Aug 132012

*For Immediate Release, August 13, 2012

In 2009, the ABA Commission on Ethics 20/20 was appointed to study technology and its impact on lawyers. Its recommendation, Resolution 105B, outlines several changes to Model Rules 1.18, 7.2 and 7.3.  Those changes were approved by the ABA House of Delegates on August 6, 2012. Click here to access the proposed changes to the ABA Model Rules of Professional Conduct, Resolution 105B, dated August 2012.

Here is a summary of the changes:

1. Rule 1.18 Duties to Prospective Clients

The changes make it clear that prospective clients may be obtained through the internet and through email. The changes to the comments section also make it clear that prospective clients are those who consult with the lawyer about the possibility of forming a client-lawyer relationship about a matter.

Under the new rule, a “consultation” likely occurs if “a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.” (emphasis added).

In other words, this Model Rule stresses the importance of an appropriate disclaimer on a lawyer’s website.

2. Rule 7.2 Advertising

The changes allow lawyers to pay for lead generation services on the internet. However, the lead generation website should not vouch for the lawyer’s credentials, character or legal abilities and should be clear that the referral is paid.

3. Rule 7.3 Solicitation of Clients

The changes clarify that lawyer websites and a lawyer’s use of email or other electronic means may be considered solicitation, but will generally not be barred because they are not direct, in-person solicitation.

Two comment changes are of particular interest:

“[1]A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.”

“[3]…In particular, communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to direct in-person, telephone or real-time electronic persuasion that may overwhelm a person’s judgment.”

While the model rules are merely model rules, the states are likely to follow suit.

Related Lawyer & Law Firm Internet Marketing Ethics Article: Disclaimers in Lawyer & Law Firm Websites – Use of Contact Forms and the Duty of Confidentiality

Read more about Lawyer Internet Marketing & Ethics.

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