My last post discussed the American Bar Association's recent opinion regarding lawyer websites. But the ABA is also working on other aspects of lawyer marketing, and they are seeking your input, so now is the time to get involved.
The ABA Commission on Ethics 2020 Working Group is working on collecting information, insights and opinions regarding lawyers' use of internet based business development tools. They have distributed a copy of an issue paper outlining the issues of concern.
Lawyers can submit comments by December 15, and I encourage you to do so.
Comments can be sent to:
Natalia Vera, Senior Research Paralegal, Commission on Ethics 20/20
ABA Center for Professional Responsibility
321 North Clark Street, 15th Floor
Chicago, IL 60654-7598.
Phone: 312/988-5328 Fax: 312/988-5280
Email: [email protected].
The commission is trying to make various practices subject to the ethics rules, including lawyers' use of social media such as Facebook and Twitter, blogs, JD Supra uploads, discussion forums, pay per click advertising and use of case studies on lawyer websites.
While some lawyers are in panic mode, convinced that less regulation is warranted and afraid that the ABA will come out with silly ethical rules that hamstring lawyers unnecessarily, the advice of social media consultant Adrian Dayton in a post entitled ABA, Social Media and a time to panic is: don't panic.
Legal marketer Larry Bodine has written a post RED ALERT: The ABA wants to regulate online lawyer marketing, in which he exhorts lawyers to get their voices heard and vote for less regulation. I agree - the public is wise enough to separate the wheat from the chaff, and more regulation is not the answer. But if lawyers do not want the additional regulation, it will be much harder for them to complain if they pass up the opportunity to speak out.
Many states have recently changed or updated their ethical rules regarding lawyer advertising and much of the opposition was the result of poorly drafted rules that don't take into account the reality of today's legal marketplace or don't seem to understand the workings of online avenues for business development, business generation and education of the public about legal issues. Lawyers who are in the forefront of using these tools need to also educate those drafting ethics rules and opinions before additional rules and opinions are drafted.
Many states follow the ABA Model rules at least to some degree, and the ABA has provided lawyers with an opportunity to comment on these issues and to help the ABA develop rules and guidelines which make sense given today's legal market and today's technology. To get an idea how new regulations might affect lawyers, take note of this article from the Lousiville, Kentucky Courier Journal, which notes that the state of Kentucky is proposing to regulate lawyers' activities on Facebook. The proposed regulation "would prohibit lawyers from trying to solicit potential clients on social media unless their comments are regulated by the bar's Advertising Commission — and they pay a $75 filing fee."
One of the concerns raised in the issue paper is the mixing of the personal and the professional on sites like Facebook and Twitter. But these concerns arise when a lawyer meets a potential client in a social setting as well. It makes sense to review the ethical rules governing lawyer advertising in relation to new technology to ensure that the rules make sense in light of the 21st century practice of law. But many of the original founding principles apply.
For example, rules regarding solicitation vs. advertising generally make a distinction between targeting a specific person or group of persons (such as those injured in a particular vehicle accident) and sending general information about what to do in the event of an automobile accident. The rules also distinguish between contacts made to those who have requested information and those to whom unsolicited information is being sent.
These same rules can be applied to social media. Sending an unsolicited message to anyone who indicates on Twitter that they were involved in a recent motor vehicle accident should be covered by the same solicitation rules that apply to messages sent via regular mail. Messages sent to 'friends' or 'followers' on Twitter or Facebook should be considered messages sent to those who have requested information - by following the lawyer or friending them on Facebook, the social media user consents to receipt of information from that lawyer.
Some other potential areas of concern identified in the issue paper include:
- The creation of inadvertent lawyer-client relationships through inquiries on social media sites
- Who to 'friend'
- Lawyers using social media for investigative purposes
- Lawyer blogs
- Lawyers creating discussion forums or sites around a particular topic, such as injury, medication, etc. and then directing visitors to the lawyer's site for more information (especially where it is not disclosed that the forum itself is run by the lawyer)
- Ghostwritten blogs
- Pay per click and pay per lead
And if you were concerned by the opinion I referenced in my last post, be aware that the commission is also seeking comments on potential future rules regarding lawyer websites.
Finally, the issue paper also includes a number of resources, ethics opinions from various jurisdictions, and articles on the identified issues, all of which are pertinent to lawyers using the internet to market their practices.
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