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.
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.”
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.
Editor’s Note: This post originally appeared as a guest post on Carolyn Elefant’s My Shingle blog on August 12, 2011. Carolyn Elefant has been a resource, an advocate, and an inspiration to lawyers around the country who are either currently solo or considering solo, and she is in Denver this week! Don’t miss her keynote presentation at CBA-CLE’s Hanging Your Shingle event! Click here to register.