March 01, 2019 March/April 2019

The Ethics Rules Are Undermining Our Future

The truth should be the best guide for lawyer advertising.

Megan Zavieh

As a self-governing profession, lawyers have the duty to regulate attorney conduct and protect the public. One place where this is very clear is attorney advertising. However, much as the ethics rules are intended to stand guard against rogue lawyers harming the general population, we have often placed restrictions on ourselves that do little or nothing to further that mission. Instead, our rules thwart the profession’s efforts to move into the future.

If we were to revamp our advertising rules to have a broad rule of general applicability regarding the truth and integrity of our ads, we would allow advertising to fulfill a valid purpose of informing the public of the options available to solve legal problems. We just need to get out of our own way.

Attorney Advertising Is Useful

At the center of the regulation of attorney advertising is a presumption that advertising is somehow negative. Perhaps this stems from the profession’s past life when advertising was largely banned. Perhaps we, as a group, have not yet entirely accepted the change. But the change was over 40 years ago, in 1977, when the U.S. Supreme Court decided Bates v. Arizona. We need to move past such outdated attitudes.

Attorney advertising plays an essential role in the profession and in the public’s access to legal services. Ironically, recognition of this role was one of the reasons that Arizona argued for a total ban on advertising back in the 1970s. Arizona argued that if the public received information about the price of legal services through advertising, the administration of justice would be adversely impacted by a rise in litigation. “The Judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling societal repose.”

Today we speak far more about the public’s need to recognize legal problems and to seek assistance. We wring our hands that the public in general lacks access to sufficient resources to address their legal issues. The Legal Services Corporation publishes the annual Justice Gap Report based on that exact issue. The 2017 report concluded that 86 percent of civil legal problems of low-income Americans received inadequate or no legal help.

For members of the public to recognize their legal needs and the resources available to serve them, what better method exists than advertising? Advertising is how many consumers come to understand that they have an issue with a legal solution. It’s also how many consumers find out what options are available to assist them. We need to prevent false advertising, but we do not need to stifle the flow of information to the consumer.

Existing Rules Prohibit Misleading Advertising

With some form of ABA Model Rule of Professional Conduct 7.1 in effect in every state, lawyers are prohibited from making false statements in their ads or otherwise misleading the public. The ABA version of the Rule states: “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 the statement considered as a whole not materially misleading.” No state-by-state analysis of nuances is needed. The Rule is completely clear that we cannot engage in dishonesty in our advertising.

In addition, consumer protection agencies around the country have their own ability to regulate attorney advertising. These agencies regulate through general mandates to oversee all aspects of consumer protection. Even if all state bars stepped back and stopped regulating attorney advertising in any way, the public would not be left unprotected.

But we, as a profession, go so far in trying to regulate minute details of attorney advertising that we prevent the profession from operating within 2019 business norms. This only hurts the profession and does nothing to protect the public.

Failure to Keep Up with Technology

The ethics rules do not, cannot, and never will, keep up with changes in technology. Evolving technology drives change in society and in how we do business and operate in all facets of life. There is simply no way that specific ethics rules addressing changes in technology can possibly be proposed, vetted and agreed upon with a speed even closely approaching that of the speed of technological change. Technology advances how business is done, including how marketing is executed in other industries, but lawyers are faced with quickly outdated rules that call into question the use of the newer means of technology and communication.

For example, Facebook surpassed 300 million active users in 2009. Nearly 10 years later, Facebook has well over 2 billion users. Yet lawyers seeking to advertise on Facebook in 2009 had little guidance on how Facebook posts fared under the advertising rules. Were Facebook pages or posts advertisements at all? If so, were they solicitations? How could attorneys comply with certain requirements, such as labeling their pages or posts with the word “advertisement” or listing the attorney responsible for the page or post? Did a pinned post disclosing such information satisfy these requirements?

Guidance slowly began to emerge, notably in 2012 with California’s social media-focused Formal Ethics Opinion 2012-186. Even then the primary issue addressed was whether the ethics rules applied to social media posts, but not how to comply with the rules when posting.

Today we still have little specific guidance on how to use social media for attorney advertising. Enterprising lawyers using the platforms do so with guidance from ethics attorneys. We extrapolate how to comply with the specific requirements imposed by the rules by looking at the purpose of the rules and the limitations of the platforms.

