HOW TO EFFECTIVELY, CREATIVELY AND ETHICALLY

MARKET YOURSELF AND YOUR PRACTICE

CLE Credit: 1.0 ethics Thursday, June 14, 2018

8:30 a.m. - 9:30 a.m. Bluegrass Ballroom I

Lexington Convention Center Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenter .................................................................................................................. i How to Effectively, Creatively and Ethically Market Yourself and Your Practice .............. 1 Attorney Advertising: Changes to, and Application of, the Kentucky Supreme Court Rules & Attorney Advertising Regulations ............................. 19

THE PRESENTER

Katy Goshtasbi

Puris Consulting 10085 Carroll Canyon Road, Suite 200

San Diego, California 92131

KATY GOSHTASBI is the CEO and founder of Puris Consulting in San Diego, California, where she collaborates with lawyers to develop their individual brands. Her company is global and certified as a Women-Owned Business Enterprise. Ms. Goshtasbi is an international trainer, public speaker and author of two books. She received her B.S. and J.D. from Indiana University and is a member of the Indiana and District of Columbia Bar Associations. Ms. Goshtasbi is the chair-elect of the American Bar Association's Law Practice Division.

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HOW TO EFFECTIVELY, CREATIVELY AND ETHICALLY MARKET YOURSELF AND YOUR PRACTICE

Katy Goshtasbi © 2018 Katayoun Goshtasbi

I. TOP THREE MARKETING MISTAKES MID-LEVEL ATTORNEY/PARTNERS MAKE

When I graduated from law school in 1997, jobs were plenty. I was so very fortunate, as were all my classmates. Just about the only reason we had for not getting a job was if we failed the bar exam. Looking back, I realize how blessed we were. I really didn’t have much anxiety about finding a job. If anything, my anxiety was more about whether I would find a job that I really wanted. Fast forward 19 years. I have so much respect for recent law school graduates. They no longer have the luxury that we did when we graduated. Nothing is guaranteed once they graduate. This may sound like a bad thing, however I see it differently. I think graduates these days are much more resourceful and scrappy. They are forced to figure out their brands and then market themselves in a way we never had to do. This brings me to the dilemma I see so many law firms facing today. The majority of those who graduated law school a few years before me as well as those who graduated with me are mid-level partners in their firms. They are not the oldest in the partnership ranks yet. As a result of when we graduated and our fantastic economic circumstances, many of these partners always had work – it was either always generated by more senior partners and given to them or it was easy for them to get work otherwise. The problem I see is often, as a result, these partners are not able (or willing?) to generate their own business because they have always had business given to them. So their brand is practically non-existent and their marketing efforts, rusty at best. This may sound like a generalization and it is. This is based on my many years of experience working with law firms on branding. There are obviously exceptions everywhere. Here are their top three marketing mistakes: 1. They assume the business and work will always flow because it has

always worked out for them in the past. Don’t get me wrong. I love optimism; however it has its limits. Because of this mentality these partners aren’t as open as they can be to seeing their branding and marketing needs differently. This hurts the entire firm.

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2. They don’t participate in marketing and branding work like others in the firm do. I see this regularly each time I go into a law firm to train the attorneys on branding and marketing. The room is filled with: a) 65 year old and above attorneys/partners and b) 27-35 year old attorneys/associates. They are all eager to learn because they know it matters. Nowhere to be found are the mid-level partners ranging in age between 40 to 55 years old or so. This hurts the entire firm.

3. They don’t choose to see marketing and business development activities

creatively. I find when this level of partner does market their practice, it is in very traditional ways such as advertisements, taking a new firm website picture or speaking at a conference. Rarely do they stop and really focus on working on their own internal projection to possible clientele (i.e., their brand) or how to collaborate with other attorneys. This hurts the entire firm.

The end result of all this is the following: one day within the next 10 years, these very same lawyers are going to be the most senior attorneys at their firms as the older partners retire. As such, the older partners are no longer going to be around to feed them work. The younger lawyers will have already figured it out and have moved on without these partners. This hurts the entire firm because of the inequity of the situation. What does this mean for you? If you are a mid-level lawyer and this description fits you, please consider: Choosing to see your marketing and branding efforts in a new light: What

can you do differently to develop business? Working on yourself and your own brand instead of focusing on others. Hiring a consultant and/or coach to help you get up to speed. Most often

in these situations, the timeline is accelerated and it will creep up on you before you know it.

II. CHANGE – WHY BOTHER?

Sometimes I feel mesmerized with the concept of "change." I’m always doing my best to be self-aware of where I’m resistant to change and where I welcome, and adapt to, change. Take my travel schedule. I was just on my way to Chicago last week for a 22 hour trip. I was set to arrive at 3:30 p.m. and make it just in time to a reception at 5:00 p.m., followed by a group dinner. However, my schedule didn’t have the same plans that I did for me. On my outbound flight to Chicago, we got delayed due to fog. Long story short, I didn’t make it to Chicago until 6:00 p.m. and barely made it to my group dinner on time, let alone the reception beforehand.

