Although legal marketers occasionally work with sensitive materials, law firms have done little to protect marketing schemes and strategies when it comes to chief marketing officers and staffers jumping ship, according to several marketers.
That could be because the industry remains small and the majority of marketing is either very general, or so specific to a particular firm it is not transferable when the officer leaves, those marketers said. However, some in the industry advise that, when developing particular strategies, it is always best to ensure that the confidential information is protected.
Recently, workers’ compensation firm Pond Lehocky Stern Giordano filed suit against a former Internet marketing director. According to the firm’s complaint in the case, attorney Alexander Sioutis had been hired to work in the firm’s Social Security and disability practice, first in an administrative capacity until he passed the bar in 2011. Sioutis was then promoted in January 2014 as director of Internet marketing.
The firm contended that it had developed a “novel, unique and innovative” marketing strategy, and that Sioutis helped implement the strategy by assisting in designing and implementing the website and social media presence, the complaint said.
While working at Pond Lehocky, Sioutis formed his own company, and created websites similar to those used by Pond Lehocky to go after the same clients, according to the complaint. Sioutis resigned a few months later, advising the firm that he was going to work for a marketing company focused on automobile parts and accessories, the complaint said.
According to the complaint, the firm took steps to protect the marketing scheme, including allowing fewer than 10 people to know of the strategy, coding the information related to the strategy and advising that the strategy was confidential. The complaint also said Sioutis signed an employment agreement, and that, upon announcing his departure, a partner specifically asked Sioutis if he planned to work in the Social Security and disability benefit arena. Sioutis said he did not, according to the complaint.
The firm alleged misappropriation of trade secrets and breach of contract, contending that it spent “hundreds of thousands of dollars per year” in connection with the strategy.
Sioutis’ preliminary objections contend that the claims in the complaint are inadequate, and further argue that Sioutis’ employment contract lacked both a nondisclosure and a noncompete agreement.
Calls to both sides in the case, which has reached the preliminary objections stage, were not immediately returned.
Stacy West Clark of Stacy Clark Marketing said protecting strategies should be a concern for any firms working on high-end marketing strategies targeted at a particular client or group of potential clients. She said she would suggest using nondisclosure agreements when developing and implementing sensitive strategies for anyone, from CMOs to staffers, who is privy to client and confidential information.
“Many of the largest firms have people on staff doing huge amounts of research on marketing trends,” Clark said. “Anything that involves planning to grow a business or to increase market shares and profitability should be kept confidential.”
According to Clark, even disclosing what areas a firm is researching should be kept secret.
Employment lawyer Michael Homans of Flaster Greenberg said confidential information should be protected through restrictive covenants. Noncompete agreements, he said, could also be utilized to help ensure marketing employees do not jump to a firm that is in direct competition. Unlike lawyers, who are generally not subject to noncompete agreements, the agreements could be enforced against marketers, Homans said.
Intellectual property attorney Martin G. Belisario of Panitch Schwarze Belisario & Nadel said he is unaware of firms taking action to protect marketing work from an intellectual property standpoint.
Intellectual property protections could be more important for firms that have developed special software, or rely on targeted Internet-based marketing, Belisario said. But for the most part, the work marketing officers do is based on developing their processes, which aren’t typically subject to intellectual property protection, Belisario said.
Homans also said he has seen little litigation in this area.
“I think marketing for law firms is so tailored to the unique practice areas, the individual firm, and that branding of each firm, it would be hard for marketing directors to jump from one to another and use insights from one marketing scheme with another firm,” Homans said.
Several marketers who spoke with The Legal echoed this sentiment, and said that, in general, there is little need to keep most of the work confidential.
Clark said firms do not need to be concerned about marketing work such as how to send news alerts, how to write newsletters, or how to set up or draw an audience for blogs.
“It shouldn’t be a concern for those working on things that are very public,” Clark said.
There is a lot of camaraderie in the marketing industry, and marketers are very open about what processes are working best for them, according to Clark and several other marketers.
“We’re all doing the same things to communicate our success, our brand,” said Lisa Calvo Haas, CMO for Cozen O’Connor. “One of the things I love about bringing new people into our department is I love hearing what other firms are doing across the country.”
Marketers agreed that legal marketing remains a relatively small industry in Pennsylvania, and one with a lot of turnover. According to Haas and others, it is this intertwined nature of the industry that keeps marketers from wanting to spill sensitive information.
“The legal marketing community is a small community, with a lot of movement, so people are not likely to be sharing trade secrets because it could be harmful to their reputations,” Haas said.