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Too Soon! Too Soon! Impact of ABA Model Rule Changes Will Take Some Time

If you are like me– seemingly spending half your life reviewing state bar rules, regulations and ethics opinions for my clients that seek to ensure compliance in the states in which they practice–I’m sorry to hear that. Hopefully, like most attorneys, you are more of a casual observer. In August, the House of Delegates of the American Bar Association approved a series of changes to the Rules of Professional Conduct. Many in my realm of marketing and business development circles ask how it will impact them and what, if anything, they should be doing about it.

For starters, I remind you that these are “model rules” as opposed to “rules.” As someone long involved in various aspects of ethics and professionalism in the ABA, I can assure you that the time it will take many states to implement all or some of the rules will be “not tomorrow.” I’m pretty sure some states are still mulling over pieces of the ABA’s Ethics 2000 initiative. But it is only 2012 now, and you really just want to update your rules before the year 3000 hits or risk being seen as behind the times. And these changes come from Ethics 20/20, which is 20 years longer than 2000, divisible by 20.

Of course, the impetus for the ABA changes is simple–technology has far outpaced the long arm of the professional conduct law. The Ten Commandments would be delivered today via cloud computing, as opposed to having a long hike and getting stone tablets. Oy veh!
While the changes address areas of confidentiality, outsourcing, job changes and jurisdictional issues, I’m only focused here on those regarding changes related to client development. The continued massive growth of internet marketing and clever entrepreneurial spirit among lawyers far outpaces what is currently on the books. Rule 1.18 better defines prospective clients in a world of pay per click, social networking, question and answer sites, etc…and the need to put in safeguards to properly avoid creating an unwanted or unintended attorney-client relationship.

My age-old favorite, 7.2, or ADVERTISING as the devil calls it, adds the tricky topic of not paying others for “recommendations” via online lead generation services. The original 7.2 from many moons ago was written for yellow page ads (what are yellow pages, my kids ask?), billboards and other distasteful mechanisms that–god forbid–might provide your law firm’s name and contact information to a consumer in need.

And, of course, with prospecting for clients and advertising comes the need to better define “solicitation” and exactly what that means in a world with technology. We know about letters, phone calls and runners. What about all things Internet that flow through the clouds, DSL, broadband and the one guy still dialing up on AOL (buddy, you make me laugh, you cheap skate). Solicitation has been expanded to “a targeted communication initiated by a lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood to provide, legal services,” as opposed to communications with the general public.

OK, so you feel like I’ve told you nothing to this point. What should you do about these rule changes? First of all, if they are not adopted in full or part by the states that matter to you (where you are admitted, where you practice, where your firm has offices, etc), then at this point in time, it does not.

Keep an eye out for RPC changes that are adopted over the next 6-36 months, depending on how quickly your state bar gets off its’ you-know-what.

What you should always remember–and I’m in an ongoing debate with some over this topic–is that such “communications” stretch the cybersphere–whether it is a web site, a blog, a Facebook page, a Twitter post, a Yelp profile, maybe even your JDate profile (not really). The rules don’t need to state the technology by name for it to fall in the realm of prospects-solicitation-advertising. If you’ve followed my commentary on the Virginia Bar blog case, you know about the sensitivity to revealing too much about a client or his/her matter–even if it is in the public domain. I’ll repeat for the umpteenth time that just because a statement is true does not mean you can say it. Bart Simpson should write “deceptive or misleading” 1,000 times on the chalkboard. Technology is not an end-around for the rules and comments in place from 7.1…to 7.? (depending on your state). In my opinion, the new rules don’t change anything, they simply clarify. The real key is not in the rules themselves, but in understanding the technologies you are using–and how misuse can lead to discipline and worse–people knowing you can’t figure out Twitter for your life.