I’ll give one example of a potential problem with the new rules and comments here. Rule 7.3 has been changed in several places, and has been renamed. Formerly the rule was titled, “Direct Contact With Prospective Clients.” The new name is “Solicitation of Clients.”
Upon first reading, the renaming of the rule 7.3 seems to be the most significant change. I believe it’s a little bit unusual to change the name of a rule. It really wasn’t necessary. One wonders if it reflects someone’s opinion that “direct contact with prospective clients” equates to “solicitation.”
Most of us who represent individuals as clients are familiar with Rule 7.3. That’s the rule that bans solicitation if you have a significant financial motive for the solicitation, except in certain rare cases. You may solicit a lawyer or a person with whom you have a family, close personal, or prior professional relationship. Or you may send a direct solicitation to a person who may need legal services, if you stamp the words “Advertising Material”on an envelope you mail to a potential client, or put the words “Advertising Material” at the beginning and end of any electronic solicitation communication. Although writing “Advertising Material” at the beginning and end of an electronic communication, violation of the solicitation rule can result in potentially serious disciplinary proceedings.
Attorney advertising ethics — Solicitation on social networks
If you aren’t soliciting your friend, family member, etc., then the rule says your “written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication. …” [emphasis added]
The bold section of text in the previous paragraph isn’t new. But I suppose it’s possible that an overly zealous bar investigator could give it new significance in view of the newly-added Comment . That comment states:
 A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. [emphasis added]
Attorney advertising ethics on Facebook
Should this comment and rule have any effect on an attorney’s use of social media? Let’s take an actual example from one of my recent interaction with a person on a Facebook Page.
I sometimes venture outside the field of law and legal marketing to engage in consumer advocacy. I had set up a Facebook Page for people who wanted to push for a recall of a potentially dangerous prescription drug. One woman posted a message on the Facebook Page saying her father had developed cancer after using the drug, and had suffered through 12 surgeries. I expressed sympathy in a post, and the woman responded with more information. I again expressed sympathy for the woman and her father, but did nothing more. I never heard from the woman again. As an attorney who represents injured people, my communication with presented a tempting opportunity for solicitation. But it would clearly have violate the Rules.
Let’s change the foregoing facts slightly to discuss a potential ethical dilemma that some lawyers will surely face in the future. Suppose this woman exchanged messages with a lawyer on a law firm’s Facebook Page, but never specifically requested legal assistance. And suppose the Facebook Page contained a contact form allowing potential clients to contact the law firm. What should the lawyer do?
Before the publication of the new attorney advertising ethics rules and Comment , I suspect many lawyers would post a message telling the woman that she is welcome to use the Contact Form on the firm’s Facebook Page if she wants to request legal assistance. Do the new rules and comment  turn that kind of message into a solicitation? If so, then the rule governing solicitation states that it’s necessary for the lawyer to post a message that might go something like this: “Advertising Material. If you would like to consult with our law firm, feel free to contact us using the Contact Form underneath the banner at the top of our page. Advertising Material.” Is this what the ABA intends? I doubt that the woman would feel like a Facebook “friend” of the lawyer if she received a message such as that.
I’m not giving an answer here; I’m just raising the question.
One of the great things about the Internet and social media use by lawyers is that it makes legal services more readily available and convenient for members of the public. Surely the ABA does not intend to impose attorney advertising ethics rules that contribute even further to the myth that lawyers aren’t normal people, but are people you can’t trust unless you read, and understand, all the fine print in everything a lawyer writes.
As I did with Part 1 of this series, I’m leaving comments open on this post because I would like to see other lawyers’ opinions and/or question, either here or on the Attorney Marketing Online Facebook Page.
This is Part 2 of a series about the new ABA Model Rules of Professional Conduct, and attorney advertising ethics online and on social media. Check back for Part 3, which will discuss the new ethics rules and their requirements for attorneys buying leads from non-lawyer lead generation companies.