Regulating Online Marketing? Red Alert - The ABA Isn't the Enemy.


There's a lot of hyped-up commentary regarding the ABA's proposed regulation of online lawyer marketing, as though this will end all law firm marketing on the internet. To the contrary, this is not really much of an issue from a constitutional law perspective.

This article discusses why we shouldn't fear the ABA. In fact, we should support the ABA's efforts, in order to encourage more states to use the Model Rules. The real enemy isn't the ABA, it's the arbitrary and confusing patchwork of 50 states rules with which national law firms or national marketing campaigns must comply.

We're not at risk by ABA regulation in this area - in fact the ABA has been moving in the right direction in recent years, easing the Model Rules restrictions.

We shouldn’t be arguing about regulating the free-flowing internet or social media as though it's a special case that requires new rules -- that’s a red herring. The Rules don’t care whether it's TV or Twitter, Facebook or face-painting. The Supreme Court, in the Texans Against Censorship case (, held that speech can be regulated if you use it in a way that "beckons business." If you don’t, it can't be regulated.

Very simply, if you paint "Hire me." across your face, then you're beckoning business. As such it is commercial speech, and the government has the responsibility to regulate it for the protection of the consumer. That wouldn’t change regardless of whether you conveyed that same "Hire me" language in a billboard, blimp, bulletin, blog, brochure, or business card. Or in a print ad, newsletter, T-shirt, TV commercial, radio spot, or direct mailer. Or via Twitter, Facebook, LinkedIn, AVVO -- or JDSupra.

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