Jul 1, 2011

ABA Ethics Panel Strikes Sensible Balance on Online Marketing

6 Comments · Posted by Robert Ambrogi in General

On Wednesday, the ABA Commission on Ethics 20/20 issued its initial report (PDF) on whether ethics rules should be changed to address lawyers’ use of technology for marketing and advertising.

As you may recall, when the commission first announced its plans to study this issue, it created quite a stir among legal bloggers, kicked off by a much-discussed “red alert” blog post by legal marketer Larry Bodine which began, “The ABA is quietly gathering support to choke lawyer marketing on the Internet.” (Links to the original post no longer work and I cannot find it anywhere on Larry’s blog.)

With the commission’s report now out, the headline on Karen Sloan’s National Law Journal piece today pretty much sums it up: Alarm Over ABA Study of Online Advertising Proves Unfounded. Karen quotes me in the article, saying:

Massachusetts lawyer Robert Ambrogi said that the proposals strike a “sensible balance” between the need to regulate lawyer advertising and lawyers’ ability to use technology to educate consumers.

She also quotes Kim Perret, chairwoman of the Legal Marketing Association’s task force on the issue, as praising the suggested changes and for its “restraint on the issue.”

Restraint is the operative word here. As the report’s cover letter explains:

[T]he 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.

As I said to Karen Sloan, I believe that the proposed rules strike a sensible balance between regulating lawyer advertising and promoting the use of technology to educate consumers about law and legal services. Rather than create new restrictions on advertising, the proposed rules make modest changes that help answer questions many lawyers face.

Notably, the proposed rules recognize that lawyers should be able to communicate and engage with others online without necessarily creating a prospective attorney-client relationship. Rather, that prospective would arise only when the lawyer creates a ‘reasonable expectation’ that he or she is interested in forming such a relationship.

The proposed rules also are commendable for explicitly authorizing lawyers’ use of pay-per-click and pay-per-lead Web marketing sites. In my opinion, these sites can be important tools for helping consumers find appropriate lawyers. Until now, uncertainty about ethical rules have inhibited lawyers from using them.

On another point, the proposed rules clarify a question that vexes many lawyers online, that of what constitutes an inappropriate solicitation. The rules take the sensible approach of recognizing that a website or banner ad directed to the public at large is not a solicitation. Rather, the rule suggests this definition:

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.

Of course, these are only proposals at this point. They will be debated by the ABA House of Delegates at the association’s annual meeting in August 2012. In the meantime, the commission invites comments on these initial proposals, which are due by Aug. 31.

We do not know whether the commission’s sensible and restrained report was in response to the initial uproar or in spite of it. Either way, the commission should be commended for a job well done.

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