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Cyber-Ethics: New Proposed Changes to ABA Model Rule 7.1

It’s not always easy to determine when a lawyer’s use of social media sites like law blogs, LinkedIn, Twitter and Facebook to market and network violates a state’s ethical rules.

For example, if a lawyer has a LinkedIn profile and receives a recommendation from a former client, is the lawyer responsible for the content of that recommendation? Potentially. A recent South Carolina Advisory Opinion held that the lawyer is in fact responsible for the recommendation since recommendations are “communications about the lawyer’s services.”

To make matters worse, the current Model Rules aren’t entirely clear. In fact, the confusion has led the ABA Standing Committee on the Delivery of Legal Services to propose changes to the ABA Model Rules of Professional Conduct.  In a January 19, 2012 letter, the Committee proposed the following changes to Rule 7.1 and Comment 1 of the Model Rules:

A lawyer shall not make a false or misleading communication to a potential client about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment [1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2.  Whatever means are used by a lawyer to communicate with a potential client about the lawyer or the lawyer’s services to make known a lawyer’s services, statements about them must be truthful.

Comment [4] A communication with a potential client may be misleading when a lawyer recommends the services of another lawyer not in the same law firm and receives something of value for that recommendation without prior notice to the potential client of the recommendation.

The Committee was concerned that the prior version of Rule 7.1 was too broadly interpreted by states in ways that could unconstitutionally impose limits on a lawyer’s free speech. Further, the Committee noted that pursuant to Rule 8.4(c) any communication that is not made to a potential client, but that is nonetheless deceitful or that includes a misrepresentation, could subject the lawyer to discipline anyways.  Thus, the goals of the proposed changes are to differentiate Rule 7.1 from Rule 8.4(c), and to clarify that “the Rule’s application is limited to communications directed to a potential client.”

In other words, the proposed changes are intended to streamline the current Model Rules to make it easier to apply to the use of social media and blogging.

Obviously, the marketing potential from the use of blogging, Twitter, Facebook and LinkedIn are substantial and worthwhile. But the proposed changes call attention to the fact that you’ll want to be careful when using these sites to be certain that the comments you and others make on your site do not contain information about you “the lawyer” or your “lawyer services” that could be considered false and/or misleading — even if that means deleting an overly flattering testimonial that could deceive potential clients.

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