Even Regulators Extrapolate

In case the need to extrapolate from rules not addressing modern society is not obvious, even the regulators do this. When South Carolina issued its opinion on how attorneys are required to handle Avvo and similar directory listings, it opined that the rules do not address online directories. Referring to the Comments to Rule 7.2, South Carolina said: “The Comment does not address online versions of [telephone] directories; however, to require lawyers to file copies of online directory listings would be to require them to file copies of not only Martindale.com listings, but the South Carolina Bar’s online directory listing as well. The Committee does not believe the Court intended the rules to require such filing and therefore does not believe that an online listing containing only directory information must be filed pursuant to Rule 7.2(b).”

We have created this problem for ourselves, as we are our own regulators. If we simplified the rules and made them statements of broader applicability, they would be far easier to implement and abide by. When we have rules with some specificity but not enough, two problems occur. First, we must grasp at the details of the rules. Second, we must attempt to apply the rules to modern business modes. When it is impossible to give guidance on every detail, we should stop trying to give guidance on any.

The Situation Will Not Improve Soon

Technology’s progress only increases in speed, meaning that the glacial pace of reform in the world of legal ethics will become more of a problem each year. There are countless examples of how technology has altered the way we do business in the last several years. Not that long ago texting was a slow operation of pressing a single key repeatedly to scroll through the available letters. We now press a button in our car and dictate a command and message that is instantly sent by text. Texting clients is now commonplace.

Voice search is on the rise, as seen in many financial reports from tech companies throughout 2018. News reports place Amazon’s sales of Alexa devices at approximately 50 million thus far. Many other voice and artificial intelligence platforms exist and are becoming more common. Voice is moving into legal tech too. For example, the artificial intelligence-based app Tali allows lawyers to dictate their time entries to Alexa and have them entered in Clio. LawDroid Voice also integrates voice-activated artificial intelligence with Clio.

This technology may begin inside the law office with practice management apps, but it quickly bleeds into how lawyers communicate with potential clients. If the ethics rules still lack specific guidance on how lawyers can post on social media, we will have no way to issue helpful guidance specifically related to upcoming technology.

More Guidance Is Not Better

More specific guidance isn’t the answer to this problem. When regulators try to give platform-specific guidance, the result is farcical and does not further the mission to protect the public.

South Carolina issued an ethics opinion regarding testimonials on Avvo and similar sites. Per the opinion, we clearly need to ensure that information put on our own websites is truthful, in accordance with Rule 7.1. However, South Carolina said we are also responsible for reviews and testimonials placed on lawyer directories where we claim our profiles. Since South Carolina’s Rule 7.1 prohibits lawyers from seeking testimonials, South Carolina concluded that “[a] lawyer should not solicit, nor allow publication of, testimonials” on Avvo and similar directories.

This result is nonsense. Today’s consumers make decisions regarding the purchase of goods and services largely through the use of online reviews. Google, Amazon and Yelp are prime examples of the importance of reviews. If ethics rules do not allow publication of online reviews on third-party sites, then those same rules prevent consumers from obtaining useful information in a form heavily utilized within society. This barrier does not help our profession move forward; rather, it holds back the profession and the consumers we serve and attempt to protect.

One of the hallmarks of a reliable online review system is that the person being reviewed lacks control over the reviews. A negative review cannot be removed by a disgruntled lawyer, and that imbues the online reviews with reliability. The public therefore is not protected by a ban on publication of online reviews.

Reform Has Thus Far Been Unhelpful

Recent changes to the Model Rules have done nothing to impact this issue. Despite a two-year study and much fanfare in the unveiling of the revised Rules, we are still left with great uncertainty. This ambiguity includes how to employ platforms used by nearly every potential client and individual seeking legal services.

Put simply, we regulate ourselves into our own quandaries, and there is a way out that doesn’t sacrifice the public. We need to get out of our own way and operate in the modern age.

Megan Zavieh

Megan Zavieh is the founder of Zavieh Law, where she focuses exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. She is the author of The Playbook: The California Bar Discipline System Practice Guide. On Lawyerist.com and AttorneyatWork.com, she writes about issues confronting lawyers in the new world of practicing law. megan@zaviehlaw.com

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