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RED ALERT: The ABA Wants to Regulate Online Lawyer Marketing

By Larry Bodine

The ABA is quietly gathering support to choke off lawyer marketing on the Internet by having the ABA Commission on Ethics 2020 Working Group distribute an 'Issues Paper Concerning Lawyers' Use of Internet Based Client Development Tools.'  Visit www.abanet.org/cpr/issuepaper.pdf  for a copy.

Please join me in marshalling lawyers to stop this effort by the ABA to burden lawyer marketing on the internet with unneeded ethics obstacles.  Lawyer marketing needs less regulation, not more stifling ethics rules.

Act now, because the comment period ends on December 15. Comments should 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 and email: veran@staff.abanet.org.  

 

For further discussion on this topic, please go to the existing 350-member CMO Forum on LinkedIn. Simply to go http://www.linkedin.com/groups?mostPopular=&gid=1026487 and join. When you post a message to twitter, please use the Twitter hashtag of #ABAREGS

The ABA Commission on Ethics is trying to gather support to subject the following marketing initiatives to the ethics rules:

• Online social networking (Facebook, LinkedIn & Twitter)
• Blogging
• Facebook and Linkedin profiles
• Pay per click advertising
• Gathering information through networking websites
• Discussion forums
• JD Supra document uploads
• Lawyer websites
• Use of case histories on law firm websites

The Commission could propose amendments to Model Rules 1.6 (duty of confidentiality), 1.18 (duties to prospective clients), 5.5 (multijurisdictional practice), 8.4 (misconduct generally), or the Article 7 Rules and their Comments – all of which use the Model Rules of Professional Conduct to restrict these forms of online activities.  However, the commission says it may also form a policy statement for a vote to the ABA House of Delegates or propose amendments to the Model Rules in Article 7 on lawyer advertising.

Of course, the ABA enacts model rules and has no enforcement powers.  However, many states adopt the model rules, and some like Florida, Iowa, Connecticut, New York and Texas have individually promulgated draconian rules against lawyer marketing.

In my opinion, the ethics boards should keep their hands off the internet. We don't need more regulation, we need less.  It is sufficient for the ethics rules to state that a lawyer may not make a false or misleading statement online; that's enough. The commission's activities are a waste of time and a threat to the public and the profession. The ethics police should focus on lawyers who steal from client trust accounts, not bring disciplinary actions against lawyers for their Facebook pages or what a lawyer said in a Twitter message. 

If enacted, rules outlined in the 'Issues Paper' will have many deleterious effects: 

• The ABA's proposed actions will cause a chilling effect on a lawyer's right to commercial free speech, first established in In Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
• The public will suffer because there will be less information to find about attorneys, FAQs and articles about the law, and how lawyers can help them.
• Ethics burdens on marketing will unfairly hurt solos, GPs and lawyers in small and mid-sized firms, which heavily use online marketing.  The ethics rules will not affect BigLaw firms that have hundreds of thousands of dollars to spend on costly offline marketing initiatives.

 

The comment period is open until December 15, 2010, and I urge you and everyone who favors online business development to write the ABA in opposition to taking any action.

For more on this topic visit the LawMarketing Portal at http://bit.ly/aiuXtm

Full post as published by Larry Bodine's LawMarketing Blog on November 01, 2010 (boomark / email).