Recently I had the opportunity to address a large group of attorney-mediators at the annual meeting of the Association of Attorney Mediators. The topic of the talk was "Ethical Hurdles in Marketing Your Practice in the Digital Era" - something I have written about here previously. What I intended to be a simple hour-long talk evolved into a series of discussions over two days and highlighted a number of ethical concerns that I have not addressed previously. While many of these issues have special importance for ADR professionals who are also members of the Bar, all of us can benefit from addressing them.
Recently, the New York Bar Association passed a new rule that all members must include a statement on their LinkedIn profile that the page was an "attorney advertisement.Ē Luckily, the guidelines do not mandate the exact placement of these words. It is my recommendation that attorneys who need to add this statement to their profiles should add it at the very end of the summary section.
As we were discussing this change, the Texas contingent reminded everyone that in Texas any "advertisement" had to be approved by the Bar before it could be run and that the same held true for changes to previously approved advertising. Thus for a Georgia mediator who is licensed to practice in NY and TX, the issue becomes more challenging. If your profile is considered an advertisement by one state, does that mean the other state must approve it before you post it ?
If you market your practice using a website, then somewhere on that website there should be a disclosure statement that addresses in a general way conflicts to hiring you that might not be readily apparent to someone who reviews your CV, website biography, or social media profile. For example, do you teach classes on an adjunct basis ? Did you work for a local company for a number of years before becoming a mediator ? Were you a member of a law firm whose name does not appear on your materials because it is buried under a number of successive mergers ? This type of information might make it impossible for you to mediate a case, and it will save you time and money in the long run if you can get it out there on the front end. The last thing you want is to get to the table and have participants discover that there is a conflict with you.
LinkedIn Connections and Arbitrators
Many of the mediators at this conference who were also arbitrators highlighted an issue that they felt was unique to arbitrators. Several arbitrators spoke of having their decisions challenged based on the connections in their LinkedIn accounts. Part of this issue can be resolved by posting the disclosure statement referenced above, and it can also be addressed in your initial correspondence and in your agreement to mediate. As your LinkedIn connections are easily visible to others you are connected to, it would make sense to make sure you point out your LinkedIn presence and invite people to review the list. You should not be forced to provide a comprehensive list of all your connections; for some of you, that list has thousands of names on it! However, people should be aware that you have these connections and should know how you use the platform to interact with them. If you are using LinkedIn as a Rolodex, that is one thing. For those of you who actively participate in discussion forums, it is an entirely different situation
Is it Really a Stock Photo?
Very few ADR professionals invest in custom photos for their website and printed marketing collateral. They might pay for a good headshot and perhaps a photo or two of their office, but very few neutrals pay for photos of every breakout room, local landmarks, etc., for use in marketing their practice. Rather, they depend on the professionals who create those materials to obtain them legally for them.
However, many of the younger professionals who build these materials don't really understand what is involved in the copyright of an image and what you have to do to obtain usage rights (and whether those usage rights are restricted to editorial use or not). Over and over, I see marketing materials with that came from Google images searches. When I question where they obtained the photos, users often tell me that they followed the Google image to a web page that was not copyrighted, so they felt it was legal for them to use it. Well, what if that first user had obtained it illegally?
The bottom line is that you must have proof that the images you use in your marketing materials: a) are original material belonging to the people furnishing it to you, or b) were purchased by them on your behalf from the artist or a legal licensing service; and c) are not restricted in their usage (many images cannot be used for marketing purposes without paying additional fees). Artists are beginning to aggressively search for illegal usage of their images, and it won't be long before the number of lawsuit threats starts increasing rapidly.
You Are Who You Know?
Social media can be a very valuable tool for staying in touch with people you know slightly and for finding people who fit specific needs in your practice. I routinely encourage people to spend some time on LinkedIn sending out invitations to connect to people they know but don't see routinely.
Robust lists of connections are interpreted by many as an indication that the people who post them know everyone and are respected by the people they are connected with. Add some high profile names to your list of connections and suddenly, for some people, the presence of those names adds cachet to your name and your practice.
But what if you don't really know those people or they wouldn't know you if they bumped into you at an event? Given that some people define you by who you are "connected" to, are you committing an ethical marketing violation by issuing connection invitations to people you don't really know? What if you have mutual connections? What if they're 3rd-level connections?
Part of this issue is your problem and part of it is the problem of the people looking at your profile. Clearly whom we know doesn't define who we are or how good we are at our jobs. That said, connecting to people you don't know at all is effectively leading people on, and that is a big problem.
Endorsed for Something You Don't Do?
LinkedIn's endorsement system is a big problem for all of us. Many users will just click the button to endorse people just to get their images off their screens. If the people you endorse are on your contact list, but you really donít know them (see above), then how can you know if they should be endorsed at all?
The problem gets worse, however, because LinkedIn will "suggest" skills for which people can endorse you even if those skills aren't listed on your profile. Logically, ethically, if someone endorses you for a skill that isn't on your list, you should go back and remove that endorsement. But in reality, very few people ever do that. Similarly, when people endorse you for something they've never seen you do, you should also remove those endorsements.
You can be part of the solution to this problem. Don't endorse if you don't really know the people or haven't seen them perform their jobs / skills. If we all do that, then eventually LinkedInís endorsement system will clean itself up.
This isn't just an ethical issue - it is also a legal one. All of us should know by now that you cannot email to a purchased list if the individuals on that list have not given you their permission to do so (either express or implied). However, what about those lists that people copy from websites without purchasing them? Thatís even worse. That's stealing information as well as mailing to people who have not opted in to your list. Most quality mailing platforms (e.g., Constant Contact) state clearly in their terms and conditions that using lists obtained in either of these ways is not allowed and will result in the termination of your account if you are found to have done so.
Opt-outs are another critical component that has both a legal and ethical dimension. The law clearly states that if people opt out of communications from you, you must never send email to their addresses again. The challenge here is that many of us maintain lists on a variety of platforms. While the bulk mailing houses (e.g. Constant Contact) include an opt-out mechanism in their system, it is optional for the mailer to use it. Assuming you use it, anyone who opts out is removed from your list and cannot be added back.
But what happens to that address when it also appears elsewhere? Perhaps it is on your computer or in your LinkedIn account. If an individual has opted out of receiving promotional email from you, it is your duty to ensure that you do not mail to them. Thus you must keep track of all opt-outs and keep each of your lists synced with each other.
The digital world has dramatically changed our marketing. Mediators are making "implied" sales through their efforts as opposed to "explicit" sales. That is to say, unlike the guy selling widgets based on price (the explicit sale), what you are selling is your name and reputation. What you publish in your marketing efforts on the internet forms a picture of you for your prospective clients. Anything you do that presents an image that conflicts with reality must be avoided at all costs -- even those headshots that are 20 years younger or 40 pounds lighter.
In the past, people hired professionals whom they really knew or who were referred by a mutual contact. Today, they are just as likely to hire you based on your name and a web search, even after a trusted referral. It is incumbent on you to ensure that you are publishing a realistic profile of yourself, your abilities, and your practice so people can make an informed decision.