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As I was standing in the airport, the amount of our delay kept changing: first we were 30 minutes delayed, then we were 45 minutes delayed, then we were an hour and 15 minutes delayed. We even had a "reverse-delay" as I call it: they shaved five minutes off our delayed take-off time! I was very self-aware during the entire time I was standing at the airport monitoring all of these delays, including the final one in my favor by five minutes. I stopped and assessed my real choices in that moment. With each new delay, I could tell I had a choice to "accept" this new change in my travel schedule or resist it. You’re probably wondering how I could have resisted being delayed each time it happened. It’s not like I could fly on my own without the airline. I suppose I could have gone to another airline in an attempt to fly sooner, but who really does that? However, resistance in that moment would have looked like me getting upset and angry and then victimizing myself – "This always happens when I fly" or "Why me? I have to get to Chicago." Had I resisted, the outcome of the flight would not have changed – I flew when the airline told me I could. However had I resisted, the outcome of my experience would have been vastly different. I would have felt really out of control and angry. In that moment, I had a choice to see the delays differently. How? Instead of resisting the delays, I adapted and accepted the delays. I pulled out my laptop, got two hours of solid work done and ate some breakfast. I even had time to people watch and check the weather in Chicago. I felt productive and quite content. Most importantly, I was not a victim and felt in control of my life and time. I was happy! A. "Change" is defined in the dictionary as a noun meaning, "the act or

instance of making or becoming different." What this means for me is that when I’m faced with a change, I can see it as an opportunity to be different. Different is often scary, I know. However, in each moment of my life I have a choice to choose to see things differently, be different and as a result, change and grow.

B. Choosing to be different in each moment you are presented with a

change smacks of evolution, in my opinion. "Evolution" is defined in part as the process of growth and development.

C. So what does this mean for you? Stop and consider:

1. Where in your life are you fearful of change? Do you even know you are fearful?

2. Where in your life are you resistant to anything new or different? 3. Is this way of being really leaving you happy and evolved? Or are

you fooling yourself by believing you are safe if you stay in your comfort zone and ignore/resist anything new?

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4. How will you know if something new could work for you if youdon’t adapt and change and choose to see things differently foryourself? Do you want life to always be a mystery that passed youby or do you want to be courageous and try on something newand grow and develop?

III. IS YOUR MESSAGE CONSISTENT?

A. Have you ever tried to have a conversation with someone and they seem to send very different messages within the same communication? I know I go nuts just trying to follow the conversation. Heck, sometimes I’m actually the one with the messy communication, where my message and my brand are garbled.

Just the other day, a client asked how their law firm could tell if their message was consistent enough. Good question.

There are two ways to tell:

1. Are people listening to you and engaging with you? Are theyeven noticing you? If so, you can take that as a good sign thatyour message is consistent. If your message wasn’t consistentthen you would be confusing your audience so they wouldn’t evenstop and notice you, much less listen to your message.

2. What do your formal and informal survey and feedbacksuggest? Your organization must survey and get feedback frompeople asking them if they:

a. understand your message; and,

b. find it compelling enough to:

i. stop and listen, and

ii. take action and connect with you and yourcompany.

B. In essence, you are asking your audience if they trust you. If your message is consistent, then your audience will feel safe with you (they hear and see the same thing each and every time so they know what to expect), and trust you.

C. Once your audience trusts you, then you’re almost home free. Trust grows over time, so you must make sure you are authentic in your resonance with your audience. So every bit of what we just discussed here rides on each and every person within your organization, band, and/or business having a solid and authentic personal brand.

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IV. BRAND CULTURE BUILDING TIP #1: WHERE’S THE HARMONY?

In business, I’ve been referred to as, "too kind." It’s always been by the oppositesex, and I always chuckle. The conversation always goes something like this:

"Katy, I just have to tell you, you are too kind in running this business. It’s gonnahurt you somewhere." To which, I always reply, "Thanks for looking out for me. Iappreciate you. I don’t think I’m too kind. What’s too kind, anyways?"

My response and inquiry always stops the conversation. Why? Because it is astumper. What does it really mean to be "too kind" in business? It’s such asubjective and judgment filled answer. Right?

A. In business, I’ve found our brands (we) show up in two ways: 1) either we don’t have well established boundaries and colleagues and clients just run right over us, leaving us angry and frustrated OR 2) we are very aggressive and competitive, leaving everyone around us angry and frustrated. Neither one of these scenarios makes for a great brand.

B. So the tip for today is to develop a brand for yourself that has harmony. What does that look like? Harmony that dictates your brand is comprised of kindness AND a good ability to set boundaries. I call your boundary-setting ability your level of "confront."

1. Being kind does NOT mean being a push-over or sappy. Beingkind means having empathy and compassion for your directreports, colleagues and superiors.

2. Having a high level of "confront" means holding firm to your idealsand beliefs and values while respecting others. It means takingaction when you must and backing off when you can. What itdoes NOT mean is shoving your views down others’ throats nortreating them as you would not want to be treated.

C. This harmony will lead you to have a great brand AND lead to your team having a great starting point for brand culture development.

Remember, everything we recommend here is simple, but not easy. However, taking that first step is just choosing to see things differently for yourself and then for your team and organization. You can’t fail.

So stop and think to yourself, what is the first step you can take today to make this harmony happen?

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V. BRANDING Q&A: TOP SIX ANSWERS TO MANIFEST YOUR IDEAL BRAND SUCCESS

What does it really take to have a successful career and happy life? How can we find an easier way to stand out, get attention and not stress so much? What if that’s just not your "thing?"

I regularly get questions like the ones above. I think they are all such insightful questions that deserve real answers – answers that are individualized to your particular nature and strengths.

Most recently, I was "interviewed" by a new graduate of my law school. She has just taken the bar exam and is so excited to succeed. As I was answering her questions, it occurred to me to write out my answers for my audience in general. As you’ll see below, the questions she asks are not relevant just for a new law school graduate. These questions are applicable to everyone, regardless of age, credentials or experience level.

Q: What do you think a person needs to become successful?

A: I think the most important thing we all need to become successful is our own definition of what is success. Otherwise, we are chasing something we can’t even define, so how would we even know we achieved success. Most would simply define success as "more money" or "the most money I can accumulate." However, stop and think for yourself, is this the real definition of success for you? If so, why?

