I’ll be doing two full 4-hour versions of my Fuel The Spark: 5 Guiding Values for Success in Law & Life CLE Ethics Programs in the next few weeks.

A couple things previous attendees have said:

“A Massage for Your Career.”

- ABA Annual Meeting Program Participant.

“The Best CLE Program I’ve Attended in 27 Years.”

- Program Attendee, Reno NV

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If you’re in Northern Colorado, attend:

Friday, December 17^th, 2010

8:30am-1:00pm

General Credits: 4.0

Ethics Credits: 3.5

Jury Assembly Room, Larimer County Court House

$60 in Advance. $75 at the Door.  All proceeds go to the Larimer County Bar Association Young Lawyers Division.

(Compare to $199 CoBar Home Study CLE Program)

REGISTRATION:

Young Lawyers Division, Larimer County Bar Association

c/o Josh Dart, Esq.

19 Old Town Square, Ste. 238

Fort Collins, CO 80524

For more info:

email: josh@dartlegal.com

phone: (970) 407-0090

NOTE: The Jury Assembly Room only has space for 50 people, so you’ll want to reserve your seat early. Tickets will go fast.

If you can’t attend in person, you can join online via a Webinar hosted by my friend Kendra Brodin and her Women Lawyers Online group.

Dates: December 8th & 9th @ 3:00-4:30PM EASTERN

Location: Online

Fee: TBD

Credits: (3-4 General & Ethics – will have final details soon)

Registration Information: kendra@kendrabrodin.com

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All Participants will receive:

1. 1. A copy of Kevin Houchin’s most popular book: Fuel the Spark, 5 Guiding Values for Success in Law and Life.
2. 2. 40-Page Fuel the Spark Action Guide to help you integrate the content into your practice and life.

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Program Description:

Sometimes we all need to look at things from a different perspective. This applies to both our personal and professional lives and how they blend into a successful and fulfilling legal career. Join Kevin Houchin for this nationally recognized Ethics program devoted to finding a more balanced perspective on the rules of professional responsibility and how we can put the rules into an easy system for finding more success in our practice and our lives. This intensive interactive workshop could be the best 3 hours you’ll invest in yourself this year.

Topics

The most profound choice any of us make is either to accept things the way they exist, or to accept our personal responsibility to change them.

PR Rules:

1.2: Scope of Representation

1.7 & 1.8: Conflict of Interest

1.13 Organization as Client

1.18 Duties to Prospective Client

Many successful people have found the simplest rule to success in anything is to “show up.” However, deciding where to show up and how to manage yourself when you get there can be a challenge.

PR Rules:

1.4: Communication

7.1: Communication Concerning a Lawyer’s Services

7.2: Advertising

7.3: Direct Contact with Prospective Clients

7.4: Communication of Fields of Practice

One of the hardest things to do in legal practice and in life is to truly pay attention. We get pulled in so many directions, so how can be do a better job of staying in the moment and how does that help our clients and colleagues?

PR Rules:

2.1: Advisor

5.x: Series

It’s easy to get bored and it happens to us all, so how can we avoid boredom and stay sharp? The answer is to keep multiple irons in the fire at once, paying attention to each in turn.

PR Rules:

1.1: Competence

1.3: Diligence

True fulfillment in legal practice and in life comes when you take the time to give back. Stewardship is the combination of giving ones time, talent, or treasure. This portion of the program helps define how you’ll make your greatest contribution.

PR Rules:

6.1: Voluntary Pro Bono Publico Service

6.2: Accepting Appointments

Faculty

Kevin E. Houchin is a different kind of lawyer. First, he has a fine art degree in graphic design and a dozen years of brand development and small business consulting before going back to law school. He uses both his marketing and legal skills every day in his efforts to help creative people reach their potential.

Kevin counsels creative people about how to maximize their creativity, build their businesses, and protect their intellectual property. Discussions tend to turn toward relationships and creative collaboration often, so sometimes Kevin plays the role of business and life coach in addition to attorney and marketing consultant. He truly enjoys the role of trusted advisor to his clients.

Kevin is the author of the book Fuel the Spark: 5 Guiding Values for Success in Law School and Beyond (March 2009). He is also the author of the forthcoming book The Secrets of Creative Business. He contributed a chapter on the legal issues of social media in the best-selling book Twitter Power, and is featured in KaChing, both by Joel Comm, published by Wiley Brothers Publishing.

Kevin is expert at helping people reach their creative potential, whether as an entrepreneur or as an attorney. He is the Founder of The Space Between Center for Creative Spirit in Business – an organization to helping entrepreneurs including attorneys align who they are with what they do. In addition to working with clients, Kevin writes a regular column for the leading business journal in Northern Colorado, blogs regularly at his several sites, and enjoys one of the top legal followings on Twitter.com. He speaks regularly for creative entrepreneurial business, continuing legal education, and law school audiences throughout the United States.

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I receive a lot of email with offers for all kinds of different programs. I’m sure you do too. It can be a bit overwhelming for sure – especially when you also have client work, family, and community projects that need your attention.

Yesterday morning there were 3 new urgent client matters to deal with and an urgent matter for one of the community organizations I’m serving – all popping out of the blue. You’ve been there; you know what it’s like to be a solo or small firm attorney.

With all you have going on, why add more to your plate? Because adding the right thing at the right time can actually make your life less complex. I know it’s a paradox, but it’s true. The challenge is knowing when and what to change.

Hopefully, I can help. I’d like to make at least a part of your life easier.

