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.