HEARING TACTICSPreparation Breeds Success
December 2012
Michael P. Sullivan, Attorney
Success at Hearings Preparation (you and your client) Pre-Hearing Briefs Past Work, SGA, and Amended Onset Date Issues Effective Exhibits Direct Examination Cross Examination
PART II: Ethics in Marketing in the Digital Age
Preparation Meet with your client at least 30 days prior to the
hearing
Complete (do this early on in the wait for a hearing):o Form HA-4632 (Medication List)o Form HA-461 (Medical Updateo Form HA-4633 o Background Questionnaire
o Review the ODAR ERE File 30-60 days before the hearing• BIG TIP: Get the Cadocon converter and convert the file
Preparation- here is the ERE file in PDF
Preparation- here is a converted ERE file
NOTE THE PAGINATION TO HELP YOU CITE TO AN EXHIBIT
Preparation- The ERE file
I use custom software embedded in my database manager to parse the ERE file and generate Exhibit and Page numbers and post them at the top and bottom of every page in the PDF file. This makes is painfully easy to cite to Exhibit and Page numbers.
AtlasWare has a converter Cadocon has a converter
o :(http://www.nooksoft.net/cadocon-screens)
o TIP- download the SSA ERE file and then email it to your client. They love getting the file, but be advised it will likely generate a phone call. However, they can read their own medicals and yell at their doctor instead of you !
Preparation- the Hearing Forms
SSA cases are paper intensive. The forms are duplicative and can be mind numbing. Why bother with them?
ODAR & the ALJ want them You can theme your case story in them Completing these forms forces you to
assess your case They become proof in the case file
Forms: HA: 3329 Work History
FIRST, FIRST, FIRST- look at the Alleged onset date (AOD) and compare it to the earnings record.
o Are there reported earnings AFTER the AOD?• Are these earnings from genuine work activity?
• Unemployment• Long term disability insurance proceeds• Short term disability insurance proceeds• Lump sum from a 401 K• Severance pay• Paid of accrued sick and vacation time
If the earnings rise to SGA level work and you cannot defeat that issue, consider amending the onset date
These are not true
“earnings”
Form 3369: ferreting out work issues
If what shows up on the earnings record AFTER the AOD is truly “earnings”, then we first look to see if it is SGA: Substantial Gainful Activity.
If it is really SGA, then look to seeo Can an exception to the SGA rule apply?o Can we work a closed period and get the client paid for
time offo Should we just amend the onset date and move on
• Look Out- do not amend your way into malpractice: make sure we still have 12 months of disability if we amend the onset date
Past Work- exertional levels
First: if the work was not SGA, it is NOT Past Relevant Work (No SGA, No PRW)
If it is SGA level work, then it may well be Past Relevant Work and that work will be characterized by the SSA in terms of Skill and Exertion
o Skills can be the kiss of death to SSA cases. Most people fluff up their job skills- your job is to prevent that.
o Exertion can be difficult- Describe the past work in terms of maximal lifting and frequent lifting and occasional lifting, posturals, ….
TIP: don’t forget to argue that any SGA level work more than 15 years prior to the alleged onset date may be PRW, but it is not always relevant
Past Work- Description When you have a chance to describe your
client’s past work- cast the past work in terms of the client’s impairments. The goal is to describe the work in such a way so that the alleged impairment(s) preclude the past work:
If the claimant has carpel tunnel, and the past work required frequent use of the hands for gross manipulation, be sure to fully explain how the past work utilized the hands. If the claimant has a low back problem and the past work required frequent twisting or bending, be sure to clearly state that fact! If the past work required sorting or inspecting of objects, and the claimant has a visual impairment, be sure to indicate the size of the objects that were sorted and the criteria used to screen the objects.
Past work- know the exertional def’ns
When describing past work, be aware of how the SSA defines and categorizes work:
DEFINITIONS COME FROM: 20 CFR 404.1567 et seq, BUT the Rulings are much more fun!