We’ve all faced the fear of not knowing where the money to pay the bills would come from next month, let alone 6 months from now. Most of us don’t even want to think about 6 months from now, and if we do, we know in our hearts that any planning we’re doing is really just a fantasy.

That’s where being a member of The Space Between Center lawyer mastermind programs can help. One of the first things we do is help you free yourself from the trap of hourly billing and implement some flat fee models (customized to your practice, not mine) that will give you some benchmarks for REAL planning.

Does it work?

Here’s an email I received late last week from one of the founding members of The Space Between Center lawyer mastermind.  Remember this is after less than two months in the SBC program:

“I wanted to share with you that I landed one of the prospective membership clients considering my program (the other is just having me do a TM registration on a project basis for now) – his reaction was ‘I think that you have a great formula with the different tiers of service. Frankly, I wish we had met earlier so I could take more advantage of it…’- <- he is a very early stage start-up.

Once I showed the new membership client the math for the services they were looking for over the next year they signed up – at the $1500/month level!

Not only has this one client more than covered the cost of the Space Between Center program for me, but having knowledge of that recurring cash flow over the next year is already freeing me to focus on creatively growing my firm.”

Brian Fletcher, Esq.

The Fletcher Law Firm PLLC

Alexandria, Virginia USA

Founding Member, Space Between Center lawyer mastermind

Does it work?

Yes.

How good would it feel to know you had at least $1,500/month on the books through this time next year? How about $3,000, $5,000, $7,500?  How much better would your life be if you could look at contracted revenue of $10,000/month for the next few months?

That’s just one example and we’re too early in the program to have generally expected performance results to share, but it’s a great indicator of the results you COULD get if you become a member of our program and actually implement the approaches we’re discussing.

It’s about sharing.

It’s about experimenting.

It’s about moving through your fears and into the excitement & success that self-employment can offer.

It’s about being creative and taking control of your life and future rather than trying to fit your future into the model that some lawyer started using in England centuries ago. We’ve all been trapped by that guy. I’d like to throw some rocks at him. His billable hour model has caused unconscionable damage to lawyers and their clients over the centuries.

It’s time to get out of his trap.

• Are you ready to take a few simple steps to get control of your life?

• Are you ready to take a few simple steps to reach the potential you know you have inside?

• Are you ready to share your knowledge and experience with like-minded business, estate planning, and collaborative family lawyers who would like to share with you?

• Would you like some real support and guidance in building a legal services business and go beyond just “practicing?”

If you’re ready to get control of your life, then join us this Wednesday at 2pm for a free informational call about The Space Between Center’s lawyer mastermind programs.

We have openings in our small business mastermind group, and we’re introducing two new tracks:

• A track for estate planning attorneys led by estate planning attorney Candice Aiston; and
• A track for collaborative/family law attorneys co-lead by Michael Sherman and Steve Worrall.

Join us for the call.

The easy steps we’re talking about literally changed my life and took me from the depths of bankruptcy, fear, and anxiety to a place where I could plan, grow, succeed, and enjoy my profession. It can do the same for you.

Again, the call is this Wednesday, May 19^th at 2pm Eastern.

You’ll be able to learn what we’re doing in the programs, meet the leaders of the different tracks, and ask some questions to make sure the program is a fit for you.

Sincerely,

Kevin E. Houchin, Esq.

Founder, The Space Between Center for Creative Spirit in Business.

P.S.  These programs are NOT for everyone.  If you’re satisfied in the billable hour model or if you have no intention of taking action to make the changes that will improve your life, then this program is not for you. If you’re ready engage with a mastermind group, share, implement, and receive, then you owe it to yourself to find out more.

Oh, and feel free to forward this post to other small practice attorneys that you would like to help succeed.

As many of you know I’m a big fan of social media, especially Twitter.com (@kevinhouchin) and Facebook (Kevin E. Houchin). I recently posted the following and received a couple responses that motivated me to start writing.

The question about HOW to recognize purpose is a question that a lot of people have. While I don’t profess to have THE answer, I think I have AN answer–one that I’ve shared in my Fuel the Spark books, in my workshops, seminars, and keynotes, and will definitely share again in my next book: The Secrets of Creative Business. But I don’t want you to have to wait or have to pay for this, because sharing this information is at the heart of MY purpose on the planet.

First, and this is VERY important, understand that you are not searching for your purpose, instead, the goal is to recognize your purpose. Searching for your purpose will lead you to failure every time, because by searching, you are looking outside yourself to find something that’s already inside you. If you search outside yourself, you’ll be fooled into accepting what other people think your purpose should be as what your purpose really is.

Second, know that you probably have more than one purpose, or at least more than one way to manifest that purpose in the world. Properly stated, your purpose will never be “completed” but you will always be in the process of fulfilling the purpose without “failure.”  Many times, if you feel that you have more than one purpose, each purpose you state will be related in some form to a higher purpose that you have not yet recognized and articulated. I’ll give you an example and then we’ll move on to why recognizing your purpose has become so difficult.

I created my purpose statement using the tools and structure from the book Inspire: What Great Leaders Do by Lance Secretan. (No, I don’t have an affiliate relationship with Lance.) This is one of my favorite books ever and one I think everyone should read.  My kids will be required to read this as soon as I think they can understand what’s being discussed and I’ll probably read it out loud to them well before they can read it on their own. Lance breaks purpose down into three statements: Destiny, Cause, and Calling.  Here are mine:

1. Destiny: To reach my full potential in this lifetime by helping as many other people as I can reach their full potential in this lifetime.
2. Cause: Every person on Earth recognizes their personal spark of divinity and begins to share their flame.
3. Calling: Writing and speaking around the world to share the recognition of the personal divine spark and give people the tools they need to be accountable and share their spark.

