8 9 10 Other (please specify) ____________ 1 2 3 4 5 6 7 8 9 10

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FREQUENTLY ASKED QUESTIONS

ATTORNEYS' ADVERTISING COMMISSION (AAC or the Commission)

Supreme Court Rules on Attorney Advertising – (click here to view) Attorneys' Advertising Commission Regulations – (click here to view)

Q. WHAT RULES REGULATE ATTORNEY ADVERTISING IN KENTUCKY?

A. The Kentucky Supreme Court Rules (SCR) 3.130-7.01-7.60 apply to all advertisements for legal services. All advertisements are also subject to the Attorneys' Advertising Commission Regulations. Those are available by clicking here.

Q. WHAT IS AN ADVERTISEMENT?

A. An advertisement is any information or communication containing a lawyer's name or other identifying information to make known a lawyer's services according to SCR 3.130-7.02.

Typically, any time you put something about your practice on television, radio or the Internet, in the newspaper or telephone book, on a billboard, or in a letter to potential clients, it is an advertisement. However, SCR 3.130-7.02(1)(a-j) provides a list of exceptions. Those items are NOT considered advertisements, and do not need to be submitted to the KBA AAC.

Q. IS THE USE OF A FIRM NAME ONLY CONSIDERED AN ADVERTISEMENT?

A. No. The use of a firm name only without any accompanying identification as a lawyer or law firm is not an advertisement under SCR 3.130-7.02(1).

Q. DO I HAVE TO SEND MY ADVERTISEMENT TO THE KBA AAC?

A. Yes. All advertisements must be submitted to the KBA AAC. If it does not fall under one of the exceptions in SCR 3.130-7.02(1)(a)-(j), then it must be submitted.

Q. WHAT HAPPENS IF I FAIL TO SUBMIT MY ADVERTISEMENT FOR REVIEW?

A. Failure to submit an advertisement is a violation of the Rules of Professional Conduct. Late submissions may be subject to an additional administrative fee of

$100.00 in addition to the $75.00 filing fee. The Attorneys' Advertising Commission, however, may refer any attorney who fails to comply with the rules to the Inquiry Commission. Once an advertisement is used, the lawyer must submit the advertisement to the Attorneys' Advertising Commission regardless of intent for future use. If the advertisement used was not submitted, and is false or misleading in violation of SCR 3.130-7.15, a referral to the Inquiry Commission is more likely.

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Q. HOW DO I SUBMIT?

A. Supreme Court Rules require submission of attorney advertisements.

Advertisements must be submitted pursuant to one of two Supreme Court Rules.

1. SCR 3.130-7.05(1): No fee required. These advertisements shall only contain one or more of the twenty-six items listed in the Rule. Additional items are also provided in AAC Regulation No. 2. Submit three (3) copies of the advertisement to the AAC before or at the time of use. No filing fee is required. Submissions of this type can be faxed to the KBA or emailed to attorneyadvertising@kybar.org. NOTE: If your advertisement has information not listed in SCR 3.130-7.05(1) or AAC Regulation No. 2, you must submit the advertisement pursuant to SCR 3.130-7.05(2) with the required filing fee.

2. SCR 3.130-7.05(2): All other advertisements must be submitted with a

$75.00 filing fee. Submit three (3) copies of the advertisement to the AAC before or at the same time you begin to use the advertisement, but no later than the publication date of the advertisement. If submission of your advertisement is required by SCR 3.130-7.05, you may opt to request an Advisory Opinion pursuant to SCR 3.130-7.06(1) or you may use the advertisement simultaneously with submission and it will be reviewed pursuant to SCR 3.130-7.07.

Advertisements found to have been submitted after use or publication are subject to an additional filing fee of $100 pursuant to SCR 3.130-7.05(2).

Q. WHAT IS THE COST FOR SUBMISSION?

A. $75.00 per advertisement payable to the Kentucky Bar Association.

An additional supplemental fee of $100.00 per advertisement is payable in addition to the filing fee if the advertisement is more than 100 pages or the audio or video is longer than ten minutes.

An additional administrative fee of $100.00 is charged for late submissions.