SEDENTARY WORK : SSR 96-9p: o lift no more than 10 lbs occas.o Standing and walking no more than 2 hours TOTALo Req’s capacity for seeing, manipulation, carrying our simple instructions
o SSR 83-12 unskilled jobs are structured so that a person cannot ordinarily sit or stand at will
o SSR 83-12 most unskilled sedentary jobs require good use of both hands
Past work and Light Exertional WOrk
20 CFR 404.1567(b): Light work may require lifting up to 20 lbs occasionally and 10 lbs frequently, and “a good deal of walking or standing.” TIP: “light” = usually over 2 hours on your feet, but note work can be light bc of the lifting.
SSR 83-14: most unskilled light work requires a person to be standing or walking , lifting up to 10 lbs frequently, occasional bending and stooping , unskilled light work does not require fine use of fingers (mostly gross manipulation)
Past work- Other levels Medium Work: 20 CFR 404.1567© lifting 50 lbs
occasionally and 25 lbs frequently
Heavy Work : 20 CFR 404.1567(d) up to 100 lbs occasionally, 50 lbs frequently
Very Heavy Work: 20 CFR 404.1567(e): lifting over 100 lbs and frequent lifting up to 50 ls.
Work definitions- Special tips from the Rulings
The Rulings can make a VE miserable!!!!!!
SSR 85-15 light and sedentary work and Stooping
Stooping, kneeling, crouching, and crawling are progressively more strenuous forms of bending parts of the body, with crawling as a form of locomotion involving bending. Some stooping (bending the body downward and forward by bending the spine at the waist) is required to do almost any kind of work,, particularly when objects below the waist are involved. If a person can stoop occasionally (from very little up to one-third of the time) in order to lift objects, the sedentary and light occupational base is virtually intact. However, because of the lifting required for most medium, heavy, and very heavy jobs, a person must be able to stoop frequently (from one-third to two-thirds of the time);
More fun with Rulings SSR 85-15 and “manipulation” for light and sedentary
work
Fingering" involves picking, pinching, or otherwise working primarily with the fingers. It is needed to perform most unskilled sedentary jobs and to perform certain skilled and semiskilled jobs at all levels of exertion. As a general rule, limitations of fine manual dexterity have greater adjudicative significance — in terms of relative number of jobs in which the function is required — as the person's exertional RFC decreases. Thus, loss of fine manual dexterity narrows the sedentary and light ranges of work much more than it does the medium, heavy, and very heavy ranges of work
NOTE: This Ruling also defines reaching and handling
SideBar: More fun with the Rulings
Direct from : SSR 85-15 Fingering: "Fingering" involves picking, pinching,
or otherwise working primarily with the fingers. It is needed to perform most unskilled sedentary jobs and to perform certain skilled and semiskilled jobs at all levels of exertion
Can a mental impairment generate an exertional limitation?
Mental impairments are generally considered to be nonexertional, but depressions and conversion disorders may limit exertion
SideBar: More fun with Rulings
What are the basic demands of unskilled work? SSR 85-15
o The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base. This, in turn, would justify a finding of disability
o Tip- describe the past work in terms of the mental demands
Past Work- interrogate your client
Be sure to clarify time spent on feet (at one time, all day )
Did client have option to alternate sit/stand at his/her will Did the job require prolonged sitting or standing at times Did the job require any sustained fingering and
manipulations What type of bending was required, how far and how often Use of the hands, fine manipulations, how often, how long What visual acuity was required.
o If the work was a hybrid job, bring that out.o What were the mental demands as perceived by your client
If you do this in a job description before the hearing, you are prepared,
the VE is prepared, and you can usually knock out past work, moot any job skills, and get to Step 5 of the process.
Past Work- Job Skills Skills levels are defined. See first 20 CFR
404.1565
a) General. Work experience means skills and abilities you have acquired through work you have done which show the type of work you may be expected to do. Work you have already been able to do shows the kind of work that you may be expected to do. We consider that your work experience applies when it was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity. We do not usually consider that work you did 15 years or more before the time we are deciding whether you are disabled (or when the disability insured status
requirement was last met, if earlier) applies…..