This essay is a step toward fulfilling my purpose on the planet. My law practice, where I help people find ways to make their living through creative business (sharing their spark of divinity) is another. My books and speaking events are a literal calling to help people understand these concepts and then have the tools to act on what they’ve recognized in themselves. In a quite moment last night I literally heard my little voice say I needed to write this essay for my friends Terri and Marla who commented on Facebook, and share the essay with the world via my blog. I know my purpose. Now let’s get back to recognizing yours.

Understand that it’s not your fault if you can’t articulate your purpose yet, because it’s not something we’re taught in Western culture. In fact, our entire culture seems to be structured around obscuring your purpose or providing you with all kinds of false paths. This isn’t done intentionally. Most of the people providing these false paths to nowhere do it out of love and pure intention, but as we’ve discussed, anything coming from outside yourself is going to be a false path. Most of the time, these folks who are trying to help you find your purpose really have no sense of their own which means this isn’t really their fault either.

Your parents provided purpose in your life. They sent you to school, they taught by example, they taught by providing positive and negative feedback for your actions. Many of us discuss what we want to be when we grow up with our parents and sometimes our parents do far too much to drive that decision down a path that THEY define as “success” or “security” out of love for you and sometimes out of a desire to reach some unrecognized or unfulfilled purpose of their own.

If you were lucky enough to have some great teachers in your life, they probably exhibited some examples of purpose for you. How many people wanted to grow to be like one of their teachers or coaches? While at school, you find friends and those friends help shape your dreams, goals, and definitions of success – for better or worse. After school, you go to work and the culture of the job or company shapes your purpose.

The religion of your parents, friends, and nation also shapes your definition of life purpose, usually with a moral undertone, but again as an influence from outside. How many times has religion been used as a tool to bend people’s purposes from what is inside them to what is willed from behind the pulpit. No religion is exempt from these examples and I believe that most of the time the outside influence is delivered with the purest of intentions. But none of these influences will guide you to your true life purpose, because your purpose can’t be FOUND because it’s not LOST.  It’s inside you right now. All you need to do is recognize, accept, and surrender.

I’m about to share with you the most powerful (yet simple) tool and process for recognizing your life’s purpose that I’ve found, and I’ve been working on this for YEARS. But first you have to be in a state to use the tool. This process can be used in your personal life, your career, or even at a business planning level. To make it work, you have to be able to get quiet.

Western culture doesn’t like people to be quiet. We’re bombarded with stuff every second. I do workshops and ask the attendees to just sit quietly and look at a dot on the wall for just one minute. To a person all of them think it’s the longest 60 seconds they’ve ever spent. We are taught to multi-task. We are taught to be on the go all the time. We are not taught to just be. We are not taught how to find the space between thoughts, but it’s in the space between that we find the place where God, the Universe, Spirit, Zero Point Field, or whatever you call the higher power can speak to us in a language we understand. It’s there right now trying to help you recognize your purpose. The tool I’m about to share can help you find the space between thoughts and get quiet enough to recognize why you’re on the planet. Nobody can do this for you.

This process is not about searching, but it does involve some work, focus and commitment. It’s not hard, and if done right is actually fun, fulfilling, instantly and permanently rewarding.  Are you ready to start?

Good.

It starts with this quote from an incredible book called The Universal Traveler:

The most profound choice in life is either to accept things as they exist or to accept the personal responsibility for changing them.

What does that quote have to do with life purpose? EVERYTHING.

Your life purpose is simply the thing you accept personal responsibility to change.

It really is that simple, because when you’ve truly accepted the personal responsibility to change something in the world, your path unfolds with opportunities for inspired action and your life will never be the same. Everything you do will be moving you toward the goal of fulfilling the responsibility you have accepted and if something doesn’t move you toward that change you either won’t do it for long or you won’t do it at all.

The work is figuring out where you TRULY and DEEPLY ACCEPT the PERSONAL RESPONSIBILITY to CHANGE something.

There are plenty of problems in the world that need solved. There are plenty of things that need changed. What are you going to accept as your problem or problems to solve?

What can you NOT live with as it exists?

I can’t live with people going through life in ignorance of the spark of divinity that lives inside them. I can’t stomach people living lives of quiet desperation working in a cubical at a job they hate waiting to have fun only on the weekends because they don’t know how to start their own businesses doing what they love. So, I became a Creative Business Lawyer, started this blog, and have been writing in an effort to change that situation.

I can’t stand how law school takes our brightest, most idealistic young people and beats the creativity and idealism out of them, redefining the definition of success into a trap of top 10% and six-figure salaries doing work they hate and feeding a lifestyle of internal and external conflict. So, I try to help change law schools through helping law school administrators better define their branding, and wrote a book to help law students stay balanced in the face of this 3-year+ hazing ritual. Finally, I wrote a book to help practicing attorneys recognize the trap they may be in and find a way out in order to truly use their passion and skill to manifest their purpose in life.

What can YOU not live with as is?

When you answer that question in the sincerity of your heart and soul, you’ve taken the most profound step toward recognizing your purpose(s) in life because all you have to do is flip the statement around.

Your purpose in life is to change the thing(s) that you can’t live with as they exist.