Generally, you must submit a separate filing fee for each advertisement.

However, if the two advertisements are identical in content, including pictures and graphics, or the second advertisement contains less information than included in the first advertisement, no separate fee is required for the second advertisement. In addition, if the only difference pertains to permissible advertising content listed in SCR 3.130-7.05(1)(a)(1-26) and/or AAC Regulation No. 2, or the advertisements are subsets of another advertisement submitted for review, a separate fee is not required.

Q. ARE THERE OTHER SUBMISSION REQUIREMENTS?

A. Websites may be submitted on paper or on CD or DVD in continuous PDF (Portable Document Format). If your website submission is more than a few

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that you number the pages consecutively from beginning to end to assist with the review. Every page is reviewed. Violations are often cited by page number.

Multiple video and audio advertisements may be submitted on a single VHS tape or CD or DVD, provided the order of the advertisements is clearly marked. See AAC Regulation No. 11 for more details.

Also, if the advertisement is more than 100 pages or the individual audio and/or video is longer than ten minutes in length, an additional filing fee of $100.00 is required.

ADVISORY OPINION: A $75.00 filing fee is required for each advertisement.

The advertisement must be submitted at least thirty days prior to publication or use. Requests for Advisory Opinions must be made in writing by an attorney. The cover letter must either state the rule number (SCR 3.130-7.06) or specifically request an advisory opinion. The letter must be signed by an attorney.

The AAC will review the advertisement and provide an Advisory Opinion regarding compliance with the Rules and Regulations within thirty days of receipt of the submission. The advantage of submitting pursuant to this rule is that an Advisory Opinion is similar to an Ethics Hotline Opinion: if the advertisement is noncompliant, the attorney is not at risk for disciplinary action, unless a violation of SCR 3.130-7.15 was deemed intentional. In addition, if the Advisory Opinion does not deem the advertisement compliant and the Commission's recommendations are applied, the advertisement may be resubmitted without an additional filing fee.

SIMULTANEOUS SUBMISSION/WITHOUT AN ADVISORY OPINION: If you want to use the advertisement at the same time you are submitting it, you may file as required by SCR 3.130-7.05. The submission requires the $75.00 filing fee per advertisement. Should the Attorneys' Advertising Commission review the advertisement and conclude it is noncompliant, resubmission of the corrected advertisement usually requires an additional $75.00 filing fee. While SCR 3.130- 7.05 allows the use of an advertisement without waiting for review by the AAC, if the advertisement is found noncompliant with the Rules or Regulations, the advertising lawyer may be referred to the Inquiry Commission. If you are not referred to the Inquiry Commission, but do receive a Noncompliance Notice, you can still be referred to the Inquiry Commission if the advertisement continues to be used without correction and resubmission. Continued use requires submission of a corrected and resubmitted advertisement along with the $75.00 filing fee.

Q. WHY ARE SOME ADVERTISEMENTS NOT RESTRICTED TO THE TWENTY- SIX ITEMS LISTED IN SCR 3.130-7.05(1)?

A. Pursuant to SCR 3.130-7.05(1)(a)(26), AAC Regulation No. 2 expands the list of items allowed by this rule. This includes items such as "good luck" and

"congratulations." Also included is one plain background picture of the lawyer(s).

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Q. WHAT DO I SEND TO THE COMMISSION?

A. The Commission recommends submitting a cover letter with each submission specifying the type of advertisement(s), where and how the advertisement(s) will be used/published, the rule pursuant to which the submission(s) is being made, and any supplements further required by applicable Rules and/or Regulations (i.e., substantiation of any claim, verdict or settlement, any monetary award or recovery, or routine fee(s) and the services provided for said fee(s) as advertised).

No matter the type of advertisement or the Rule you are submitting under, you must submit three (3) copies of the advertisement. If the advertisement will be published by broadcast media, including radio, television or internet media, a fair and accurate representation of the advertisement is required. For broadcast media, this includes three (3) copies of a typed transcript in addition to three (3) copies of the audio or video. Websites must also include three (3) copies of the printed pages (page numbered consecutively from beginning to end) or three (3) copies of the data disc in continuous Portable Document Format (PDF).

