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Rewriting the rules on online marketing, lead generation — and competence

When it comes to creating a potential attorney-client relationship, “Discussion” is out; “Consultation” is in.

That change, designed to put online communications on par with actual conversations, was adopted Monday by the American Bar Association’s House of Delegates as a result of the work of the Commission on Ethics 20/20.

The vote in favor of Resolution 105B amends several of the ABA’s Model Rules of Professional Conduct to provide more guidance on online marketing and lead-generation. As Debra Cassens Weiss writes for the ABA Journal, 105B addresses such questions as:

When do online discussions give rise to duties to prospective clients? May a lawyer generate leads through Groupon? What type of online communications are impermissible solicitations?

The changes include replacing “discussion” with “consultation” in Model Rule 1.18, which deals with duties to prospective clients. Lawyers with their own smartphone apps may want to pay close attention here: “According to new commentary,” Cassens Weiss writes, “duties may arise if a lawyer invites the prospective client to submit information about possible representation without sufficient warnings or cautionary statements.”

Resolution 105B also amends Model Rule 7.3 to deal with online client solicitations. And it adds a new comment to Model Rule 7.2 to address marketing methods like Total Attorneys, Martindale-Hubbell’s and even, yes, Groupon. The new comment says it’s OK to pay for “lead generation” services, provided the generator doesn’t vouch for the lawyer’s credentials or abilities, or create the impression that it has chosen the lawyer by analyzing the potential client’s legal problems, or pretend that the recommendation is being made gratis.

Finally, if you’re the kind of lawyer who thinks none of this applies to you because your social network is more about your crowd than The Cloud, well, think again. The House of Delegates also approved Resolution 105A on Monday. Under a new comment, 105A adds to Model Rule 1.1, the duty to provide competent representation now requires not only that you keep up with changes in the law, but also with the risks and benefits associated with new technology.

Those were just two of the resolutions adopted at the ABA’s Annual Meeting in Chicago, which wraps up on Tuesday. For more information on the delegates’ votes and other reports from the meeting, click here.