A couple of weeks ago I blogged about the “ABA’s Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools” when Larry Bodine first raised his “Red Alert” about the ABA Issue Paper. My first reaction was that the ABA isn’t out to help the little guy or smaller firms, which have gained at least some advantage on leveling the playing field with larger firms as a result of the Internet.

Accordingly, I was critical of the ABA effort and pointed out that the in my opinion there is already sufficient prohibitions against false and misleading marketing practices by unethical lawyers. I may have been somewhat unfair toward the ABA. I am not saying that I’m pro Issue Paper, but I may have been a bit harsh with my somewhat anti-ABA blog post.

In the interest of fair play, I’m compelled to mention a thought-provoking piece that Ross Fishman emailed me last week in which he argues the ABA “isn’t the enemy.” Apparently, he first published his article on the Law Marketing listserv, but I was not able to locate it there. It now appears on Ross Fishman’s Marketing Blog. I found it quite informative and compelling on the issue, and recommend it to your reading, as you keep in mind the December 15, 2010 deadline on responding to the Issue Paper.

Essentially, Ross’ argument is that we shouldn’t be caught up in the hysteria about the Issue Paper on Internet marketing; but rather on the “real problem” of having to contend with 50 jurisdictions with 50 different (albeit similar) rules. Further, he raises a valid argument for, IMHO, different rules for“corporate” and “consumer” practices, and accurately states that they should be treated differently under the ethics rules, as I vigorously argued for years when I was an in-house marketer. A sophisticated corporate executive or company with an in-house lawyer certainly doesn’t need the same protections from unscrupulous lawyers/marketers as do widows or orphans after a terrible accident. It just ain’t the same;

Ross states that it’s not the ABA that is “marketing-phobic;” but rather states like Florida, Iowa, Texas and New York. In support of his statement, he cites two examples of where the ABA has actually become more reasonable in terms of Rule 7.1, by removing two definitions of “false and misleading” that addressed “unjustifiable expectations” (that some now interpret as allowing testimonials), and “comparing the lawyer’s services with other lawyers” (which pretty much prohibited the use of any "adjective” in describing a lawyer’s services, according to Ross).

He also points out the difference between speech that “beckons business” and that which does not. The former is commercial speech and may be regulated whether it is a brochure or a web site. To argue that the Internet should have different rules or not at all is a “red herring.” As Ross puts it, “It’s what you say. Not where you say it.”

I’m still somewhat leery of what might come out of the Issue Paper process, and remind everyone of the December 15 deadline for comments; but, I strongly suggest you read Ross’ article.