Q: What is most important when creating a personal brand?

A: The most important element to keep in mind when creating a personal brand is self-awareness. We all must have self-awareness around our desires (see the question above), how we come across to others and how we want to authentically and deliberately put out our message to the world. Without this self-awareness then we have no baseline for improvement. Static brands lose.

Q: How long does it take for someone to create their personal brand?

A: Nothing impactful and genuine happens overnight. Branding is a marathon, not a sprint. Branding is an iterative process, where we have self-awareness, try on something new, evaluate the impact by looking at it very honestly and sincerely and then we course correct. This requires time, patience, honesty and creativity.

Q: How can someone emotionally resonate with his or her audience (or future employer)?

A: First, you must understand that no one is buying our intellect or how good we are at our job. That may sound demoralizing, but it is not at all. Seventy-eight percent of everything you and I buy is based on how we feel about the purchase. If I like the product because it makes me happy, then I’ll buy it and even tell others. This same logic applies to professionals. If I like you, I’ll choose to talk to

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you. If I talk to you and you share your brand story well with me, then I’m so much more likely to hire you, date you, be your friend, etc.

Q: How long did it take you to create your personal brand?

A: It took me years to master my brand. It was hard work and I resisted a lot along the way. I questioned myself and I worried for no reason. While branding is never "complete," I feel I’m at a place where I truly own who I am and how I impact the world for good. The goal is that it will not take you nearly as long as it took me because I have developed the tools to get you to your brand mastery much faster and with much more ease and grace than I encountered.

Q: Can you build your personal brand individually or does it require feedback from others?

A: You cannot build your brand alone. Part of my definition of personal brand is based on perception of your audience about your brand. You cannot ignore your audience, whoever they are. You must engage your audience to see how you are doing – what needs to be tweaked and what is working well. Let your audience tell you what they need and want from you. If you ignore your audience, then you are effectively saying you live alone in this world.

VI. BRAND CULTURE DEVELOPMENT TIP #2: LIKEABILITY

A. In brand development, it’s all about longevity. What am I talking about? Well, in organizational work we do for clientele, companies are always looking to measure their Return on Investment (ROI). So if the brand lasts over time, then we can guarantee one measure of profitability that will prove out as stable over time.

B. Culture development in organizations is all about the people. The peoples’ individual brands are what sell any organizational brand. Organizations must live and commit to their "people." Organizations can always do a better job of doing so.

Without this cultural assessment and growth, turnover is high, morale is often low and employees are in paralysis mode more often than not.

C. What’s the cure? In my world the cure is to have employees have a sense of self and an understanding of why they each do what they do and how they fit into the entire organizational framework. That may seem like a tall order. It’s not if you have the right process and expertise in place to make it happen. The process of individual brand development does take time.

D. There’s one central premise to this brand development process and that’s likeability. If I like you, I will engage with you and the rest is history. This is true whether you are in an organization or if you are an entrepreneur.

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1. Likeability successfully grows from the notion of happiness. If 78percent of everything we buy (including any service sector) isbased on how we feel about it and NOT the content or theexpertise, then we must look at the emotion or feeling that sells.This emotion is happiness.

2. To be likeable, you must first be happy at some level. I’m notasking for head over heels happy – just a manageable level offeeling happy with yourself, your life and your career. No one willbelieve you’re happy if you are faking it. This brand developmentprocess takes time and patience. It’s definitely a marathon andNOT a sprint.

3. So now that you are happy and ready to show it, how do yougenerate likeability? The first step is that you have to offer youraudience a way to connect with you. That means really connectwith you in a way that is tangible and real so they can see theauthentic and real "happy" you and be able to like you.

4. This level of connectivity is best when done in person. So what’sthe next best thing if you are not able to be in person in front ofyour audience all the time?

i. I’ve found the answer to be video. If I can’t be in the roomwith you, then I need to be able to visually share myhappiness with you so you can fall in like with me. Video isthe next best thing.

ii. Video allows for you to share your mannerisms, facialexpression and overall happy vibe with your audience inan easy and natural manner.

The key is to just show up on video exactly as you would in person. Share your in-person brand with others over video instead of live. Don’t do anything or say anything over video that you wouldn’t do live. That means you don’t re-record or analyze your recording. You just emanate your happy brand and wait for people to connect and like you.

VII. WHY SO SERIOUS?

Back in the days when I was a practicing lawyer in Washington, D.C., I used tostraighten my very curly hair. Every day. I used to get up early, forsake sleep or awork-out, and stand there and sweat it out. Pulling. Tugging my hair. Struggling.Resisting my natural curls.

Why?

I thought that in order to be seen as a competent lawyer, I had to be serious. Iassumed curly hair meant I wasn’t serious. Straight hair equaled serious andcompetent.

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One day I woke up and changed careers. What followed was a return to my natural curls. No more waking up early to straighten the curls. My morning options opened up: I could sleep, meditate longer, work out more often.

Does that mean I am not as competent or serious anymore? Not necessarily. I’m definitely competent and I’m serious about my work as a brand strategist.

I just stopped taking myself so seriously and decided to lighten up. That meant accepting who I was naturally – curly hair and all. I stopped resisting my natural tendencies and started to "own" them.

You know what happened next? My curly hair became a part of my brand. Used wisely, I was able to balance curls as a complement to my branding strengths and talents. That meant in part that if my hair is curly, I made sure I offset the fun and free nature of the curls with a more smart visual brand (i.e., no low cut tops, etc).

My curly hair is now part of my values and signals my creative and fun nature and expertise. No more resistance.

