As internet marketing tools available to lawyers evolve, so do the rules that govern use of these tools.
When does an internet user become a prospective client? Can an attorney pay others (non-attorneys) for generating client leads, such as internet-based client leads? When do internet communications become solicitations?
These are just some of the questions that the ABA attempts to clarify with its recent proposed amendments to the Model Rules of Professional Conduct.
ABA Resolution 105B
The American Bar Association has amended the ABA Model Rules of Professional Conduct dated August to help attorneys better understand how they may permissibly use internet marketing technologies for client development. Resolution 105B (or downloadable .pdf) (side note, nice to see ABA on WordPress) attempts to clarify various rules relating to:
- Duties to Prospective Clients
- Communications Concerning a Lawyer’s Services
- Direct Contact with Prospective Clients)
- Unauthorized Practice of Law; Multijurisdictional Practice of Law
The ABA has also released the Commission’s Report (.doc).
I encourage you to read the full resolution and report to draw your conclusions as to what these changes mean in terms of the acceptability by the legal profession of web-based client development.
To me, two of the more important takeaways from these changes are the revisions to the definition of when a person becomes a prospective client and the rules relating to paying legal lead generators (insertions underlined, deletions
Not all persons who communicate information to a lawyer are entitled to protection under this Rule.A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. See also Comment . In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. A person who communicatesSuch a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a “prospective client.” within the meaning of paragraph (a). Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client.”
 Except as permitted under paragraphs (b)(1)-(b)(4),
Llawyers are not permitted to pay others for channeling professional workrecommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads,Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client development services, such as publicists, public-relations personnel, business-development staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 for the(duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another). who prepare marketing materials for them.
So, with regard to prospective clients, the message seems to be:
If an attorney specifically invites the submission of information about representation, they had better include disclaimers and warnings.
On the other hand, if an attorney merely describes the attorney’s education, experience, areas of practice, and contact information, or provides legal information of general interest, and someone submits information, they’re not a “prospective client” under the rules, and not the same disclaimers and warnings are not necessary.
And with regard to internet lead generation, as Barbara Grzincic writes at The Daily Record:
Resolution 105B also amends Model Rule 7.3 to deal with online client solicitations. And it adds a new comment to Model Rule 7.2 to address marketing methods like Total Attorneys, Martindale-Hubbell’s Lawyers.com and even, yes, Groupon. The new comment says it’s OK to pay for “lead generation” services, provided the generator doesn’t vouch for the lawyer’s credentials or abilities, or create the impression that it has chosen the lawyer by analyzing the potential client’s legal problems, or pretend that the recommendation is being made gratis.
These rules may help lawyers shed some light on issues like:
- Determining whether a communication is marketing.
- Whether Groupons for Lawyers advertising programs are permissible.
- When your websites, blogs, or blended-marketing blogs require disclaimers.
- How to ethically use social media & networking sites.
- How to ethically use paid search and organic search marketing.
Obviously, these are proposed changes to the ABA’s Model Rules and may not be the same as the rules that govern you in your state.
Further, these weren’t the only areas in which the Commission made proposed changes.
For example, with regard to competent representation, as Ms. Grzincic writes:
Finally, if you’re the kind of lawyer who thinks none of this applies to you because your social network is more about your crowd than The Cloud, well, think again. The House of Delegates also approved Resolution 105A on Monday. Under a new comment, 105A adds to Model Rule 1.1, the duty to provide competent representation now requires not only that you keep up with changes in the law, but also with the risks and benefits associated with new technology.
How Did They Do?
At the end of their report, Jamie S. Gorelick and Michael Traynor, Co-Chairs ABA Commission on Ethics 20/20 write:
Technology has enabled lawyers to communicate about themselves and their services more easily and efficiently, and it has enabled the public to learn necessary information about lawyers, their credentials, and the particular legal services those lawyers provide as well as the cost of those services. Lawyers, however, need to ensure that these communications satisfy existing ethical obligations. The Commission’s proposals are designed to give lawyers more guidance regarding these obligations in the context of various new client development tools. The Commission respectfully requests that the House of Delegates adopt the amendments to the Model Rules of Professional Conduct set forth in the Resolutions accompanying this Report.
So, what do you think? Do these proposals provide you more guidance on using web-based client development tools?