It’s just that simple.  And that difficult.

When you’ve found the quiet place to do this work, it will come to you. You will recognize your purpose. You will be inspired to act in authenticity in every element of your being and every moment of every day.

I could expand on this quite a bit – and in fact, I will. IMPLEMENTING this work is at the core of my next book, The Secrets of Creative Business. When you know your purpose, it will be time to act and I believe at a soul-level that the best way to implement one’s purpose in life is through founding and building one’s own busines and aligning one’s VOCATION with one’s Purpose and AVOCATION.

Recognize your purpose. Accept the personal responsibility. Surrender to that path and you will find more power than you’ve ever imagined you could wield.

Recognize Your Spark.  Share Your flame.

I’ve been doing Webinars, Blogtalkradio shows, phone interviews, magazine interviews (no TV appearances yet, but amazingly the national TV media doesn’t seem to be paying much attention to this yet…). I am also a co-creator of the new FTC Toolkit and Site Compliant program and expect to see you using the new Site Compliant Trust Seal right away.  Here’s mine:

One question has been coming up over and over – especially for bloggers.

Do I have to put a disclosure next to every affiliate link or can I do one blanket disclosure?

Based on the new rules and the interviews with FTC officials that I’ve been reading, I think you need to do BOTH. So, I set up this site as an example.

Here’s what you’ll find:

1. A Disclosure Page

Some things you’ll notice about this page:

• First, it makes the required disclosures of material connection with each organization or entity that pays me a commission for links.
• Second, it makes the statement that I intend to be compliant with the FTC rules.
• Third, it gives my contact information.
• Forth, it tells people how I’m going to disclose material connections on my site.
• Fifth, it turns the disclosure page into another marketing page by including examples of all the affiliate links!  (I think this is brilliant…, but it’s 3:49am on Thanksgiving for Pete’s sake.)
  

2. Affiliate disclosures next to every element that visitors might not think I have a material connection with.

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We’ll be posting this disclosure form to the membership area at www.sitecompliant.com for members to use as part of their membership. Yes, I know it’s short and easy enough that plenty of people are just going to steal this and use it without permission.  I can live with that if it helps a few people, but I also sincerely hope that most people will do the right thing (and find an incredible value) by going to www.sitecompliant.com, purchasing the FTC Toolkit and getting their 60-day free membership in the Site Compliant program and start using the trust seal on their site too.

YOU SHOULD BE PART OF SITE COMPLIANT starting NOW.

Is your site compliant?
Don’t risk it. Get The FTC Toolkit now! (I’m an affiliate and co-owner)

OH! And I hope you have a GREAT Thanksgiving, 2009. We all have a great deal to be thankful for.

I’ve been working on this day and night since the new rules were released on October 5^th. And, I’m not alone–I put together a full team of legal, editorial, marketing, and technical pros to bring this product and system together as quickly as possible, with the most thorough tools and systems as we could in time for people to implement our recommendations before the new FTC rules become effective 21 days from today on December 1, 2009.

This has really been a ride, and I hope it’s a ride that is just starting to gain speed.

It came together like this.

On Monday, October 5, 2009 – just 5 weeks ago, the FTC released the new rules. Joel sent me a quick email as he was getting on a plane to return from London after a speaking gig saying that when he got back into the office that Wednesday, he was going to have questions about how the rules were going to affect his information product business. On Tuesday the 6^th I downloaded and did a quick review on the rules. Joel and I had some brief conversations on Wednesday.  That night, the 7^th, I got home and felt something I can only describe as a “vibration.”

I was vibrating inside, kind of out of sync, excited and a bit off balance. I knew something was about to happen and as soon as I identified that my vibrating had something to do with the FTC rules (but not what yet), I knew I had to clear my schedule on Thursday the 8^th and really engage my full attention on the rules.

So, I cleared my schedule to the best of my ability on Thursday the 8^th, dug in, and wrote my initial blog post with analysis of the major issues that affect the businesses of my information entrepreneur clients. I sent the draft essay to a friend to proof-read before I posted it. The 8^th was my daughter’s 6^th birthday, so I knocked off work early to cook her favorite dinner (my famous garlic roast chicken and mashed potatoes). While cooking I came up with the idea to expand (greatly) on the essay and create a product with analysis, standard disclosures, forms, stock agreements, enforcement letters, etc to help every marketer understand the rules, bring their marketing into compliance, and remain compliant as enforcement actions by the FTC clarify the rules through real-life actions instead of the hypothetical examples included in the rules.

I emailed my friend Joel Rothman with the idea because I knew it was too big of a task to do on my own. Joel Rothman is a leading attorney in the area of nutritional supplements law (a major area/target of the FTC with these rules), and an intellectual property litigator. Rothman and I met and became friends when I needed back-up on the iFart v. Pull My Finger iPhone trademark litigation.  I knew he would be interested and be the perfect lawyer to bring into the team. Rothman and I scheduled a call for Monday the 12^th to discuss working together on the project.  I went back to cooking and had a great birthday celebration with the most incredible little girl on the planet.

The next morning the edited version of my essay came back and I posted it to my blog and shared it with Joel Comm to see what he thought.  My blog traffic was spiking to an all-time one-day high in unique visitors, then Joel asked if he could post it to his blog at www.joelcomm.com as a guest blogger.  Of course I said “YES” because Joel’s blog is one of the most-visited and most respected internet entrepreneurship blogs on the planet. Traffic spiked again.  I knew this was going to be something big because my body and spirit started vibrating again. I was already getting blogtalkradio.com guest requests.