Past Work- Skills People will always fluff up their past work, be sure to
clarify the job skills issues. Ask, and as worker, did you:
Make out employee schedules, Hire or fire, do sales work Perform employee evaluations, Make bank deposits, Close out cash drawers Direct the work of others Fill out reports, Handle customer complaints
Here is a tip: Basic Cashiering in the DOT: at
sedetnary is it SVP 3 & up, and semiskilled, at light it is unskilled. There is not a
sed unskilled cashier in the DOT!
Past work- Transferable skills
Ok, so do we have a genuine job “skill”:
What is a “SKILL”- SSR 82-41 (2):
o A skill is knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner. This includes activities like making precise measurements, reading blueprints, and setting up and operating complex machinery. A skill gives a person a special advantage over unskilled workers in the labor market.
o It is the acquired capacity to perform the work activities with facility (rather than the traits themselves) that gives rise to potentially transferable skills.
Past Work- Transferable skills
Three Part test to transfer job skills:SSR 82-41(4):
1) the same or a lesser degree of skill is required, because people are not expected to do more complex jobs than they have actually performed (i.e, from a skilled to a semiskilled or another skilled job, or from one semiskilled to another semiskilled job);
(2) the same or similar tools and machines are used; and
(3) the same or similar raw materials, products, processes or services are involved.
Special Rules to transfer skills
SSR 82-41(4)(c ): Age 55 or older and limited to sedentary work,
“very little vocational adjustment.”
See 20 CFR 404.1568(d) advanced age and limited to sed work:
o we will find that you have skills that are transferable to skilled or semiskilled sedentary work only if the sedentary work is so similar to your previous work that you would need to make very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the industry
More rules for the Skill soup
SSR 00-4p
A skill is knowledge of a work activity that requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation that is above the unskilled level (requires more than 30 days to learn).
Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.
Skills and SVP rankings SVP Rank Time to learn the job skills 1 Short demonstration only 2 Anything beyond short demonstration up to and including 1 month 3 Over 1 month up to and including 3 months 4 Over 3 months up to and including 6 months 5 Over 6 months up to and including 1 year 6 Over 1 year up to and including 2 years 7 Over 2 years up to and including 4 years 8 Over 4 years up to and including 10 years 9 Over 10 years
PAST WORK- is it SGA The SSA defines "substantial gainful activity" as
"work activity that involves doing significant physical or mental activities. work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized…”
As a practical matter, whether something is SGA level work (and therefore PRW) usually comes down to how much a worker earns from the work effort. However, even this simple statement gets complicated once lawyers take a stab at it!
Past Work: special issues (SGA)
THRESHOLD ISSUE: Is it truly earned income, and of so, Is it SGA: substantial gainful activity.
Monthly thresholds for SGA
Year Blind Non-blind2005 $1,380 $8302006 1,450 8602007 1,500 9002008 1,570 9402009 1,640 9802010 1,640 1,0002011 1,640 1,0002012 1,690 1,010
PAST WORK: IS IT SGA (IRWE)
If it is not SGA, it is not Past Work
Ok, so we have actual earned income, and it seems to be at SGA level earnings, can we get around it?
Deduct Certain Impairment Related Work Expenses (IRWE)
SSR 82-46: The law provides that, effective on or after December 1, 1980, the cost of certain items and services that an impaired person needs in order to work can be deducted from earnings in determinations as to SGA even though such items and services are also needed for normal daily activities. The cost of certain attendant care services, medical devices, equipment, prostheses, and similar items and services may be deducted. The costs of routine drugs and routine medical services are not deductible unless the drugs or services are necessary to control the disabling condition so as to enable the individual to work
IRWE In Summary, any potential IRWE :
must not be reimbursed by your employer or medical insurance, it must be related to your disability, and it must be required for you to successfully complete the tasks
required of you at your job.
Doctor visits and attendant care paid for out of pocket can also be considered an impairment related work expense if it is required to prepare you for work, transport you to work, or attend to needs related to your disability while you are at work.
