Are old ethics rules stifling innovations in legal services delivery and marketing?
Richard Granat (left) and Chad Burton at the ABA Annual
Meeting program “Beating—or Joining—the Disruptors.”
Photo by Kathy Anderson.
The legal services delivery environment is changing with supersonic speed as technology brings new innovations. But these new methods of delivering and marketing legal services still must pass muster under ethics rules that have been in effect for years if not longer.
That is not necessarily a bad thing, but it’s not entirely good, either, said speakers today at a program sponsored by the Law Practice Division in Boston, where the 2014 ABA Annual Meeting is being held. The program was titled “Beating—or Joining—the Disruptors: How to Prosper Ethically in the New Landscape of Legal Services Delivery.”
On the one hand, recent court decisions and state bar ethics opinions have interpreted some of these longstanding ethics rules to apply to many of the newest innovations in legal services delivery and marketing over the Internet and in the cloud. But at the same time, these rules could stifle even more creative innovations.
“We’re going through the most radical change in the legal profession,” said panelist Richard S. Granat, a co-chair of the E-Lawyering Task Force in the ABA Law Practice Division and a professor at Florida Coastal School of Law in Jacksonville, where he is co-director of the Center for Law Practice Technology. “It’s tremendous, and it will continue as systems for marketing and lead generation continue to evolve. And the ethics rules will feel the pressure to change from market forces.”
For instance, nearly 30 states have approved using the cloud to store data in the context of existing ethics rules based on the ABA Model Rules of Professional Conduct, Granat noted. Every state bases its binding conduct rules for lawyers on the Model Rules except California, which uses a different format.
Now there is more attention to accommodating ethics rules in lead-generation services, which help put potential clients in contact with lawyers through the Internet, said Granat and Chad Burton of Dayton, Ohio, managing partner of the virtual firm Burton Law. In effect, these services—such as Avvo and a growing slew of other sites—serve as the marketing arms for sole practitioners and small firms.
Lead-generation sites have been “explicitly embraced” by the comments to ABA Model Rule 7.2 (which addresses lawyer referral), after it was revised by the ABA House of Delegates at the recommendation of the Commission on Ethics 20/20, said Granat. The commission was created to assess the impact of technology and globalization on the Model Rules. But most states still are considering adopting those revisions and other changes recommended by the commission, he said. The question of whether fees paid by lawyers to lead generators are proper under Model Rules 7.2 and 5.4 also must be resolved, he said.
“This is an area that will continue to be controversial,” said Granat.
Another continuing issue will be the impact of revised Model Rule 1.1, which states that lawyers must stay current with new developments in technology, in order to maintain their practice competence. Even if that revision—another product of the Ethics 20/20 Commission’s work—is not widely adopted, it could become a new standard of practice in the context of legal malpractice, said Granat.
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