Yet, I regularly hear from so many of my clients that they want to seen as competent so they are working on being more "serious." What does serious have to do with competence?

A. Being serious does not sell your brand.

B. Emotional resonance in brand development is what sells your brand. Emotional resonance is crucial. The only emotion that sells is happiness. So if you are telling me that your serious brand signals happiness somehow, then go for it.

Unfortunately, none of us really intend for our serious brand to be giving off a vibe of happiness. So our brand fails AND you are unhappy and confused, too.

C. Consider that our need for others to see us as competent is really our desire to be respected by others. It has nothing to do with being serious. Gaining others’ respect means we respect ourselves first. But do we respect ourselves enough first and foremost to own our own strengths (and curly hair)? No one can respect us otherwise – whether we are serious or not.

So what does this mean for you and your business, career, and your business brand, too? Stop and ask yourself:

1. Where in your life and career do you think you need to be morecompetent? Why?

2. Do you respect yourself to consider yourself competent?

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3. How are you trying to achieve this competence by being moreserious?

4. Where in your life and career could you show up happier and sellhappier?

5. What would your own brand and your business/career brand looklike if you were more happy and less serious?

VIII. BRAND BOOSTER: SELF-CONFIDENCE v. ARROGANCE

Just the other day a client gave me a compliment by letting me know how ourwork had made such an impact on their personal world and in theirbusiness culture. I was touched. I was also proud. I had to take a moment andstep back to check in on my mentality. Was I buoyed too much by thecompliment and patting myself on the back? If so, was I running the danger ofletting my ego run away with the compliment and hijacking it to my branddetriment?

A. In brand development, I always say that everyone must be able to receive and distill compliments well. The practice serves so many various purposes.

However, there’s a fine line between taking compliments well and taking those same compliments and becoming arrogant as a result. The former is so attractive to your brand. The latter is awful for your brand.

The trouble: It’s so easy to run the risk of the latter.

As my mentor, James Espey, says "Confidence without arrogance" is the goal in life and in business. He’s certainly lived that humble and successful life for years.

B. What’s a person to do? The number one rule is to stay self-aware. Much like I do my best to do, stop and think to yourself:

1. Did I really hear the message that was meant to come with thatcompliment?

2. How can I use it in a humble way to boost my self-confidence?

After all, self-confident brands win.

IX. TOP THREE BRANDING TIPS

Right around the beginning of a new year most of us go into a bit of a panic. Afterall, it is a new year. What did we not do so well in the last year? How can we bebetter in the new year? Will it be painful and how can we ensure success?

I am guilty of this line of thinking, too, at the end of each year. Over the yearsthough, I’ve fortunately managed to shorten how long I stay in the grips of fear.

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How?

First, I stop and realize that just because it is a new year, it doesn’t mean I necessarily have to do anything differently if I don’t want to do so.

A. It’s a bit hard to get motivated in the dead of winter in January. I’m better motivated at the beginning of spring. After all, spring signals re-birth, the earth coming out of winter hibernation and fresh starts.

So does this mean you get a free pass for the next three months until March? Not necessarily, if you can help it. You can choose to see things differently at any time of the year.

B. As a personal branding expert, here are my top three tips to keep top of mind for a new year in order to shine. Once you master these three areas, then your brand is more solid in general.

1. Self-awareness – in my world the only brands that succeed arethose with self-awareness. First and foremost, just be aware of: a)how you come across and b) how you want to come across toothers. Is your real message coming across and resonating withyour audience? If not, just step back and take a good look at whatis coming across. Don’t feel compelled to change it yet. The firststep is to just observe what is NOW. After all, if you don’t knowwhat is and what isn’t working, how can you become better andimprove your brand resonance with your audience?

2. Clarity – there are "two Cs" in developing your brand for youraudience in general. The first is clarity: are you clear about whoyou are? This includes who you truly are outside of work and howyou want to be of real service to others.

As emotional beings, we only engage and buy from those withwhom we connect. That emotional connection only comes whenwe, as your audience, really "get" the authentic you. Without beingclear with yourself first, there is no way you can come across withclarity to your audience at all.

Finding and defining your brand with clarity may start offsomewhat painful. Why? Because I’m asking you to go into thetruth of yourself. This part really has nothing to do with your careeror profession. That’s what makes it hard. The spotlight is all onyou. I’m asking you to remove the cobwebs and search yourmemories to find the real you.

3. Consistency – once you have clarity around your brand, now youneed to share that brand with your audience consistently. We areall over-texted, over-tweeted, and over-caffeinated. That meansour recall capacity is lower. So you need to ensure that you shareyour one true message with your audience with consistency.Consistency increases our feeling of safety with you. It means you

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are going to deliver what you said you would. It helps us trust you. In turn, this will help ensure I remember you.

Does that mean you say the same things over and over again the same way on your videos? No, not at all. That means you understand that we need to hear your true core message and meaning many times in order to have it trigger recall of you. Then I will be moved to act and follow up with you, engage with you, hire you, etc.

C. So what does all this mean for you and your brand? Ask yourself:

1. Are you genuinely motivated to choose to see things differently ina new year? If not, then no worries. Relax, take the stress offyourself until you are ready.

2. Do you have self-awareness around how you: currently comeacross AND want to come across with your personal and businessbrand?

3. Do you have clarity around who you are as a person?

4. Do you consistently share your clear personal brand with us?

X. TOP THREE BRANDING TIPS FOR INTROVERTS

So many of us are self-proclaimed "introverts." I have no judgments on introverts or extroverts. I think both work well in society. Yet, I put "introverts" in quotes because I often feel that once we are labeled as such, or self-label, then things become final and we don’t want, or worse yet, believe we can change if we want to change some aspect of our being that we attribute to being an introvert.

