ABA Updates Model Ethics Rules to Address Modern Web Marketing Issues
Concerned about how the Rules of Professional Conduct apply to your online marketing efforts? Some clarification arrived last week when the ABA’s House of Delegates approved revisions to several model ethics rules.
In a nutshell, here’s what you need to know:
- Q: Can online communications give rise to a prospective client relationship? A: They can.
- Q: Are Internet lead generation services ethical? A: They are, so long as they don’t run afoul of other ethics rules.
- Q: Do attorneys’ online communications qualify as solicitations? A: They don’t, unless the lawyer is offering to provide legal services to an individual or gives the reasonable impression of offering legal services to a specific person.
The revisions to ABA Model Rules of Professional Conduct Rules 1.18 (Duties to Prospective Client), 7.2 (Advertising) and 7.3 (Solicitation of Clients) were proposed by the ABA’s Commission on Ethics 20/20. The commission is working to align legal ethics rules with 21st century realities.
The latest revisions to the model rules are significant because many jurisdictions base their rules of professional conduct on the ABA’s template.
Online ‘Consultations’ and Duties to Prospective Clients
Ambiguity about whether the words “discusses” and “discussions” in the rule and its comments applied to online exchanges — such as live chats and online forms — prompted changes to Rule 1.18. In order to clarify that oral communications are not necessary to create a prospective client-lawyer relationship; the words “consults” and “consultations” were substituted.
While the revised rule opens the door to the creation of a prospective client relationship through online “consultations,” the revised comments also provide an escape hatch. “[C]lear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations” can nip a prospective client relationship before it blooms, the ABA states.
Bottom line: Lawyers who use live chats, online forms and other types of Internet communications would be well advised to issue such warnings before accepting information from an individual.
Online Lead Generators and Recommendations
The commission tweaked Rule 7.2 to make it clear it is okay for lawyers to use services such as pay-per-click advertising, Groupon, Legal Match, Lawyers.com and other arrangements where the attorney pays for leads. According to the revisions, lead-generation services are fine unless the lead generator “states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral.”
In other words, the service can pass along the lead to the attorney so long as it doesn’t endorse the lawyer.
No Solicitation Online
Changes to Rule 7.3 seek to define what constitutes an inappropriate “solicitation” in the Internet age. According to the revised rule and its comments, simply providing information online to someone who requests it does not amount to solicitation. Similarly, a lawyer’s ad that is automatically generated in response to a web search would not be considered a solicitation.
To invoke the rules against inappropriate solicitation, a lawyer-initiated online communication must be “directed to a specific person and [offer] to provide, or can reasonably be understood as offering to provide, legal services,” according to the new comment.
Keep in mind that professional responsibility rules vary by jurisdiction. If you have questions about the ethics of legal marketing where you practice, be sure to review your jurisdiction’s rules, comments and ethics rulings.
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