Acceptable media: VHS, CD, DVD, or Audio Cassette. Fax or emailed files of the media are not accepted.

Q. HOW LONG DOES IT TAKE TO GET AN ADVERTISEMENT REVIEWED?

A. If an Advisory Opinion is requested pursuant to SCR 3.130-7.06, the advertisement will be reviewed within thirty days of receipt. If an Advisory Opinion is NOT requested, an advertisement submitted under SCR 3.130-7.05 may be reviewed by the Commission pursuant to SCR 3.130-7.07. A Notice of Noncompliance will be sent to advertisers whose advertisement was reviewed and deemed to be noncompliant.

Q. IS PRE-PUBLICATION APPROVAL REQUIRED?

A. No. However, the option is available by requesting an Advisory Opinion under SCR 3.130-7.06.

Q. MAY I SUBMIT AN ADVERTISEMENT BY FAX OR EMAIL?

A. Only advertisements that qualify as a submission under SCR 3.130-7.05(1) may be submitted via fax or email. Advertisements submitted pursuant to SCR 3.130- 7.05(1) may be emailed to attorneyadvertising@kybar.org.

For all other advertisements, the review process cannot begin until the KBA receives the advertisement via mail, along with a check for the required $75.00 filing fee and other supplements as required (i.e., three copies of CD, DVD, transcript, etc.).

Q. MAY I OBTAIN A PRELIMINARY APPROVAL BEFORE PRODUCING A RADIO OR TELEVISION ADVERTISEMENT?

A. Yes. A preliminary approval based upon scripts and storyboards may be

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request for an Advisory Opinion in writing by an attorney is required. However, the preliminary opinion will not cover any elements in the finished advertisement that were not indicated in the scripts and storyboards. Once a script or other preliminary advertising submission is approved, a final compliance notice will not be issued until the final audio or video media is submitted and reviewed for conformity with the script.

Q. HOW DO I SUBMIT UPDATES TO MY WEBSITE?

A. Resubmission is required only for substantive changes to a website previously submitted (i.e., changes beyond SCR 3.130-7.05(1)(a) or AAC Regulation No. 2).

Minor corrections to a website such as fixing typographical, grammatical or punctuation errors need not be submitted. If the update only adds or changes any item referred to in SCR 3.130-7.05(1)(a) or AAC Regulation No. 2, it need not be resubmitted. Changes to links to sources authored or published by third parties, including articles, cases, ethics opinions or legal documents need not be resubmitted.

Any other substantive changes must be submitted. Only the pages with changes need to be submitted. The fee for submission will be governed by the number of pages in the submission of changes, not by the total number of pages in the website. Please see SCR 3.130-7.05(2) for fee amounts.

Q. HOW DO I RESUBMIT CHANGES TO A NONCOMPLIANT ADVERTISE- MENT?

A. An advertisement found noncompliant must be corrected and resubmitted to the Attorneys' Advertising Commission before it may be used again. When resubmitting an advertisement, the cover letter must identify the Advertisement ID number assigned to the advertisement.

1. Simultaneous Submission No Fee Advertisement: When resubmitting a no fee advertisement, enclose a cover letter with the Advertisement ID number and three (3) copies of the advertisement. The corrected advertisement may be resubmitted by fax or email.

2. Simultaneous Submission Fee Advertisement: When resubmitting a fee advertisement, enclose a cover letter with the Advertisement ID number, three (3) copies of the advertisement, and a check payable to the Kentucky Bar Association in the amount of the filing fee. If resubmitting two or more advertisements, the check amount must be sufficient to pay for each separate advertisement. If the resubmission is for a radio or television commercial, three (3) copies of the transcript and three (3) CDs or DVDs must also be resubmitted with the required changes. If resubmitting a website with changes to just a few specific pages, only the changed pages (three (3) copies) need be resubmitted with the required filing fee. If the entire website is resubmitted with the required filing fee, the entire website is subject to a complete review again.

