By this time, anyone concerned with the topic of the ABA’s interest in regulating online marketing has read Larry Bodine’s Red Alert blog post and its progeny. Larry also started a LinkedIn group, Chief Marketing Officers, which includes links to many follow-up posts on the topic. On Nov. 4, Carolyn Elefant held an hour-long teleconference that explained the the formation of the Ethics 2020 Committee and the scope of their work. A recording of the conference is on her website MyShingle.com, and her Slideshare presentation is extremely thorough and content-rich. Carolyn voiced significant concerns that none of the committee members are knowledgeable regarding use of social media and web 2.0 practice management applications, nor was there a representative from the solo/small firm segment of the legal industry present at their meeting in October to add credence to their perspective regarding the use of technology to run their firm. Most recently, Adrian Dayton posted ABA, Social Media and a Time to Panic?, a really balanced and well-reasoned post on the topic, followed by many thoughtful comments.
Some people thought the use of the term “Red Alert” was over the top, and while that may be true, it accomplished one specific goal: it got everyone’s attention, and that’s what needed to happen. In this age where our profession is drifting along in a sea of change, lawyers need to be aware of what steps are being taken to regulate our conduct in the use of web 2.0 technology, for both marketing and management. More than ever before, we need to participate in this process because our profession is changing radically. We must now compete in a recessionary, global marketplace, where a tech-enabled profession is penetrating what once was a US-dominated marketplace from both Europe and the East. While the EU has a comprehensive regulatory system, as I discussed in Oh, Data, Where Art Thou?, they have also facilitated such ventures as non-lawyer investments in law firms, lawyer/non-lawyer partnerships and other vehicles to advance access to legal services. LPOs in India are proliferating, and there is now significant interpenetration of Chinese and US markets.
With all the hype about attempts to control online advertising, my concern is that the Ethics Committee’s review of law practice technology will be forgotten. They are equally important issues to be addressed, and the committee has generated two different issue papers. The links are: For Comment: Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools and For Comment: Issues Paper Concerning Client Confidentiality and Lawyers’ Use of Technology
We can’t go back and we can’t stand still. That leaves only one alternative. Since we are moving forward, it would be wise to do so by educating our regulatory bodies (including the state bars) and establishing a cooperative advancement. We can start this process right now, by contributing comments to the Ethics 2020 Committee issue papers. If you are concerned about how the US will move forward in global technological era, take some time to participate.
Funny, I didn’t see any of the counterpoint posts listed here. Typical.
Brian: My post was not really about whether there should or should not be regulations. It was about 2 things: first, to encourage lawyers to participate in this dialogue with the Ethics Committee and second, to make sure everyone understands this is not just about marketing. It's also about using technology to practice law. There are two separate issue papers that people can comment on, and they shouldn't be confused.
The challenge we face here mirrors the great anti-trust Netscape-Microsoft case of 2002/2003, In that case, according to anecdotal stories I have heard from the lawyers who were involved, (I have never read the transcripts), lawyers spent a lot of time educating the judiciary on the technology and the business case for what browsers do, what the Internet means to business and the importance of access points.
With all the social media gurus that have surfaced in the past few years, it is surprising that everyone, including members of the ABA, do not know "what its about." Yet, I speak to lawyers on topics of marketing and social Web tools every day (including last week at an ABA conference) and I am reminded that it is still not main stream in the legal industry. There is a lot of misunderstanding.
Thus, it is about education. Realizing how far we've yet to come in the legal industry I was surprised by the RED ALERT status. Movement at the bar association is a welcome development. It is the opening of a dialogue. We should focus on education, not defenses My 2 cents..
Thanks so much for emphasizing that it is about education. The committee must understand correctly how web 2.0 works so it can understand its ramifications, and what action, if any, they should take with respect to the Model Rules or issuance of guidelines.
Let me start off by saying I'm not an attorney and that I respect Larry Bodine, Adrian Dayton and Carolyn Elefant. In fact, all three were speakers at our recent conference, "The Case for Social Media: Managing Your Online Presence to Build your Law Practice." I don't think Larry's choice of words was inappropriate. In my opinion, it clearly achieved the objective of getting people to stand up and take notice and let their voices be heard.
Personally, I see many lawyers waiting in the wings and spectating every single day for a variety of reasons, but one of which, I believe, is fear of ethical discipline. So I think the time is right for the ABA to look at this issue more closely and provide guidance and/or best practices.
Regulating Online Marketing?
Red Alert – The ABA isn't the Enemy.
I've been following this issue, and candidly, I'm not clear what the "RED ALERT" hysteria is all about.
On this issue, the ABA isn't the enemy. I strongly disagree with Larry Bodine – I don’t see any evidence that the ABA "is quietly gathering support to choke off lawyer marketing on the Internet."
In fact, from my vantage as someone who has been interacting with the marketing/ethics rules nationwide on an almost-daily basis for over 20 years, I think the ABA has been gradually moving in the right direction, loosening up the rules and their application to real-world marketing.
