The jury is (almost) in. We do not,
thankfully, anticipate a Casey-Anthony-super-sized-post-verdict outrage when
the American Bar Association codifies its Commission on
Ethics 20/20 proposed amendments to the Model Rules in 2012. According to the
Commission's recent proposal and report, lawyers are almost certain to
avoid any new draconian
restrictions on social media activity as were feared by some. We do,
however, expect to see some clarifications that should make ethical conduct for
lawyers using social media a bit more predictable.
BIG shout-out to the ABA Commission
and it's Co-Chairs, Jamie S. Gorelick and Michael Traynor for their hard work in sorting
through the collective knowledge submitted in response to the September 2010, "Issues Paper Concerning Lawyers'
Use of Internet Based Client Development Tools." Their initial draft
proposals in the "Lawyer's Use of Technology and Client Development"
discussion, released on June 29th, appears to be spot on: "No new
restrictions are necessary in this area." Just clarifications.
"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."
Clarifications.
The clarifications offered by the
Commission will undoubtedly help lawyers and marketers to proceed without fear
of the unknown-sort of. They're not going to stymie your participation, but
it's still up to the individual to exercise judgment. Check out what a few
bloggers have say here and here. For readers who
want a quick run down in layman's terms, read on...Note: it took this seasoned
marketing professional several readings-think double speak-to get to the
practical implications, so, feel free to leave a comment if you have
something to add or if you think I've got something wrong here. I hope this
helps...
A
prospective client, a potential client, and a solicitation
The distinction between communications
with a "prospective client" was found needing clarification (Rule 1.18). A
prospective client is one in which communications give rise to a client-lawyer
relationship.
In short, the Commission identifies
several precautions that lawyers should take to prevent the inadvertent
creation of a "prospective" relationship and to ensure that the public does not
misunderstand the consequences of communicating electronically with a lawyer.
Translation: This boils down to the what, where, when, and how disclaimers
are used, for example, on a law firm's website, email messages, blog site, or
etc. Also, a lawyer is advised to gauge their risk tolerance for being
conflicted out of representing an adverse party of the "prospective" client
should they chose to decline representation of the prospect-but this holds true
for offline conversations as well, so nothing really earth shattering here,
except that it brings the following into play....
Clarification
of "prospective client" in advertising Rule 7.3
Advertising and other forms of
marketing by definition are targeted to future clients-clients with whom
the lawyer has had no prior contact and therefore are not technically
"prospective clients."
To avoid confusion, the Commission
proposes to replace the use of "prospective" in Rule 7.3 with "potential;" a
new term not yet clearly defined, but is understood to imply the universe of
public persons-all possible future clients. Again, the distinction being that a
"potential" client has not previously made contact with a lawyer but a
"prospective" client has.
Translation: It's okay to use social media and Internet advertisements
to promote your services to future ("potential") clients. Keeping in mind that
compliance with all current aspects of advertising found in Rule 7.3 is
necessary.
I
have a website with a live chat line. Is that okay?
Rule 7.3 also addresses, and prohibits, most kinds of in-person,
live telephone, and real time electronic solicitations, but permits other forms
such as direct mail and email with a disclaimer such as "Advertising Material"
clearly displayed.
Today, however, lawyers can post
information on their social or professional networking pages (which function
like websites) and can enter into conversations via those pages (like email)
with "potential clients," sometimes in "real-time" and sometimes not. Ah...
the complexity! To clear up the ambiguity, the Commission proposes that:
"...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
potential client." (Emphasis added)
How this might play out: Let's say you have a live chat option on your law firm
website, the kind that pops up and asks the visitor if they have questions or would
like assistance. If the visitor chooses to use the chat screen, that
visitor is initiating contact with the lawyer or their agent. This may also be
analogous to a "contact us" form.
It is important to note that the
prohibition in Rule 7.3(a) applies only to lawyer-initiated contact. Rule 7.3
does not prohibit real-time electronic contact that is initiated by a potential
client. In the instance described above, the website visitor has made the
initial contact with the firm. The visitor has chosen to visit the law firm's
website, indicating that they have some interest in the website's content. It
is appropriate at this juncture for the law firm to offer the website visitor
live assistance.
