New ABA ethics rules target attorney marketing on Internet, social media (Part 1 in a series)

Attorney advertising ethics on Internet and social networking get clarification from ABA

The ABA House of Delegates voted in August to amend the ABA’s Model Rules of Professional Conduct to expressly include attorney Internet advertising ethics rules and add comments regarding attorney solicitation of clients online. ABA Resolution 105B (adopted August 2012) changing attorney advertising ethics rules for online attorney marketing can be viewed here.

The new rules may have been intended to clear up questions about what’s permissible in internet and social media marketing. Unfortunately, the new rules and comments raise questions about compliance, particularly with regard to a lawyer’s use of social media.

Of course, the new attorney advertising ethics rules aren’t officially binding on lawyers unless and until the new rules are adopted in the state in which the lawyer practices. But it makes sense to begin complying with the new rules now

Why begin complying with the new attorney advertising ethics rules now? One reason is that they represent the consensus of the members of the ABA about what sort of conduct is permissible on the Internet. Even though your state advertising ethics rules may not expressly ban solicitation on a social networking site, as defined by the ABA, there is a reasonable chance that your state would construe the existing rules to ban conduct which is expressly banned in the new ABA rules.

Another reason to begin complying with the new ABA Model Rules today is that your own state is likely to adopt substantially the same rules in the near future. That’s because the rules, in general, make sense. For the most part, they ban conduct that is hard to defend.

Among the changes to the ABA Model Rules are these:

  • Changes to Rule 1.18 clarify when electronic communications create a prospective client-lawyer relationship;
  • Changes to the comments to Rule 7.2 state clearly that a lawyer may pay a third party for “lead generation services,” and set out certain guidelines which must be followed. You may recall that, just a few years ago, the propriety of paying for leads was questioned, and several states had to rule on the issue. The comments to amended Rule 7.2 simply clarify that such services are permissible, but add a number of requirements to make sure that the online lead-generation business doesn’t turn into the wild west, with totally unregulated non-lawyer firms engaging in unethical behavior.
  • The title of Rule 7.3 was changed from Direct Contact With Prospective Clients to Solicitation of Clients. The rule and its comments were changed in attempt to clarify when online communications with non-clients constitutes solicitation.

Still, there are dozens of questions about how the new rules will be applied. And there are new comments that may raise as many questions as they answer. It will be interesting to see how the rules and the comments are construed.

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 1 of a series about the new ABA Model Rules of Professional Conduct, and attorney advertising ethics online and on social media. Check back for more articles on the new ABA attorney advertising ethics rules.

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