I watch so many of my clients go through this cycle. It pains them to feel trapped in a box, and it pains me to watch them struggle with it so much. My goal is for clients to either be fine with who they are as introverts, or choose to see things differently for themselves (change some things?) and be fine with who they are. Here’s some tips that I find work with my clients:

A. Thin out the wall between your personal and business life – many introverts are very private. I respect that. However, private often is perceived as "quiet," which can mean that we see you as shy but we really infer you are emotionally disconnected. Either way, it means you are not relating to your audience and emotionally connecting with us.

Being quiet is fine at the right time. It’s ok to be a private person. Yet, when we know very little about you, perhaps you are "quiet" for us in a negative way.

Perhaps consider dropping the wall (or maybe just slim down the wall) between your personal and business life. Let us in a bit – tell us more

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about your life – family, growing up, etc. You are still in control, but sharing more of you.

B. Smile more – otherwise we may think you are snooty, when the truth is that you are not. When in doubt about how to be, just smile.

C. Know your limits and be courageous – if you are uncomfortable at an event, know when the time comes for you to leave (because the lights and noise and small talk are just too much to take). Yet, have harmony with also being courageous enough to hit up against your comfort zone and try new things – small steps are fine.

XI. DOES YOUR COMPANY’S BRAND HAVE SOUL?

Have you ever purchased something from a company and it was a really hollowexperience? I’m not talking about poor customer service necessarily. I’m talkingabout the fact that you walk away and feel empty and exhausted. At the veryleast, you feel as if there was nothing memorable about your purchase. You haveno recall value for the company and their product beyond the immediatepurchase.

This happened to me recently when I bought a car. I left the dealership happywith my new car. However, I also felt very much like I didn’t really matter to thedealership. I was just another number they could check off because they werecloser to their monthly quota. In fact, every time I drive by the dealership, I lookaway and wince – I’d like to leave behind and forget the entire experience. Andcar buying is not a novel concept to me.

Not good for business, right? What gives?

The dealership had no soul. By this I mean there was no real emotionalresonance with their clients. The dealership likely did not care about us asclients. The money came first.

On the other hand, contrast the dealership experience with that of a company likeZappos. When you order shoes from Zappos, you are part of their process andbrand culture. Heck, you can even get on their website and read about theirbrand culture and values. It doesn’t read like our typical corporate "missionstatement." You can almost feel the sincerity and excitement. Now that’s soul.

So what does this mean for you? Consider:

If you work for a company, does your employer have soul? Does youremployer:

1. Have an established brand culture based on individual employeebrand values? If not, then it is hard for you to feel part ofsomething greater than yourself.

2. If you are in leadership at a company, does your company havesoul? Do you and the leadership team:

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a. Really make sure each customer/client walks away with asense of joy and high recall value for your business andproduct?

b. Instill this sense of "soul" with each employee daily?

XII. DON’T GO, STAY! HOW TO STOP ATTRITION OF EMPLOYEES

I can’t tell you how often I used to think about fleeing the nest when I was apracticing lawyer, especially toward the end of my career. It’s not like I wassuicidal (that’s a very serious topic that needs to get addressed immediately). Ijust couldn’t do "it" anymore. I couldn’t draft one more document, I couldn’t listento one more colleague complain or hear another superior of mine pretend tomanage and lead us. It became maddening.

Towards the end, I had many days when I really had to drum up the motivation tonot roll over and go back to bed. I knew I wasn’t officially depressed because Iwould lay in bed and dream of going to the gym all day, instead of to work –ahhh, how much more fun and productive that would be!!

Sound familiar? Maybe not to you. However, maybe your employees orcolleagues are thinking so.

A. I can’t tell you how often we get calls from management letting us know that they fear employees will leave. While attrition is natural and necessary, if you start to see a pattern, you’ve got a problem. For example, is it mostly women that are leaving? Or is it mostly a particular department’s employees that are leaving?

No matter what the reason or where, one thing is for sure in my world: addressing attrition head-on is your only solution. How?

In my world, we do it by developing the brands for each individual employee – either in a group or one-on-one. Why?

B. As humans, we want to make a difference and drive the ball forward somehow in our lives. When we do, we roll up our sleeves and start contributing to the overall goal. This gives us energy and purpose to keep going. When we don’t know who we are or why we should show up at work, then the game is over. If I don’t think there is anything interesting about me, then why would I go to work each day?

Thinking back, that’s why I couldn’t get up each morning at the end of my legal career. I just didn’t know what purpose I served anymore as a lawyer. I was lost.

C. My solution is about facilitating the process so each employee has a brand: a) knows their values, b) how to bring their values to work, and c) how to sync up their values with their employer’s values. This is the start of the brand development process.

What does this mean for you? Stop and think for yourself:

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1. Why do you get up and go to work each day?

2. What purpose do you serve at work?

3. What are your values?

4. Are your values synced up with that of youremployer/company/business? If so, how? If not, why?

XIII. BRAND BOOSTER: "ALLOW" INSTEAD OF "FORCE," "ACHIEVE" OR"EARN"

Just the other day I was forcing an issue with my husband. We were at arestaurant ordering lunch. I wanted him to "share" a burger and a salad with meinstead of us both ordering a burger. It’s my attempt to be healthier and still eatwhat I love (a burger!). I kept suggesting it to my husband…. Over and overagain. I wanted him to do what I wanted him to do. Free will was lost. So, hepushed back and we both got burgers.

Sound familiar? It should. Stuff like this happens so often.