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3. Advisory Opinion request: When resubmitting an Advisory Opinion request, three (3) copies of the advertisement must be resubmitted. There is no additional filing fee. If the resubmission is for a radio or television commercial, three (3) copies of the transcript and three (3) CDs or DVDs must be resubmitted with the required changes. If resubmitting a website and changes are required on just a few specific pages, three (3) copies of only the changed pages need be resubmitted. If the entire website is resubmitted, it is subject to a complete review again.

If the advertisement initially submitted for an Advisory Opinion request is used prior to the expiration of the thirty days specified in the rule, the advertisement submission will automatically be changed to a simultaneous submission request and when resubmitted for review will require the filing fee to be paid again.

Q. HOW CAN I SUBMIT A LIVE RADIO OR TELEVISION PROGRAM AND STILL COMPLY WITH SUBMISSION REQUIREMENTS?

A. All advertisements must be submitted pursuant to SCR 3.130-7.05. An advisory opinion may be requested for an advertisement submitted pursuant to this rule.

An advertisement submitted for an advisory opinion will be reviewed within thirty days pursuant to SCR 3.130-7.06. If an advisory opinion is not requested, an advertisement submitted pursuant to this rule will be considered a simultaneous submission, meaning it will be submitted to the Commission simultaneously with its publication, and may be reviewed pursuant to SCR 3.130-7.07.

The Commission is aware that live radio or television programs cannot be submitted in advance for an advisory opinion. Furthermore, the Commission is mindful of the difficulty of submitting a live radio or television program simultaneously with its broadcast date. Therefore, the Commission will permit live programs to be submitted as a simultaneous submission if submitted no later than thirty (30) days from the air date before the Commission will impose the one hundred dollar ($100) late fee specified in SCR 3.130-7.05(2). Radio and/or television programs that meet the exception contained in SCR 3.130-7.02(1)(j) do not require submission.

Q. DOES THE OFFICE LOCATION HAVE TO BE ON THE ADVERTISEMENT?

A. Yes. AAC Regulation No. 1(C)(1)(b) states that every advertisement must identify the city, town or county of at least one bona fide office location of the Kentucky lawyer(s) who will actually perform the services advertised, or in the event that the lawyer does not maintain a bona fide office, such fact shall be disclosed.

Q. DO ALL ADVERTISEMENTS HAVE TO SAY "THIS IS AN ADVERTISE- MENT"?

A. Yes. SCR 3.130-7.25 requires, "All advertisements must contain the phrase 'THIS IS AN ADVERTISEMENT,' unless excepted by SCR 3.130-7.09." The disclaimer should be in all capital letters as shown in the rule. If the advertisement is a written, recorded, or electronic communication to a potential client, the envelope or container must state the word "ADVERTISEMENT" on the

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mailing label side of the envelope or container and the letter, document, or insert must contain the phrase "THIS IS AN ADVERTISEMENT."

Websites must contain the phrase "THIS IS AN ADVERTISEMENT" at the top of every page, visible without scrolling.

In recorded telephone, electronic, video, or digital communications other than television, the speaker must first state "THE FOLLOWING IS AN ADVERTISEMENT" and must further state at the end of the communication

"THIS MESSAGE HAS BEEN AN ADVERTISEMENT."

All television communication, video recording, or digital recording must prominently display the words "THIS IS AN ADVERTISEMENT" on the screen for as long as the lawyer's or firm's name appears on the screen. If a television communication, video recording, or digital recording is longer than sixty seconds, the words "THIS IS AN ADVERTISEMENT" must be displayed throughout the entire communication. The words "THIS IS AN ADVERTISEMENT" must be prominently displayed on every page of any advertisement in writing, and displayed without scrolling on the first screen of every page of a website.

Q. WHY DO SOME ADVERTISEMENTS REQUIRE THE DISCLAIMER

"SERVICES MAY BE PERFORMED BY OTHERS?"

A. SCR 3.130-7.20(5) requires the disclaimer if a lawyer or law firm advertises for legal services and a lawyer's name or image is used to present the advertisement. The lawyer must be the actual lawyer who will perform the services. Otherwise, the disclaimer "Services may be performed by others" is required. The Commission may require the disclaimer "Services will be performed by others" when the lawyer in the advertisement is not licensed in Kentucky to perform the services offered. Often used in television or radio advertisements with an actual lawyer speaking, this may also include print advertisements with a picture of a single lawyer and a caption that says, "I will perform a particular service."

