Legal Ethics

Online Marketing, Including Lead Generation, Is Addressed in Changes to ABA Ethics Rules

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Online marketing tools for lawyers are addressed in revisions to the ABA Model Rules of Professional Conduct approved Monday by the ABA House of Delegates.

When do online discussions give rise to duties to prospective clients? May a lawyer generate leads through Groupon? What type of online communications are impermissible solicitations? The changes, outlined in Resolution 105B, are designed to provide additional guidance. They include:

• A change in wording to Model Rule 1.18 on duties to prospective clients is intended to make clear that the rule may apply even in the absence of an oral discussion. According to new commentary, duties may arise if a lawyer invites the prospective client to submit information about possible representation without sufficient warnings or cautionary statements.

• A comment to Rule 7.2 says lawyers may pay for “lead generation” services, including Internet-based client leads, as long as certain safeguards are followed. According to the comment, the lead generator should not vouch for the lawyer’s credentials or abilities, nor should it create the impression that it is making the referral without payment, or has determined the appropriate lawyer based on an analysis of the possible client’s legal problems. A report to the House of Delegates says the change is intended to address new marketing methods such as those provided by Legal Match, Total Attorneys, Groupon, and Martindale-Hubbell’s

• Amendments to Rule 7.3 governing solicitation of clients clarify when a lawyer’s online communications are solicitations. According to new commentary, a lawyer’s communications constitute a solicitation when the lawyer offers to provide, or can be reasonably understood to be offering to provide, legal services to a specific person.

The changes were proposed by the Commission on Ethics 20/20, appointed in 2009 to study the impact of technology and globalization on the legal profession.

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