Practical
pointer:
Of course, once assistance is
offered and a conversation ensues, the potential client becomes a prospective
client and all the conditions of the prospective client relationship apply,
i.e. you may set yourself up to be conflicted out of working for the other
party. That adverse party may, in fact, be a current client! You will need to
develop a conflict check process before discussing a case with any contact that
comes over the transom via your website, electronic communication, or any
social media outlet-something many law firms have yet to address but would be
advised to do so.
Translation: It is okay to communicate in real-time about your services
with "potential" clients via social media and the Internet. This clearly
does not violate rules pertaining to solicitation: Responses to requests for
information or advertisements that are not directed to specific people are not
"solicitations."
Another example found in the Commission's report includes advertisements
that are automatically generated in response to an Internet search. The
Commission wishes to clarify that these are not solicitations because the
"advertisements are generated in response to Internet research." These
responses are more analogous to a lawyer's response to a request for
information initiated by a potential client than an unsolicited and targeted
letter to a potential client who is known to be in need of a particular legal
service-which is a solicitation.
Translation: It is okay to buy ads on search engines-it is not
solicitation.
Will
you recommend me?
Things get a little murky when the
Commission tackles "recommendations." Model Rule 7.2(b) essentially
prohibits a lawyer from giving anything of value for recommending the lawyer's
services. While this Rule is clearly written to prohibit a lawyer to pay "runners"
to engage in in-person solicitations, i.e. ambulance chasers, the commission
recognizes that "a number of new forms of lead generation such as pay-per-click
and pay-per-lead services have surfaced with the rise of the Internet."
Although these Internet "referrals" do not "typically use in-person
solicitation or employ false or misleading communications" they do involve
payment for what might be considered a recommendation. Therefore, the
Commission says this Rule needs clarification because "in a limited context
some fees should be permissible."
Truly, Internet "referrals" via
search engine ads, Facebook ads, or even Sponsored Twitter Search Results are
not all that different than paying for the ads you run in the local press, or a
magazine publication. In each of those traditional examples, paying your
advertising, PR or Internet marketing agency folks to create and place those
ads fall into the same bucket-and are allowed under 7.2.
Translation: It's okay to pay for sponsored ads, Facebook campaigns and
search engine key words. Unfortunately, this clarification does not resolve the
most frequent question I am asked: "Can I accept recommendations on LinkedIn?"
Seems that since this is not a paid referral, recommendation, or solicitation,
it's okay? Check with your State Bar for any prohibitions on client
testimonials for the answer that is specific to you.
Is
my Facebook promotional give-away a "recommendation" under 7.2(b)?
In regard to Rule 7.2(b), the
Commission's report included a case study of a law firm offering free branded
t-shirts to Facebook Fans who would subsequently send in a photo of them
wearing the shirt and that would be posted to the firm's Facebook Company Page.
In the strictest sense, the wearing of this t-shirt this may be perceived as a
"recommendation." Further, the gifting of the t-shirt compensation. Hmm.
Interesting, right?
Well, the Commission smartly
suggests that clarification be made to Rule 7.2(b) along the lines that the
gifting of a t-shirt and a subsequent photo of a person wearing it is not
inherently a recommendation of their legal services.
Translation: Go forth and Facebook your t-shirts-well, maybe after
the proposed Comments and Amendments are codified in late 2012.
Don't
make false or misleading communications on social media.
Finally, an easy one. The Commission
decided that there would be no further need to develop new or different
restrictions to the prohibition against false and misleading communications
found in Advertising Rule 7.1.
"This Rule is readily applicable to
online advertising and other forms of e-communications used to attract new
clients."
However, smart firms will include a
reminder in their law firm policy to the effect that: In every thing you do or
say on the Internet, by all means, do not spread false or misleading
information about you or your services. For more ideas
on constructing a social media policy for law firms, read this previous Virtual
Marketing Officer post.
What's ahead?
The Commission plans to release
proposals with regard to other issues on its agenda no later than September
2011. The Commission will submit to the ABA House of Delegates final versions
of all of the Commission's proposals in May 2012, for the House of Delegates'
deliberation at the August 2012 ABA Annual Meeting. In the meantime, the
Commission seeks and welcomes feedback on its proposals and reports to date.
Comments in response to the Initial Draft Proposals on Lawyers'
Use of Technology and Client Development are due August 31, 2011. Comments
may be submitted to Senior Research Paralegal, Natalia Vera at natalia.vera@americanbar.org.
Go forth, ethically, and prosper!
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