ABA considers amending lawyer advertising rules

March 2017 | Eye on Ethics

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On Friday, Feb. 3, the ABA Standing Committee on Ethics and Professional Responsibility (SCEPR) held a hearing during the Midyear Meeting in Miami to consider the Association of Professional Responsibility’s (APRL) proposal to amend Rules 7.1 Communication Concerning a Lawyer Responsibility Services, 7.2 Advertising, 7.3 Solicitation of Clients, 7.4 Communication of Fields of Practice and Specialization and 7.5 Firm Names and Letterheads of the ABA Model Rules of Professional Conduct. 

Myles Lynk, chair of the committee, convened the hearing.  General information about the APRL proposal is available here. Their current proposal is available here. And a transcript of the hearing is available here.

Lynda Shely, immediate past president of APRL, presented the proposal, emphasizing that it was a work in progress and encouraged  ideas and suggestions.

She explained that the APRL proposal’s purpose was to simplify the advertising rules, in effect combining them into two rules, Rule 7.1 Communications Concerning a Lawyer’s Services, whose main focus is on preventing false or misleading communications, and 7.2 Solicitation of Clients.  Under the proposal, the new Rule 7.1 would incorporate some of the comments from Rules 7.2, 7.4 and 7.5.

Shely indicated that ARPL also hoped that adoption of the proposal will serve to help eliminate the current balkanization of the state advertising rules that in some instances have resulted in hypertechnical variations that are difficult to navigate for lawyers who are engaged in multijurisdictional practice.

She also noted that the consumers of legal services are interested in getting as much information as they can about legal services that are available and as of yet have not been confused or angered by the information conveyed through lawyer advertising. She explained that almost all complaints filed against lawyers for advertising violations come from other lawyers. 

Lynk explained SCEPR’s process for its review of the APRL proposal.  He indicated that he had created a working group composed of members from the various committees in the ABA’s Center for Professional Responsibility to study the proposal and to make recommendations based on their findings by  late May 2017.  At that time and over the next few months, SCEPR will decide whether it wants to suggest amendments to the Model Rules on advertising and whether it recommends amendments to the APRL proposal.  Any SCEPR report will be made available for public comment, and the amendments would not be presented to the ABA House of Delegates until the 2018 Midyear Meeting.

The comments

There were several interested parties who provided comments at the hearing.

Christopher Brown of the ABA Young Lawyers Division (YLD) expressed concerns that the removal of the ban on real-time electronic solicitation, currently in Rule 7.3, is a mistake. In his view, because of the potential for abuse, real-time electronic communication is just as coercive as in-person or telephonic communications.

His colleague from YLD, Eli Marchbanks, had a different view, arguing that from a young lawyer’s perspective the restrictive nature of the lawyer advertising rules need to be relaxed so that lawyers won’t be inhibited in their attempts to reach out to members of the public who are underserved and in need of legal services.

Will Hornsby, staff counsel to the ABA Committee on the Delivery of Legal Services, indicated that pushing the adoption of APRL’s proposal may not have the effect of creating uniformity amongst the various states and may even encourage some states, if they were to adopt the APRL proposal, to add their own idiosyncratic “fixes” to address perceived gaps.  He suggested encouraging states to adopt the rules as they exist now and to eliminate the variations.

He also said that the proposed rule 7.1 should state that it governs commercial as opposed to political speech.

Thomas Prol, president of the New Jersey State Bar Association, stated the proposal goes too far and removes too many of the current protections.  He spoke against the relaxation of safeguards in mass communications on television, the internet and social media, stating that under the proposal the public would not be adequately protected. He also expressed concerns about the comments in proposed Rule 7.1 that would permit a lawyer to state that he/she is a specialist in a certain area of the law without the safeguards in place under current Rule 7.4.

Josh King, chief legal officer of Avvo, Inc., spoke in favor of many aspects of the proposal.  In his view, what is needed is the basic false misleading standard. He also stated that the current rules inhibit innovation and that they have the effect of preventing lawyers from engaging with the many members of the public who are in need of their services.

King also noted that as someone who hires many lawyers, he has at times found it difficult to get as much information as he would like about the types of services these lawyers provide, and believes the public likewise do not always have all of the information they would like to have before hiring a lawyer.

Chas Rampenthal, general counsel of Legal Zoom, spoke in favor of the proposal, noting that what is needed is a false misleading standard that is simple and clear. He said many of the current rules have the effect of inhibiting lawyers in their attempts to reach the general public.  He also spoke about the possibility of using outcome-based rules as opposed to proscriptive rules, and described his company’s experience in the UK, where outcome-based rules have been in effect.

Lisa Taylor, chair of the Ethics and Professionalism Committee of the ABA Health Law Section, favors simplifying the rules, referring to how difficult it is for lawyers who are engaged in multidisciplinary practice to reconcile the differences in the rules state by state. She had concerns about lawyers’ potential disciplinary exposure arising from endorsements they receive on social media platforms, such as Linked In or Avvo, that are oftentimes unsolicited and over which they have no control.  Taylor requested the committee consider a rule that would afford lawyers protection from discipline under such circumstances. Taylor also had concerns about proposed Rule 7.2(a) Solicitation of Clients and the difficulty of determining when certain communications from a lawyer to a prospective client should be considered to be a prohibited solicitation.

Cyrus Mehta, of the ABA Commission on Immigration, expressed support for efforts to make the advertising rules uniform throughout the country.  He was also concerned about the deletion of real-time electronic communications in the solicitation rule, particularly with regard to individuals who are likely to be in need of immigration advice.

Seth Guggenheim, a lawyer from the State Bar of Virginia, informed the committee that the Virginia State Bar was in the process of simplifying its advertising rules and was considering substantially adopting the APRL proposal.

The Standing Committee on Ethics and Professional Responsibility’s consideration of the APRL proposal is an ongoing process and it welcomes any additional comments.

If you have comments please send them ASAP via e-mail to modelruleamend@americanbar.orgNOTE: All written comments received will be made publicly available on the Ethics Committee’s Model Rules of Professional Conduct 7.1 – 7.5 page.

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