Articles Posted in Legal Ethics

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TextingIn once again serving as the issue editor for the Ethics-themed December 2024 edition of the American Bar Association’s Law Practice Today webzine, I contributed an article addressing recent changes to the Rules of Professional Conduct in Pennsylvania, and related ethics opinions, addressing texting in two different ways—ways where texting can be improper solicitation, and a whole different definition of “solicitation”—as it relates to sexting. In the article headline I submitted, “For PA Lawyers, Remember Sexting is Sex; Texting can be Improper Solicitation,” I may or may not have made it more salacious to increase readership and interest (i.e. click bait). But our copy editors did edit my title to the official “Can Texting Be Improper Solicitation?”

Many thanks to the authors contributing excellent articles to the Ethics issue. Michele Carney wrote on Formal Opinion 512 and The Reasonableness of Fees When Using AI. Dave Ries once again tackled a cybersecurity ethics issue with Ethically Avoiding Fraud and Scams. Law Practice Division chair-elect Dan Siegel authored Generative AI Competence. And Charity Anastasio wrote on Lesser Known but Wildly Helpful Ethics Rules. All of us—myself, Dave, Dan, Michele and Charity—are active members of the ABA LP Ethics & Professionalism Committee.

If you are blocked from reading the article behind the ABA paywall, it is provided below in its entirety.

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ethics-regulations-ai-artificial-intelligence-hammer-gavel-judgement-legal_1162612-1423-300x200A few months ago, I was asked to provide the ethics attorney perspective for a Legal Marketing Association (LMA) program, AI for Communications and PR: What You Need to Know Now. At that point, I had not put a lot of thought into the ethical considerations. As with most business development professionals, I had already incorporated artificial intelligence (AI) into my day-to-day. But as is often the case for many lawyer speaking gigs, I delved into the topic and learned it–quickly. And because I believe strongly in taking a presentation and turning it into an article (or vice-versa), my marketing column addresses the issues in the September/October 2024 issue of Law Practice, Ethical Issues When Incorporating AI Into Law Firm Marketing.

Where I come from, when you say “A.I.” it can only mean one thing—Allen Iverson. But in most parts, AI has become a part of our everyday lives—whether we’re talkin’ about practice, not a game, or almost every aspect of business operations (IYKYK). The bottom line is that AI is integrated into almost everything. Thus, the need to understand where the Rules of Professional Conduct (RPC) and other ethical issues in law practice come into play. As I note in my column, no less than 15 different RPCs were noted in one state’s AI task force report, as it relates to potential ethics issues that overlap with law firm marketing concepts.

If you are blocked from reading the column behind the ABA paywall, it is provided below in its entirety.

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Point-Counterpoint - Model Rule 5.5

SNL’s Point-Counterpoint

Perhaps, I’ve never (co) authored an article with a smaller potential audience than the great give-and-take on the bandied-about subject of Model Rule 5.5 under the Rules of Professional Conduct. In the November 2022 edition of the American Bar Association’s online webzine, Law Practice Today (LPT), together with Charity Anastasio of the American Immigration Lawyers Association (AILA), we debate the viability of a revision.

In Point-Counterpoint:  The Likelihood of Revising RPC 5.5, we ask and answer the question – Is the Association of Professional Lawyers’ Proposal for a Revised Model Rule 5.5 on its way, or DOA?

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ABA Law Practice Magazine

Marketing Column

In the November/December 2022 marketing column in the American Bar Association’s Law Practice Magazine, Marketing Ethics Compliance Continues to Confound, I combine a number of business development topics into one.

When writing my column, I often start by thinking about what “hot” areas I’m working on at the moment. In the 21 years-plus since launching HTMLawyers, I’d say most years that the bulk of law firm clients have been on the marketing and business development guidance side; a slight amount dedicated to my related but separate ethics practice. However, in recent years, it has flipped. I find myself spending a lot of time behind the desk reviewing a vast variety of marketing campaigns for law firms around the nation—not to give my two cents on the marketing aspects, but to review for ethics compliance. I help law firm managing partners and GCs sleep better at night. They don’t want to be at the helm when that disciplinary letter rolls in, or worse. It is a practice area loaded with inconsistencies, confusion and varied levels of enforcement. All of which makes it a super fun area to practice.

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ABA’s Law Practice Today Webzine

Over my 25+ years of working with law firms on business development, addressing the issue of law firm names is not really one of my favorites—because it rarely comes without some painful internal issues to address.

There are the firms that want to drop the second, third or fourth names (if you have more, you’ve got a real problem) from the law firm name—usually just in regard to branding and the logo (and the website, e-mail address and social media accounts), while keeping the full “legal name” intact. It is easier when those names are for attorneys that are deceased (sorry to say), because it is a lot tougher when the lawyer whose name is coming off the signage is still sitting right there.

