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April 18, 2017 Top Story

Proposed ABA Model Rule Changes Address Social Media Advertising

Advertising rule revisions aim to reduce ethical risks of online communications

By Amy Mattson

Proposed amendments to the ABA Model Rules governing attorney advertising would embrace a "false and misleading" standard for attorney advertisements, replacing the more detailed rules presently in place. The proposed modifications seek to reverse the trend toward greater regulation of ever-evolving technology and address concerns about overly restrictive and inconsistent state advertising rules. If adopted, the new standards would make it easier for lawyers to navigate social media by limiting the risk that they will run afoul of ethics rules, say ABA Section of Litigation leaders.

Proposal Reduces Restrictions on Online Advertising

The proposed revisions would consolidate current Model Rules 7.1, 7.2, 7.3, 7.4, and 7.5 into two directives covering attorney advertising. Proposed Model Rule 7.1 ("Communications Concerning a Lawyer's Services") would incorporate much of current Model Rule 7.2 regarding attorney advertising. Proposed Model Rule 7.2 ("Solicitation") would revise and consolidate the current Model Rules governing solicitation of clients, communications regarding fields of practice and specialization, and firm names and letterheads.

The proposed revisions were developed by the Association of Professional Responsibility Lawyers (APRL), an arm of the ABA Standing Committee on Ethics and Professional Responsibility. The proposal was several years in the making, beginning in 2013 with a nationwide investigation into the state of attorney advertising regulations. The APRL's inquiry generated a 2016 report highlighting the need for streamlined rules that would more accurately reflect how lawyers and consumers of legal services use social media and interact in the digital realm.

Though the proposed Model Rule changes drew criticism as being overbroad from some at the February ABA Midyear Meeting in Miami, the APRL determined that the detailed regulation already in place has bred confusion. The APRL also concluded that the traditional public interest justification for regulating social media advertising is no longer required because Internet-savvy consumers can successfully filter online information about available services and choose how and when they interact with attorneys.

According to the APRL study, "the primary people who bring ethics complaints are attorneys. Very few clients are complaining about advertising," says Scott E. Reiser, Roseland, NJ, cochair of the Section of Litigation's Ethics & Professionalism Committee. "The problem is that one jurisdiction is restrictive in regards to what constitutes client contact, and another is more lax. Who do you follow?" asks Reiser.

Regulatory Variations Can Give Rise to Ethics Complaints

Lawyers and state regulators have grappled with what constitutes advertising and how to follow or enforce rules that do not lend themselves to particular forms of media, says Jan Jacobowitz, Coral Gables, FL, former APRL liaison to the ABA Standing Committee on Ethics and Professional Responsibility. "It is of no concern to the Florida Bar that Twitter has a character limitation. Tweeting lawyers must still include a disclaimer where required," opines Jacobowitz. "Moreover, at what point are you advertising? Is it enough to say, 'Had a good day in court, won a big case!' or is solicitation something more explicit? These are questions that states have analyzed," says Jacobowitz.

Section leaders acknowledge that while navigating social media in any context can present ethical problems for attorneys, those issues may be magnified when it comes to advertising. "Attorneys' use of social media can be complex given that the Internet goes everywhere," says Shari Klevens, Washington, D.C., chair of the Section's Standing Committee on Lawyers' Professional Liability . "Theoretically the [current] rules can apply beyond the context in which they were originally intended, and making ethical decisions is not always intuitive when it comes to advertising," adds Klevins.

Lawyers are most prone to ethics violations when they do not consult the current rules in the jurisdictions where they practice. "Advertising has created all kinds of issues because the principles are not universal. In an evolving area like social media, the present body of ethics law is constructed by reviewing various states' opinions. Attorneys need to understand that where they are located matters, and adjust their practices accordingly," says Jacobowitz.

Attorney Competence Requires Social Media Savvy

While amended rules like those proposed by APRL may remedy some of the issues that lawyers encounter, more streamlined directives are not a magic cure for avoiding ethical problems. "Social media is ubiquitous and here to stay. It has become so pervasive that its use is no longer a choice, but a mandate," observes Jacobowitz. Ethics opinions from the last several years make clear that Model Rule 1.1 ("Competent Representation") requires awareness of how social media operates and the ways in which it can impact a client's case, notes Jacobowitz.

While Section leaders hope for a day when social media is less rife with ethical perils, they emphasize that caution is still key. "Lawyers must be technically savvy," says Klevens. "It is no longer the case that attorneys can put their head in the sand. If you want to undertake a new form of social media, check the bar rules, and when in doubt, seek the advice of outside counsel."

Social media is still evolving, and practitioners must keep pace. "Twenty years ago we were still getting used to the Internet. Maybe someday the Supreme Court will be broadcasting arguments live and attorneys will be live tweeting about cases," posits Reiser. But until then, counsel must "weigh the potential costs and benefits of your social media activities. Do not engage until you really understand how the platform you are using works," says Reiser.

 

Amy Mattson is a contributing editor for Litigation News.

Keywords: attorney advertising, social media, ABA Model Rules, false and misleading communications

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