Saturday, July 25, 2009

Does affiliate email marketing constitute individual solicitation?

EMAIL is a very powerful force in direct marketing. Companies like eHarmony and secure 40-60% of their sales from this media alone. What about using email for law firms?


We've seen the mass tort emails despite our spam filters for every mass tort case from Avandia to Mesothelioma. In fact, just days after the recall of Hydroxycut, these advertisements are able to deliver hundreds of semi-qualified leads to participating client firms. The real impact of web marketing of this nature is the ability to PUSH demand as well as gather individuals who were already looking into a subject. But, for a national firm, should third party advertisements be considered 'legal solicitation'?

When done right, LawyerProfit believes Affiliate Email Marketing is legal and defensible because it does not use individually identifiable solicitation.

We're not an attorney; but as a media broker to national law firms, we do take lawyer profit very seriously --especially when evaluating digital marketing and advertising.

The first rule of thumb: No marketing is profitable -or even worth testing - if the attorney client has to pull their advertising for ethical reasons or face a bar complaint.

Recently, we were asked by a very visible national lawyer: Does Affiliate Email Constitute Individual Solicitation?

First, we have to define what is Affiliate Email marketing. Wikipedia says the following about Affiliate Marketing:

  • Affiliate Marketing is an Internet-based marketing practice in which a business rewards one or more affiliates for each visitor or customer brought about by the affiliate's marketing efforts. It is an application of crowdsourcing.

Real affiliate email marketing is akin to buying a lead from an advertising agency activity or a web site visit from Google. It should never be thought of as a legal referral. In our mind, what Affiliate Email marketing is also not, is a lawyer or law firm sending an email directly to a potential client. You may note for example that the privacy policy for The Law Offices of James Sokolove contains the following disclaimer:

User information may (sic):
  • "be incorporated into our database for mailings or other purposes
  • * otherwise be provided to our affiliates, business partners, or others who work for us such as service providers, vendors, contractors and agents, and/or to other unaffiliated third parties, for marketing or other business purposes"
To be clear, we don't feel a law firm should do affiliate marketing on their own. To be CANN-SPAM compliant, the advertiser must mention their name and address and manage unsubscribe requests directly. By the very nature of this process, a law firm would be identifying an individual and an email address when offering their services directly. This would in our opinion, be considered individual solicitation.

Instead, true Affiliate Email Advertising sets up a blind transaction with opt-in consumer leads being generated from individually UNidentifiable solicitation.

In example, companies that offer email marketing, create a massive affiliate relationship across hundreds of email publishers. These publishers might send emails to consumers whom have signed up (and opted-in) to receive information on health, aging, legal, or lifestyle activities. Combined, these email affiliates might send out 1 billion emails for a hot topic that generates interaction with consumers. (At any time the consumer can opt-out from future solicitations) A good email marketer does not control whom these emails are sent to individually, but does limit the number and type of email publishers to insure spam compliance and a zero tolerance for customer complaints.

Much like television, radio and newspaper advertising, an email marketer cannot solicit individuals, but rather manages crowd control with data filters. They sift through the general audience.

So, even if you received an email about Avandia and you indeed felt you or a loved one were harmed by this drug, you'd still have answer ten qualifying questions before requesting a contact from an attorney.

How This Works for National Law Firms
Law firms like the nature of paying per lead and many mass tort campaigns are available on a "pay only for a qualified lead" basis. This way you stop paying for advertising and instead, pay for each lead that meets minimum quality criteria. Prices range from a low of $35 to a high of $200 or more. Conversion from affiliate email leads hover around .05% for a complicated medical lead or a high of 8% for a product recall or class action lead. Using gadlinium as an example might require 200 leads to provide a single valid case with a resulting marketing cost north of $8,000 to $11,000. Small concern when the average

Email also does not convert as well as TV leads. The example above compares to a typical conversion from national TV that ranging from 6% to a high of 20%. Leads cost more on TV and generally involve costs associated with an outside call center. Some firms, prefer this quality over cost--even when TV or Email leads are available on a per inquiry, CPL or pay-for-performance basis. Lastly, TV has a greater opportunity to generate brand awareness as many firms feel far more comfortable being featured on TV than ever being listed in an email.

How Quality is Enforced:
WITH AFFILIATE EMAIL MARKETING Respondents from the general audience have to answers questions including: when you took a drug/product, whether you had medical diagnosis, whether you have current legal representation or even the level of disability or disfigurement the drug/product caused. Even then; your address, phone and email would be analyzed by an email marketer to eliminate potential fraud or inappropriate attorney referral. In some programs, as much as 70% of all submitted consumer data is rejected for poor quality.

If you're a national law firm or co-counsel group that would like to cut your marketing costs and dominate a particular mass tort or personal injury category, consider Last Second Media's LawyerProfit program. We can share how affiliate email marketing program can create exciting new opportunities for plaintiff lawyers.

“Our firm has delivered thousands of new tort-liability leads for legal firms as a comprehensive service package,” reports Frank Pournelle, President and Founder of LSM.

Since 2001, Frank Pournelle has used direct-response media to help attorneys nationwide secure thousands of new clients in headline-making suits involving Mesothelioma, Vioxx and Celebrex, and heart defibrillator and hernia patch cases.

Using a unique yield-analysis program called Broadcast Return on Investment (BROI), LawyerProfit has had tremendous success with per-inquiry media programs where client firms pay only when customers respond to advertising. With the combination of both offline media and online web/email media, LawyerProfits drives qualified response for clients.

Last Second Media and LawyerProfit have connected law firms with liability cases involving heart valves, dialysis machines, breast implants, consumer electronics, and tobacco and food-product suits.

The proven operational success of will target, attract, qualify, and process candidates so that clients can concentrate on their practice with no additional staff or learning curve.

To date, LSM has secured an estimated $100 million in legal settlements for attorneys and their clients: contact us at 1-800-334-4500, or visit us at LawyerProfit,,, or


1 comment:

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