ABA Commission on Ethics Seeks Ways to Regulate Online Lawyer Marketing

“The State Bars should get out of the business of regulating marketing because it is something they know nothing about.” – Larry Bodine

That jolted me out of my seat at the MyLegal Case for Social Media Conference last month.  It’s no secret that some state bars have struggled to understand new technology and Avvo has run into this on more than one occasion.  But, this quote came from Larry Bodine, the venerable law firm marketing consultant who has spent the past few decades working with Big Law Firms on foundational business development concepts.  It seems that both Larry and Avvo have run into similar concerns with the regulation of marketing from state bars and are experiencing first hand how that regulation is damaging an industry already hurting from the economic crunch. 

Across the legal industry there is a growing consensus that the regulation of marketing is causing much more harm than good.  While it was appropriate (and brave) to include a counterpoint to social media at the MyLegal conference by including a presentation from a state bar regulator; but I was aghast by the fear mongering put forth including:

  • Your competitors surf social media looking for opportunities to turn you in to the State Bar.
  • You can have your law license suspended for blogging.
  • All content you put on Facebook is saved on your computer and State Bars can get to it.
  • State bars spend lawyer dues proactively trolling social media looking for ethics violations.

The room drew a collective breath, sat up in fear and started scribbling notes madly.  A few, including Carolyn Elefant, the esteemed author of Solo By Choice, challenged openly – “you are putting your own constituents at a competitive disadvantage.” Marketing opportunities brought about by online marketing can level the playing field, helping small firms compete with the deep pockets of Big Law.  After all, it only costs $9.95 a month to host a blog if you are Wilson Sonsini or Ross-Johnson-I-Just-Got-Out-Of-Law-School.  Limiting small practices’ ability to engage with consumers on Facebook, Twitter or Avvo is curtailing their ability to build their business.  The connection some have drawn is that these anti-technology social media rules being pushed by the bar are protectionist for the Big Law firms trying to defend their turf.

Frequently, ethics rules are brought about in the name of the (apparently extremely stupid) purchaser of legal services.  Do consumers really need to be protected from the opinions of other consumers about the quality of service?  Are they really so stupid that they think an online rating saying “Bill is the best lawyer” means that Bill is absolutely the best lawyer? As Carolyn writes:  “I am not aware of a single complaint by a consumer alleging that he or she was mislead or deceived about a lawyer’s quality due to customer rating sites.” Why does the legal industry, that already has an image trouble among the general populace, quash that same populace from saying nice (even great, wonderful, awesome, stupendous) things about the legal industry?

False or misleading advertising doesn’t belong in the legal profession.  That simple standard should apply to lawyers on Facebook or Avvo just as it does to lawyers at a cocktail party or golfcourse.  The FTC has repeatedly pushed the bars to be less specific around lawyer advertising rules and regulations and we can see why when considering the Florida bar’s latest directive.  All Florida attorney websites may soon need to be redesigned to require every page beyond the homepage to be accessed only after affirmatively clicking on a disclaimer.  We call this the Florida Website Developers Employment Act.  Can you imagine only accessing a book on Amazon or a trip on Expedia after reading an interstitial legal warning off the home page?  Limiting access to information about lawyers and the law by these types of firewalls hurts both lawyers and consumers.  Larry Bodine is absolutely right – most bars don’t understand marketing (let alone technology marketing).

For more viewpoitns:

ABA, Social Media and a time to panic? by Adrian Dayton

Is the ABA Trying to Kill Lawyer Blogs, Facebook Profiles, Twitter Updates, Forum Posts and Lawyer Websites? by Enrico Schaefer

ABA’s Rules on Social Media and Social Networking Necessary Guidance or Big Brother? by Heather Morse-Milligan

Carolyn Elefant has some great insights on the commission and has been reporting on it since before the paper was issued.

Comments should be sent to: Natalia Vera, Senior Research Paralegal, Commission on Ethics 20/20 ABA Center for Professional Responsibility, 321 North Clark Street, 15th Floor, Chicago, IL 60654-7598. Phone: 312/988-5328, fax: 312/988-5280 and email: veran@staff.abanet.org.

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Kelly Spradley - November 19, 2010 10:43 AM

I think that state bars really don't know what to do in this day and age. I think that everything is moving way too fast for them. As Carolyn Elefant suggests, the best way to help the ABA and state bars is to get involved. As Larry said, the state bars do not know anything about internet marketing. I think the bars need guidance and input from lawyers who are using the internet for marketing. They should also get input from consumers. They should ask if consumers feel misled by testimonials and blog posts.

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