What if I had just stopped and chosen to see the situation differently? Instead of"suggesting/forcing" my views on my husband, what if I had "allowed" thesituation to be and allowed whatever was going to happen, to happen?

I guarantee you the end result would have been different.

Maybe we still would have ended up ordering burgers, but I wouldn’t have letmyself down and expended so much negative energy pushing and shoving mywill on my husband. I could have been happier in that moment.

A. Successful brands don’t force anything – on themselves or on others.

Anytime we force anything, we have active resistance around anything in our lives. Then there is tension. Tension even shows up when we are "achieving" or "earning."

Tension amps up our stress. Our stress amps up other peoples’ stress. Then people don’t want to be around us anymore, much less hire us, buy from us, promote us, date us. You name it. The game is over.

B. Instead, successful brands recognize that allowing life to happen sets everyone up for more success. Allowing life to happen allows us to "be" with ease and grace. Ease and grace is the only way to let your brand shine and get us to stop, notice you and gravitate naturally to you.

C. What does this mean for you? Stop and consider:

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1. How often do you force your way and will in life? Next time, stopand have self-awareness: is it really working for you? Be honestwith yourself.

2. What if you stopped trying to "achieve" or "earn" and just"allowed," instead?

3. What would your life be like if you just "allowed" yourself andothers to be? Where can you make subtle adjustments to allowmore and force less?

XIV. TOP THREE COMPANY EMPLOYEE BRANDING PROBLEMS THAT COMEWITH INTERNAL COMPANY CHANGES

A. Within organizations the one thing you can count on is change. Change is inevitable.

It comes often and is often painful. In the branding world, change is an indicator of brand flexibility: brands that go with change, evolve and survive to thrive. Brands that don’t bend with the wind, die out.

What kind of changes are we talking about? Such changes include a) reorganizational changes of any kind, like changes in management, buy-outs, downsizing due to economic factors or due to innovation; b) technological changes leading to obsolescence; or c) pure economy dictated changes.

B. What do all these changes involve? Employees. Your best advantage and greatest asset – your talent pool.

C. Here’s the problem: The 2013 Gallup State of the Global Workplace report found that only 13 percent of employees are engaged at work. Engagement equals productivity.

D. So what are the hurdles to employee engagement and productivity due to change? Here’s what I’ve found happens when there is any internal change – and there will always be internal change:

1. There is a fundamental shift in brand values due to change inmanagement – often this is accompanied by mass confusion,often subconscious, among the employee pool. Why? Read on.

2. There is no focus on the notion of building the "internal" brand first– since the brand of the employees/agents is behind the companybrand and comes first, it pays to develop the employee brand first.This involves direct communication to the employees andinclusion of the employees in the brand value process. Leadershipmust engage employees in the exercise of discovering theirvalues that coincide with the shift in brand values of the newmanagement.

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3. There is a strong possibility that employees/agents go rogue anddrift away from the corporate brand representation.

E. So what is management supposed to do about this? The first step is that "management" needs to stop thinking like "management" and start thinking like "leadership." This means first and foremost having conscious awareness that a shift has occurred. This shift may not be well understood or accepted by your employees.

F. Next, leadership needs to take steps to make sure the brand values shift is a) communicated well; b) open to revision by employees; and c) based on the ability to have the employees develop their own brand values and contribute to the new direction of the company’s brand. This is where I come in to assist the leadership team.

What happens if management does not become leadership and apply these steps? From my experience, the best that can happen is employees leave the company. The worst that can happen is that employees stay, become disgruntled which in turn leads to apathy, lack of productivity, and low morale. All of this inevitably leads to a decline in profits.

G. So what does this mean for you?

If your organization is going through change, make sure you consider your employee brand values. They must be in sync with your organizational shifts and the brand value changes they bring. These changes must be communicated to your employees and your employees given the ability to participate in creating the evolved organizational brand culture.

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ATTORNEY ADVERTISING: CHANGES TO, AND APPLICATION OF, THE KENTUCKY SUPREME COURT RULES

& ATTORNEY ADVERTISING REGULATIONS Steven T. Pulliam

Reprinted from the 2016 Kentucky Law Update Handbook.

Attorney advertising has changed dramatically over the past several decades. This is due in large part to U.S. Supreme Court rulings on restrictions that had been placed on attorney advertising. In addition to changes in the law, advancements in technology (email, Internet, social media, etc.) have also greatly changed attorney advertising.

These materials include a brief selection of U.S. Supreme Court cases dealing with attorney advertising, as well as an overview of how the Kentucky Rules and Regulations on attorney advertising are now applied.

I. U.S. SUPREME COURT CASE HIGHLIGHTS

Here are some U.S. Supreme Court cases addressing limitations on attorney advertising.

A. Bates v. State Bar of Arizona, 433. U.S. 350 (1977)

Bates represented the moment the Supreme Court first determined that attorneys' free speech rights outweighed the Bar's interest in banning attorneys from advertising. The advertisement in question involved fixed fee legal services. That type of advertising has actually turned out to represent a very small percentage in today's attorney advertising.

B. Ohralik v.Ohio State Bar Ass'n, 436 U.S. 447 (1978)

The Court upheld restrictions on in-person solicitation. The Court determined that this type of conduct is different from ordinary advertising.

Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. Ohralik, 436 U.S. at 457-58.

C. In re Primus, 436 U.S. 412 (1978)

The Court issued the opinion in Primus the same day as Ohralik. This case involved written solicitation rather than in-person solicitation. The Court determined that the written communication did not have the pressures and undue influence of a real-time solicitation of services. An added issue in Primus dealt with the fact that the offer was for pro bono services, and not for pecuniary gain, and restriction would be subject to

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strict scrutiny review instead of the lower standard for commercial speech.

D. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988)

In Shapero, the Court struck down a rule prohibiting targeted direct mail advertising. The Court explained that, "the relevant inquiry is not whether there exist potential clients whose 'condition' makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility." Shapero, 486 U.S. at 474.

The Court compared the types of attorney communication and solicitation toward potential clients:

Unlike the potential client with a badgering advocate breathing down his neck, the recipient of a letter and the "reader of an advertisement . . . can 'effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes,'" Id. at 475 (quoting Cohen v. California, 403 U.S. 15, 21 (1971)). A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded. Id. at 475-76.

E. Peel v. Attorney Registration and Disciplinary Com'n of Illinois, 496 U.S. 91 (1990)

The Court again rejected restrictions on attorney advertising. Mr. Peel stated on his letterhead that he was certified as a civil trial specialist by the National Board of Trial Advocates. The Rule in Illinois at the time prohibited attorneys from stating they were certified specialists, based on the advertisement's potential to mislead. The Court determined, "Even if we assume that petitioner's letterhead may be potentially misleading to some consumers, that potential does not satisfy the State's heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public." Peel, 496 U.S. at 109. Mr. Peel had in fact been certified as a specialist by the National Board of Trial Advocates.

II. A REVIEW OF KENTUCKY SUPREME COURT RULES REGARDINGADVERTISING & ATTORNEY ADVERTISING REGULATIONS

The Kentucky Supreme Court Rules of Professional Conduct (SCR 3.130) setforth the ethical standards and technical requirements for members of theKentucky Bar Association. Several of those rules specifically apply to attorneyadvertising, and almost all of those advertising rules are found in SCR 3.130(7).The Court adopted substantive changes to the Rules of Professional Conductthat deal with attorney advertising effective January 1, 2016. As a result of thosechanges, the KBA Board of Governors has reviewed, and is in the process of

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amending, the Attorney Advertising Regulations. Below is an overview of those rules with references to related AAC Regulations.

A. SCR 3.130(4.5) Solicitation of clients

1. No solicitation in-person, by telephone, by texting, instantmessaging, etc.

2. EXCEPTIONS: solicitation of lawyers, of immediate familymembers, and of former clients; or for a public interest issue.

3. EXCEPTIONS to the EXCEPTIONS: You can never solicit aperson that has made it known they do not want to be solicited.You can never use coercion, duress, or harassment.

4. PERMITTED SOLICITATIONS: You CAN send direct mail letters.

5. Written, recorded or electronic communications shall include thewords "Advertising Material."

6. Mass disasters have a thirty-day wait period. See SCR3.130(7.60).

B. SCR 3.130(4.6) Waiver and forfeiture of fees for prohibited solicitation

If you improperly solicit a client and you are paid, or are owed money, then all fees are waived or forfeited, and you must return any such fee to the client.

C. SCR 3.130(7.01) Definitions

Here you can find definitions of "advertise," "advertisements," "legal services," and "Advertising Commission."

D. SCR 3.130(7.02) Attorneys' Advertising Commission

1. The Commission consists of up to nine members.

2. All Commissioners are licensed Kentucky attorneys.

3. They are able to give Advisory Opinions on attorney ads uponrequest.

4. They issue and promulgate AAC Regulations with Board approval.

5. The AAC meets to review all requests almost monthly.

E. SCR 3.130(7.03) Advisory opinions

1. $75.00 filing fee. Plus $100 if over 100 pages or longer than tenminutes. Must be requested by an attorney.

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2. AAC will issue their opinion within thirty days: compliant or non-compliant (and why).

3. Submission of a corrected ad is free until you get it right.

4. You can't discipline for use of ad if it was deemed compliant.

5. However, NO protection if the ad is false, misleading, or deceptiveOR the information given to the ACC was false, misleading ordeceptive.

6. AAC Regulation No. 11: Requirement for complete information.

a. Respond to requests for additional info.

b. Proper formats for television, video, digital, radio, andaudio recordings are discussed.

7. AAC Regulation No. 5: Time period for review for broadcastmedia.

a. The Commission will review/approve transcripts subject toa review of the video or digital media; but the AAC hasthirty days to review the final product as well.

b. No additional fee to review transcripts and the final productproduced from an approved transcript.

F. SCR 3.130(7.04) Records of the commission

All advertisements and the records of all actions taken by the Commission on submitted advertisements shall be available for inspection and copying at the offices of the Kentucky Bar Association at reasonable times and upon reasonable notice. Any expense incurred shall be borne by the requesting party.

1. AAC Regulation No. 10: Copying and Retrieval Charges.

Copies of records are $.50 per page and $2.00 per CD/DVD forany audio/visual recording. The Commission may also charge asearch fee of $25.00 per hour for staff time spent responding torequests.

2. AAC Regulation No. 16: Record Retention.

a. Records of the Commission are kept for two years fromwhen submitted.

b. Any AAC records over two years old may be destroyed.

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c. Under SCR 7.20(6), attorneys must keep a copy of all adsfor two years after last used.

G. SCR 3.130(7.10) Communications concerning a lawyer's service [previously Rule 7.15]

A lawyer shall not make a false, deceptive, or misleading communication about the lawyer or the lawyer's service. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

AAC Regulation No. 1: false, deceptive and misleading advertising:

1. Part B gives examples of advertising that constitutes a materialmisrepresentation. This section covers an attorney's use of props,non-attorneys, actors, and more.

2. Part C sets forth what information is needed to avoid having amisleading omission. Requirements regarding office location,telephone number, fee information, etc. are explained.

3. Part D addresses ads that may create unjustified expectations.Use of testimonials, particular results, class action info, priorsuccess, and satisfaction of services are discussed.

