Friday, 1 July 2011

Lawyers just won't ask the question: client permission to instruction lead marketing

He's not actually saying it........
Active marketing is not traditionally a strong point of law professionals. For some reason we simply don't like to be seen to be 'boasting'.  Passive marketing, i.e. showing our quality without actually talking about it, is easier to swallow and given we don't tend to actively promote ourselves, any opportunity to quietly big ourselves up should be taken. One passive marketing method is to talk about work we have won or big projects that we are involved with. The fact we have been instructed to do this work indicates we are good without actually saying it. Self promotion by implication.

However, there is an issue with talking about instructions: the code of conduct forbids it. We have a duty to our clients to keep their matters confidential and this is crucial in the client/lawyer relationship. The confidentiality rule prevents lawyers from even mentioning they are instructed without permission from the client as the work that lawyers undertake is often of a sensitive nature either commercially or personally.  In some practice areas, family or insolvency for example, I would not expect the client to give permission to divulge instructions as the areas are simply too sensitive. However in some commercial transactions the client may even benefit from the additional publicity.

I recently learnt that my Firm is instructed on some of the biggest planning and land development projects in the area. This is huge! However, the Firm has not advertised this internally let alone use it for marketing purposes. The projects are not commercially sensitive, all have planning permission now and most are actually looking for partners or businesses to invest or move into the premises once they are built. The projects are often on the news so they are not media shy. It seems odd that the Firm has not cashed in on these instructions, especially now the planning team are a little quiet.

It turns out that there is the classic confidentiality issue.  The planning lawyers have handed the client over to our property lawyers and neither set is willing to ask. Planning doesn't want to step on the toes of the property lot and property don't want to be so presumptuous so early in the relationship. What it boils down to is planning are losing out on a key marketing opportunity while it is still current. And this is not the first time a chance like this has passed us by; no-one thinks about marketing in advance.

It would seem sensible to me to ascertain the position of a client with regards promoting the firm from their instructions at the beginning of the relationship. It could be part of the client questionnaire, with a simple yes or no answer, similar to the data protection question firms now include. Obviously further permission as to the content of any release would need to be approved by the client to comply with the code but it would get the 'are they going to be offended' part of the dilemma out of the way. There would be less of that awkward feeling if clients had already agreed in principle to the idea.

Inclusion of a marketing orientated question early in the standard procedure may also cultivate a forward thinking culture within a firm. Lawyers would be encouraged to consider potential marketing opportunities at the beginning of a matter rather than when it is too late. Thinking about marketing in advance would benefit marketing departments too as it often takes some time to sign off publicity internally. Generally win win!

Unfortunately, this idea has not been taken forward by my Firm. Apparently it would cost too much!


  1. Good thinking... you'll make marketers of us all yet! :p

  2. You should ask the client. When I am asked this question by lawyers and bankers, I mostly have no problem with it. I doubt it will be as big a deal for the client as you think. And if it is, they can simply tell you "no". I don't know what you have to lose by asking.