By Thomas Spahn
The Daily Record Newswire
In the years since the U.S. Supreme Court granted limited constitutional protection to lawyer marketing, states have varied their restrictions depending on how intrusive that marketing is.
For traditional advertising like magazine, television or radio ads, the ethics rules tend to focus on content. More intrusive means of marketing, such as “direct mail,” must meet stricter requirements — such as “cooling off” periods prohibiting such marketing for a certain period of time after an accident causing bodily injury, or mandated notices that the mail includes an advertisement.
Not surprisingly, the ethics rules most drastically restrict the most intrusive type of marketing — in-person or telephonic solicitation of potential clients.
Of course, the complexities of electronic communication tend to make these differentiations difficult.
Today, everyone recognizes that lawyers’ websites count as advertisements, but states have had trouble applying some of the logistical requirements that make sense in the old world of magazine and newspaper ads — keeping copies of each ad, maintaining a record of where they have been published, etc.
A fascinating debate is evolving as various states analyze whether certain electronic communications should be treated as “direct mail” marketing, or rather as the more intrusive type of marketing, analogous to in-person or telephonic solicitation. This analysis implicates the ever-changing nature of the American public’s reaction to electronic communications.
Although some fairly early ethics opinions considered e-mail as the equivalent of in-person or telephonic solicitation, a consensus eventually developed that e-mail should be counted as “direct mail.” Bars taking this approach justifiably explain that recipients of e-mail can simply ignore it. It may be more intrusive than a letter sent to a mailbox, but it is much less intrusive than a knock on the door or a telephone call.
The more interesting question involves a lawyer’s solicitation during some real-time online conversations, such as in a chat room, real-time blogging, webinars or any other situation in which there is instantaneous electronic communication.
From the inception of real-time electronic communications — starting with chat rooms but now including other situations — states have gone both ways in characterizing such solicitations, with some treating them as “direct mail” and others treating them like in-person or telephonic solicitation.
As states began to update their ethics rules to deal with electronic marketing, many if not most of them decided to follow the ABA Model Rules, adding the phrase “real-time electronic contact” to their definition of in-person solicitation. (ABA Model Rule 7.3(a).)
But changing the rules did not end the debate.
In June 2010, the Philadelphia Bar Association issued an extensive and well-reasoned opinion analyzing e-mails, blogging, chat rooms and other forms of real-time online communication.
In Professional Guidance Committee Opinion 2010-6, the Philadelphia Bar acknowledged that Pennsylvania Rule 7.3(a) includes “real-time electronic communication” within the term “solicit” — and therefore it is governed by the most restrictive regulation. The Bar also acknowledged that the ABA Reporter’s Explanation says that the term “real-time electronic communication” was intended to include “chat rooms.”
However, the Philadelphia Bar then said: “[W]e do not feel bound to apply [the words] as the Reporter’s explanation may have intended.”
The opinion carefully analyzed the various types of communication that fall under the strictest regulations, noting that in the case of in-person or telephonic communication, a prospective client “can walk away or hang up the phone, but it is socially awkward to do so in the face of a determined advocate.” In essence, the Bar established a “socially awkward” test for determining the nature of lawyer solicitation.
Although the phrase “real-time electronic communication” was added to Pennsylvania’s ethics rules only five years ago, the opinion said it was “relevant that the social attitudes and developing rules of internet etiquette are changing.”
Because of the “increasing sophistication and ubiquity of social media,” the Philadelphia Bar concluded that “it has become readily apparent to everyone that they need not respond instantaneously to electronic overtures” — but instead can “readily ignore” communication occurring during blog and chat room conversations.
The opinion ultimately defined “real-time electronic communication” as “electronic modes of communications used in a way in which it would be socially awkward or difficult for a recipient of a lawyer’s overtures to not respond in real time.” This excluded communications occurring in chat rooms or during real-time blogging.
The Philadelphia Bar warned lawyers that some electronic communication (such as real-time voice over IP) might still fall within the restrictions. The Bar also indicated that the content of otherwise permissible real-time electronic communications might violate the rules, if the sender suggests that the recipient should “immediately respond in real-time.”
Much like the accelerating pace of electronic communications themselves, bars have now come to recognize that over just a few years ethics rules can be rendered obsolete by “developing rules of internet etiquette.”
Between this approach and the increasingly successful constitutional challenges to state marketing rules, it is safe to predict that ethics restrictions on lawyer marketing will continue to shrink.
Tom Spahn practices as a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations.
