The 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.
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.