In addition, if the lawyer or firm is advertising for clients who will be referred to another lawyer or firm, such fact shall be prominently disclosed.

Q. CAN I ADVERTISE FEES OR DISCOUNTS?

A. SCR 3.130-7.04 Advertising of fees

Yes. If the advertisement contains a fee for "routine services," a description of what services are included must be supplied to the Commission with each advertisement and to each prospective client.

If the client is required to pay court costs and/or case expenses in addition to the advertised fee, or mention of a contingency fee, the advertisement shall state in all capital letters, "COURT COSTS AND CASE EXPENSES WILL BE THE RESPONSIBILITY OF THE CLIENT." If the client will not be responsible for court costs or case expenses, the advertisement should so state.

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"NO RECOVERY NO FEE" is not permissible, as it may be misleading. While advertising fees, costs and expenses is not prohibited, caution should also be taken to comply with SCR 3.130-7.15, which prohibits false or misleading information and the causing of an unjustified expectation.

Use of "no recovery, no fee" or "no fee guarantee" in the solicitation of contingent fee cases is potentially misleading or deceptive without any additional explanation that litigation expenses and court costs would be payable regardless of the outcome. The public generally may not distinguish the difference between the terms "fee" and "costs." It may be deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for court costs and case expenses.

Coupons, discounts, lowered rates.

Fees, services, and discounts advertised must be honored for as long as the advertisement is in use. If the advertisement contains a price or discount that is valid only for a specific time, the advertisement must state such limitation. If a price is listed in yellow page advertisements or any other advertisement used in a media that is published only once a year, the price must be honored for at least one year.

Q. CAN I ADVERTISE MY AREAS OF PRACTICE?

A. Yes. SCR 3.130-7.05 (1)(a)(1-26). However, be particularly careful not to use the words "specialist" or "certified" or "authority" or "expert," or any form of these words except as permitted by SCR 3.130-7.40.

Q. CAN I STATE THAT I AM "CERTIFIED," A "SPECIALIST," AN "AUTHORITY,"

OR AN "EXPERT"?

A. Maybe. Advertisements cannot use any form of the words "certified," "specialist,"

"expert," or "authority" unless otherwise permitted in SCR 3.130-7.40.

There are exceptions listed in the Rule with regard to achieving a national certificate by an organization qualifying under Peel v. Attorney Registration and Disciplinary Commission of Illinois, 110 S.Ct. 2281 (1990). Use of any of these titles should not include any description comparing a lawyer with the distinction to a lawyer who does not share that title in accordance with SCR 3.130-7.15, unless it can be factually substantiated. The advertisement must include the name of the certifying organization, and must also state that Kentucky does not certify specialties in legal fields. The communication may occur only for as long as the lawyer remains so certified and in good standing.

Q. MAY I ADVERTISE MY TOLL FREE NUMBER?

A. If you advertise a toll free number, the advertisement must indicate the location of the bona fide office(s) where a substantial amount of the services will be performed. In addition, an advertisement must not include a telephone number in a manner that misrepresents the geographic location of the office where the

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telephone number with an area code for a geographic region in which the lawyer or law firm does not maintain a bona fide office, the advertisement must include a statement that the lawyer or law firm does not maintain an office within the area code indicated by the telephone number.

Q. MAY TESTIMONIALS BE USED?

A. The Commission may deem an advertisement in violation of SCR 3.130-7.15 if the advertisement fails to comply with the AAC Regulations.

AAC Regulation No. 1(D) states:

1. Testimonials. A testimonial is a statement by any person regarding the quality of legal services rendered by an advertising lawyer or law firm.

Testimonials concerning the quality of legal services or the client's level of satisfaction that are stated in general terms and that do not make reference to a particular legal matter will ordinarily not be considered to create unjustified expectations. Testimonials are also subject to the requirements of subsection (D)(2) below.

