Lawyer Advertising Rules: Overhaul Needed

Lawyer Advertising RulesThe Model Rules related to lawyer advertising desperately need to be revised.  This was the universal opinion expressed at a public forum at last week’s American Bar Association meeting.  A recurrent theme expressed by the over a dozen speakers was that the current advertising rules are not tied to protecting the public and, at the same time, they stifle lawyers’ ability to market their services.

One of the most telling moments came at the end of the public forum.  A member of the Ethics Committee conducting the forum asked the approximately 65 people present how many thought the current draft amendments went too far. Not one hand was raised.  He asked, “How many think the current draft should go farther?” Most of the people in the room raised their hands.

How did we get to the point of this public forum?  You may recall that the Association of Professional Responsibility Lawyers (APRL) issued reports recommending a streamlining of the advertising rules in 2015 and 2016.  Because the Model Rules are adopted by the House of Delegates of the ABA, APRL asked the ABA to take up their recommendations.  (Individual state supreme courts may choose to adopt the ABA’s Model Rules or not.)

As I wrote previously, the APRL recommendations were the subject of a public forum in February 2017.  Since then, the ABA’s Ethics Committee developed two further sets of draft amendments—one in October 2017 and one in December 2017.

The December 2017 Proposed Amendments are available for public comment through March 1, 2018.  Please send written comments to American Bar Association.

Overview of the Lawyer Advertising Rules

What is commonly referred to as the lawyer advertising rules are five Model Rules (7.1 through 7.5) under the title “Information About Legal Services.”  These Model Rules have not been significantly changed since they were adopted by the ABA in 1983.  The Rules and the comments reflect a different time and place.  Perhaps a mythical time and place where clients beat a path to lawyers’ doors and the demand for legal services was met by the supply of lawyers in a beautiful synchronicity.

However, research shows that potential clients are not turning to lawyers to have their legal needs met.  Meanwhile, lawyers’ efforts to market their services, as noted in the APRL reports as well as the December 21 report accompanying the proposed amendments, are stymied by a dizzying array of different states’ advertising rules.

It’s time for some clarity, streamlining and uniformity.  Here’s a quick synopsis of each of the five Model Rules and some issues related to the proposed amendments:

7.1 A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

Everyone seems to agree that this Rule is proper.  It protects the public from false statements.  There was a concern expressed that the Rule does not specify that the Rule only applies to commercial speech.

7.2, titled “Advertising,” provides that a lawyer may advertise and pay for such advertising. Paragraph (b) says a lawyer may not give “anything of value” to someone for recommending the lawyer’s services. It goes on to say that lawyers may: pay “the usual charge of a legal service plan or a not-for-profit or qualified lawyer referral service,” pay for a law practice, and refer clients to another lawyer or other professional.  Finally, (c) says that any communication made pursuant to this Rule must “include the name and office address of at least one lawyer or law firm responsible” for the content.

The proposed amendments are minimal.  They include retitling the Rule, adding a provision that it is acceptable to give “nominal gifts” of appreciation not tied to recommending a lawyer’s services. Mercifully, in recognition of the fact that many lawyers do not maintain brick and mortar offices, the proposed amendments change “office address” to “contact information.”

Many comments at the forum were directed to ambiguities in paragraph (b), which truly is a smorgasbord of provisions.  Left unaddressed is whether lawyers may pay a for profit online service, such as Avvo, for recommendations.  State ethics opinions, including New York and New Jersey have held that the marketing fee charged by Avvo constitutes an improper payment for a recommendation in violation of this rule. Should a model rule give more explicit guidance here?

Several states are out in front of the ABA in updating these rules.  Virginia has passed amended advertising rules omitting Rule 7.2 entirely and adding a comment about recommendations in 7.3.  A speaker at the forum explained that after convening a workgroup in early 2016, Washington sent a proposal for modifications to the lawyer advertising rules to the State Bar’s Board of Governors.  If it is approved by that body, it goes to the Washington Supreme Court.  The Washington proposal also omits Rule 7.2 but places some provisions against paying for recommendations into Rule 7.3, the solicitation rule. (As explained at the forum, the “no paying for recommendations” language came from runners and cappers and really was a subset of solicitation.)  Oregon retained Rule 7.2 but revised it slightly.

