Wednesday, February 2, 2011

Philadelphia Bar Committee defines "real-time electronic communication" in Rule 7.3(a)

In August 2010, The Philadelphia Bar addressed social media concerns .

In its June 2010 opinion, it addressed the meaning of Pennsylvania Rule of Professional Conduct 7.3(a), which limits the lawyer's ability to conduct in-person solicitations. The committee clarified that "real-time electronic communications" in the rule should be understood to mean "electronic modes of communication used in a way in which it would be socially awkward or difficult for a recipient of a lawyer's overtures to not respond in real-time." The committee then compared its meaning of "real-time electronic communications" to that which was addressed in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988).

Therefore, the committee made it clear that the only type of lawyer communication that is restricted under Rule 7.3(a) is that which is akin to a face-to-face communication. Therefore, the committee concluded that lawyer blogs do not fit under its definition of "real-time electronic communication," because “[e]veryone realizes that, liked targeted mail. . . blogs can be readily ignored, or not, as the recipient wishes.” (The committee recommended, however, that lawyer bloggers retain their blog posts for two years in accordance with Rule 7.3(b)).

Is this really true though? While blogs are a medium that, in general, a person makes the conscious choice to visit, is it really the same as direct mail?

Once a person makes the choice to access the blog, often they can make comments and read comments. Are comments not akin to having a real-time conversation with the blogger? Even if the person enters the blog site intentionally, and chooses to comment, couldn’t potential further comments made by the blogger to the person be considered in-person communication? I think it might. In which case, the committee’s answer to the question on whether blogs are that blogs real-time electronic communication may be too general. I contend that a more in-depth analysis is required.

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