The ABA Commission on Ethics 20/20 has published for comment its draft proposals on Lawyer’s Use of Technology and Client Development. Proposed changes relate to Model Rules 1.18 (duty to prospective clients), 7.2 (advertising) and 7.3 (direct contact with prospective clients).
Overall, the Commission concludes that no new restrictions need to be added to a lawyer’s use of technology for client development. The proposed changes adequately reflect two major impacts of the Internet on our profession: 1) public accessibility to lawyers online, and 2) the immediacy of communication with prospective and future clients over the Internet. Below is a brief look at each rule’s proposed changes.
“Communicating” with Prospective Clients Online
Proposed changes to this rule include switching out the word “discusses” with “communicates.” “Communicate” is a much broader term and is probably something we do online with prospective clients far more than actually “discussing” a potential attorney/client relationship. Communicating could be anything from having them fill out a “contact us” form to sending you a tweet asking if your firm handles their specific legal need. Something as simple as “Liking” your law firm’s Facebook page is a bit of a stretch because it’s not specifically “about the possibility of forming a client-lawyer relationship.”
This would be a dangerous rewording if not for other new lines added to clarify the definition of a prospective client: “A person who
discusses communicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter is a prospective client.” [proposed additions in italics]
So there also has to be some reasonable expectation that the attorney is going to consider the relationship. I think this addition may help to protect those of us who are engaging in social media online and who may run into prospective clients all day who may attempt to communicate with us. The comments section has an addition that clarifies that a prospective client will also not be defined as someone who just goes online to communicate confidential information with the attorney for the purpose of disqualifying that attorney from representing an adverse party.
It really puts the burden more on the attorneys who actively attempt to collect information from prospective clients on their websites or using social media. Proposed comments to this rule lay out what a “reasonable expectation” might be and it includes whether the attorney has adequate disclaimers or statements about the attorney/client relationship and how clear this notice is to prospective clients about the nature of any duty that is formed.
The way to comply with this rule has not really changed; it’s just better clarified in the comment. If you attempt to engage prospective clients on your firm website, which most of us need to do to generate business, include disclaimers and respond in some way to accept or decline representation so that there are no false expectations.
Proposed changes to this Rule better define “recommendation” in terms of paying others to recommend a lawyer’s services. The proposal states, “[a] communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities or qualities.”
The added language includes, “[m]oreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the person does not recommend the lawyer and any payment is consistent with Rule 1.5(e) (division of fees) and Rule 5.4 (professional independence of the lawyer).”
What does this mean for attorneys who purchase lead-generation marketing services? My interpretation is that it means the company pulling in leads for attorneys cannot make statements to those leads about the attorney’s qualifications, reputation, and even their basic credentials, such as being in good standing with a state bar, in order to increase the changes that those leads follow through in being paid clients for the law firm. My opinion is that this protects the public from potential exposure to false statements made about attorneys by marketing companies that would harm rather than help them in their search for appropriate legal representation.
Contact with “Potential”, not “Prospective” Clients
I can’t find where “potential” is defined in the proposed changes to this Rule, but it replaces “prospective” client throughout. My understanding is that it covers a segment of the general public as defined by the attorney and the firm’s practice areas as maybe becoming a potential client in the future as opposed to a “prospective” client which is when an individual has directly communicated with the firm to request services.
The proposed changes in the comments to Model Rule 7.3 help clarify acceptable content generated by attorneys online to potential clients. The proposed comment to the rule states: “[i]n 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.”
I interpret this to mean that providing ebooks, free handouts and other educational, general legal information on your firm website is not a solicitation under this rule. It also appears to allow for the many questions and answer sites where attorneys can go online and answer general legal questions for members of the public to view. It also seems to say that it’s not a solicitation if someone in the public googles a legal issue and your advertisement or an article on your website or other social media profile is returned as a response.
I think the proposed changes provide welcome guidance without creating any new barriers that restrict the use of technology and the Internet as a tool for client development. If you are engaged in virtual law practice or any form of elawyering, you are most likely depending on technology and the use of the Internet for client development. I encourage you to read these proposed rules changes and to review the report that follows.