New Innovations! — The Advertising Review Portal for Texas Lawyers

Episode Notes

Transcript

Rocky Dhir: This podcast is brought to you by Clio.

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.

Rocky Dhir: Hi, and welcome to the November 2021 installment of the State Bar of Texas Podcast. November is a month when American celebrate Thanksgiving. Some debate the origins of the holiday in the interactions between the Europeans and the Native Americans that gave rise to the tradition. Ultimately, however, thanksgiving marks an occasion when Americans show their gratitude for the blessings in their lives.

I hope that Texas lawyers will spend at least a few moments this month giving thanks for the State Bar of Texas. Now, I know, I know, this is the State Bar’s own podcast. I sound like a propaganda mouthpiece, right? But really our State Bar is celebrated as a leader, among other State Bars. There’s virtually no debate on this topic.

Now, case in point, at the start of the COVID pandemic, Texas was the first state to issue top-level Zoom credentials to all of its judges while also providing them with the technical support to get up and running with online hearings. Don’t believe me? Check out our May 2020 episode with David Slayton, the administrative director of the Texas Office of Court Administration, or our March 2021 episode about the, you remember the cat lawyer incident? Where we learned that Judge Roy Ferguson was one of the Texas judges who was selected to help train other judges on how Zoom works. Pretty cool, right? Well, with our State Bar, the hits Keep on coming, the latest innovation, an online portal for advertising review. Yeah, you heard that correctly.

The idea here is to make it faster and easier for lawyers to submit and ultimately, hopefully, gain approval for their online marketing materials. Could advertising review and Texas be reaching the digital age? Well, to find out, we want to go straight to the horse’s mouth and we figure the winning horse would be Gene Major. Gene has been a member of the State Bar Texas since 1998. He currently serves two roles: Attorney Compliance Division Director and especially relevant for our purposes, Director of Advertising Review.

Now without further ado, let’s get to the racetrack and welcome Gene Major. Actually, wait, I’m getting word, actually, to stop it with the horse analogies. Sorry, feeling a little hoarse. Okay, so Gene, welcome to the podcast.

Gene Major: Rocky, thank you. I appreciate the time you’ve given me to go ahead and tell you about some of the new innovations coming to advertising review.

Rocky Dhir: Absolutely. So let’s start by talking about what you do for the State Bar. You might be one of the behind-the-scenes unsung heroes that people don’t hear about on a daily basis. And so, first, let’s start with the Attorney Compliance Division Director. What do you do in that capacity?

Gene Major: The Attorney Compliance Division is comprised of the CAAP Department, the MCLE Department, the Lawyer Referral and Information Services Department and an advertising review. It’s a lot of the departments that have either are tied to a disciplinary rule, tied to a statute, or tied to some aspect of compliance within the State Bar. In terms of like MCLE, I’m sure everybody is pretty much aware of what MCLE has in those requirements.

Rocky Dhir: We all know especially in our birth month.

Gene Major: Yeah. Exactly, you know. But you look at CAAP, you look at advertising review. They’re design to try and filtrate out certain things from going into the disciplinary system. It really is the idea of trying to go ahead and not clutter that up with things like somebody complaining about whether or not their office locations on their billboard correctly. We do a lot of different things in terms of CAAP, really focusing on trying to connect lawyers and clients back, really try to make sure that the communications are there. Lawyer referral is a fantastic statewide service that provides the public with legal representation throughout the state, but it also certifies people. It certifies local bar associations and other organizations for local referral services.

So, all of these are tied either to a disciplinary rule or statute.

Rocky Dhir: You talk about CAAP. If I remember that’s C-A-A-P. Now for the —

Gene Major: Right. It’s Client Attorney Assistance Program, C-A-A-P.

Rocky Dhir: Okay. We do have non-lawyers that tune in and so forth. For their benefit, can you tell us what CAAP does?

Gene Major: Sure. The main focus of CAAP is to actually answer the chief disciplinary counsel’s hotline, where people who seem like they have a problem with their lawyer; they may want to file a grievance; they have a question about either what their lawyer is doing or not hearing back from their lawyer. CAAP answers all those questions.

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It also receives files that come from CDC, where something might not reach the level of a grievance but something needs to be done, and that’s generally where CAAP steps in and just tries to reconnect attorneys and clients together. It also kind of tries them sets the expectation level that some clients have. A lot of clients think it’s almost like concierge log. It’s you know “I’ve called my attorney five times. They haven’t called me back.” Well, you called him five times in the span of about an hour and 45 minutes. So you have to give attorneys a chance. You have to set that expectational level as well. It also provides a lot of resources for people. The main trust of it, again, is the idea of making sure that Chief Disciplinary Counsel, CDC’s Office, is really focused on the things that CDC needs to be focused on.

