Nov. 19, 2010

Can Lawyers Be Trusted – On the Internet?

As an online marketer I have worked for many years developing, deploying and studying evolving ways for marketing professional services online.  My specific focus has been both lawyers and their firms and financial services firms. While financial services firms are notoriously conservative in their initiatives, lawyers often approach comatose.  There are many understandable reasons for this which I won’t explore here. But one of them is the fear and uncertainty perpetrated through each state’s bar association rules about exactly how they might go to market. Fear has a chilling effect on exploration and that includes lawyers' effective use of the Internet -  where I work.

I was excited to discover that the American Bar Association’s Commission on Ethics 20/20 is, their words, “ examining a number of legal ethics issues arising from lawyers’ use of technology, including issues arising from Internet-based client development tools.”

To this end they have issued a document, “For Comment: Issues Paper Concerning Lawyers’ Use of internet Based Client Development Tools. “ The Issues Paper is a reveal of sorts of the myriad challenges lawyers confront conducting the kind of online marketing most US citizens under the First Amendment take for granted. It might be productive to summarize these challenges in the categories in which the Issues Paper establishes:

Online Social and Professional Services

  • How is the line between personal communications and lawyer advertising identified?
  • How do you avoid or manage the possibility of creating inadvertent lawyer-client relationships?
  • What is the propriety of judges linking to lawyers who appear before them?
  • When can lawyers take advantage of information stored on networking websites?

Blogging and Discussion Forums

  • To what extent are law blogs subject to the same ethical considerations of other forms of lawyer advertising?
  • Can lawyers create discussion forums without disclosing the marketing related function the discussion board serves?
  • Might lawyers who upload content that is not their own create an impression of expertise which is substantiated?
  • Similarly to social media issues, might lawyer-client relationships be inadvertently created?
  • What are the confidentiality concerns if lawyers post documents without client consent? (note, the question of stupidity is not addressed in this issue paper – SC)

Paying for Online Advertising, Referrals and Leads

  • Do the fees paid (such as Google adWords pay per click) constitute an impermissible payment for “recommending” a lawyer’s services?

Lawyer Websites

  • To what extent do lawyer websites have to comply with rules prohibiting false or misleading statements?
  • By enabling communications between prospective clients and lawyers, to what extent do websites produce inadvertent lawyer-client relationships?
  • How must lawyer websites function to avoid leaving the impression that information provided can substitute for legal advice?
  • To what extent must lawyers obtain client consent before posting current or past legal matters or information on their websites?

First Amendment (the big one, from my perspective):

  • To what extent does the First Amendment limit the application of the adopted rules (Model Rules) to all of the above?

Well, that’s a lot of tough internet marketing questions not to mention essential issues of free speech. Over the next two years the Commission on Ethics will be developing reports and proposals. They’ve got their work cut out for them.

Mildly Ironic

The irony in all this is that this entire initiative is based on the assumption that our most trusted advisor might not be able to be trusted. And, in fact, can lawyers be trusted is a philosophical question whose roots can be found in moral questions of what is right and what is wrong. We won’t resolve this one today. Maybe tomorrow.

Moving Forward

What can be achieved today – or maybe at least over the next two years -  would be to address and clarify positions on these issues the Ethics Commission has identified. Such effort can go a long way to replacing fear with  greater certainty as well as a more thoughtful and uniform (across state bar jurisdictions) set of guidelines lawyers and marketers (like me) can use to help clients. Then maybe lawyers can emerge from their comatose state and more assuredly pursue their business objectives online within the confines of the First Amendment. Like the rest of us.

Note: comments regarding the Issue Paper may be posted to the Commission website by December 15, 2010.

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