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ABA Paper from Ethics Commission has no implications on law blogs

There’s been a flurry of online discussion the last couple weeks regarding the American Bar Association’s so called attempt to curtail a lawyer’s use of the Internet for client development. The discussion is the result of a paper issued by the ABA Commission on Ethics 20/20.

As a result, I’m being asked what, if any, implication the ABA paper has on the publishing of law blogs. The answer is none.

In August 2009 the American Bar Association announced the formation of the ABA Commission on Ethics 20/20. The Commission was formed to review legal ethics rules and regulation in light of technological advances and globalization in the legal profession.

Over a year later, on September 20, 2010 the Commission issued a Paper announcing that the Commission was examining a number of legal ethics issues arising from lawyers’ use of technology, including issues arising from Internet-based client development tools.

The goal of the Paper was twofold.

  1. To describe several issues that the Commission has identified in this context.
  2. To elicit comments by December 15, 2010 on possible approaches that the Commission is currently considering.

The Commission made clear that it was taking no positions in this Paper. The Commission merely wanted to elicit comments on the issues in order to facilitate the development of reports and proposals that the Commission plans to draft during the next two years.

That’s it. A Commission. A Paper. No positions taken. Comments requested. We’ll hear more in 2013.

Furthermore, neither the ABA nor the Commission have any authority to promulgate ethics rules governing lawyers behavior. That’s the province of individual state bar associations and state supreme courts, depending on which governs lawyers in respective states.

Two years from now the Commission could suggest that the ABA’s Model Rules of Professional Conduct be amended. Amendments which presumably would take a year or two for the ABA to adopt. Before any lawyer would be impacted by any such amendments, individual states would need to adopt the amended Model Rules.

Even if new ethics rules are passed regarding blogs, and that’s no sure thing, we’re likely looking at four or five years before we’ll see them.

It’s true that the Commission is examining lawyer’s use of blogs. But the issues the Commission is considering relative to blogs are minimal. The proposed amendments relating to Blogs the Commission is considering are also minimal.

Even if there are ever amendments passed regarding lawyers use of blogs, and that’s no sure thing, lawyers current use of blogs is not going to be impacted in any significant way. More on this point in an upcoming blog post.

  • http://www.avvo.com Josh King

    Blogging as properly carried out is not advertising, and thus shouldn’t get drawn up in attorney ad rules any more than writing articles for ALM publications or the ABA Journal would.
    The problem – and the concern over this proceeding – is that state bar regulators have done a poor job of keeping their regulatory impulses within constitutionally permissible boundaries.
    Josh King
    GC, Avvo

  • http://kevin.lexblog.com Kevin OKeefe

    Even if blogging is advertising Josh I am not sure why that matters. It means in some states you need to display the word ‘advertising’ in the footer, that you need to include the name & contact of the lawyer/law firm, not say anything that is false and misleading, and my not pay for referral service. How would that impact blogs?

  • http://blog.simplejustice.us shg

    These discussions always go south when the universe of thought extends all the way from Avvo to Lexblog. What’s missing from this discussion? How about somebody who doesn’t have a horse for sale in the race?
    Many so-called blogs are shameless self-promoting, replete with false and deceptive claims and a total disgrace. I know this because Kevin points them out from time to time. Bad blogs? Sure, but those are the ones for which the rules are created.
    There will be rules, and if the only voices heard are the ones that stretch the argument to the point of absurdity, the rules are going to be bad, and will be adopted (with states’ own local, nasty, draconian spin).
    Like Josh, I’m deeply concerned about the encroachment on constitutional rights, but I’m also damned wary that we’ll end up far worse leaving the argument to marketers. Let’s get real and start dealing with this thoughtfully, instead of sticking our heads in the sand and denying it. Or else, the only voices will be marketers, and then we’re doomed.

  • http://kevin.lexblog.com Kevin OKeefe

    Dividing the world into marketers and non-marketers is a cop out. If someone has what could be a valid point, whether you agree with it or not, take it as that. Then argue the contrary if you disagree with it.
    I practiced as plaintiff’s trial lawyer for 20 years. Insurers and corporations lobbied like heck that peoples’ right to a jury should be limited. There was no soon to be injured or killed lobbying group. As a result, the national and state associations of trial lawyers championed the cause of the American people.
    The response of insurers and coorporations? The lawyers have a horse in the race, they’re just looking to protect their fees. Blow them off. Unfortunately for the public, state houses did just that.
    I’m concerned about where things may end up. We have the ABA, which has little, if any, domain expertise when it comes to the Internet and who is apt to protect the old guard, on the one side and we have lawyers doing tasteless advertising/marketing on the other side. That’s a recipe for some poor decisions.
    But I do think this discussion is being blown way out of proportion by many bloggers. The sky is not falling.

  • http://blog.simplejustice.us shg

    I don’t discount the marketers’ arguments because they’re marketers, but because the arguments proffered are both unpersuasive and, more importantly for me, counter-productive. The arguments, that the internet should be an “ethics-free zone” and that there’s no room for ethics in the 21st Century, are an invitation for repression.
    Will the sky fall? We shall see, but the surest route to the sky falling is for marketers to push their absurd anti-ethics agenda.

  • http://www.impirus.com Kelly Spradley

    @shg I am a marketer, and I do not feel that ethics should be abandoned.
    I think that if a governing body is going to make decisions, it should be educated.
    I think that bars need to talk to lawyers who are using the internet for marketing.
    I think that they should talk to consumers. They should conduct studies that address whether or not consumers have been misled by lawyer advertising.
    I for one believe that the general public benefits from the legal information that is published in blogs.