ABA adopts policies on online marketing, technology, law school data

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By Dan McDonald
Dolan Media Newswires

The American Bar Association adopted new ethical guidelines for lawyers regarding online marketing and staying aware of current technology at its annual meeting this month.

The ABA House of Delegates also approved a policy requiring law schools to provide detailed data online about their graduates’ employment.

Among other things, the online marketing guidelines explain when an attorney-client relationship arises from online communications.

Andrew Perlman, a professor who specializes in legal ethics at Suffolk University Law School in Boston, said practitioners are often concerned about this issue.

“Given the rapid changes of technology, the rules of professional conduct need to evolve as well,” Perlman said.

The previous rule required a “discussion” to take place between an attorney and a potential client in order for an attorney-client relationship to be established. However, that terminology did not capture the idea that Internet communications can give rise to such a relationship. Under the new guidelines, the concept of a “discussion” is replaced with a “consultation.”

The new rules also offer guidance on how lawyers can use pay-per-click advertising and social networking sites to market their services online without inadvertently creating an attorney-client relationship.

According to the ABA, a “consultation” does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice and contact information, or provides legal information of general interest.

A “consultation” is likely to have occurred, however, if a lawyer, either in person or through advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear statements that limit the lawyer’s obligations, and a person provides information in response.

The new rules also identify when online communication constitutes “solicitation.” For example, ads generated in response to Internet searches, such as through a service like Google AdWords, are not considered solicitations under the new guidelines.

According to the rules, a lawyer may pay an online service, such as totalattorneys.com, to generate client leads, as long as the lead generator doesn’t recommend the lawyer or create the impression that it is making referrals without payment from the lawyer.

The new rules also clarify that an attorney has a duty to respond promptly to all client communications, not just phone calls.

Another change to the model rules states that an attorney has a duty to keep abreast of “changes in relevant technology, including the benefits and risks associated with its use.”

That rule outlines notification requirements for when information is inadvertently sent electronically. For instance, if opposing counsel sends an e-mail or metadata by mistake, then the recipient of the information must notify the sender, according to the ABA.

Employment data on law school sites

The ABA House of Delegates also approved a policy requiring law schools to publish accurate employment data on their websites. Previously, the rules required such information to be published, but law schools would typically use an ABA official guidebook to legal education to convey the data, not their websites.

The new policy also requires a more specific breakdown of the data. While previously a school had to report things such as how many graduates were employed nine months after graduation, the new rules state that employment data should include employment status, type of employment, whether the employment is full or part-time and whether the employment is funded by the law school or university.

The information must also include the sizes of the firms where graduates are employed and whether a J.D. is necessary for the jobs graduates are landing. All of that information, according to the ABA, should appear in chart form.

The new standard meets the demand of students, graduates and potential law students for more data, said Barry Currier, the interim law education consultant for the ABA in Chicago.

Richard P. Campbell, who is president of the Massachusetts Bar Association and was recently named to an ABA task force on the future of legal education, said there has been a problem with law schools publishing employment statistics that did not accurately reflect the economy or the job prospects for soon-to-be graduates.

“Certainly the reports in the press demonstrate a ubiquity to the problem; generally, [law schools have been] fudging the data,” said Campbell.

Sanctions for violating the new standard include probation and removal from the list of ABA-approved law schools.