ABA Resolution on Technology and Client Development

The ABA Commission on Ethics 20/20 recently submitted six resolutions to the ABA House of Delegates for consideration this month. The six resolutions stem from the commission’s study of the Model Rules of Professional Conduct in light of advances in technology and global legal practice developments. Following the three-year study, the commission came up with the following six resolutions:

The Technology & Client Development resolution is particularly applicable to this blog. For example, the resolution proposes the following be added to the comments of Rule 1.18 (Duties to Prospective Clients):

A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.  Whether communications—including written, oral, or electronic communications—constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.

The resolution also proposes the insertion of “email address, website,” in comment 2 of Rule 7.2 (Advertising). “This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address, email address, website, and telephone number.”) (Emphasis added.)

What about paying for leads? The resolution changes comment 5 to Rule 7.2 to:

Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 for the (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another).

The comment prevents lawyers from paying lead generators to recommend the lawyer to the generator’s leads. I foresee some interesting implications here. After all, one of the purposes of lead generation is to develop leads for oneself. That said, the rule would simply prevent you from paying a third-party to develop your leads. Moreover, lead generators would still be able to provide a list of lawyers that may be able to meet the lead’s needs, which is what most paid legal directories and similar services already do. (Some may argue that by placing a specific lawyer at the top of the list, the lead generator is recommending that specific lawyer; the resolution, however, does not delve this deep into the details.)

Rule 7.3 (Solicitation of Clients) provides a new definition of “solicitation;” comment 1 states:

A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. (Emphasis added.)

Rule 7.3 also clarifies that the in-person (live) and other solicitation rules apply to the solicitation of “anyone” and not just “prospective clients.”

There are numerous other small revisions and alterations that are worth reviewing. Recognizing that this is merely a resolution, it still may be worthwhile to read over the new proposals; it is likely that the House of Delegates will adopt some revisions to the MRPC given that the Rules have not been updated to reflect changes in technology and legal practice in today’s world.

The other resolutions are also worth reading, but I think that the readers of Lawyernomics will find the Technology and Client Development resolution the most interesting and applicable.