H. SCR 3.130(7.15) Advertising of fees

If you are advertising a fee for routine services, you must provide the potential client or AAC a detailed description of what services are included upon request.

AAC Regulation No. 14: Advertising of Fees:

1. If a client actually will be expected to pay court costs and caseexpenses, and the ad has some language stating, or implies, thatthere is no fee owed unless the attorney makes a recovery, thisregulation states the ad must advise that the client may have topay those costs and expenses.

2. If reference is made to a contingent fee percentage or rate thenthe ad must also disclose whether percentages are computedbefore or after deduction of court costs and case expenses.

I. SCR 3.130(7.20) Advertising

1. Do not give anything of value, or pay, for someone to recommendyou.

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2. EXCEPTIONS: Some exceptions include paying for advertising,paying costs of a legal services plan, paying for a law practice,and referral of clients. See the Rule for specifics.

3. Rule requires "the name and office address of at least one lawyeror the name of a law firm."

4. Communications to immediate family, to current clients, or inresponse to an inquiry for information are exempt from advertisingRules and Regulations, but must still comply with SCR3.130(7.10).

5. Section (5) states:

If a lawyer or a law firm advertises legal services and a lawyer's name or image is used to present the advertisement, the lawyer must be the lawyer who will actually perform the service advertised unless the advertisement prominently discloses that the service may be performed by other lawyers. If the lawyer whose name or image is used is not licensed to perform the services in Kentucky, such fact shall be disclosed in the advertisement. If the advertising lawyer or firm is advertising for clients for the purpose of referring the client to another lawyer or firm, that fact must be disclosed prominently in the advertisement.

6. Attorneys are to retain a copy or recording of all advertisementsutilized by the lawyer, as well as a record of when and where itwas used, for two years after its last dissemination.

DELETED: SCR 3.130(7.25) Identification of advertisements "THIS IS AN ADVERTISEMENT"

Previously all advertisements were required to state "This is an advertisement" on the ad. The requirement for every ad has been removed.

• Some advertisements may still require "Advertising Material"pursuant to Rule 4.5.

• Other ads may still require "This is an advertisement" if the admay be false, misleading or deceptive without that language.

J. SCR 3.130(7.40) Communication of fields of practice

1. Attorneys can say they do, or do not, practice certain types of law.

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2. Attorneys can only state that they are a "certified as a specialist" ina particular field if…

a. The lawyer has been certified as a specialist by anorganization which has been approved by an appropriatestate authority or that has been accredited by the AmericanBar Association;

b. The name of the certifying organization is clearly identifiedin the communication; and

c. The communication occurs only for as long as the lawyerremains so certified and in good standing.

K. SCR 3.130(7.50) Firm names and letterheads

1. Firm names and letterheads cannot be false, deceptive, ormisleading.

2. Lawyers may state or imply that they practice in a legal entity onlyif that is the fact.

3. Law firm cannot use the name of a lawyer who is suspended bythe Supreme Court from the practice of law; the name may not beused by the law firm in any manner until the lawyer is reinstated.A lawyer who has been permanently disbarred shall not beincluded in a firm name, letterhead, or any other professionaldesignation, or advertisement.

L. SCR 3.130(7.60) Kentucky Bar Association Disaster Response Plan

1. "Disaster" will be identified by the KBA Immediate Past President,or possibly the Executive Director of the KBA.

2. Creates the Kentucky Mass Disaster Task Force, whichestablishes a "legal service information center."

3. Task Force prepares to provide affected persons with specificinformation.

4. SCR 3.130(4.5)(4) sets forth a thirty-day waiting period beforesending any communication to those involved in a disaster asdefined in SCR 3.130(7.60).

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REFERENCE CHART FOR RENUMBERED, DELETED, OR MODIFIED RULES UNDER SCR 3.130

OLD RULE

#

NEW RULE

# RULE NAME Amendments

7.01 -- Applicability Deleted.

7.02 7.01 Definitions Renumbered. Several exceptions to what is considered an advertisement were deleted, and the "business card" exception was modified.

7.03 7.02 Attorneys' advertising commission

Renumbered. Revisions reflect the new role of Commission (issuing advisory opinions only).

7.04 7.15 Advertising of fees Renumbered. Section (2) deleted.

7.05 -- Filing of Advertisements Deleted.

7.06 7.03 Advisory Opinions

Renumbered. Submission requirements added from old 7.05 since it was being deleted.

7.07 -- Review of filings Deleted.

7.08 7.04 Records of the Commission Renumbered. No other changes.

7.09 4.5 Solicitation of clients

Renumbered. Name changed from "Direct contact with potential clients." Made solicitation of attorneys and prior clients permissible.

7.10 4.6 Waiver and

forfeiture of fees for prohibited

solicitation

Renumbered. Added a reference that this conduct can also result in disciplinary matter.

7.15 7.10 Communications

concerning a lawyer's service

Renumbered. Sections (b) and (c) were deleted.

7.20 same Advertising

Addition of section 7.20(2)(d) permits attorneys to refer clients to other attorneys or non-attorneys pursuant to previous agreements, with conditions. Ad retention requirement for attorneys added from old 7.05 since it was being deleted.

7.25 -- Identification of advertisements Deleted.

7.40 same Communication

of fields of practice

Section numbers were shifted. Amendments deleted the restriction on use of any form of the words "certified," "specialist," "expert," or "authority." A restriction now applies to use of "certified as a specialist" language.

7.50 same Firm names and letterheads No substantive changes.

7.60 same KBA Disaster Response Plan

No substantive changes. Section numbers/letter were shifted.

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