Rule 7.3, titled “Solicitation of Clients” provides that if a lawyer seeks “pecuniary gain” the lawyer cannot solicit professional employment except in certain circumstances. Paragraph (c) provides that “Advertising Material” should appear on any outside envelope and at the beginning and ending of recorded “or electronic” communication.  Finally, (d) provides that general solicitations a lawyer may participate in a prepaid or group legal service plan that solicits “memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter.”

There is no definition of solicitation in the current rule. Only in the comments is it explained that prohibited solicitation is a “targeted communication” “directed to a specific person” offering to provide legal services.  The ABA draft borrows the definition of “solicitation” from Virginia and includes it in a new section in “Terminology.”  (Several speakers said the definition should appear here because it is relevant only to this Rule and not to all, or several, of the Rules of Professional Conduct.) Thankfully, the proposal deletes the requirement in 7.3(c) that every communication soliciting professional employment include the words “Advertising Material” on the outside envelope.

In light of the research showing up to 80% of the civil legal needs of low and moderate income Americans are not being met, it doesn’t make sense to prohibit lawyers from sending targeted communications to people who may need their services.  This is upside down. If current regulations are contributing to the growing access to justice problem, rather than protecting the public, they should be changed.

Consider the approach of the Washington proposal providing that soliciting professional employment is fine unless

“1) the solicitation is false or misleading; 2) the lawyer knows or reasonably should know that the physical, emotional, or mental state of the subject of the solicitation is such that the person could not exercise reasonable judgment in employing the lawyer; 3) the subject of the solicitation has made known to the lawyer a desire to not be solicited by the lawyer; or 4) the solicitation involves coercion, duress or harassment.

I agree with one of the speakers at the forum who testified that the solicitation rule reflects the arrogant and inaccurate assumption that lawyers possess superior powers of persuasion that can easily overpower the naive and unsuspecting citizen who has not had legal training.  In today’s world, consumers are sophisticated, they are educated, they are bombarded with offerings of goods and services both online and otherwise.

Another speaker shared that he owned a legal tech company as well as practiced law in Washington and Oregon.  He said that amending Rule 7.3 as was proposed in Washington will help better connect supply of legal services with demand.  He also said that changing the advertising rules likely will not be enough without an overhaul of Rule 5.4 (that prohibits fee-sharing between lawyers and “non-lawyers”) but it would be a good start.

Rule 7.4 prescribes what a lawyer may and may not state about fields of practice or specialization.

Here is set forth what words a lawyer is allowed to use to explain their expertise in marketing their services, such as a concentration, a certification, or a specialty.  Concluding that the whole rule is a subset of Rule 7.1 proscribing false and misleading statements, both APRL and Virginia have deleted the rule entirely.  They include some of the comments of Rule in the comments to Rule 7.1.  Makes sense to me.

Rule 7.5 talks about firm names and letterheads and reiterates the prescriptions of Rule 7.1 that statements be true and not misleading.

The proposal recommends removing the rule entirely and incorporating some of the comments in Rule 7.1.  Amen.

Weigh in Now on Proposal to Amend the Advertising Rules

The goal of the Ethics Committee is to draft a proposal for consideration by the ABA House of Delegates at the annual meeting in August 2018.  So it wants to receive all comments on the proposed draft by March 1, 2018.

If the participants at the forum reflect the opinions of lawyers at large, significant changes are in order.  We all should bear in mind the purpose of regulation contained in the Preamble to the Rules of Professional Conduct: “The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.”

Now is the time to speak up.  Please email your comments to the American Bar Association.

.

 

 

Share this:

Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

4 thoughts on “Lawyer Advertising Rules: Overhaul Needed

  1. The new Rules should address a really pernicious form of advertising not covered by existing or the proposed rules. That would be solicitation by postcard. DUI defendants, eviction defendants, collection defendants, divorce defendants and others with embarrassing court proceedings are getting trolled by lawyers using the electronic databases of clerk’s offices to obtain their information and addresses, and then send postcards through the open mail containing in large type the court numbers, nature of the case and offers of representation to collection, DUI and divorce defendants. Any recipient who receives mail which is sorted through, or viewed by others before receipt, even including Post Office employees, can be humiliated by the public disclosures of their embarrassing court proceedings by unscrupulous attorneys who want to save a dime on envelopes. Simple envelopes would protect their privacy.

