I have been fielding questions lately about the recent lawsuit filed in Louisiana regarding the Louisiana State Bar’s new proposed Rules of Professional Conduct and how they may affect blogging and other online social networking. Attorneys operating virtual law practices tend to use blogging and other online communities in their daily law practice for the purpose of client development as well as to network and collaborate with other attorneys.
As I’ve worked with other attorneys nationwide to set up virtual law offices, I’ve been reading through different state’s bars rules of professional conduct and ethics decisions related to electronic communication and advertising. Every state seems to have a different understanding of how attorneys are using the Internet in their law practices. Sometimes it’s an archaic understanding and at other times it’s just not informed enough from a technology perspective to provide the guidance to attorneys as it was intended to do.
The new proposed Louisiana rules regulate lawyer advertising on blogs and other social networks and will go into effect in April of next year. The lawsuit, brought by a Louisiana Construction Law Firm, challenges the constitutionality of Louisiana’s new rules claiming that they will restrict free speech. The full text of the Complaint is here.
An attorney in the firm filing the lawsuit is active in online communities and forums. He is a member of LinkedIn, Twitter, Facebook and other popular social networking sites. He operates an educational blog about the construction industry and construction law. As a blogger, he posts comments on other blogs and writes guest posts.
The most interesting claim made in the complaint is that each incidence of “speech,” each blog post, each tweet, would have to be run by the Louisiana Bar prior to posting and would cost $175 per review. Wow. That might be doable for BigLaw, but would certainly not be cost-effective for a solo practitioner. How could you make timely blog posts if you had to run it by a review team before posting? I will be interested to read the response to this particular claim.
I’ve read Kevin O’Keefe’s opinion about the new proposed Louisiana rules and the lawsuit on his blog. He seems to think the whole issue is being blown out of proportion and the rules will not be any threat to blogging. O’Keefe is probably right.
What interests me more about this lawsuit and the proposed rule is the way that state bars are trying to draft rules that regulate their attorneys’ use of technology to communicate, not just to advertise their law practice, but to provide the delivery of legal services.
Most of the rules and regulations that exist for each state bar related to electronic communication are out of touch with the technology that their attorneys are using. Many ethics opinions and rules of professional conduct restricting attorney advertising through electronic methods were written when email was still new. Most haven’t been updated since the mid-1990s.
In addition, the rules and ethics opinions that I have read seem to be out of touch with the general public they are intended to protect. Maybe I’m off base here, but I think it’s past time that the legal profession reevaluates the experience and ability of the general consumer to find and retain legal services. Yes, there will always be unscrupulous attorneys out there who will use online advertising to mislead the public. However, there could be a better balance of 1) education on the part of the state bar regulators regarding the technology used by attorneys in daily practice and 2) addressing the public’s demand for affordable and convenient access to legal services through electronic methods.
I’ll be watching to see what happens in Louisiana. In the meantime, I’m still compiling a state by state list of rules of professional conduct and ethics opinions that relate to an attorney’s use of technology in daily practice. I’d like to provide this as a resource for attorneys wanting to practice with a virtual law office to see how their state bar as well as neighboring state bars have addressed the delivery of legal services online.
State bars have barely figured out static Web 1.0 so it is no surprise that they have not gotten around to addressing Web2.0.
There is lots of uncertainty around what lawyers can and cannot do in Web 2.0 and I have seen many different approaches in different platforms.
I agree with Kevin that the rules do prohibit blogging and do not require submission of each blog post. The rules are odd that you need to identify your office location in your profile. Something strange must have happened down there.
It is too bad that in the process of updating their rules, Louisiana is acting like its 1998 instead of 2008 when it comes to the internet. I understand states not going through the process of updating their rules to address web 2.0. But why not address the issues if you are already revising your rules?
None of these rules are being blown out of proportion. Here’s what happens: A committee, often composed of lawyers and laypeople, is appointed to interpret the rules. They do so with great gusto, often without rhyme or reason, and almost never taking into account the proper legal tests for advertising restrictions (a la Central Hudson). Interpretations will change without any rationale, and attorneys are subject to all sorts of uncertainty and added cost. This has been going on in FL for years, but a lawsuit (of which Greg Beck is part) is working its way through the courts and will hopefully strike down most, if not all, of FL’s restricitons. Taking an aggressive stance now – as Wolfe law has done – is a good way to prevent these unconstitutional rules from taking hold in Louisiana.
Stephanie, I brought the issue of legalzoom.com up in a recent solosez discussion, and your take on the issue concerned pointing out that in your virtual law practice you work with clients and do much more than fill out forms for them. But one thing that is very interesting about virtual law practice is its interjurisdictional implications. I’m assuming that in promoting this type of law practice you emphasize that you steer clear of UPL problems, but are the lines that clear, and perhaps don’t they deserve to be tested? The question naturally presents itself, because if you’re going to spend the time and effort to market a website, websites by their very nature are nationwide and indeed worldwide. Is it UPL to draft a will for a client from another state who contacts you through your website? It seems by hypothesis they’ve contacted you in the state where you’re licensed, you’ve communicated with them by email or telephone while being in the state where you’re licensed, and you’ve given them legal advice while being in the state where you’re licensed. A related question is whether it becomes more of a problem if you state on your website your availability for drafting wills for people out of state, because then someone might say that you are actually advertising in states where you’re not licensed. I’d be interested to know your thoughts on these issues. I’ve copied below an excerpt from my email on solosez, which I posted after your post.
My interest in this issue is only partly the idea of being able to compete with places like legalzoom by offering similar prices for unbundled services…. If I were to do this kind of thing, I’m sure my tendency would be to want to talk with the client and verify their circumstances and ensure that a simple will is really appropriate for their circumstances and that they are aware of other options…. But that would probably constitute legal advice, which brings me to the other aspect of this issue that intrigues me even more, which is that legalzoom is able to get away with providing wills and other documents interjurisdictionally. I for one think we would all be better off as a profession if the strict and arguably artificial obstaces prohibiting trained lawyers from practicing in each others’ jurisdictions were loosened. I don’t have a problem with an attorney from out of state providing will documents to clients in Indiana, so long as he does it right. In the age of internet marketing, the question of why we can’t provide such documents to clients who might have contacted us from out of state naturally and inevitably presents itself, and is made more prominent by the existence of places like legalzoom.
So it seems that so long as you don’t render legal advice, you could potentially offer these unbundled legal services interjurisdictionally. But to do that you’d almost kind of have to muzzle yourself and be careful of saying things you’d normally say in communications with clients, and thereby artificially lessen the value of the service you could provide them. It’s kind of a catch22.
John, you raise some great questions regarding avoiding the unauthorized practice of law when providing legal services online. UPL is one of the main ethics concerns that comes up when state bars are evaluating a virtual law office website or online attorney advertising in general. UPL issues deserve their own separate post. I’ve addressed many of these questions in my ebook, but it would be great to lay them out again in this blog and get other readers to chime in.