When lawyers began using the Internet for client development in the mid-1990s, we really didn’t know how the state ethics rules applied. In a short time, however, as lawyers requested opinions from their states on whether it was ethical to advertise on the Internet, the smoke cleared and there was some sound direction. The states’ answers were consistent: It is ethical to advertise on the Internet as long as the way you advertise on the Internet is ethical. While that may sound nonsensical, the essence is actually straightforward. These opinions told us that the rules are the rules and they apply even though they were not promulgated with the technology in mind and may not fit the use of the technology very conveniently.
In the ensuing dozen years, a handful of states, most notably Florida and New York, have gone a bit further and adopted a few rules specifically governing the use of technology. However, the ABA and most states have mainly avoided pinpointed regulation of various technological communications. Although the ABA Model Rules were tweaked in 2002 to address some of the technology issues, the as-is rules fundamentally worked to govern Web 1.0.
Today, though, as lawyers progress to using Web 2.0 tools, interactivity takes center stage and the rules that were promulgated in the 1980s may not work as well for 21st century communications.
Some New Kinds of Conundrums
Although compliance in states that adhere only to the ABA Model Rules isn’t generally a great challenge, most states have added further restrictions to their advertising rules, designed to address specific problems that have little to do with technology but are likely to make some of the issues cloudier in a Web 2.0 world.
For example, a few states either ban or place limitations on testimonials and most states prohibit the content of testimonials if it creates an “unjustified expectation” about the results a lawyer can obtain for a client. At the same time, social networking sites frequently facilitate “recommendations” on a person’s (i.e., lawyer’s) space or page. If the lawyer cannot control the content of these recommendations and they create an unjustified expectation about the outcome a lawyer may obtain for a subsequent client, the lawyer may be violating the rule.
Similarly, some states require lawyers to include disclaimers on their ads. Yet how can we do that when we twitter and have a capped number of characters? Some states require communications to be submitted for screening. What’s a blogger to do about daily site postings? In short, these rules often simply do not fit the means of communicating with Web 2.0 technology.
Back to the Basic of “Beckoning”
When lawyers are confronted with ethics rules that are obstacles to the way they are communicating, the first question should be whether the rules apply to the communication. We can determine this by a quick look at the constitutional law governing commercial speech.
The Supreme Court has said that the states cannot ban a lawyer’s commercial speech but they do have the responsibility of controlling it. That is the authority for what we often call the “advertising rules.” Courts also tell us that commercial speech is that which beckons business or proposes a commercial transaction. So, simply put, if the communication is commercial speech, it is subject to the rules and if it is not commercial speech, it is not subject to the rules. For example, if a blogger does nothing to “beckon business” on the blog, the state has no authority to impose the restrictions that otherwise control lawyer advertising.
But then again, we have to be careful about libel and other limitations on free speech … but that’s another issue for another day.
Will Hornsby is staff counsel in the ABA Division for Legal Services. He is also the author of the ABA book Marketing and Legal Ethics: The Boundaries of Promoting Legal Services. The views expressed here are his own and not those of the ABA or any of its constituent entities.