Many attorneys and law firm marketers have sounded alarms that the American Bar Association's Commission on Ethics 20/20 is examining legal ethics issues arising from lawyers' use of Internet-based client development tools.
These tools encompass a wide range of now-common marketing tactics: social networking, blogging, discussion forums (list serves) and websites. The ABA has posted an "issues paper" on its website making it clear that the organization is merely gathering information and input at this point, and has not taken a stand on any Internet-related issue.
What the ABA is dealing with here is significant to the profession. Any final decision will be advisory only, however, even if some states do follow its recommendations. And frankly, if there is to be any regulation, it might best come from the ABA rather than the individual states, which tend to be even more restrictive in marketing issues.
It's fascinating that substantial heat has been generated over the ABA's mere examination and soliciting of comments on Internet marketing/advertising/promotion. Yes, there are enough rules already on the books to protect the innocent and govern the "guilty." But new technology requires a new look, perhaps even a loosening of the current ad hoc rules.
The real angst in this issue comes from potential restrictions on a tool that allows the solo and small-firm lawyer to compete with his large-firm contemporaries. Some may call this fear, but it has real economic impact in their legitimate concern.
The Internet marketing efforts of small-firm practitioners typically are designed to generate awareness and to get potential clients to initiate contact. When even the smallest of firms have informative web pages, and their lawyers can interact with worldwide users of blogs and social networking sites, the playing field is leveled. It is the principle embodied by a famous New Yorker cartoon that depicted a family pooch seated before a computer screen, paws on keyboard, saying to a fellow canine: "On the Internet, nobody knows you're a dog."
In recent years, at both the state and national levels, we have witnessed bar associations imposing mandatory continuing legal education requirements, mandatory malpractice insurance disclosure, mandatory bans of retainers for loan modification, and, of course, mandatory restrictions on advertising — all for "the public good," and often to the detriment of the small firm.
The California Legislature has taken the next step, enacting a law that requires the state bar to examine how it governs itself. The legislators (who basically mistrust lawyers) apparently believe that a self-regulating state bar will not be committed to "protecting the public" as legislators and politicians would like.
Apprehension about such restrictions is, it seems to me, the real reason behind the vehemence of criticism over the proposed ABA action on social media and technology. It is one more element in what can be seen as a broad frontal attack on the principle of self-regulation for individual lawyers. Time and again it has been shown that giving others the power to regulate gives them the potential power to destroy.
Shakespeare said, "First, let's kill all the lawyers." But some fond of reciting this well-quoted line forget the Bard's words that immediately precede it: "If you want to control the society ..."