Articles Posted in American Bar Association

If you are like me– seemingly spending half your life reviewing state bar rules, regulations and ethics opinions for my clients that seek to ensure compliance in the states in which they practice–I’m sorry to hear that. Hopefully, like most attorneys, you are more of a casual observer. In August, the House of Delegates of the American Bar Association approved a series of changes to the Rules of Professional Conduct. Many in my realm of marketing and business development circles ask how it will impact them and what, if anything, they should be doing about it.

For starters, I remind you that these are “model rules” as opposed to “rules.” As someone long involved in various aspects of ethics and professionalism in the ABA, I can assure you that the time it will take many states to implement all or some of the rules will be “not tomorrow.” I’m pretty sure some states are still mulling over pieces of the ABA’s Ethics 2000 initiative. But it is only 2012 now, and you really just want to update your rules before the year 3000 hits or risk being seen as behind the times. And these changes come from Ethics 20/20, which is 20 years longer than 2000, divisible by 20.

Of course, the impetus for the ABA changes is simple–technology has far outpaced the long arm of the professional conduct law. The Ten Commandments would be delivered today via cloud computing, as opposed to having a long hike and getting stone tablets. Oy veh!

In April, I organized a CLE teleconference for the ABA Center for Professional Development entitled, “Is Your Legal Blog Compliant? Ethical Considerations in the Wake of Hunter v. Virginia State Bar“. The roundtable featured me, Virginia legal ethics legend Tom Spahn of McGuireWoods, big-time blogging employment lawyer Molly DiBianca of Young Conaway, and the man himself–Horace Hunter of Hunter Lipton. While the case, and the discussion, touched upon a number of legal ethics issues, the one that I personally paid the most attention to was the ongoing debate as to whether a lawyer blog constitutes advertising (thus, marketing) under the Rules of Professional Conduct.

As many of you know, as a marketing ethics guy, I’ve argued for years that a blog constitutes advertising, in the same way that any other web site would. The marketing part of me would love to agree with those that claim a blog is an editorial vehicle of sorts, and not necessarily promotional in nature. Hint: If a blog was not a marketing vehicle, I would not be writing this post! However, Micah the Ethics Lawyer will argue vehemently that a blog is unquestionably a form of marketing. You simply can’t start evaluating every online presence–a web site, a blog, a microsite, a Facebook profile, a tweet–to determine “on a case by case basis” if the content is marketing or not. If you’ve read hundreds of ethics opinions, disciplinary letters to firms, state by state versions of the model rules, you know that most state bars are simply incapable of effectively and accurately making those distinctions.

Recently, a three judge panel reaffirmed what I believed. The blog is advertising. Thus, an appropriate disclaimer was necessary on the web site. Mr. Hunter did prevail on the charge that probably was more serious in nature (for him) on whether client confidences were violated in the posts themselves. But in this case, Virginia has spoken–a blog is a web site and requires disclaimer language in step with what you would include on any other similar advertising component. Of course, this interpretation is limited to a single state. But everyone was watching to see this outcome, as a lawyer pushed the envelope and challenged the bar. According to Horace Hunter, though, he will appeal…and this story is not yet over.