ABA Techshow

Web 2.0 Spins Out Some Tough Marketing Ethics Questions

States have the constitutional right to impose limits on speech that “beckons business” or “proposes a commercial transaction.” And an advertisement for legal services is clearly commercial speech, subject to restrictions imposed by the states.

However, efforts to get business and commercial speech are not necessarily one and the same. And technologies such as blogging, advertising on YouTube, participating in social networking sites like Facebook and LinkedIn, and tweeting on Twitter can blur the line between communication and advertising.

A panel at ABA Techshow on Thursday tackled questions about the ethics of lawyer marketing online, and how existing rules of professional conduct might apply to future technological innovations, such as the prospect of a portable avatar in a virtual world.

However, while Will Hornsby, staff counsel for the ABA Standing Committee on the Delivery of Legal Services, and Matt Homann, founder of LexThink, an “innovation consultancy” for lawyers, have the expertise on technology-based legal marketing, they didn’t necessarily have the answers.

“These are just guesses here,” Homann warned the audience at the start of the program, “because no one really knows what’s going on with all of this stuff.”

The courts have held that we do not look at the intent of a communication to determine whether it is commercial speech, but to its content. If a communication beckons business through its content, it is commercial speech and is therefore subject to state regulation. If it does not, the communication is not commercial speech, even if the lawyer is trying to get business through the communication.

Commercial speech is not dependent on the medium used for the communication, Hornsby pointed out. Whether a lawyer’s communication is broadcast on television, through a traditional website or via a blog, the issue is not the medium but the message content. While a few states’ rules specifically govern technology-based communications, lawyers for the most part are required to comply with current rules—whether they advertise in the Yellow Pages or on Twitter.

“The rules are the rules, and they apply to the use of the Internet to promote legal services even if they aren’t a perfect fit,” he said.

Sometimes those rules don’t fit well with technology-based business models that may be deemed impermissible referral services or permissible forms of group advertising, Hornsby added. Payment methods may challenge the notions of permissible flat fee payments or impermissible fee splits. Templates used by some social networking vehicles may violate specific terms prohibited under the rules, such as calling oneself an expert.

There are now computer programs lawyers can use that will scan the Internet for blog postings mentioning a particular subject, such as motorcycle accidents, leave a sympathetic comment on the blogger’s site and invite readers to click on that comment for more information, which takes the user to the lawyer’s own website, Hornsby said.

And we may reach a point in the not-too-distant future when portable avatars will be able to go from one site to another, interview potential clients and collect all of the information necessary to file a claim in court.

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