ABA Ethics 20/20 Issues Paper … Much Ado About Nothing?

One major topic of discussion this week was a recently released ‘issue paper’ from an ABA technology commission. The issue paper concerned lawyers’ Use of “Internet Based Client Development Tools.” In English – can you ethically use Twitter, Facebook, LinkedIn, blogs, adwords and other electronic media and methods to promote yourself and your firm online. Some commentators felt this was the death knell for social media, with Larry Bodine quipping:

The ABA is quietly gathering support to choke off lawyer marketing on the Internet.

There have been bytes of content generated on the subject by those with much more expertise than I. I merely seek to bring light to the subject. In short, I think you just have to look at the ‘Regarding’ line of the letter which the Commission’s purpose wand what is for comment: “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools”. They are merely seeking comments on the issues, nothing is imminent.

The goal of the Commission is to examine possible ethics issues involving:

  1. Social and professional networking services (such as Facebook, LinkedIn, and Twitter)
  2. Blogging
  3. “Pay-per-click” advertising
  4. Lawyer websites

Given the First Amendment principles involved and the fact that many attorneys are already on LinkedIn, Facebook, and Twitter, I don’t see how the ABA could really issue any major decisions for social media, pay-per-click advertising, or websites. Although Chief Justice Roberts did ask what the difference between was between email and a pager at oral arguments a few months ago.

Here is some further analysis:

Generally, whether a given electronic activity is ethical often depends on the specific conduct of the attorney.  For example, some personal injury attorneys have a tendency to use blogs as thinly veiled advertising to specific victims injured in accidents. LinkedIn on the other hand is a professional networking site used to connect with other attorneys and professionals – although I have seen some trolling in the Groups.

Websites are a must – although there are many areas that attorneys can run afoul of the rules.[1] Some guidance in the area would be a step in the right direction – as long as the ABA doesn’t go over board in their advertising regulation like New York and Florida.

Lastly, the ABA is considering whether pay-per-click advertising such as Google’s AdWords constitutes an impermissible payment for “recommending” the lawyer’s services under Model Rule 7.2(b). This could be an area where the ABA may tend to over regulate because in the ABA’s words these “arrangements require the lawyer to pay a fee for each ‘lead’ that the third- party generates.”

As it stands now the issues presented in the paper are up for comment so it will be under review for the time being. Please contact the ABA with your comments if you have any concerns.

[1] Website may: contain information that is either false or misleading, create inadvertent formation of attorney-client relationship, give legal advice, reveal confidential information about current or former clients or about current or past legal matters, lead to an unauthorized practice of law claim.