    Blaring this information on postcards brings disrepute to the entire profession.

    Please recommend a rule requiring that advertising material containing disclosures likely to embarrass the recipient be wholly contained inside of a closed envelope in the proposed changes.

  2. I heartily agree with Attorney Morris’ recommendation above and I have noted that, often, even a closed envelope will contain a printed announcement on it, clearly indicating it is in reference to the recipient’s recent DUI, collection matter, etc. Any reference whatsoever on these mailings should be forbidden. It is truly sickening that these vultures are allowed to broadcast an individual’s personal affairs through the mail. I would go further and forbid attorneys from using the court system databases or any other database for this type of barrage junk mail marketing. It puts our profession on par with retailers, fast food restaurants, hvac services and car washes. There are plenty of attorneys around; if someone needs one, surely they can google us, call a local bar association for a referral, get a recommendation from a friend or, god forbid, respond to a billboard or tv ad. Why does our profession have to be reduced to this kind of “ambulance chasing”?
    When I take some of these ethics related MCLE courses, it never fails to hit me right between the eyes the awesome responsibility I have toward my clients and how much potential liability I am subject to if I were to make the slightest misstep. We should be conducting ourselves on every level with the same sense of seriousness and solemnity with which we are admitted to the Bar.

  3. Maybe I am living among the dinosaurs of our profession, but I believe that the relaxed ethical rules that encouraged legal advertising campaigns have demeaned the practice of law over the past thirty years. Advertising is pursuit of capital and is only justified by an increase it he “bottom line” so to speak. How does this concept serve the public interest? The segment of our society that has not had access to adequate legal services happens to be the same populous that cannot afford to pay the customary fees that lawyers need to charge in order to sustain their practices. Aggressive advertising will not lead to more affordable services, but will result in lower income individuals being hustled about the actual value of above average legal services. Re-think this whole idea. We all cannot practice from virtual offices.

  4. I wouldn’t expect attorneys with huge hourly rates and retainer amounts that often times gives no real explanation as to what its for would understand the huge need and point of advertising and services to the low income. Bottom line is this: There are far too many open cases for the amount of attorneys in practice to handle and the percent of those who can afford those attorneys is drasticly below the those who cant. Affordability and access to fair legal services like limited scope should not only be for the upper class and that is exactly what we are seeing. Legal aid turns down many cases and for those that are left in the dark thinking that was their last option often times have no where else to turn.

    Give those who cant afford the standard way of adequate legal services a better way to afford the customary fees that are needed to accomplish their goals and that attorney will understand that it all adds up in the end. Marketing in this fashion should prove it is needed and will be successful. Just ask legal aid. Aggressive advertising wont allow individuals to be hustled but rather give them an option to control a bit of the process and all the while paying as they go so they wont feel hustled.

    There are far to many marketing tools to grasp onto each with just a few rules. They change year by year and those that have been practicing for a long time may not need marketing as they will forever survive soley on word of mouth. Because of this fact lawyers should choose to decide what they believe is justified to pay for based on marketing.

    The ABA needs to set the standard and clarify exactly what a “qualified” legal service or non profit is because I believe they looked confused within their own writing when they decided AVO etc were not “qualified. I also believe they should consider changing 7.1. Having been in contact with several attorneys over the years for personal agendas one question I always ask is about their success rates or what my chances of winning is if I decide to retain them. Long story short is there is no way to control that attorney from giving me possible misleading information about how “great” they are. Anyone should be able to look at a nice marketing slogan about an attorneys guaranteed success rate and roll their eyes however, having a site or marketing campaign from a legal service with past client reviews or statistics should not be forbidden but allow a way for the public to have a sense of confidence investing money on a very important issue.

    Lastly, on the topic of limited scope. I have never been more confused and frustrated by how and with what structure and ethics qualifies a limited scope practice. The need is there trust me but implementing a sort of business plan to present to state ethics and the bar associations is rocket science. The aba needs to put together ONE limited scope structure that, based on their rules, would and should qualify in every state.

Leave a Reply

Your email address will not be published. Required fields are marked *