Special transportation to work, vehicle modifications, or modifications to your home may also be calculated and deducted as impairment related work expenses
PAST WORK: IS IT SGA (UWA)
So we have earned income above the SGA threshhold and cannot deduct IRWE, what is the next trick?
Unsuccessful Work Attempt (UWA)o Work lasted < 3 months and ended or earnings were reduced
below SGA because of the health issues that are alleged to disabled the claimant, it is a UWA and does not count as SGA (i.e. work)
o Between 3-6 months of work: works ends within 6 months because of health problems AND:• Frequent absences due to health, or• Unsatisfactory work due to health, or• Work done during a period of remission, or• Work done under special circumstances THEN NOT SGA, IT IS
• AN UWA (SSR 84-25)
PAST WORK: UWA Trick to using a UWA:
There must be a significant break in the continuity of one’s work before the worker can be considered to have begun a work attempt that can be later found to be an UWA.
Examples from SSR 84-25o Out of work from 30 consecutive days bc of bad health,
or o Forced to change jobs or employers bc of bad health
PAST WORK AND SGA (SSR 84-25)
So, we have true earned income and SGA. We cannot deduct IRWE, we cannot use a UWA, what next?
Try to prove the work was not truly competitive, that is was done under special circumstances or a sheltered work place
Unusual conditions may be evidenced in many ways. For example, the person: Required and received special assistance from other employees in performing the job;
or Was allowed to work irregular hours or take frequent rest periods; or Was provided with special equipment or was assigned work especially suited to the
impairment; or Was able to work only within a framework of specially arranged circumstances,
such as where other persons helped him or her prepare for or get to and from work; or Was permitted to perform at a lower standard of productivity or efficiency than other
employees; or Was granted the opportunity to work, despite his or her handicap, because of family
PAST WORK AND SELF EMPLOYMENT
Self Employment: This is a special category and can become real hornets nest. The idea is to take the evidence of gross earnings and whittle away at them until we have net earnings under the SGA threshold.
SSR 83-34: complicated and it articulates a three part test. A more simplified version exists in POMS; POMS DI 10510.010
PAST WORK AND SELF EMPLOYMENT
The Three Part test (any one can test can result in a finding of SGA)
1. Test One: Significant Services and Substantial Income
The individual's work activity is SGA if he or she renders services that are significant to the operation of the business, and if he or she receives from it a substantial income; or
Go to the Ruling to get the definition of significant and substantial
Self Employment Test The test , continued
2. Test Two: Comparability of Work Activity The individual's work activity is SGA if, in terms of
all relevant factors such as hours, skills, energy output, efficiency, duties, and responsibilities, it is comparable to that of unimpaired individuals in the same community engaged in the same or similar businesses as their means of livelihood; or
Self Employment Test The test, continued
3. Test Three: Worth of Work Activity The individual's work activity is SGA if, although
not comparable to that of unimpaired individuals, it is, nevertheless, clearly worth more than the amount shown in the SGA Earnings Guidelines (see DI 10501.015) when considered in terms of its effect on the business, or when compared to the salary an owner would pay to an employee for such duties in that business setting.
Pre-Hearing Forms Medical Updates
You can do this on Form HA-4631 or, if you do a Background Questionnaire you can add it to the end of that document. Identify:
Current treating providers over last 6-9 months; Approximate date of last treatment; Note any hospitals, E/R’s or tests, doing so
separately, and note the approximate dates of treatment.
Pre-Hearing Development
GOAL : Get an assessment form from a medical provider that meets your burden of proof in the case.
KEY : Know what you need to prove :
Is my Claimant under 50 so that a RFC for less then sedentary work will win
Claimant over 55, potential GRID pay with RFC for Light work
Are transferrable skills at issue precluding an award, then: (1) go get a mental assessment to moot those skills; or (2) get a RFC for an exertional level to which the skills wont transfer o Example: Pipefitting: this is skilled work, medium to heavy in exertion but the skills will
not transfer to sedentary work or light sit/stand work . If you can get your client restricted to this exertion and have age on your side, it can become an easy win
If it is a spinal injury case, do not use a mental assessment form Is it a cardiac case- always get “low stress” added to any physical restrictions to
erode the occupational job base. Almost all doctors will agree this is “wise.”
