The ABA’s Ethics 20/20 Commission recently released a draft proposal (PDF) of changes to the Model Rules of Professional Conduct to assist attorneys in the potential ethics thornbush of online client development. The report concludes that the existing ethics rules are sufficient, 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.” If you find yourself suddenly solo and making a marketing plan, or bringing your firm’s current marketing strategy online, it’s important to see how the Model Rules may be changing in the future, and what the ethical implications could be.
The Attorney—Client Relationship in the Digital Age
Rule 1.18 governs a lawyer’s duties to a prospective client. It deals mainly with how an attorney must treat the information gathered from a meeting or discussion with a prospective client, where the person does not become a client. In its proposal, the Commission would make sevarl changes, most substantially a new comment to the rule:
When a person initiates an electronic communication with a lawyer, such as through email or a website, the reasonableness of the person’s expectations that the lawyer is willing to consider forming a client-lawyer relationship may depend on a number of factors, including whether the lawyer previously represented or declined to represent the person; whether the person, prior to communicating with the lawyer, encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations; whether those warnings or cautionary statements were clear, reasonably understandable, and conspicuously placed; and whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements. For example, if a lawyer’s website encourages a website visitor to submit a personal inquiry about a proposed representation and the website fails to include any cautionary language, the person submitting the information could become a prospective client. In contrast, if a website offers only information about the lawyer or the lawyer’s firm, including the lawyer’s contact information, this information alone is typically insufficient to create a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.
This comment draws specific attention to disclaimers on attorney websites. Simply put: they matter. To avoid ethics issues, use warnings on your website which make it clear that you are not forming an attorney—client relationship with your visitors. Then adhere to the purpose of the warnings. As the comment points out, if you have a disclaimer on your site insisting that no attorney—client relationship exists, then encourage prospective clients to fill out a form with information about their case, you’re talking out of both sides of your mouth. That could tip the scales and create a privilege issue where you did not anticipate one.
In another comment, the Commission makes clear that Internet advertising does not constitute a direct solicitation, and is therefore permitted under the rules. The Commission would add the following comment to Rule 7.3 which deals with direct contact of prospective clients:
A solicitation is 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. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.
The first thing I thought of when reading this comment is Facebook advertising. Although that can target a specific type of client, such as someone with status updates about a car crash, it is not a communication targeted at a “specific potential client.” Under the proposed comment, it seems that would be fine. Google advertising is also acceptable as advertising which is “automatically generated in response to Internet searches.”
The proposed changes are definitely worth reading, especially if you maintain any kind of online marketing campaign.