From print to pixels, legal ethics struggle with new media

By SYLVIA ADCOCK, Staff Writer

[email protected]

The phone book is dead.

Not only does nearly every lawyer practicing have his own website, but potential clients are much more likely to plug “DWI lawyer” into a search engine than to look in the Yellow Pages – assuming they actually have one of those big books at home.

And as legal marketing has morphed into new arenas with ever-changing technology, there’s some concern that regulatory agencies and state bars have not kept up. At the N.C. State Bar, the Ethics Committee last month decided to bring in an attorney who is an expert on Internet and technology issues to help the committee understand some of the new issues that were cropping up.

“One of the problems we have as an Ethics Committee is to make sure we do really understand these things,” said Alice Mine, ethics counsel to the State Bar.

The move came after inquiries regarding live-chat buttons on lawyers’ websites, the use of Google’s AdWords and Groupon came before the committee in a space of less than four months.

“The fact that we had these three things coming at one time is a real demonstration that we are having a shift,” Mine said. While marketing issues used to involve TV ads and targeted mail, she said, “that’s in the past. … What I want to know is, how soon are we going to get a question about Twitter?”

The State Bar in North Carolina isn’t the only one interested in the issue.

The American Bar Association’s Commission on Ethics 20/20, which is charged with taking a new look at ethics rules, has released an issues paper “concerning lawyers’ use of internet-based client development tools.” Among other things, the committee is looking at issues involving a lawyer providing legal advice or expertise on a blog that is not clearly identified with the professional website and information-gathering through social-media sites such as Facebook and LinkedIn.

“Because lawyers frequently use these Web sites and services for both personal and professional reasons, the legal ethics issues in this context are more complicated than they have been for more traditional client development tools,” the paper reads. “For example, a lawyer might create a Facebook profile that is accessible to family and prospective clients at the same time.”

The paper also raises questions about whether new rules are needed to address “pay-per-click” advertising, in which lawyers pay a third party for directing Internet users to their website.

The paper was circulated for comments last fall. Andrew Perlman, professor of law at Suffolk University in Boston, said comments received were from attorneys who wanted to be able to use new forms of technology to market their practices.

“The committee will be taking those concerns seriously,” he said. Eventually, new rule changes could be submitted to the House of Delegates and become part of the ABA’s Model Rules.

Ryan Blackledge, who serves on the N.C. Bar Association’s Technology Advisory Committee, said that any new ethics rules need to reflect a true understanding of the various media. He said the committee had recently discussed an opinion in another state that found it unethical for an attorney to “friend” a judge on Facebook.

“We need to recognize that when Facebook uses the term ‘friend’ it doesn’t mean bosom buddies,” said Blackledge, who is a bill drafter at the General Assembly.

It can be tricky, he said, to keep one’s professional social-media presence separate from the private one. He said he originally decided he would use Facebook for personal friends and LinkedIn for professional contacts. But that became difficult when professional contacts and others at work friended him. Then, he said, last month his wife joined LinkedIn and sent him a request.

“If you’re going to participate, you need to understand how these things work,” he said. “It can be difficult to manage your image because people can post on your page or tag you.”

In general, Blackledge said, the state regulatory agencies are a little behind in terms of keeping up with the rapid technology changes.

“It’s the younger attorneys, who had Facebook in college and in law school, compared to older attorneys, who have worked their way up in the leadership ranks.” Those attorneys, he said, are sometimes “very removed. A lot of the ethics opinions reflect a fundamental misunderstanding about the technology involved.”

Tom Kane, a legal marketing consultant based in High Point, said it’s not clear which way the ABA will go on these issues. But he questions whether new rules are needed since attorneys are already barred from saying anything misleading or untrue on any kind of advertisement.

“Those rules are already in place,” he said. “You can’t say in an ad in Lawyers Weekly and you can’t say in an ad on TV and you can’t say on Facebook things that aren’t true. There’s nothing different here. … It’s the message not the messenger.”

But Mine said it’s more nuanced.

For instance, she noted that in the case of an attorney who had purchased his competitor’s name on Google’s AdWords – meaning his name would show up anytime someone searched for his competitor – some members of the public might be more savvy than others.

“Anybody who does any kind of searching using a search engine knows that the column on right is an ad,” she said. “But there are some people out there who might not understand that.” The practice could mislead those people into thinking the attorney in the ad is connected to the law firm that was subject of the search, she said.

Mine said the ABA’s guidance will be helpful. “They’re looking at the big picture,” she said.