Monday came. At about 2pm I had the conversation with Joel Rothman. He introduced me to Hugo Ottolenghi, a very experienced business journalist and editor. We decided to work together to put together the “FTC Toolkit” product. I decided to bring in another lawyer friend, Julie Yates, to help craft the standard disclosures, agreements, and policy documents. The legal authoring team was in place. I left the office to pick up my kids.

While I was running an errand with the kids on the way home my cell phone rang. It was Joel Comm, my internet marketing client. Joel said “this FTC thing is big, how about we do a paid conference call where you answer some questions for everyone?” I replied “how about I let you know Rothman and I are putting together an info-product on that topic.” Comm replied “you’re thinking big, how about we do a joint venture and run this though my team and go big.”  I said “sure” and we scheduled a meeting on Wednesday morning in Joel Comm’s office, with his marketing and technical team in the room and my legal writing team on the phone. (Rothman and Ottoleghi are in Florida.)

On the morning of Wednesday, October 14^th, the team met and the FTC Toolkit and the Site Compliant program and trust seal were born. Then we went to work. We knew we had to move fast, but be thorough. After all, there was a lot of analysis that needed to be done, and we had to have the product ready to launch well BEFORE the rules go into effect on December 1, 2009. We set what is normally considered a VERY aggressive launch date: November 10, 2009, with a pre-launch Webinar on November 9^th.

Now, the Webinar is only a few hours away and almost all the seats are spoken for. The days and weeks since that meeting on October 14^th have been intense with early mornings, late nights, and weekends of working on the project. (and trying to serve clients during the day too…).

Tonight the energetic vibration I felt on October 7^th manifests as the launch of the FTC Toolkit and the Site Compliant system. This project is motivated by an intention to serve as many people as we possibly can. I believe in helping small businesses (and large businesses) reach their potential. I think the creativity found in small business is divine. Helping businesses understand these FTC rules and stay out of trouble is an opportunity that came out of the blue, but I feel the idea was inspired, and so was the action, or else the team would not have been able to put such a comprehensive system together so quickly. Honestly, I hope a lot of people invest in the Toolkit and join the Site Compliant program, but even if they don’t, I’m still incredibly proud of the work we’ve done in the last few weeks and look forward to seeing how the next chapter of this adventure unfolds.

Later this week I get to travel to Reno, NV to present to Continuing Legal Education workshops at a bar association event. Thursday morning I lead a session based on my book Fuel the Spark: 5 Guiding Values for Success in Law and Life, and that afternoon I do a session on Social Media for Attorneys.

Big week.  Wish me luck.

I’ll be leading a Webinar with my friend, marketing partner on this project, client, and internet marketing Guru, Joel Comm next Monday, November 9^th at 6:00pm MOUNTAIN time. The Webinar is free, but space is limited. You can sign up HERE.

Again: sign up for the free Webniar Here.  Do it now.  Space will fill up quickly.

The new rules go into effect December 1, 2009.  Yes, in only a few weeks.  So are you ready?

Do you even know where to begin?

No?

I didn’t think so.

Well, don’t feel like the Lone Ranger. Most people don’t – and it’s not your fault because the new guidelines were just released a few weeks ago and they are subject to some different interpretations.

Joel and I will be discussing many of the implications of the new rules and introducing the project, product, and system that I’ve been working on almost non-stop ever since the new rules came out. Really, I’ve been dreaming about this stuff. Just ask my wife and friends – they’re sick of listening to me talk about this. Of course as a co-author of this product I’m hugely invested and probably a bit biased, but I’m convinced this is really going to help a lot of people quickly figure out what they need to do.

The product is a guide to the new rules we’re calling the FTC Toolkit. It is a thorough guide to the new rules including analysis, self-assessment checklists, sample disclosures, sample agreements, and sample policies. Incredible stuff here because I’ve not been working on this alone. I’ve assembled a team of lawyers, marketers, and communications professionals with over 75 years of combined experience in the relative material to develop the Toolkit.

We haven’t stopped there, because the FTC isn’t stopping there. These rules are going to evolve as the FTC starts enforcing the rules against people who don’t comply. So, people who purchase the FTC Toolkit will be able to join the Site Compliant(tm) program and receive ongoing updates to the Toolkit content and other timely information as the FTC begins enforcement.

And, we didn’t stop there. Members of the Site Compliant(tm) program will also be able to apply for and be able to use what we believe is the Internet’s first compliance “Trust Seal” that they will be able to proudly display on their site as a signal to consumers and to the FTC that they, as a member of the program, are taking a proactive and affirmative approach to being and remaining compliant.

This has taken a lot of work by a bunch of people over the last few weeks. If you were going to invest in this content from a lawyer on your own you would be need to budget at least $50,000 in legal fees, because my team has at least that much otherwise-billable time invested in this product.

Join us on the free Webinar to learn more. Again, that’s THIS MONDAY, November 9th at 6:00pm Mountain. Sign up HERE.

Remember to sign up NOW because space on the Webinar is limited.

… Then Vladeck (speaking of David Vladeck, Director of the Federal Trade Commission Bureau of Consumer Protection) turned to the new FTC Endorsement Guides.  Everyone held their breath.

Before I go further it is important to remember that Vladeck comes from a consumer protection background.   He led the Public Citizen Litigation Group for 20+ years.