Rocky Dhir: Yeah. Be careful. When you say CDC these days, it’s got a double meaning, right?

Gene Major: Yeah, exactly.

Rocky Dhir: You don’t have to wear masks for that CDC, for the one we’re talking about. So now, let’s talk about your role as a director of advertising review. Now, that sounds like a pretty big role. Can you talk to us, because that’s going to be relevant to what we’re talking about today, what do you do in that capacity?

Gene Major: Absolutely. There are two other staff people who helped me go ahead and input and review ads. Advertisements you see on television, billboards, electronic communications, electronic solicitation, communications, things of that nature, all fall under advertising review.

Rocky Dhir: What about a firm’s brochure, like they go somewhere in the handle brochure to somebody, is that also —

Gene Major: It could, absolutely could. It depends on really who your handing it to. But information that attorneys disseminate about their legal services to the public is what we cover. And I think, that’s a fine distinction that people need to understand. That attorney to attorney communications aren’t covered under these rules. That, if attorney wants to send something to a client or a past client, as long as it’s not false and misleading, doesn’t necessarily have to contain a lot of information that if somebody were an attorney were to send something, just to a member of the public. So it really hones in on the idea of information attorneys disseminate about their legal services to the public.

Rocky Dhir: Now, again, for the non-lawyers that might be tuning in, why is there an advertising review component to the State Bar? Why is that important and why are we putting so much emphasis on it?

Gene Major: The idea of attorney’s sending out something to the public that’s false and misleading is what we’re really trying to make sure doesn’t happen. I mean attorneys are still held at thinking a certain amount of esteem and something that you receive a letter or something from an attorney; there’s a heightened awareness to what you’re getting. This looks like it may be important, I need to do something about this. So that information that attorneys are sending out to the public to make sure that it is not false and misleading, it is not creating things like unjustified expectation, is important to go ahead and make sure that that information is regulated.

You look at some of the television ads and there have been changes to some of the television ads recently as well to make sure that, again, what’s being put out there is accurate and it doesn’t raise someone’s expectational level to think that they’re going to get something that they may not get. It’s really important to, again, hone in on just that these rules really do just focus on information attorneys are disseminating about their legal services. So it’s important for us and I think it’s important for the public to be aware that what you do see on television most of the time has been run through somebody; there are ways to go ahead and submit something and run it at the same time, but it really needs to make sure that what attorneys are putting out there is fair and accurate and not creating an expectation.

Rocky Dhir: Now, let’s talk for a second about how attorneys submit materials for review, whether it’s television ad or something this digital or a billboard or what have you, prior to the Portal that we’re going to talk about in another moment or two, how would lawyers traditionally submit their advertising materials?

Gene Major: Sure, the rules in advertising review has been around since 1999 and we haven’t really had any changes in terms of how attorney submit something until recently.

Rocky Dhir: It’s probably because there was a big song about the parties that they would have in 1999. I think it just colored people’s expectations. They didn’t want to leave.

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Gene Major: Yeah, they didn’t want to leave and let’s face that that music is probably much better than the music we heard today at least in my opinion.

Rocky Dhir: You’re dropping some controversy bombs now. This is going to generate some discussion.

Gene Major: Well, a lot of it came in through snail mail, a lot of it came just into the mail. It was such a new idea of attorney advertising that we really didn’t have that many, so mail was fine and we continue to do mail and we will always continue to take mail, then obviously thinks of all then into email, has attorney communications got more instant? They needed a quicker response. They needed to make sure that it was compliant and make changes to it if they needed to get into whatever new cycle. Sometimes they needed to try and fit in. That became important as well. So we started taking email and taking applications via email.

The problem really came into that if we find something that is a violation of the rules, we would then have to stick it in an envelope, put it in the mail and then the attorney will get it about two, three days later. They have a certain amount of time to fix it. They stick it back in an envelope, send it back to us, two weeks, two and a half, three weeks can go by before the actual ad is in compliance with the rules and it’s okay to either disseminate or they have to make production changes to it if they’re currently disseminating it. And that just became cumbersome, it becomes unwieldy. What’s on the ads is not relevant in some cases.

Same thing with email. You have to open email, you have to go ahead and read the letter, figure out what it is, go ahead and tell production companies who ever make the changes come back, stick it back in another email and send it back to us, and we would have to hopefully be able to open it and look at everything. So it really towards the time that we were in now that old system again was just unwieldy. It was just so cumbersome and it really made, I think, a lot of attorneys just not necessarily frustrated the fact that it takes three weeks or so, possibly, just to get one little change made in an ad.