Pre Hearing Development
Good Sources for a variety of Assessment Forms:
James Publishing- book by Thomas Bush : Social Security Disability Practice
West Publishing- Book by Charles T. Hall; Social Security Disability Practice
Pre-Hearing Development: Briefs
Keep them SHORT- 2-3 pages
Topics to address
Types of claims (T-2, T-16, DIB DWB, DAC,…) Filing date Alleged onset date Any post-onset work (it’s not SGA, amend the onset…) Date Last Insured issues Claimant’s age (at filing, as of AOD, as of DLI) Claimant’s formal education Past work (exertion and skill) General schedule of medical impairments Citations to compelling proof in the record (RFC’s!) Why my client is disabled under the law- if it is credibility, say so
Pre-Hearing development: Briefs
WHY WE SHOULD WIN
-Great earnings record (client would work if he could) -Past work as really performed is precluded, no real skills at
play -Case is obvious GRID pay because client is now older (St. A.
RFC) -With this new proof we clearly meet a Listing -We have a RFC from treating source and no contradictory
evidence -Mental CE neutralizes job skills and with that, we are a GRID
pay -So much supporting objective evidence here, client will be
credible
Pre-Hearing Development: Onset
Dates Be aware of onset date issues:
Does the date make sense with a medical event (heart attack, stroke, onset of seizures,…)
Does the date conform with a traumatic event (car accident, fall, fight,…)
Is the onset something gradual, or mysterious pains that were later diagnosed after some test.
Are there reported earnings after the onset date
Pre-Hearing Development- Amending the Onset Date
Typical Goals when amending the onset date:
to change the onset date to conform with the proof in the case,
satisfy the ALJ from an evidentiary standpoint so
s/he will easily issue a favorable decision AND to secure a favorable decision for your client and
not malpractice along the way.
Pre-Hearing: Amending the onset date
Avoiding Malpractice when amending the onset date
Tell your client benefits are calculated from the new date forward
Tell your client that he is giving up some potential benefits by amending, and that he has an absolute right to go forward with the original onset date
Tell your client that the Title II program has a 5 full month wait on cash benefits and 29 full months on Medicare. The clock ticks from the new onset date
Pre hearing Amending (cont.)
Avoiding Malpractice when amending (cont)
Tell your client that the SSI Program has financial income and asset limits and reporting requirements- honest and accurate reporting is on them. Remind them that is they failed to accurately & fully disclose ALL income or assets when they filed, there may be no SSI even though an ALJ finds them disabled.o Yes it happened to me. Client had acres of undeveloped land out
of county in his name. He NEVER disclosed it on the SSI app (that he completed on his own), and later told us it was really “for his kids” so it should not count. The D.O. picked up on it when processing the ALJ’s decision for payment. NO SSI money!!!!
Pre-hearing: amending Final tips (From hard earned knowledge)
Get any amendment in writing from the client, even on a piece of legal paper. Do not rely on statements made during the hearing. Will you be able to get that oral record when you really need it later in time?
In that written amendment, have them confirm they discussed it with you to their satisfaction
If you amend your client out of Title II eligibility, put that in writing too. Have them acknowledge any award is now just SSI
The Hearing and typical fumbles
Claimant testimony: how bad can it get!
Chronic Mumblers The “Driver’s License” trap The “Drugs and Alcohol” trap Overselling with Props
Here we will be showing short training videos I use to educate my clients. They were scripted by yours truly to graphically illustrate what can happen when clients are less than truthful or evasive. All of this has happened to me several times in the past.