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ABA_Journal_June_July_2020-225x300In the June/July 2020 issue of the ABA Journal, Cynthia Sharp asks me about how attorneys can best respond to negative online reviews in “Trashed by Clients Online? Ethically responding to negative reviews,” a subject that I’ve discussed with many attorneys and clients over the years.

It is probably the topic that brings me the most questions during my marketing ethics-related CLE programs. In a recent webinar for the American Legal Institute (ALI), Ethically Navigating the Three Rs: Lawyer Ratings, Rankings, and Reviews, I focus solely on this area as it relates to attorney advertising. And I’ve written about the subject matter multiple times in my ABA Law Practice magazine column as well. Mostly, because unlike many areas of attorney marketing ethics, this one is quite “real” to many lawyers that have been bitten by disgruntled former clients, or unhappy ex-employees, shady competitors or just someone that plain doesn’t like you. The combustible mix of not being able to opt-out of the review process and the sheer fact that this stuff can be highly visible in your online portfolio can be deadly. And many attorneys have responded poorly—and violated ethics rules in the process.

The power of the online review—on Google, Yelp, Facebook, or numerous sites that are legal-specific—has grown exponentially in recent years. Early on, the issues often stemmed from reviews on legal site Avvo (which rewarded attorneys for having reviews in their profiles), and Yelp—the initial home of choice for the disgruntled…there is nothing like being ripped by a Yelper. Facebook could be especially critical to the consumer-facing law practice. But it was really the elevation of reviews on Google that increased the potential for reward and damage. If you think about the evolution of Google in the online marketplace—from sponsored results to adwords; SEO spends on organic results, local/mapped searching and various efforts at developing a social media component (mostly without success), the incorporation of Google Reviews and the related visibility in a search result puts a spotlight on them for the end-user and adds another concern for reputation management of your online portfolio.

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ABA’s Law Practice Today Webzine

Being super-active in the American Bar Association’s Law Practice Division means collaboration is a necessity. So in the November 2019 edition of Law Practice Today (LPT), I get to combine my role as Associate Editor of the webzine with my participation in the Ethics & Professionalism Committee to formulate our annual “Ethics Issue.”

Of course, that typically means I will need to contribute a feature as well, so I’ve authored “Maintaining Ethical Boundaries on the Gray Web of Marketing,” which discusses the difficulty many law firms are having today in determining how to effectively and ethically market themselves on the Internet without violating the Rules of Professional Conduct. Suffice it to say–easier said than done. And as the title suggests, it is far from black & white. There are issues of jurisdictional boundaries, fee-sharing, unauthorized practice of law and understanding where the RPC, ethics opinions and enforcement kick in (or don’t). I recently told a colleague that the sophistication level of aggressive online law marketers is well beyond the long arm of the (disciplinary) law. I used to put a ton of time and energy into making sure there was ethics compliance with a “standard” law firm website—text, disclaimers, bar admissions, etc. Today a typical website—regardless of the look & feel—is pretty ho-hum at the end of the day—office locations, bios, practices, industries, representative matters, blah, blah, blah…but it is in the realm of SEO, cookies, social media and all sorts of traffic drivers where the real issues lie below the surface of the World Wide Web. Have a read.

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ALI-300x108Of all the topics I have presented on in 22+ years of teaching law marketing ethics CLEs, my program on navigating the Three Rs—Ratings, Rankings and Reviews—may be my favorite. If you need your ethics credit, find your law firm often enveloped in dealing with the 3 Rs, or just enjoy the subject matter, join me for this live webcast on Tuesday, October 29, 2019 from 1-2 pm ET.

REGISTER NOW:  Ethically Navigating the Three Rs: Lawyer Ratings, Rankings, and Reviews

In putting together the ALI program, I was amazed not only by how much new information and materials were out there, but how much this area of lawyer advertising ethics had changed in recent years—sometimes for the better, often not. Ratings and Rankings have continued to grow exponentially—as if that was even seemingly possible. Outcries over the years to clamp down on the proliferation of businesses in this space have not only gone unanswered but have led to even more players in the space. There is simply too much money to be made, and plenty of egos to feed. But it is the impact of online reviews that have had the greatest impact among the three Rs. I get more audience questions after a CLE presentation about painful and problematic first-hand experiences in an attorney having to handle the impact of a negative review. On the flip side, many law firms are finding that the online review space is not only unavoidable but can be lucrative.

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ABA’s Law Practice Today

Ethical issues and dilemmas hit the legal profession from all angles. In serving as issue editor for the September 2018 edition of the ABA’s Law Practice Today (LPT) webzine, I sought to address a wide variety of subjects from attorneys with different practices and backgrounds.

Of course, I authored my own piece, What Do the Revised Rules for Lawyer Advertising Mean for Me?, recapping the recently adopted Resolution 101, passed by the House of Delegates at the ABA Annual Meeting in Chicago this past August. These suggested amendments to the Model Rules (7.1 through 7.5) relate to the realities of today’s lawyer advertising. While change is long overdue, it will be interesting to see the true impact that they may or may not have on state bar regulations and subsequent enforcement.

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