Legal Ethics

Ethics 20/20: Clarifications of Existing Rules Are Enough to Accommodate Lawyer Marketing on Web

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The ABA Commission on Ethics 20/20 today posted draft versions of its recommendations relating to lawyer marketing in the Internet Age on its website for review and comment.

The recommendations propose changes to three provisions in the ABA Model Rules of Professional Conduct that address marketing and solicitation by lawyers. The proposals and an accompanying report (PDF) indicate that while legal ethics rules should accommodate the growing use of electronic communications by lawyers for marketing, the commission does not see the need to tear up the existing rules and start over. Rather, the commission is proposing specific revisions to the existing rules to clarify how they apply to electronic communications.

“The Commission concluded that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values,” states a cover letter from commission co-chairs Jamie S. Gorelick and Michael Traynor. “To that end, the Commission is proposing amendments to Rules 1.18 (Duties to Prospective Clients), 7.2 (Advertising), and 7.3 (Direct Contact with Prospective Clients) that would clarify how lawyers can use new technology to disseminate important information about legal services and develop clients.”

Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., and Traynor, of Berkeley, Calif., is a past president of the American Law Institute.

The commission’s timetable calls for it to submit final versions of its recommendations to the House in May. The House will consider the recommendations in August at the 2012 ABA Annual Meeting in Chicago. The commission may consider further revisions to its recommendations on client development and other issues it is looking at before submitting final versions to the House.

The commission was created in 2009 to consider the impact of technology and globalization on professional conduct rules for lawyers, and to develop recommendations to modify those rules where appropriate.

The draft recommendations posted today address these issues:

Advertising. The commission recommends no changes in the black-letter language of Model rule 7.2, which permits lawyers to advertise their services “through written, recorded or electronic communications, including public media,” but prohibits lawyers from paying someone else to recommend their services.

In proposed revisions to the comments to Model Rule 7.2, however, the commission seeks to clarify its application to new forms of Internet marketing tools. First, the revised comments define a “recommendation” of a lawyer’s services to mean any communication that “endorses or vouches for a lawyer’s credentials, abilities or qualities.” Second, the revised comments affirm that a lawyer may pay others for generating client leads, including “pay-per-click” and “pay-per-lead” services available on the Internet as long as they don’t constitute a recommendation of the lawyer’s services or involve impermissible fee-sharing within the meaning of the Model Rules.

The report notes that the commission considered proposing elimination of Model Rule 7.2’s prohibition against paying nonlawyers for recommendations. But the commission decided to retain the restriction after concerns were raised that for-profit referral entities might develop undue influence over lawyers seeking recommendations.

Marketing. The commission proposes only one key change in the black-letter language of Model Rule 7.3. That recommendation would replace the term “prospective client” with “potential client” throughout the rule. The reason, states the commission’s report, is that Rule 7.3 “clearly intends to cover contacts with all possible future clients, not just those who have had some contact with lawyers and have become ‘prospective’ clients.’ ”

The commission also proposes revisions to the rule’s comments by defining a solicitation to be “a targeted communication initiated by the lawyer that is directed to a specific potential client and that offers to provide, or can reasonably be understood as offering to provide, legal services.” That change, states the committee’s report, “is intended to ensure that lawyers are governed by the Rule even if their communications do not contain a formal offer of representation, but are nevertheless clearly intended for that purpose.”

The revised comments to Model Rule 7.3 affirm that a lawyer’s communication does not constitute solicitation “if it is in response to a request for information or is automatically generated in response to Internet searches.”

Duties to prospective clients. The commission’s proposed revisions to Model Rule 1.18 would expand the boundaries of who is protected by the rule’s prohibition against lawyers using or revealing information they have received from someone who is not an actual client. Under the existing rule, those prohibitions apply to “prospective” clients. The revisions would define a “prospective” client as some someone who communicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to form that relationship.

Comments on the draft report may be submitted to the commission through Aug. 31. Comments should be sent to Natalia Vera, senior research paralegal in the ABA Center for Professional Responsibility, at [email protected].

The commission is expected to issue all of its remaining draft recommendations by September. Among the remaining topics that the commission will address are alternative business structures, choice of law and alternative litigation financing.

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