The Hearing and VE’s What can I tell you in a few minutes- this topic
can take ½ a day or more! Get Job Brower Pro by SKILLTran to use at
hearings (http://www.skilltran.com/jb_overview.htm)
Hearings & VE’s: Job Browser Pro
The Hearing and VE’s Quick Tips for questioning the VE
Get DOT numbers from the VE Check St Agency for postural limitations (use in a hypo if ALJ forgot) Check psyche CE’s for narrative restrictions to put in a hypo (use the Axis IV GAF score for a hypo, frequently a point of contention) Change the ALJ’s hypo slightly
Go to the Rulings we have talked about and ask the VE why their testimony flies in the face of the SSA’s Rulings, and ask for their specific job research sufficient to contradict the SSA’s national policy statement!
PART II ETHICS IN MARKETING
ETHICS IN MARKETING IN THE DIGITAL AGE
Marketing Ethics THIS IS AN ADVERTISEMENT- when to use it
If we are dealing with the mediums of radio or recorded telephone (just about anything but TV), does the disclaimer have to go at the beginning and the end of the advertisement?
No way, pick one or the other Yes, put it both places Neither, put it in the middle where people listen It is a trick question, recorded phone calls are exempt
SCR 3.130(7.25)
Marketing Ethics THIS IS AN ADVERTISEMENT- when to use it
If the proposed advertisement is a standard 30 second TV spot, how long must the disclaimer be shown on the spot?
Just show it briefly at the beginning Show it briefly at the end so people remember it is an ad Show it briefly at both beginning and end Show it the entire time, no exceptions Show it when the lawyer has his/her name/address up on
screen Show it whenever a toll free number is displayed on screen
Marketing Ethics THIS IS AN ADVERTISEMENT- when to use it
If it is a TV spot of 60 seconds, how long must the disclaimer be
shown? Since it is twice as long as a 30, the disclaimer must be up twice as long Treat it as the same as a 30 second spot With a 60 second spot, you must bookend the disclaimer, putting it at
the beginning and end The disclaimer is understood to be part of a 60 second spot and need
not be shown at all
Marketing Ethics THIS IS AN ADVERTISEMENT
If it is a TV spot of MORE than 60 seconds,? Enough of this- it does not matter- use the 30 second rule, it controls
for all TV spots Spots this long take us into “infomercial land” and we need only flash
it at the beginning because everybody knows we are selling something
Spots greater 60 seconds are expensive and putting that disclaimer
up would “cheapen” the advertisement, so it is not needed I quit here. Just put the disclaimer up the entire time regardless of how
garish it may look
Marketing Ethics Web pages and THIS IS AN ADVERTISEMENT
If it is a Web Page, must this disclaimer be displayed at the top, at the bottom, or just in the middle ( or all places)?
Yes, put it at the top, and the bottom, and the middle. It is all geek stuff anyway and they can make
that thing show up anywhere easily. The disclaimer is only at the top, always at the top, and on every Web Page at the top The disclaimer goes at the bottom stupid, that is where people scroll to and end up, so it is most
effective there and must be put there, on every page None of the above, this is a stupid trick question like we got in high school or when we took the Bar.
Show it once anywhere and be done with it. None of the above- Treat a Web Page as similar to written advertisement, and prominently display
the disclaimer on every page without the need to scroll around to find it (and frustrate the general public)
Web stuff is newer advertising, and the Web can handle video, voice, and even chat clients- so
treat it as a hybrid of a radio spot, a TV spot and a written spot- so you must have that special disclaimer at the beginning and at the end of every page.
Marketing Ethics Web Pages, Video and the disclaimer
Can I embed a video message in a properly advertised Web Page
Sure, no worries here just so long as the underlying Web Page is
properly approved by the Bar Sure, but be sure to take the time, effort and expense to get the
Video Message separately approved Sure, but put an extra disclaimer on the Web right under the
video message
Sure but have the video spokesperson briefly say as part of the video the disclaimer and if you do this in conjunction with an approved Web Page, you are golden
MARKETING ETHICS WHAT CAN I PUT IN MY ADVERTISEMENT
Question: Are any of the following prohibited to place in your advertisement?
That I speak a Foreign Language My Banking References That I take credit cards My specific fees for very specific services A range of fees for specific services without further explanation My hourly Rate, and only that My specific fee for a specific type of consultation Can I just blindly compare my fees to those of other lawyers My membership is a scientific society My date and place of birth Can I just simply compare myself to other lawyers in the community Can I say that I got million for client X, and I can probably do it for you, so call me
now!