On the endorsement guides Vladeck’s message was clear:

1. Disclaimers like “results not typical” are useless and will be attacked by FTC.

2. Advertisers who make claims “will be held responsible for their claims.”

3. If your promotion relies only on testimonials “you will have a problem with us.”

Vladeck described this area for the FTC as a “target rich enviornment” in which they intend to pursue violators using all the resources at their disposal.  And when the 1000+ enforcement personnel at the FTC run out, FTC plans to call on the state attorneys’ general.  When the AG’s are too busy, Vladeck says that they will do as the FDA does and publish warning letters on the internet in order to “bully companies into compliance.”

Despite the backpeddling FTC has done in the media recently, Vladeck made it clear that he will enforce Section 5 of the Federal Trade Commission Act and the endorsement guides.  It was as if Vladeck was drawing imaginary targets on foreheads around the room…

I spoke to several attorneys and CEOs at the reception that evening about the regulatory problem the enforcement guides present and everyone agreed that the problem is very serious.  One observed, candidly, that the problem was that “you never know what marketing is doing until it is too late.”

After all, lawyers and regulatory execs are considered “sales killers.”  We are never consulted by marketing in advance of a promotion for fear we will put the kibosh on the latest profitable social media marketing strategy.

So what’s next from the FTC?  Who knows.  After all, it’s a “target rich environment.”

For the full article. Visit Joel’s blog HERE.

Joel and I are working together on a new product and program to help companies of all sizes and in all niches become and remain compliant with the new rules. I should have more news about that to share with you on Thursday or Friday of this week.  If you are interested in helping promote this product, email me.

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Mr. Houchin:

I just wanted to thank you for writing such a necessary article in the YLD Newsletter. What you wrote resonated with me on a host of levels, and it arrived in my office at EXACTLY the moment I needed to hear someone outside of my own mind remind me of all the creativity that I have been trying to find time to cultivate and enjoy. The practice of law can feel all consuming. Conflict is a daily part of the practice. Nonetheless, the antidote is exactly the cultivation of the creative.

Just a note to say, your words were very necessary and came at exactly that right moment.

Thank you,

Tanisha M. Bailey-Roka, Esq.

Thanks Tanisha.  :-)

This is a fairly long post, and it doesn’t hit on all the issues, but it should give you  an overview of what you need to think about.

If you want a printer-friendly version (PDF) – CLICK HERE.

Feel free to share this with attribution.

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New Rules: Endorsements & Testimonials in Marketing

© 2009 Kevin E. Houchin, Esq.

“I made $250,000 in the first month using this product! You can too!”*

*Results not typical.

Those were the days–the days when a marketer could use an actual quote from a real person that has used your product as a marketing endorsement or testimonial to capture the aspirations of your potential customers. As of December 1, 2009, those days are gone.

Maybe that’s a good thing for many consumers, because some marketers have been slimy with their marketing efforts. However, it’s safe to say that most marketers are honest and sincerely offer products and services designed to help their clients feel better or make money. Both will definitely be affected by the new Guidelines released by the Federal Trade Commission (FTC) which take effect December 1^st.

Before going into details, it’s important to understand that the mission of the FTC is to protect consumers from fraudulent business practices. In the marketing context, you get in trouble if the FTC decides your advertisement is “deceptive.” That’s a noble goal, and a task that is becoming increasingly complex as marketing techniques evolve–especially on the internet. Realize too, that the processes required to change administrative and other governmental rules take so much time that it will be impossible for rules to keep up and address every specific scenario that creative marketers can implement. Accordingly, the FTC’s approach must be relatively vague in some situations – providing guidance, but not “how-to” instruction. Considering that the Guidelines Concerning the Use of Endorsements and Testimonials in Advertising had not been updated since 1980, it’s about time there was a review.

The review process began back in January 2007 when the FTC published a notice seeking input on the Guides. Many national marketing and advertising associations responded with formal comments, which were reviewed by the commission. In November 2008, the FTC published proposed revisions for the Guides and requested comments on the proposal, again receiving formal feedback from major Advertising and Marketing associations. On October 5, 2009, the FTC has published the final Guideline revisions that become effective in December.

There are 16 new rule sections and 36 hypothetical examples illustrating the application of the rules.  I’m not going to discuss everything, but I’ll hit some of the new rules that I think will affect the most people–the rules dealing with “Generally Expected Performance” and disclosure of connection between advertisers and sponsored testimonials and endorsements.

OVERVIEW

The Guides represent administrative interpretations concerning the application of Section 5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and testimonials in advertising. The goal is to keep marketers honest, which might seem like an easy task – how about “tell the truth, the whole truth, and nothing but the truth” – but it’s not that easy because we all have different ideas of what constitutes the whole truth in various situations, and in some marketing situations, it’s literally impossible to know the whole truth or which truth to communicate when more than one truth is possible.

What? More than one “truth”? Impossible!

NEW ISSUE #1: “Generally Expected Performance”

Let me tell you a story. Say you offer a product that helps people develop a marketing strategy for the internet. One person vigorously applies the system to a great product, makes $250,000 in the first month, and sends you a testimonial praising your genius. That’s the truth – for that person. Another person buys your product, and does a half-hearted implementation on a lame product idea and makes $250. That’s the truth too, but this person doesn’t bother to tell you the results or share their implementation strategy. As a marketer, what do you communicate to potential customers?

Under the old rules, you could happily post the wonderful testimonial from the wildly successful (but true) customer and capture the aspirations of your potential customers. All you had to do was post a clear and conspicuous disclaimer saying that the successful customer’s results were not typical. This “results not typical” “safe harbor” is being removed.

