Bob Denney was a kind, generous, and insightful man who had his finger on the pulse of the legal profession like no one else. For nearly 30 years, Bob published a newsletter under the banner of “What’s Hot – What’s Not.” When they went digital, several of them were featured on Attorney at Work and in the pages of Wisconsin Lawyer. In a few lines he would use the breadth of his insights to clue us in on recent developments and upcoming trends.

Bob passed away in October. In his honor, I am borrowing his format as I look back over the recent past and a bit into the coming year. I lack both the breadth and depth of his knowledge and tend to more narrowly focus here on law firm marketing and its regulation. As every Elvis performer says, it’s not an imitation; it’s a tribute, one I hope Bob would have liked.

Red Hot

• Marketing Staff Compensation. The first wave of law firm marketers were often high-performing administrative staff. They lacked respect, authority, and the compensation they deserved – still true in many firms today. However, a talent war has pushed salaries for in-house marketers up 20 percent since pre-COVID times, recently cracking the $1 million mark.

• Diversity, Equity, and Inclusion (DEI). Years ago, the Association of Corporate Counsel (ACC) encouraged in-house counsel to include a law firm’s pro bono commitment when considering engagements. Today, perhaps more organically, corporate clients are starting to look at a firm’s commitment to diversity, equity, and inclusion as a criterion for engagements.

Hot

• Changes to State Advertising Rules. The past year has seen several states amend their advertising rules, most of which bend toward more permissibility. Some states have adopted minor changes. For example, New Jersey now permits TV ads to include music and animation. Other states, such as Arizona, have cut the rules to the bone. Louisiana, on the other hand, is more restrictive, requiring lawyers to include the file number of their state-reviewed ads.

• Lead Generators. The ABA gave lead generators the green light when it amended comments to its Model Rules several years ago. Since then, plaintiff’s personal injury lawyers have leaned into this low-risk, armchair model of client development and lead generators have flourished.

• Deregulation of Law Firm Trade Names. New York and Texas are among the last of the states to drop the prohibition of law firm trade names, as long as the names are not false or misleading.

• Law-related Podcasts Have Become Essential Listening. Bots have been hot for high-volume intake and are now taking client interface further. Metaverse is reinventing the Second Life model, with law firm offices in virtual space. Data-based competitive intelligence tools are better enabling law firms to know a potential client’s legal needs and target those opportunities.

Not Hot

• The ABA Model Rules. While the states are changing their rules, they are not adopting the most recent version of the ABA Model Rules governing law firm marketing per se. One of the goals of the Model Rules is to create uniformity among the states, and that would be a blessing for multistate firms, but it is not happening, yet.

• For-profit Lawyer Referral Services. While states are liberalizing their ad rules, the vast majority continue to prohibit lawyers to pay to participate in for-profit referral services. California allows for-profit models, but has cracked down on those that do not meet its strict standards. Watch for the ABA to update its Model Rules for Lawyer Referral Services. That said, we should keep in mind the world’s largest lawyer referral service is, no doubt, Google.

• Law Firm Trade Names. Although firms have used abbreviated names or “nicknames” for years, they are slow to formally adopt trade names.

• Use of Technology to Practice Law by Nonlawyers. Trade protection is in high gear, but unevenly pursued.

Some lawyers and firms have supported AFAs for decades, but the billable hour continues to rule.

Cool

• Alternative Fee Arrangements. Some lawyers and firms have supported AFAs for decades, but the billable hour continues to rule. There are some pockets of change, for example in law fee subscriptions and the Chicago-based Justice Entrepreneurs Project, where participants agree not to charge by the hour. But in the big picture, it’s not changing.

• Legal Fees Paid By Cryptocurrency. Rules governing the reasonableness of legal fees combined with the erratic fluctuation of cryptocurrency seem to dissuade law firms from accepting this form of payment.

No Reading Yet

• Regulatory Reform. Slightly more than a handful of states are exploring reforms designed to increase access to legal services. These include a “sandbox” that puts otherwise impermissible models under a microscope, lay ownership of law firms, and independent paralegals. While lots of recommendations have surfaced, only a few states have crossed the finish line, most notably Arizona and Utah.

• In-person Conferences. Bar associations, conference sponsors, and the people who attended them pre-COVID are looking forward to the networking and socializing that we don’t find over Zoom and other videoconferencing platforms. But the waves of the pandemic make the timing of well-attended in-person conferences hard to gauge.

Conclusion

Thanks to those who shared their thoughts as I reached out for ideas. And thanks to Bob Denney for creating such an engaging format. I hope I did him proud.

» Cite this article: 95 Wis. Law. 49-50 (February 2022).