Lawyer Ethics and Advertising

You’ve all seen the cringe-worthy legal ads on TV, billboards, at the movies, in your Twitter feeds. Hire Lawyer X who is the most aggressive, obnoxious, etc. Many would say the ads are in bad taste. Should this be allowed by the lawyer ethics rules? Is it?

Turns out the answer to these questions depends on which state has issued the lawyer a license. And how well the state’s code of professional conduct (lawyer ethics rules) has kept up in the digital world. There is a great variance state to state.

Last month the Association of Professional Responsibility Lawyers (APRL) released its report on the state of legal advertising and its regulation. The picture wasn’t pretty, with the committee concluding:

It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising. The Committee recommends that the ABA Model Rules governing communications about legal services be consolidated into a single disciplinary rule that simply prohibits false or misleading statements….[This is] the best way to ensure honest communication by lawyers while at the same time promoting the widest possible access by the public to legal services.

Commissioned in 2013, the APRL’s Regulation of Advertising Committee set out to study the ABA Model Rules of Professional Conduct and various state approaches to regulating lawyer advertising. The goal was to make recommendations that “bring rationality and uniformity” to the regulation and disciplinary enforcement of lawyer advertising.

History: Advertising Was Prohibited as Unprofessional

The history of advertising in the legal profession is complicated. As far back as the nineteenth century, there was a rule of etiquette that one did not advertise their services. The rationale was the prevailing view that law was a form of public service. Therefore, lawyers looked down on advertising as unseemly.

In 1908, the American Bar Association (the “ABA”) released its Canons of Professional Ethics, which outlined a general prohibition against legal advertising. Why? Because advertising was unprofessional, and therefore lawyer advertising would undermine the professionalism in lawyering. The ABA ban was subsequently affirmed in its 1969 Code of Professional Responsibility. (The ABA does not control what is done in each state, but its statements strongly influence the rules passed by each state supreme court.)

A series of Supreme Court cases beginning in 1975 eventually lead to the recognition that 1) law was a business and 2) commercial advertising was free speech and thus protected by the First Amendment. This did away with the blanket prohibitions on legal advertising, though it still allowed for state regulation.

The APRL Committee Report asserts that not only does the purported policy behind restrictive regulation of legal advertising need to be reexamined, many of today’s current regulations would not pass the Central Hudson test, the Supreme Court’s most recent test evaluating the constitutionality of advertising regulation. Why? Because regulating advertising on the basis of dignity or taste or professionalism is not allowed.

Advertising Ethics in the Digital World

In conducting its research, the APRL Committee found that many states continue to regulate legal advertising they find tasteless in the name of protecting against “misleading advertisements.” Further, state regulations are based largely on traditional print mediums, and thus are ill-equipped to handle evolving digital technology:

The basic problem with the current state patchwork of lawyer advertising regulations lies with the increasingly complex array of inconsistent and divergent state rules that fail to deal with evolving technology and innovations in the delivery and marketing of legal services. The state hodge-podge of detailed regulations also present First Amendment and antitrust concerns in restricting the communication of accurate and useful information to consumers of legal services.

In addition, regulations on lawyer advertising built for print mediums are practically unworkable when applied to digital advertising:

For example, in Florida, Rule 4-7.12 governs required content of advertisements and stipulates that, among other things, all advertisements for legal employment must include the lawyer’s or law firm’s full name and office location. Perhaps at first blush this rule does not appear burdensome; however, the rule “makes [a lawyer’s or law firm’s] use of Twitter an impossibility because there is a limit of 140 characters.

Thus the current regulations discourage lawyers from communicating with the public in a way that is becoming increasingly normal for both parties. People are increasingly using social media and web-based platforms in their everyday lives. According to the Pew Research Center’s 2014 Social Media Update, for the 81% of American adults who use the Internet, 52% of online adults now use two or more social media sites. Of those who use Facebook, 70% engage in daily use. And social media isn’t just for young adults: 56% of all online adults 65 and older use Facebook.

In line with this trend, lawyers and law firms are increasingly using Facebook and LinkedIn, according to the Committee. Additionally, they “are engaging in much more sophisticated forms of marketing and advertising, including advertorials, cooperative lawyer ads, retargeting, search engine optimization, online referral and lead-sharing sites, and pay-per-click or pay- per-deal arrangements. Lawyers are also increasingly involved, either voluntarily or involuntarily, in online lawyer rating services, such as Avvo.com, Yelp, Super Lawyers, and Best Lawyers.”

The Reality of Advertising Ethics Rules

In 2014, the Committee sent surveys to fifty-one U.S. lawyer regulation offices regarding the enforcement of advertising rules in their jurisdiction. Thirty-six of the fifty-one jurisdictions responded to the survey, indicating:

• Complaints about lawyer advertising are rare (56% responded, ‘rarely,’ 17% responded, ‘almost never,’ and 8% responded, ‘frequently’);
• People who complain about lawyer advertising are predominantly other lawyers (78% of respondents) and not consumers (3% of respondents);
• Most complaints are handled informally, even where there is a provable advertising rule violation (93% of respondents replied they ‘almost never’ or ‘rarely’ handled complaints formally);
• Few states engage in active monitoring of lawyer advertisements (Only 17% of the jurisdictions responding reported that they actively monitor lawyer advertisements); and
• Many cases in which discipline has been imposed involve conduct that would constitute a violation of ABA Model Rule 8.4(c), which provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” (67% of respondents).

Proposal: a Single Lawyer Advertising Ethics Rule

The Committee emphasized that the justification for lawyer advertising regulation was to protect the public. The “proper and constitutional purpose of regulating advertising is to assure that consumers of legal services receive factually accurate, non-misleading information about available services,” as opposed to the misguided focus on “unprofessional” or “distasteful” advertising.

The Committee proposes that the language in Rule of Professional Conduct 7.1 be retained and that Rules 7.2, 7.4, and 7.5 (addressing mediums of advertisements, communications about specialty and firm names and letterheads) and their comments, be deleted in their entirety.

Rule 7.1 provides:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make a statement considered as a whole not materially misleading.

The comments to Rule 7.1 would provide guidance about the “false and misleading” standard and direct lawyers how to avoid such communications when describing their skills and services.

This seems to be a reasonable approach to bring the Rules in line with current technology. It would allow lawyers to communicate and clients to receive information that will be helpful in a changed and changing world.

The APRL Report merely consists of recommendations. The hope is that the American Bar Association will take up consideration of the recommendations through its various committees that consider such policy, including the Standing Committee on Professionalism, and recommend the Model Rules be changed. This in turn should cascade into changes across the states. I am in favor of bringing the advertising rules to a clear and workable standard that protects the public and is flexible enough to apply to the current and future practice of law. Are you?

 

 

 

Our intern from University of Illinois College of Law, Lindsey Lusk, contributed to this post.