New Rule: the Guides require clear and conspicuous disclosure of the generally expected performance whenever the testimonial is not generally representative of what consumers can expect. Here’s the text of one of the revised Guidelines that will present some new challenges to marketers.

255.2 Consumer endorsements.

(b) An advertisement containing an endorsement relating the experience of one or more consumers on a central or key attribute of the product or service will likely be interpreted as representing the endorser’s experience is representative of what consumers will generally achieve with the advertised product or service in actual, albeit variable, conditions of use. Therefore, an advertiser should possess and rely upon adequate substantiation for this representation. If the advertiser does not have substantiation that the endorser’s experience is representative of what consumers will generally achieve, the advertisement should clearly and conspicuously disclose the generally expected performance in the depicted circumstances, and the advertiser must possess and rely on adequate substantiation for that representation.

(emphasis added)

Uh-oh.

In the example above, you know that your best TRUE, HONEST, and documented testimonial from the guy who made $250K in the first month is not anywhere near typical. That’s what makes it so great. Typical results don’t SELL.

Additionally, you have no idea what really IS typical. Your product may have just been released and not many people even HAVE results yet, much less results they’ve shared with you.  And, you know that some people are better at implementing your product than others. Now what are you going to do?

You can’t just use the “results not typical” disclaimer. That’s been expressly ruled out. And, the FTC says that if you use the quote without anything else, it will be interpreted as a statement of what’s typical. You can’t go there. Finally, it says that if you use one of these atypical (aspirational) testimonials you have to “clearly and conspicuously disclose the generally expected performance in the depicted circumstances” and that you “MUST (emphasis added) possess and rely on adequate substantiation” for whatever you disclose as “generally expected.” This goes beyond just telling the truth to being transparent in your advertising.

Trouble. (Unless you sell market research services. These rules just might buy a few boats for the owners of market research companies.)

Now you have only a few options.

1. Don’t use the great testimonial.
2. Figure out what the “Generally Expected Performance” actually is through investing in market research after the sale.
3. Risk it.

Very few marketers worth their salt are going to let such a great testimonial go unused without a fight – it’s just too good.  So, let’s face the fact that there are really only two realistic options – market research, and risking it.

Market research costs money. Sometimes a lot of money, and I’ll bet prices for this kind of work are going to increase greatly in the near term as everyone rushes out to get the data to back up the claims of “Generally Expected Performance.” Market research can also take a lot of time initially, slowing your product development cycles. Finally, if you’re going to do this, it’ll need to be an on-going system so you can keep your performance data up-to-date. Pricey, but if you want to stay clear of the guidelines you’re going to have to make the investment.

Many people simply won’t be able to afford the cost of the research to back up the claims of generally expected performance, which will have a major chilling effect on new product and service offerings – or at least a major shift toward fewer aspirational testimonials in advertising. Personally, I think this is a bad thing for everyone because we all want to be the HONEST aspirational example and most people understand that there are a lot of variables that go into success. Setting the goal at a dumbed-down level of expected performance is not good for anyone because people need high aspirational goals to achieve high successes.

So, back to what to do if you really can’t even measure a generally expected performance metric. In our example, the product is a system for helping customers implement an online strategy. It’s going to be tough to figure out the metric to share as generally expected. Is it $/month, % increase in business, or something completely different? The Guidelines do not specify, but they do give several examples, but most rely on quantitative data, not qualitative. If you can’t afford to get the data, then you only have the options of not using the testimonial, or risking it.

So, what’s at risk?

I’m a lawyer, so I’ll never tell anyone to do anything other than do everything they can to be in full compliance with applicable law. With that said, if the FTC decides to prosecute you for deceptive advertising, you could be fined, and those fines could be hefty, but they’re not going to come without warning. First, according to Richard Cleland, assistant director, division of advertising practices at the FTC, the FTC will generally contact you and give you a chance to stop using the ad in question or bring the ad into compliance before initiating stronger actions. (See: http://tinyurl.com/ydjfabb) Consider that a warning track. Then if you continue use, you could find yourself on the receiving end of FTC litigation and possible fines for thousands of dollars.

What should you do?

First, if you CAN get the research done – do so. That research should only make your product claims more credible, and having the research will allow you to use truthful, although not generally expected, testimonials for your product safely.

Second, if you CAN’T get the research done or the variables are just too diverse to get credible numbers (talk to your market research guru about that), then you might still want to use that ad, but do a very comprehensive explanation to potential clients that the testimonial you used is only one example of someone who implemented the program in a specific way. You can’t stop there though, because that’s just the same as “results not typical” – it seems like you would have to go a lot further and give some discussion about those variables and really let people know that their results are going to be dependent on how THEY use the product.

If done correctly, I think the explanation of generally expected performance, or why there really isn’t a generally expected performance could be an incredible sales tool, and it could give you a chance to share your product guarantee and refund policy information. After all, if your goal is to help people through your products, you want to help them succeed.

In the example of the online-business advice product, the maker of the product could use the testimonial of the guy who made $250K in the first month as a spring-board to the discussion of what really made this work for him, then give an example of someone else where the product didn’t work as well (with the less-successful person’s permission of course) and detail what the unsuccessful person might have done to see better results, turning the table on the buyer and saying none of these results are typical, there are no generally expected performance metrics because every user of this product is in a completely different environment, and that the sky is the limit on the success any particular buyer of the product might see. Then go on to solicit case studies so that the advertiser can build an understanding of the results people are seeing in order to give people an even better idea of how the product is implemented successfully.

