ABA rules: No major ethics overhaul needed To address web marketing
The following is a guest post by Roy S. Ginsburg.
In a draft proposal issued last month, the ABA Commission on Ethics 20/20 recommended no new restrictions relating to online marketing. The Commission did offer some useful guidance on how to interpret some web-based marketing tools within the context of existing ethics rules – guidance that I intend to pass along to the solo and small-firm lawyers that I coach.
Lead-generating tools
The Commission approved the use of “pay-per-click” and “pay-per-lead” internet sites to generate leads. Some feared that that the ABA would interpret its Model Rule 7.2, which prohibits lawyers from paying someone else for a recommendation of their services, to ban web-based lead-generation tools.
Instead, the ABA said use of these tools is fine as long as there is no improper fee-sharing, false or misleading communication, or improper solicitation – just like in print. Further, the proposal clarified that a “recommendation” is defined as any communication that “endorses or vouches for the lawyer’s credentials, abilities or qualities.”
Solicitation
Increasingly, lawyers are posting information on their own websites, blogs and social networking sites that is read by people who may become clients. Increasingly, interaction between lawyer and reader is encouraged. Under Model Rule 7.3, when does this information or interaction become “solicitation”?
According to the ABA draft proposal, solicitation occurs only when the lawyer “offers to provide, or can be reasonably understood to be offering to provide, legal services to a specific potential client.” Information provided to the general public is fine. Also allowed is information provided in response to a specific request or information automatically generated by an internet search.
Who is a “prospective client”
Model Rule 1.18 prohibits lawyers from using or revealing information they have received from someone who is a “prospective” (but not yet an actual) client. The Commission proposes revising the rule to clarify its application in an electronic world, where lawyers receive and send communications in a wide variety of new formals.
As proposed, a “prospective client” would be defined as someone who communicates with a lawyer about the possibility of forming a lawyer-client relationship and has a “reasonable expectation that the lawyer is willing to consider forming” such a relationship. A well-worded disclaimer on all electronic communications can protect the lawyer or firm from the creation of an unplanned and unwanted lawyer-client relationship.
Long story short
What impact will the draft proposal have on the solo or small-firm lawyer? Very little. The same adherence to the Rules that serves you well when marketing in person, over the phone and in print will serve you just as well when marketing on the internet. Just use good sense.
Roy Ginsburg is an attorney coach in the areas of business development, practice management and career development/transitions. He helps his nationwide clients achieve individualized practice goals and career satisfaction. He is also a solo practitioner and practices in the area of legal marketing ethics. His clients include FindLaw and Super Lawyers magazine, Thomson Reuters businesses. www.royginsburg.com
Although I agree with your sentiment, I think it is important to know that some of us fledgling attorney’s have assessed the landscape (and even started a few small fights with the old guard) and decided that taking on these battles are a waste of time. I too commend Rachel for her chutzpah, but I have watched too many young attorneys/social media types get too entangled in twitter flame wars and personal attacks. At one point, I thought about taking on the big battle, but to what gain? The amount of time researching and writing to prove a single point should be spent trying to build my own practice and keeping my eye on the overall ethics of my firm. The Brian Tannebaums of the world have valid points at times and so does the “guru” ilk. I choose to take what points are helpful to making me a better attorney and watch the rest for pure entertainment. I think the biggest disservice that all the big talkers do is wash out the reasonable advice that doesn’t scream so loud.