Rocky Dhir: So now we’ve got this this portal. We’re going to be back in just a moment with Gene Major to talk about the new portal for advertising review so stay tuned.

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Rocky Dhir: And we’re back. So we just talked a little bit about how we traditionally did advertising review in Texas and why it’s important for lawyers to go through that process, but now there’s a new portal, a portal system that the State Bar is going to implement. So Gene, tell us tell us about this portal, how’s it going to work and how did this idea come about?

Gene Major: Along with the idea of revising the advertising rules which just happened as well, we started the idea of, again, the way in which attorneys were had to submit things was antiquated. It was just cumbersome, unwieldy, antiquated, needed to be changed.

Rocky Dhir: But you were talking about with the unwieldy part, you were saying was sending it through snail mail, but you said there was also a possibility of doing through email. Why was email unwieldy at the time? Can you talk to us a little bit about that?

Gene Major: Sure. I think the idea is that younger attorneys weren’t necessarily always looking at their email. We’re more interested in — they’re the ones who are lightning speed in terms of marketing. They’ve gone past email. Email is for old people like me. It was turned out to be something that, again, somebody had to sit there and they had to open it and so forth and then, we had to make sure the try to make sure that the media were trying to put in there, worked as well. It just, again, it is to the point where there are too many attachments to things. If I send somebody an email that says there are 15 violations and I have to tag 15 separate attachments and they have to send me back something that has 15 separate attachments, and then all of a sudden administratively was that going to go through or not with all that information and so forth on there, again, it got to the point — I think it fulfilled a niche that we needed at the time, but again has advertisements got more sophisticated, some of them got longer, websites got a lot larger than a lot more dynamic in terms of information on there.

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Even just trying to attach 15 different videos into a website and to an email became a problem as well. So that’s why we really thought that a change that needed to happen, needed to be just straight across the board, change the whole thing.

Rocky Dhir: So what’s this portal going to look like now?

Gene Major: So what we decided to do in this, you have to remember, this has been a process that started well over a year ago in terms of us trying to look at, our IT Department identified a third-party software company to work with. We started communicating with both IT and this company has to kind of what we thought this should look like. And then, we started the process of trying to build that and go through that. We’ve been “live” now for a little while where we’ll take paper applications we received, we put them in ourselves and send out an invite. The portal itself is really interesting and that it’ll go on an attorney’s My Bar page.

Rocky Dhir: Okay. So you login to texasbar.com?

Gene Major: Right? You login you can go to your My Bar page and they’ll be just a quick button advertising review and that’ll launch you into the advertising review portal itself. Through that and once you’re in there, you can do a couple different things; you can do a lot of different things, but the first thing most people are going to need to do is probably either watch a tutorial video on how to submit an ad. So there’s also slide screens in case you don’t want to do video step-by-step and what you need to do to go ahead and submit an ad. You submit your advertisement, you would download your media, you can just attach it through into your application, doesn’t matter the size, doesn’t matter the sophistication of it, and it goes through the portal and it’ll actually pop up in our advertising review system.

Rocky Dhir: Could you also upload a link? For example, if you’ve got a YouTube video that you’ve not published yet, but it’s sitting in your videos where you can send a link to somebody for them to view it, could they just submit the link and say, “Here, take a look at my YouTube link” or is that —

Gene Major: Absolutely. Again, for pre-approval, we always trust pre-approval for something like a YouTube video, something that’s going to make you spend a lot of money possibly to change it. The entire application, the entire process now can be completed through the portal itself and that includes filling out the entire application. There’s questions on our application that kind of guide us in terms of what we’re looking for, in terms of compliance and through the rules, like what type? Where is this ad going to be? Is this a YouTube video? Is this website? Is this a television ad? Newspaper ad? If it’s a solicitation communication, who’s it going to? All that sort of questions you can do now just kind of check box and click through the portal. You can then go ahead and upload your media.

One of the biggest things that we can do now is we can accept payments through it, we could even accept payments. Obviously just taking an email, we would have to open the application, we would have to go to accounting, go ahead and make sure that we run the number, the credit card number, so forth and so on. Now, attorneys can automatically just pay for their advertisement or pay for their application submission through the portal itself. We will go ahead and have that file automatically uploads into our system. Automatically gives it a file number and we can go ahead and open it up and all the information that we need generally to go ahead and have to review something is already being displayed.

Rocky Dhir: For lawyers who may not be so comfortable with web access, I assume they can still either email or snail mail if they’d prefer doing that. Are those two options?