2. Advertising that refers to particular matters or results. Statements that may create unjustified expectations include advertisements concerning results obtained on behalf of a client, such as the amount of damage award, cumulative verdicts or the lawyer's record in obtaining favorable verdicts unless the advertisement includes the specific factual and legal circumstances of the case. Such information might include some or all of the following: the facts underlying the representation, a statement of the applicable law, whether a matter has been concluded or continues on appeal, and a statement concerning any subsequent post-verdict settlement of the matter.

Q. MAY I LIST VERDICT AND SETTLEMENT AMOUNTS IN MY ADVERTISE- MENT?

A. Attorney advertisements, including websites, often list verdict and settlement results. Listing results without a sufficient explanation may be a violation of SCR 3.130-7.15. Information on advertising verdict and settlement amounts can be found in AAC Regulation No. 1(C) and (D).

Q. MY LOCAL NEWSPAPER'S SURVEY VOTED ME "BEST LAWYER OF THE COUNTY." MAY I PUT THIS IN MY ADVERTISEMENT?

OR

I AM LISTED IN "BEST LAWYERS OF AMERICA" or "CHAMBERS." CAN I PUT THIS INFORMATION IN MY ADVERTISEMENT?

A. Comparisons to other lawyers may violate SCR 3.130-7.15, unless the comparison can be substantiated. The AAC often requires substantiation. To avoid delays in the review of your advertisement, include the substantiation of any claims that compare yourself with others in with your submission, preventing

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delay of the review process. The methodology used in any survey, ranking, top ten list, etc., should be part of the substantiation in many instances.

Q. CAN I ADVERTISE THAT I WAS IN "BEST LAWYERS OF AMERICA,"

"CHAMBERS" OR A LOCAL NEWSPAPER SURVEY, AND THAT IT NAMED MY FIRM "THE BEST" IN THE COUNTY/REGION/STATE?

A. SCR 3.130-7.15 prohibits advertising that includes a comparison of you and other lawyers, unless you can factually substantiate the claim. To prevent the Attorneys' Advertising Commission from disapproving your advertisement due to such a claim, include substantiation of your claim with your submission. This should be conclusive proof that only you, as compared to every other Kentucky lawyer, can make this claim. SCR 3.130-7.15 restricts false or other statements that may mislead potential clients into believing you or your firm is better or more competent than others. Claims should be carefully worded to avoid being misleading. Claims implying that your law firm can get more money or that your law firm is the most powerful may be misleading. Even a claim that you are a

"big-city lawyer" may be considered misleading as an implication of power or competency due to your location.

Q. IF MY NEWSPAPER ADVERTISEMENT IS APPROVED, CAN I USE IT ON A BILLBOARD?

A. Once an advertisement is submitted and reviewed, if compliant, you may use that advertisement as long as you want, in any format you want, as long as SCR 3.130-7.15 is not violated and there are no significant changes. Changes to your address or phone number, or any of the twenty-six items listed in SCR 3.130- 7.05(1) or AAC Regulation No. 2, are not significant. The previously approved advertisement, when used in a different format (such as direct mail), must comply with any requirements of that format (i.e., the word "ADVERTISEMENT" on the mailing label side of an envelope or postcard and the words "THIS IS AN ADVERTISEMENT" on the advertisement). When using an older previously approved advertisement, the Commission encourages the advertisement be updated with new rule and/or regulation requirements.

Q. IS MY FIRM NEWSLETTER AN ADVERTISEMENT?

A. Yes. Newsletters qualify as direct mail communications and must comply with the requirements of SCR 3.130-7.09. Newsletters are required to be filed pursuant to SCR 3.130-7.05. Each edition of the newsletter, unless identical, must be filed for review as a new advertisement. "THIS IS AN ADVERTISEMENT" should be on every page of the advertisement, and

"ADVERTISEMENT" must be on the envelope or mailing label, on the same side as the return address of the attorney or firm name. Three (3) copies of the advertisement and three (3) copies of the envelope, or mailing label, must accompany the submission. Failure to include the envelope or mailing label will result in a noncompliance notice.

