There are two weeks left to submit comments to the ABA Ethics Commission 20/20 regarding its two issues papers related to cloud computing and online marketing. I wrote about the cloud computing issues paper here, but as several fellow virtual law practitioners have pointed out to me, it is the second issues paper on the use of Internet-based client development tools that we need to be more concerned with.
I use most of the web-based “tools” that the paper addresses, including blogging, websites, and social and professional networking services. I do not use pay-per-click advertising for my virtual law office. I tried Google AdWords early on and found that I did not have the advertising budget to make it work effectively for my practice. But without these other methods, I’m sure I would not have a virtual law office today. At this point in my practice development, I use most of these methods to network with other legal professionals more than as a client development tool, but at what point does building a reputation for your practice turn into client development?
How could the virtual law practitioner possibly compete without using online marketing methods? It would not be possible. BigLaw firms setting up a virtual law office would have the financial resources to accomplish this, but certainly not a solo, small or even mid-sized firm. LegalZoom, USLegal Forms and other online legal service companies are allowed to drop millions on aggressive, direct online advertising to the public. Yet, online networking by attorneys is the big public threat?
As a small business owner it seems absolutely ridiculous to me that I would be not be able to use the most current and effect methods of marketing my services. I have been and always will be aware of and in compliance with my state bar’s rules and regulations regarding attorney advertising. They are necessary, and I’m glad there are there because these rules set a high standard for advertising for professionals by ensuring that unscrupulous attorneys do not mislead or take advantage of the public. It’s part of what sets us apart as a profession with a responsibility to the public we serve.
But most attorneys who use online methods of marketing will tell you that it is not rocket science to use these methods and comply with the rules of professionalism at the same time. I don’t need amended rules or comments to figure out how the rules translate with the technology. You just get this one idea through your head from the first time you sign up for an online profile or publish a post or tweet: I am 24/7, 365 an attorney and professional in all things that I post online. It’s that simple. It’s called restraint. Attorneys can easily distinguish between social media applications that are public (most of them are) and those that are restricted to attorneys only (Martindale-Hubbell’s Connecte for example). Firms can create social media policies for firm members to help comply with ethics rules on advertising and can add provisions to their firm’s engagement agreements that educate their clients about the use of social media and the firm’s policies on not communicating with clients using them. Don’t punish me and the many other attorneys who are responsible for the few that get carried away and have no understanding about the digital life cycle and reach of the anything they post online.
I’ve also written before about how I believe many ethics rules are out-dated in the way that they underestimate the general public and its ability to use digital media. I consider the rules even more outdated when I read about the large numbers of the public who go online actively seeking online legal services. They use Yelp, Avvo and search engines to locate attorneys. If they are going online, they know how to filter. No ABA or state bar rules are going to stop the public from using the Internet to shop for and retain attorneys. I think by this day and age the majority of the public know that they have more than one option in choosing an attorney and know how to shop for the services they need and can afford.
Severely restricting licensed attorneys from marketing their services online is not going to stop the general public from heading to the Internet to get their legal needs met. But here what it will do: 1) It’s going to put a chill on future tech innovation in the delivery of legal services, 2) stop the growth of virtual law offices and unbundling legal services online which are one solution to reducing our access to justice problems in this country, 3) put a great hardship on solos and small firms, whether virtual or traditional, who rely on free and low cost means of online methods of client development to survive in this economy, and 4) discourage online mentorship and much-needed resources for new attorneys who rely on these online methods to connect with and communicate openly with their peers.
Changes to the rules are not needed. The basic principles are there and easy to comply with. Guidelines and best practices are great for attorneys who are just jumping into using online methods of marketing. Focus on providing these resources and taking an education approach. This would be better received and more effective than attempting to revise the Model Rules in ways that would potentially do more harm than good – not to mention have the potential to quickly become outdated due to how fast methods of online advertising and social media apps change.
If this issue has the potential to affect your practice (most everyone I know), please consider submitting a comment by December 15th. Also, check out Carolyn Elefant’s Ethics 20/20 portal for more information about the Commission’s activities related to these papers.