Ethics

[Josh King offers the second of his three posts on attorney advertising.]

In response to the question I posted originally regarding the reasons for attorney advertising rules, some commentators opined the rules are generally OK and provide attorneys with ?safe harbors? when it comes to deceptive advertising.  But do they?  As Carolyn Elefant pointed out, greater specificity in the rules doesn?t lead to greater clarity for lawyers trying to comply.  In fact, the more specific the regulation, the more opportunities for gray areas as lawyers try to understand how the regulations apply to each new form of communication.  Like Carolyn, I see this all the time:  Lawyers worried about whether a blog is subject to the ad rules.  Whether Twitter is ?real time electronic solicitation.?  Whether lawyer reviews on sites like Avvo are prohibited testimonial advertising.  
 
My concern is the lawyerly push for greater regulatory precision is counterproductive, that the ABA?s review of online tools and social media will simply result in greater ambiguity.  And to what end?  As Andrew Perlman notes, the ethics rules around advertising ensure that discipline can be imposed in the event deceptive advertising occurs.  But is it necessary that we regulate with such specificity?  If we?re only concerned with egregious examples (as we should be), why do we need so many rules?  Why not simply say that bar authorities may impose discipline in the event of a Lanham Act finding of deceptive advertising?  The track record at the state level, particularly in places like Florida, New York and Indiana, is not good when it comes to telling the difference between meaningfully deceptive advertising and simple failure to hew to a picayune bureaucratic requirement.  
 
One final thought ? I was struck recently by the difference in approach taken by the American Medical Association, when it released its Social Media Guidelines last month.  Barely longer than this post, the guidelines are high-level, aspirational and written with respect for the professionalism of the physician members of the AMA.  The ABA would be wise to look there for guidance.