Electronic newsletters must conform to the requirements of SCR 3.130-7.09 and SCR 3.130-7.25 by stating "ADVERTISEMENT" somewhere in the subject line

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edition of the e-newsletter, unless identical, must be filed for review as a new advertisement with the appropriate filing fee. Three (3) copies of the advertisement must accompany the submission.

NOTE: If the newsletter is sent only to clients, it is not an advertisement. SCR 3.130-7.02(1)(h).

Q. IS A SEMINAR ANNOUNCEMENT AN ADVERTISEMENT?

A. Seminar announcements appearing in public print media must comply with the regulations governing other forms of print advertisements set forth in SCR 3.130- 7.05. Seminar announcements disseminated through the mail must comply with SCR 3.130-7.09, rules governing direct communications. Exceptions may be made if the lawyer has no financial responsibility for the seminar and has no control over seminar advertisements. For example, if an attorney will appear as a guest speaker at a seminar sponsored and financed by someone else, whereby the lawyer has no control over the information disseminated, the announcement may be exempt from the regulations governing lawyer advertising.

Q. IS THE SIGN ON MY OFFICE THAT STATES, "EXERCISE YOUR RIGHT TO COUNSEL BEFORE YOU TALK TO THE POLICE" AN ADVERTISEMENT?

A. Yes. SCR 3.130-7.02(1)(e) states that the definition of an advertisement does not include a sign on or near the law office or in the building directory identifying the law office, as long as it contains only the information specified in subsection (a). Subsection (a) does not reference any slogans, pictures, or graphics.

Therefore, the sign you describe would be considered an advertisement and should be submitted as required by SCR 3.130-7.05(2) (i.e., $75.00 filing fee and three copies required).

Q. MAY I ADVERTISE ON THE INTERNET?

A. Internet advertisements and attorney/firm websites are advertisements and subject to all the rules and regulations of other advertisements, including submission under SCR 3.130-7.05(2). All other internet advertisements should be submitted. This includes audio or video (accompanied by typed transcripts) and classified advertisements for legal services (i.e., Craigslist).

Electronic mail advertisements, such as email, or other information directed to potential clients must follow the requirements of SCR 3.130-7.09 and SCR 3.130- 7.25 by stating "ADVERTISEMENT" somewhere in the subject line, and "THIS IS AN ADVERTISEMENT" in the body of the email.

Websites, like all other advertisements, are required to state "one or more bona fide office locations of the Kentucky lawyer(s) who will actually perform the services advertised, or in the event that the lawyer does not maintain a bona fide office, such fact shall be disclosed." Website advertisements must always have

"THIS IS AN ADVERTISEMENT" on every page, in the top portion of the page, visible without scrolling. SCR 3.130-7.25 and SCR 3.130-7.15.

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Q. MAY I PARTICIPATE IN GROUP MARKETING?

A. Group marketing plans implicate multiple rules of professional conduct, some outside of the specific advertising rules. Please consult KBA Ethics Opinion E- 429 for further guidance.

Q. MAY AN ATTORNEY SPONSOR A SOFTBALL TEAM USING HATS AND SHIRTS WITH THE ATTORNEY OR FIRM NAME AND PHONE NUMBER?

A. Yes, however, shirts and hats, or other similar promotional items (e.g., ink pens, pencils, magnets, etc.) are considered advertisements. This type of advertising usually falls under SCR 3.130-7.05(1) so there is no $75.00 filing fee.

Submission of three copies of the actual item is acceptable, but pictures or drawings, and/or descriptions are allowed in this instance. The twenty-six items allowed in the list are basic information such as name, address, a list of areas of practice, years of experience, degrees earned, etc. The only picture or graphic allowed is a plain background picture of the attorney(s). Including an item beyond those listed in SCR 3.130-7.05(1)(a) and AAC Regulation No. 2 would incur the

$75.00 filing fee.

Website references are allowed under this Rule; however, websites are separate advertisements and must be submitted prior to putting the website address on any advertisement.

Additionally, as required of all advertisements, the advertisement should also contain the phrase "THIS IS AN ADVERTISEMENT," the name of the lawyer/firm, and a bona fide office location in Kentucky (city, town, or county) where the lawyer/firm reasonably expects to furnish a considerable amount of legal services on a regular and continuing basis. If the lawyer/firm does not have a bona fide office in Kentucky, such fact shall be disclosed.

