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Coach’s Corner: The power to regulate is the (potential) power to destroy

By ED POLL, Special to Lawyers Weekly

edpoll@lawbiz.com

Many lawyers 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.

Those tools encompass a wide range of now common marketing tactics: online social networking (Facebook, LinkedIn and Twitter), blogging, discussion forums (listservs) 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 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 ABA 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 is fascinating that substantial heat has been generated thus far over the ABA even examining and soliciting comment 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 sole and small-firm lawyer to compete with large-firm lawyers. Some may call this fear, but it has real economic impact in their legitimate concern.

The Internet marketing efforts of small-firm practitioners are typically 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 showed a family pooch seated before a computer screen, paws on keyboard, and saying to a fellow canine: “On the Internet, nobody knows you’re a dog.”

At both the state and national levels in recent years 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 law firm.

In California the legislature has taken the next step, enacting a law that requires the State Bar of California 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. And, as Shakespeare said, “First, let’s kill all the lawyers. …” But people who are fond of this phrase forget, it was in the context of “If you want to control the society, first you kill all the lawyers.”

 

LawBiz® 

Coach’s Corner

 

Poll is the principal of LawBiz Management, a national law firm practice-management consultancy based in Venice, Calif. For more information, visit www.lawbiz.com.

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