I feel pretty qualified to opine on this issue – I'm a lawyer and marketer who's been fighting the marketing-ethics battles on behalf of law firms nationwide since 1990. I've included an overview of my relevant qualifications at the bottom, but briefly, I'm a lawyer and former marketing director, marketing partner, and strategy/branding consultant who's developed 75+ marketing campaigns for firms worldwide. These have included national campaigns that needed to contemplate the ethics rules of all 50 states, and countless state-specific campaigns running in marketing-phobic jurisdictions like Florida.
We shouldn’t be arguing about regulating the free-flowing internet or social media as though it's a special case that requires new rules — that’s a red herring. The Rules don’t care whether it's TV or Twitter, Facebook or face-painting. The Supreme Court, in the Texans Against Censorship case (http://tinyurl.com/2fax7k7), held that speech can be regulated if you use it in a way that "beckons business." If you don’t, it can't be regulated.
Very simply, if you paint "Hire me." across your face, then you're beckoning business. As such it is commercial speech, and the government has the responsibility to regulate it for the protection of the consumer. That wouldn’t change regardless of whether you conveyed that same "Hire me" language in a billboard, blimp, bulletin, blog, brochure, or business card. Or in a print ad, newsletter, T-shirt, TV commercial, radio spot, or direct mailer. Or via Twitter, Facebook, LinkedIn, AVVO, or JDSupra.
It's what you say. Not where you say it.
If you have no personal injury experience and you tweet or post "Hire me to handle your PI case!" you're over-reaching, and the lay consumers who might hire you would be at risk. That's commercial speech, and it's not unreasonable to have the government regulate that — the courts are quite clear on that issue. When you tweet "I'm eating yogurt," you're not directly seeking business and so that can't be regulated as commercial speech. If you want to blog, tweet, post, comment, articulate political or legal issues or trends, or do any of the other things blawgers tend to do, the state has no authority to regulate it — as long as it doesn’t directly beckon business. Go nuts.
A friend of mine calls the Rules "technologically agnostic." That is, the Rules don’t care what the medium of the message is – it's simply whether the specific language of the communication on its face beckons business, regardless of whether it's a 140-character Tweet or a 5-second TV spot. And whether or not you choose to beckon business in your communications is exclusively within your control. The breadth or scope of the limitations don’t matter — it's what you say.
In fact, the ABA has been relatively reasonable in its recent evolution regarding the marketing of legal services. I haven't seen anything in its recent history that leads me to believe that it's dedicated to choking off new or evolving avenues of marketing.
Rule 7.2 clearly states that "a lawyer may advertise services through written, recorded, or electronic communication, including public media." Thanks, John Bates.
This is subject to Rule 7.1 which states that this communication may not be "false or misleading." Can't argue with a "don’t lie" rule.
PART TWO:
Then a "false and misleading" communication is defined very simply as one that:
(1) "contains a material misrepresentation of fact or law," or
(2) "omits a fact necessary to make the statement considered as a whole not materially misleading."
Again, that seems fine to me.
The ABA actually loosened the restrictions of Rule 7.1 by removing two previous definitions of "false and misleading," i.e.:
"Likely to create an unjustified expectation about results the lawyer can achieve," which had prohibited many forms of client testimonials, and
"Compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated." Previously, the use of almost any adjective could have subjected the attorney to discipline. Even stating that a lawyer was "good," implied that others weren’t — and was impermissible. Marketing without adjectives or comparisons was unrealistic and therefore widely violated. Taking reality into account, the ABA removed that exemption.
All this anti-ABA hysteria is a distraction from the real problem, which is how certain marketing-phobic states, e.g. Florida, Iowa, New York, and Texas, have outside the ABA's control, outrageously and arbitrarily extended or applied the Model Rules. Attacking the ABA gives these states just a little more confidence in undercutting those rules further, and developing even more draconian regulations.
Instead, we need to advocate aggressively toward uniform state rules nationwide, and the best hope we can have for that is through the support and adoption of the ABA Model Rules. The efforts to undermine the stature of the ABA will forever condemn law firms to seek compliance with the ever-changing rules and obligations of 50 different states. Trying to hit that moving target is unnecessarily complicated.
Of course, the ABA isn't perfect. My primary qualm with the ethics policy isn't that it is debating how or whether to apply the Rules to the internet and the evolving new technologies. It can't expand its reach beyond "commercial speech," and has shown no interest in trying to do so. In my opinion, the real problem is that it doesn’t distinguish between Corporate and Consumer practices.
The rules presume that a 60-year-old Fortune 500 insurance company General Counsel with a roster of 100 outside law firms and $20 million legal budget needs the same level of protection as an uneducated high school dropout who is hospitalized after a major car wreck. Would that we could develop a firm brochure or website so compelling that it could exert an arm-twisting level of pressure upon a savvy high-level purchaser of legal services.
I've met countless clients across the US and around the world, and have never met an executive or in-house counsel who needed to be aggressively protected against a firm brochure.
Ross Fishman
CEO, Fishman Marketing, Inc.
ross@fishmanmarketing.com
Thanks for the points you have discussed here. One more thing I would like to talk about is that computer system memory specifications generally increase along with other advancements in the technological innovation. For instance, whenever new generations of processor chips are made in the market, there is certainly usually a similar increase in the size preferences of all computer memory and also hard drive space. This is because the software program operated simply by these processors will inevitably increase in power to use the new technological innovation.