Q. IF OUR FIRM'S BROCHURE OR A NEWSLETTER IS BEING MAILED OR EMAILED TO POTENTIAL CLIENTS WHO HAVE ASKED TO BE PUT ON OUR MAILING LIST, DO WE HAVE TO SUBMIT THE ADVERTISEMENT AND COMPLY WITH THE ADVERTISEMENTS RULES FOR DIRECT CONTACT (SCR 3.130-7.09)?

A. Yes. Any information provided to potential clients is an advertisement. Any information disseminated directly to a potential client is "direct contact" and must strictly comply with SCR 3.130-7.09. Advertisements which constitute direct contact, by email or direct mail, must have the word "ADVERTISEMENT" on the envelope or somewhere in the subject line of an email to comply with SCR 3.130- 7.09. The submission copy should indicate conformity with the rule. The letter contained within the envelope or the body of the email must contain the phrase

"THIS IS AN ADVERTISEMENT."

Q. WHAT ARE THE MOST COMMON OVERSIGHTS IN AN ADVERTISEMENT?

A. 1. "THIS IS AN ADVERTISEMENT" [SCR 3.130-7.25].

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2. Location of firm [AAC Regulation No. 1(C)(1)(b)].

3. Advertisement lists a website or Facebook/Google+/Twitter page that has not been submitted.

SOCIAL MEDIA

Q. DO I NEED TO SUBMIT MY BLOG?

A. No, provided there is no reference to an offer by the lawyer to render legal services. The Commission may require submission of the "About" page of a blog if there appears to be such an offer. See SCR 3.130-7.02(1)(j).

Q. MAY A LAWYER USE FACEBOOK, TWITTER, LINKEDIN OR OTHER SOCIAL MEDIA NETWORKING SITES?

A. Yes, use of social media for personal, non-legal communications does not implicate the Supreme Court Rules as they relate to advertising. However, communications that meet the definition of an advertisement under SCR 3.130- 7.02(1) require submission of the social media site to the Attorneys' Advertising Commission pursuant to SCR 3.130-7.05. At a minimum, if the communication is an advertisement, the "Information" or "About" page is required to be submitted and should comply with the advertising rules and regulations. Please see the FAQ concerning submission for information about fees and other submission requirements.

Q. IF A LAW FIRM USES FACEBOOK, TWITTER, LINKEDIN OR OTHER SOCIAL MEDIA NETWORKING SITES, DOES THE LAW FIRM HAVE TO SUBMIT THE SITE AS AN ADVERTISEMENT?

A. Yes, if the site meets the definition of an advertisement under SCR 3.130- 7.02(1), the law firm should submit the "Information" or "About" page for compliance with the advertising rules and regulations.

Q. MAY A LAWYER USE SOCIAL MEDIA TO CONTACT A CURRENT OR POTENTIAL CLIENT?

A. There are several factors to weigh in considering this question:

Potential Clients:

A lawyer may not initiate contact or solicit professional employment from a potential client via real-time electronic means. SCR 3.130-7.09(1). There are three limited exceptions to the prohibition, please see the rule. If the communication is not in real-time, it is permitted. However, the communication must comply with SCR 3.130-7.09(3) and any other applicable advertising rules and regulations, and must be submitted to the Attorneys' Advertising Commission pursuant to SCR 3.130-7.05.

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Current clients:

Communication to, for, or on behalf of an existing client does not fall within the definition of an advertisement pursuant to SCR 3.130-7.02(1)(h).

Q. ONCE THE SOCIAL MEDIA SITE HAS BEEN SUBMITTED, UNDER WHAT CIRCUMSTANCES WILL IT HAVE TO BE RESUBMITTED?

A. Individual postings/updates are not required to be submitted; however, changes to the "Information" or "About" page should be resubmitted. Changes that fall under AAC Regulation No. 2(13) may be resubmitted to update the advertisement record. When submitting, correspondence should reference the Advertisement ID Number assigned to the original submission.

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NOTES

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References

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