ABA ethics commission voices concerns about new technology

The American Bar Association Commission on Ethics 20/20 recently released its initial proposals for comment on lawyers' use of technology-based client development tools.

While not recommending any new restrictions on lawyer advertising, the draft suggests more clarity is needed for lawyers' obligations when they use new forms of technology to disseminate information regarding legal services and seek to develop clients.

The recommendations provide clarification in three areas:

* Where electronic communications may inadvertently give rise to a prospective client-lawyer relationship.

The report identifies precautions that lawyers should take to prevent the inadvertent creation of such a relationship and to ensure that the public does not misunderstand the consequences of communicating electronically with a lawyer.

* Types of Internet-based client development tools that lawyers are permitted to use, particularly related to an ambiguity regarding the prohibition against paying others for a "recommendation."

The draft proposal clarifies that a recommendation should be deemed to exist only when someone endorses or vouches for a lawyer's credentials, abilities, or qualities.

* When a lawyer's online communications constitute "solicitations."

The draft proposal clarifies that communications directed to the general public, responsive to a request for information, and advertisements generated in response to Internet searches are not "solicitations."

"Though the Model Rules were written before these technologies had been invented, their prohibition of false and misleading communications apply just as well to online advertising and other forms of electronic communications that are used to attract new clients today," said Commission Co-Chair Jamie Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington, D.C.

"We didn't need to change much," she added.

Commission Co-Chair Michael Traynor of Berkeley, Calif., president emeritus of the American Law Institute and senior counsel at Cobalt LLP, says, "The recommended changes are meant to clarify the application of existing rules to new forms of communications.

"Where uncertainties may exist or further explanation seemed useful, we wanted to identify potential ethical questions and provide guidance."

The commission's current proposal is posted on its website, and will also be circulated for comment.

The recommendation may undergo further revision before being presented to the association's policymaking House of Delegates for consideration in 2012.

A memo from the commission co-chairs seeking comment on these issues is available at www.abanet.org/ethics2020.

In developing the recommendations, the commission sought feedback from a wide array of legal entities, as well as providers and users of marketing-related technology.

A draft Issues Paper was developed and posted on the commission's website, and circulated widely for comment.

Published: Thu, Jul 7, 2011

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