The American Bar Association is currently reviewing whether to make new recommendations on how lawyers should be regulated in their use of the internet, such as with their Facebook accounts, personal blogs, and discussion forum activities. That's right, just when you thought that your law practice was already subject to as much regulation as a profession could impose on itself, the ABA has decided that you should be regulated some more. Of course, the ABA can't actually impose regulations directly on lawyers, but it is fairly common for their recommendations and modifications of the Model Rules of Professional Conduct to work their way down to the state bar associations to become the lawyer regulations in each state.
The ABA has posted a notice on their website stating that the American Bar Association's Commission on Ethics 20/20 is "examining a number of legal ethics issues arising from lawyers' use of technology, including issues arising from Internet-based client development tools."
However, current regulations requiring basic disclaimers and not making false or misleading statements in ads seem sufficient to cover any problems.
The ABA seems not only interested in making sure lawyers are being honest in what they say on their websites, but also in what lawyers are doing on their personal Facebook pages and Twitter accounts. This is where bar association meddling is likely to go too far in repressing, or at least inhibiting, free speech.
Lawyers already face restrictions on their freedom of speech under threat of losing their law licenses. They don't need to have their freedom of speech hampered more by having the state bar reading all of their social networking posts. To the extent that bar associations could repress lawyer free speech even more than they already do, the ABA writing white papers on the subject creates a risk of causing more harm than good.
Another area where the ABA may create complications is in the realm of blogging. While a blog on a law firm's website fairly easily falls under the standard ethics rules, a lawyer's personal blog or writing the lawyer does for other websites can create more complications. Just because a lawyer writes an article or story to be published online does not mean that it is a form of advertising.
Must every article written by a lawyer contain disclaimers, qualifiers, and professional niceties to avoid inadvertently violating the myriad of lawyer advertising regulations? If the ABA adopts a position on this, their position needs to be one that recognizes that lawyers have the right to a personal life beyond the regulatory reach of the bar. Lawyers don't have to tattoo disclaimers on their foreheads, and they shouldn't have to do the equivalent of that whenever they venture into an Internet forum either.
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