Do Our Lawyer Advertising Rules Need Reform?

Advertising can be a big ethics trap for lawyers. What lawyers can and cannot say or do in describing their services is laid out in lawyer advertising rules adopted by the state supreme courts.

Most state supreme courts refer to the ABA Model Rules of Professional Conduct (MRPC) in determining the ethical rules for that state. The rules in Illinois closely follow the Model Rules. But the rules in other states differ significantly, creating a patchwork of regulatory approaches that can pose a nightmare for lawyers who practice in multiple jurisdictions.

Many within the profession say the advertising ethical rules are outmoded and should be updated to reflect the realities of the technology-driven 21^st century world. If you’re a lawyer or a consumer of legal services, the time to weigh in on lawyer advertising rules is now. The American Bar Association is considering proposals to amend the advertising rules contained in ABA Model Rules of Professional Conduct 7.1 through 7.5. Those rules actually govern more than just advertising.

Lawyer Advertising Rules

The format and language of MRPC 7.1 through 7.5 were first adopted in 1983. The impetus for the rules was the aftermath of the United States Supreme Court decision in Bates v. State of Arizona 433 U.S. 350 (1977) which held that a lawyer’s commercial speech was protected by the First Amendment and could be regulated only in narrowly defined terms.

As I wrote about before, the Association of Professional Responsibility Lawyers took the lead on this issue in gathering data that led to a report in April 2015. The 2015 report noted that many, if not most of the advertising regulations in place across the country were inapposite when applied in the current digital age and frustrated the ability of lawyers to provide accurate information to the public. The report recommended that the Model Rules continue to prohibit false and misleading statements in lawyer advertising as stated in Rule 7.1. However, APRL suggested that the remaining rules (7.2 through 7.5) be addressed in the comments.

A year later, APRL issued a supplemental report with additional recommendations. The major change was endorsing a rule against solicitation and combining aspects of current MRPC 7.2 and 7.3 into a new rule 7.2 defining solicitation and which types of solicitation may be allowed with restrictions.

The ABA is Considering Modifications to the Lawyer Advertising Rules

Currently, the consolidated APRL proposal is being considered by a working group consisting of all the standing committees of the Center for Professional Responsibility. As Chair of the Standing Committee on Professionalism, I am a member of the working group. The goal of the working group is to consider the model “Information About Legal Services” rules (7.1 through 7.5) in light of the APRL proposals and make recommendations to the ABA Standing Committee on Ethics and Professional Responsibility regarding whether, and if so what, amendments should be made to the rules.

On February 3, a public forum was held at the ABA Mid-Year meeting in Miami which drew over fifty people. A dozen lawyers from state bars, regulators, and for-profit companies including Avvo and LegalZoom testified at the 90 minute forum. Most comments favored reform of the advertising rules to update them in light of new technologies. Many folks raised some specific concerns about whether aspects of the proposal went too far or not far enough.

Speakers Stated the Need for Advertising Rule Reform

Most of the speakers were in favor of changing the lawyer advertising rules to reflect modern day realities. Some specific comments were:

“To encourage uniformity is something we support,” said a speaker based in New Jersey holding six state licenses with advertising rules that differed across the states.

Representatives of the Young Lawyers’ Division spoke in favor of easing the advertising rules. One noted that young lawyers know that content marketing communication works. “The current advertising rules are telling young lawyers you can’t engage in your own marketplace because we are afraid to be entrepreneurs.” Another YLD representative asserted that “what we need as an industry is disruptive innovation.”
One speaker testified that all that is needed is a rule against false and misleading advertising as stated in Rule 7.1. He argued that all of the solicitation rule could be covered by the false and misleading standard.
One speaker pointed to the ABA’s adoption of the regulatory objectives last year and urged that regulation should be outcome-based. The regulations should guide behavior toward goals rather than proscribing certain identified behaviors.
A speaker argued that advertising rules were not necessary at all. The FTC addresses false and misleading advertising. The very things the public wants to know about lawyers are what we cannot tell them under the rules.

Forum Speakers Pointed out Concerns with Lawyer Advertising Rule Proposals

Some of the speakers suggested certain aspects of the APRL proposal were problematic, including:

The use of “communication” rather than “advertising” in proposed Rule 7.1 could be interpreted to apply to political discourse. To clarify, it should be made clear that Rule 7.1 applies only to “commercial advertising.”
The relationships between group advertising and lawyer referral services in proposed Rule 7.2 and fee-splitting in Rule 5.4(b). Speakers pointed out that as technology has evolved, the lines between a lawyer referral service and group advertising have blurred. Should reform to Rule 5.4 also be considered?
Several speakers expressed concerns about solicitation of clients (MRPC 7.3; proposed Rule 7.2).
Methods used: The proposal prohibits in person solicitation (defined in Rule 7.2(a)) by “face to face contact or live telephone.” MRPC 7.3 prohibits “real time electronic contact” as well as face to face or live telephone. Several speakers wanted a prohibition against real time electronic contact to be maintained. Others stated that barring a specific methodology was not wise considering how rapidly new communication methods were being developed. An example was pointed out: is VOIP (voice over internet protocols) telephonic or real time communication?
Targets of solicitation: The proposal provides exceptions if the person contacted is “a sophisticated user of legal services” as well as someone “with a lawyer” or “with a person who has a close personal or prior professional relationship with the lawyer” or pursuant to a “court-ordered class action notification.” Rule 7.3 provides exceptions if the person contacted is a lawyer or has a close personal or prior professional relationship with the lawyer. More than one speaker argued that the term “sophisticated user” of legal services was ambiguous. One pointed out that this standard could allow repeated unsolicited contacts which would leave a negative impression of the profession.
Unintended consequences: A concern was expressed that someone could be deemed to be soliciting simply because of casual conversation in a cocktail party or due to CLE materials that include the attorney’s contact information.
Regarding communications about areas of expertise or specialties (MRPC 7.4; proposed Rule 7.1 comment [8]): One speaker argued that greater clarity should be included to identify when the term “specializes” might be false and misleading under proposed Rule 7.1 and there should be a restriction against communicating “specialties” unless it was granted by a state supreme court.

The February 3 forum ended with thanks for the standing-room only interest and a plea that folks email comments to modelruleamend@americanbar.org by March 1, 2017. Then the working group will consider the comments in light of the APRL proposal and give recommendations to the Standing Committee of Ethics and Professional Responsibility in June.

Share Your Thoughts on Lawyer Advertising Rules

My focus in the working group is to address recommendations, lawyer referral services, prepaid legal plans and reciprocal referral agreements. These are generally addressed in MRPC 7.2(b) and proposed Rule 7.2(c), comments [9], [10] and [11].

Do you have opinions on these rules/comments? Any examples or experiences to share? Would love to hear from you. And if you only want to comment once, feel free to leave your comments below and we’ll happily forward them on to the ABA to save you double work.