The FTC has made it very clear that each situation is evaluated on a case-by-case situation in the context of deceptive advertising. While it’s understandable that people do not trust a governmental agency to be reasonable in their interpretations, having a logically defensible position of disclosure and transparency in an attempt to follow the guidelines as closely as possible in a given situation makes sense.

That’s not all folks.  The revised Guidelines don’t stop there.

In addition to the issues around generally expected performance disclosure requirements, the new Guidelines also require people who are “sponsored” by the marketer and are endorsing the marketer’s products (consumers, experts, bloggers, celebrities) to disclose the nature of the relationship. Again, transparency becomes the key.

New Rule: You have to be transparent about your relationship with people providing endorsements or testimonials.

255.1 Consumer endorsements.

(d) Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers also may be liable for statements made in the course of their endorsements.

(emphasis added)

Uh-oh, again.

This rule is going to have a major impact on the affiliate marketing industry, because now, if you have affiliates, they could subject you to liability if THEY don’t follow the rules.  And if you ARE an affiliate, expert, or other person defined as being a “sponsored” endorsement or testimonial, you could face liability if you do not disclose the nature of your sponsored relationship, or if you say something deceptive in your endorsement, review, or testimonial.

Again, transparency is the key, and many people in the affiliate marketing industry are going to find transparency uncomfortable, because coming clean to the fact that you’ve been getting paid to say all those good things for the past few years on your blog might hurt the credibility you’ve been trying to build along the way. So, what do you do?

Marketers

As a marketer working with affiliates you need to take some steps. First, you need to communicate with all your existing affiliates that you expect them to be in full compliance with the new FTC Rules. They should also be informed that you reserve the right to drop them as an affiliate and/or withhold payment if you feel, at your complete discretion, that they are NOT in compliance with the new rules. These requirements should be spelled out in a new affiliate marketing agreement which includes having the affiliate indemnify you as the marketer if something they do or say results in any FTC or other legal action.

It would also be a good idea for you to have every affiliate complete an application (which someone on your staff actually reviews) letting you know you’re dealing with the type of people you want to deal with, because having some vetting process in place may give you a better case to avoid FTC liability if one of your affiliates goes rogue and exposes you to liability. You have to account for the fact that if you end up getting fined by the FTC as the Advertiser because of something an affiliate did on their own, it’s probably because the FTC has realized they’ll never be able to collect the fine from the affiliate. And, even with the indemnity clause, if they don’t have the money, you can’t get it. So, do everything you can to show the FTC that you are a conscientious marketer doing everything you can possibly do to stay within the guidelines.

Oh, and don’t worry that you’ll be the Lone Ranger asking your affiliates to sign new affiliate agreements and complete applications. They’ll be getting the request/requirement from everyone. Getting those applications completed and reviewed, then new affiliate agreements signed is going to take some time, but you should be well into this process by December 1^st.

Before moving out of the context of Marketer, it’s also important to know the new rules state that you can only use the endorsement of an expert or celebrity so long as you have good reason to believe the endorser continues to subscribe to the views presented and that you must secure the endorser’s permission to keep using the testimonial at regular intervals – especially if you’ve made a change in your product, or even if your competitor’s products have changed.

Affiliates, Reviewers, Testimonials, and Endorsers

If there is a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience) – even in-kind compensation –then you must “fully” disclose the nature of the connection (§255.5). Again, this goes along with an unwritten theme of transparency in the advertising.

Additionally, what you say must reflect the “honest opinions, findings, beliefs, or experience of the endorser.” And, the endorsement may not “convey any express or implied representation that would be deceptive if made by the advertiser.” (§255.1(a)) This means that you can’t just use some ad layout, brochure, copy, or a script they give you without checking it yourself. If you use their stuff, and it’s found deceptive, then YOU are liable as much as they are.

So, as an affiliate, I would expect any affiliate agreement I sign to include an indemnification clause from the marketer saying they will cover me if any materials they provide are found to violate the FTC Guidelines. I would also require access to, and actually check, the data they are using to back up their statements of generally expected performance.

Action Items

There are a lot of articles like this one hitting the Web in response to these new Guidelines, many of which may not fit your situation, and many of which may simply be wrong. Therefore I strongly suggest that you read the new Guidelines for yourself. The publication found at http://www.ftc.gov/opa/2009/10/endortest.shtm is very simple to read and provides many examples that might answer your specific questions. After reading the Guidelines you’ll want to talk to your legal and marketing teams to complete the following tasks.

1. Audit your testimonial-based advertising for compliance with the rules.
2. Make any adjustments to your existing advertising to bring existing materials into compliance.
3. Take action to define generally expected performance metrics.
4. Require affiliates to complete an application, then review and renew affiliate relationships with updated agreements.
5. Revise affiliate marketing agreements.
6. Disclose any connections you have with the sponsors of products you endorse.
7. Initiate procedures to regularly secure the permission to use testimonials and endorsements.
8. Do a Google search to make sure your name is not being associated with any products or services that might expose you to liability. If you find any sites, take active steps to get your name/testimonial removed if the use does not comply with the new Guidelines.

Kevin E. Houchin is a Creative Business Lawyer™ and author in Fort Collins, Colorado specializing in helping people reach their potential through creative business. He can be contacted through his website at www.HouchinLaw.com or @kevinhouchin on Twitter.

Jackie Bedard