MARKETING ETHICS KBA ADVISORY OPINIONS If I want to fully avail myself of the protections of an
Advertising Commission Advisory Opinion process on my proposed advertising. How early must I submit proposed advertising before I publish it for the public to see ?
30 days prior Till they Rule No need so long as it is submitted contemporaneously with the
release of the spot to the airways
60 days prior 10 days prior, it’s the basic safe harbor rule on advertising in
Kentucky
MARKETING ETHICS Advisory Opinions
Ok, so I submitted the advertisement for an Advisory Opinion, how long must I wait before I air it if I want the protection:
30 days for the Commission to respond No need to wait to air it so long as it is submitted contemporaneously
with going live on TV, radio,… 60 days for the Commission to respond 10 days after submission, the other half of the safe harbor rule Wait till they get back to you, it’s the Bar stupid, don’t risk it
MARKETING ETHICS HOW MUCH DOES THIS COST ME
What is the fee, if any, for a basic submission of a 30 second TV spot to the Bar’s Attorney Advertising Commission?
There is no fee if you paid your Bar dues There is no fee if you have 50 or more pro bono hours for the prior year I don’t know, $50.00 I don’t know, $75.00 It is $175.00 If you pay a one-time fee equal to your Bar Dues, that covers all submissions for
that year.
MARKETING ETHICS DIRECT CONTACT WITH POTENTIAL CLIENTS
DIRECT CONTACT per SCR 3.130(7.09) I want to write a group of ten people who were spectators
that were injured in a bizarre sports mishap 3 weeks ago. I want to offer my professional legal services. Two of the group are blood relatives to me, and one is a current client- the rest I do not know. I got their contact data from the current client, although one of them told my client that he hates all lawyers (since his divorce) and never wants to hear from one again. So, is there any harm with a quick letter to the group?????
MARKETING ETHICS DIRECT CONTACT
Can I treat them all the same and send the group a form letter?
Do I have to put the disclaimer “THIS IS AN
ADVERTISEMENT” on my letter. I mean this is a letter from a professional, on my firmletterhead, and it is not some garish TV or radio ad.
OK, if I put the disclaimer on my letter on it to be safe, can I make that disclaimer in a much smaller font so long as it is at the bottom of the page. I mean it is clearly there on the page for the entire world to see and I am meeting the intent of the rule.
MARKETING ETHICS DIRECT CONTACT
If I put the disclaimer prominently on the actual letter so it is hard to miss, is that enough. Do I have to put that disclaimer on the envelope too (and pretty much guarantee it will go to the trash)
Must I wait a time certain before I do this? (HINT: Does the 30 day disaster rule as per SCR 3.130(7.60 apply) a "Disaster" shall mean the type of emergency or disaster that draws persons to
solicit clients. This includes, but is not limited to, air crash, major fire, explosion, sea disaster, hazardous material contamination, flood, landslide, major rail or traffic accident, earthquake, or other circumstances resulting in substantial loss of life, substantial personal injury, or substantial property damage
MARKETING ETHICS What exactly do I have to submit to the Bar about
my advertising:
, You must submit enough information for the Commission to be able review the proposed advertisement
. TV spots and such need to be on a DVD playable by a variety of common, popular media players. Radio spots need to be on a CD, playable by Windows or iTunes.
MARKETING ETHICS I want to buy email leads in KY- can I?
KBA E-429 Participation in for-profit group marketing Opinion dated 6/17/08
o Can a lawyer participate in for profit group marketing?
o Can a lawyer pay costs for such participation?
o If a lawyer does this, is s/he responsible for advertising compliance? References: SCR: 3.130, Rule 5.4, KBA E-427, KBA E-428
Marketing Ethics ASCR 3.130(7.09)(3)
Marketing Ethics Have an Op-Out in your direct advertisements
SCR 3.130(7.09)(2)
Marketing Ethics What can I tell people about me? SCR 3.130(7.15)