Gene Major: Absolutely. And then what we’ve been doing now is taking paper applications, putting them into the system and we send an invite out to those attorneys. Obviously, it helps us that way because we know it’s a safe connection. We know that there should be no problem with them interfacing with us since it’s coming from us to them, there should be no problem, they click it, they send it back, and all of a sudden, we’ve established that communication line. We’ve actually had people; we had a beta group of testers that included out of state lawyers. It included legal marketers who have maybe multiple groups of different attorneys in different firms. We did a small law office, a large office, personal injury lawyer who does a lot of television advertisements.

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All of them were able to go ahead and watch the video. And if there were questions, you can always contact us. There’s a big “call for help” type thing out there too. But everybody was able to access it and everybody is able to connect the media. Connecting the media was really the biggest thing because now I don’t have to worry about those 15 attachments or anything like that. When I get a file that comes in, I can go through the application, I can look at the media marketing piece or the submission. And now, the cool thing at least to us, is that I can go ahead and circle something and I can go ahead and write a note on it if I want to, I can go ahead and tell them exactly where the violation is. They will go ahead and I can mark that up. I upload that media piece into the system itself so that when an attorney opens up something that you that they get back from us and they should get a notification, “Hey, submission from advertising review.”

They can open it up. They’ll not only be able just to see the letter we send which actually just an email that says, “The violation is 701. Come into,” and they can then open up the media and they can actually see it. I used to have to scrabble on a piece of paper that said, 702, whatever it was, whatever the violation was. Now, it’s a lot clearer. It’s a lot crisper. It’s a lot more, I guess, I should say intuitive in terms of how you want to respond to it because people would come back with us and says “Well, do I have to change this whole thing?” and I’m like, “No, you don’t have to change the whole thing.” You just got changes from portion of it. A lot of times on television ads, especially, it was something where you don’t even have to go into production and change it, you can just add something to the screen.

Rocky Dhir: Got it. Okay.

Gene Major: Now I have the opportunity to type that into the ad and say “This is what you need to do. This is kind of what it needs to sound like.”

Rocky Dhir: The notes going back and forth, I assume that would be archived. So that way, if down the road, an attorney gets a question about, “Hey, you violated the rules,” they can say, “Well, this was approved by the advertising review folks and here’s the notes I had,” I mean, how long is that archived for? Do they download that if they need that for their own record keeping purposes?

Gene Major: Sure, they can download that. They generally under — the stipulation is usually about four years or so after you stop terminating the ad. We keep a copy of it. And now that it’s digital, we can keep it a little bit, we can keep it longer as need be since this is a disciplinary offence. We want to make sure that we keep ours in compliance with whatever’s chief disciplinary counsel’s office says we need to keep something for. So if an attorney does need to go back and take a look at it, they can. One of the other things that that is good, as this grows, I mean obviously we could not take all the files from 1999 and import them into the system with all that information, but has the system grows and attorney can go through the portal, they can get to their account, they can see every single, they can see the status of the ad whether who has it, if ad review has it or they have it and they need to make changes, they can see all the ads have been approved, disapproved, that are pending, and you can go back and see all the list. An attorney can see through and say “I think I did something like this a year ago.” You’ll be able to go in there and see that, and say, “Yeah, I did that a years ago. Here’s the media file, here’s what it looked like. If there were changes to it, this is what changes I needed to be made because you’ll be able to see the violation on it. And so, it really gives attorney an idea of a reference in a history of all their different marketing pieces that they’ve done.

Rocky Dhir: The portal sounds like a really big leap forward. I can imagine they’re going to be some lawyers who say why not just create an app which I can access from my tablet or my phone and be able to use it as an app. Is that something you think might be down the pike or are there logistical issues with creating an app either for Apple or Android that folks can use?

Gene Major: I don’t have a problem with that. I think you can download; you can do your My Bar page off of your phone?

Rocky Dhir: True.

Gene Major: Since you can get into that, you can launch, you should be able to launch the ad review portal through that. It may be little small to see.

Rocky Dhir: But it’d be using your web browser through the phone as opposed to using a standalone app. So the question is do we foresee maybe a day when there might be a State Bar app and you can do MCLE, and you can do advertising review and everything just on the singular app that makes it a little bit.

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Gene Major: Absolutely. I would hope so. Yeah, absolutely. This is a big step for us, but this shouldn’t be the end step either. This kind of catapults us into the arena we need to be. Now, after we get this going, I have absolutely no problems with doing a State Bar ad review app. As the director of ad review, there’s a couple of philosophical things I always try impart to staff and to lawyers. One of them is that in terms of compliance, I don’t want to hit you over the head with what you can’t do. I’d rather try and show you what you can do.

Rocky Dhir: Sure. Okay, makes sense.

Gene Major: And if that includes an app, I’m open to it. If attorney sit there and say, “This is something we really feel like we can do,” marketing people do that too. I’m not adverse to sitting there saying that technology is bad when attorney started doing electronic communications, started doing solicitation communications via email, started really making their websites more sophisticated and add videos and things like that. There were bar associations that like, “Oh, wait a minute. Hold on. Slowdown.” I’m like, “No, don’t slowdown. We don’t to slowdown. We need to speed up.” We were the ones who need to go ahead and make sure that we are in tune with the legal market and the legal community in terms of what we can get, how we can do it and how I can get that information back to them? And this is kind of a big giant step in that process.

Rocky Dhir: I know with other initiatives; our State Bar has been leading the pack often times the first to do something. Are other State Bar’s doing something like this with an online portal or are we the first row amongst the first?

Gene Major: We’re the first amongst the first. There are states that have very strict advertising rules and filings. Florida comes to mind. Iowa comes to mind. There are certain states that their rules again stipulate more disclaimers and things like that. They’re not where we’re at yet. We are the first ones to try and do this for advertising review. And again, I think part of it, goes back to the idea, you know, not only did we hear the attorneys who are filing complaint about the process and it was, let’s face it. Sticking something in the mail, waiting to three days to get it back, sending it back again. That’s ridiculous. I mean, that’s insane nowadays. We heard it. We were complaining about it too. And we finally got to the point where we found an idea that seemed to work. Everybody kind of, “Here’s one of those things,” where everybody complains about it, but nobody’s really sat down and figured out how to make this work. Our IT department, which is fantastic in terms of how they researched it, came back to us, work with us, found something that seemed to work and so we were the ones who, “Let’s try it. Let’s do it.”

Rocky Dhir: We have just a few minutes left and I would be remiss if I didn’t give you a chance to talk about some of the changes to the Texas Disciplinary Rules of Professional Conduct. They just change this in 2021. In terms of lawyer advertising, what do you think or maybe a couple three bullet points that attorneys need to really bear in mind as they try to comply with these new rules in a new age?

Gene Major: Sure. I think a couple highlighted points is obviously the idea that tradenames are now allowed. We kind of honed it in a little bit in the idea that your tradename cannot make it sound like you’re a governmental entity or offering pro bono legal services. I didn’t want to see something that said, “Texas Immigration Law Center,” because something like that to me, that’s false and misleading. To sum it up really well, the old rules were again, going back to that, they’re kind of cumbersome. There was pages and pages and pages of rules that kind of circled around and said the same thing. We cut all that out. We went back to the idea of the fundamental idea of you cannot be false and misleading in your communications regarding your legal services.

We also built in the idea of the test. You go back to law school. You go back to the old reasonableness test. You cannot mislead a reasonable person, right? That’s really where we went back to. And it kind of freed us up and I think it’s freed attorney’s up in terms of knowing exactly what the standard was? What the rule says? What I can’t do? And again, going back to the idea that we’re allowing people to do things like tradenames. Classic example, you wouldn’t be able to give a nominal gift to somebody. We had attorneys who were holding especially after a natural disaster, you’ll hold a town hall. The old rules almost stipulated. You cannot even serve them lemonade. You can’t even serve them water. Well, no, we’re allowing that now. The new rules kind of opened things up a little bit. It took a lot of what the practicality of legal marketing is today and instituted that into the rules themselves.

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Rocky Dhir: Interesting. Well, obviously attorneys need to do their own due diligence on the new disciplinary rules and they need to do their own homework, read the rules, go to CLEs. There’s plenty of them out there. There’s some even on her own State Bar website, so don’t miss out on those. Gene, this has been fascinating. I’m Excited to know that we’ve got this portal coming up that the State Bar is really trusting the digital age. So thank you so much for telling us about it for joining us today.

Gene Major: Rocky, I appreciate your time. I think it’s a big step for us. I think it’s a big step for Texas lawyers. I think it shows that our leadership, our board of directors, our presidents have listened to what people have said and, you know, it takes a little while to get it there, but we heard what Texas lawyers were saying and we’re making steps and inroads to making sure we address it.

Rocky Dhir: Absolutely. Well, exciting times both here and lying ahead. So guys be sure and give a little bit of thanks this Thanksgiving for what they’re doing over in Austin at our State Bar of Texas. And of course, I want to thank you the listener for tuning in. I want to encourage you to stay safe and be well. And of course, we want to thank our wonderful sponsors over at Clio. They’re awesome, so check them out.

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Podcast transcription by Tech-Synergy.com