First, lawyers in the twenty-first century increasingly practice across state and international borders. Clients often need services in multiple jurisdictions. Competition from inside and outside the profession in these expanded markets is fierce. The current web of complex, contradictory, and detailed advertising rules impedes lawyers’ efforts to expand their practices and thwart clients’ interests in securing the services they need. The amended rules will free lawyers and clients from these constraints without compromising client protection because the primary guideline in the advertising rules—refraining from false and misleading information—remains in the rules.
Second, the use of social media and the internet—including blogging, online messaging, and more—is ubiquitous now. Advancing technologies can make lawyer advertising easy, inexpensive, and effective for connecting lawyers and clients. Lawyers can use innovative methods to inform the public about the availability of legal services. Clients can use the new technologies to find lawyers. The rule amendments will facilitate these connections between lawyers and clients, without compromising protection of the public.
Finally, First Amendment and antitrust cases suggest that burdensome and unnecessary restrictions on the dissemination of accurate information about legal services may be unlawful. The Supreme Court announced over 40 years ago that lawyer advertising is commercial speech protected by the First Amendment. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Advertising that is false, misleading, and deceptive may be restricted, but courts have found many other limitations unconstitutional. For nearly 20 years, the Federal Trade Commission (FTC) has actively opposed lawyer regulation where the FTC believed it would, for example, the restriction of consumer access to factually accurate information regarding the availability of lawyer services. The FTC has reminded regulators in Alabama, Arizona, Florida, Indiana, Louisiana, New Jersey, New Mexico, New York, Ohio, Tennessee, and Texas that overly broad advertising restrictions may reduce competition, violate federal antitrust laws, and impermissibly restrict truthful information about legal services.
Given these considerations, in 2014, the Association of Professional Responsibility Lawyers (APRL), began to analyze lawyer advertising rules to determine how the rules might be updated. APRL’s review committee consisted of bar regulators, law-school professors, authors of treatises on the law of lawyering, and experts in professional responsibility and legal ethics. The APRL committee obtained, with the National Organization of Bar Counsel’s assistance, empirical data derived from a survey sent to bar regulators regarding the enforcement of current advertising rules. That committee received survey responses from 34 of 51 U.S. jurisdictions. APRL’s 2014 survey of U.S. lawyer regulatory authorities showed:
- complaints about lawyer advertising are rare;
- the vast majority of advertising complaints are filed by other lawyers and not consumers;
- most complaints are handled informally, even where there is a provable advertising rule violation; and
- many cases in which discipline has been imposed involve conduct that would constitute a violation of ABA Model Rule 8.4(c).
APRL issued reports in June 2015 and April 2016 proposing amendments to Rules 7.1–7.5 to streamline the regulations while maintaining the enforceable standard of prohibiting false and misleading communications. Virginia adopted these proposals in 2017. The ABA Standing Committee on Ethics and Professional Responsibility then undertook review of the APRL proposed amendments to the advertising rules, including holding two public hearings to elicit input on how the rules should be updated, establishing a working group of national leaders in legal ethics to make recommendations to the committee, and reviewed comments from dozens of sources. The ABA committee proposed amendments to the rules in March 2018 that were presented to all ABA committees, sections, and divisions and approved by the ABA House of Delegates in August 2018.
The Section of Litigation supported the amendments, as did the Sections of Business Law, GP Solo, TTIPS, Senior Lawyers, and LPL, in addition to the Law Practice Division. All standing committees of the ABA Center for Professional Responsibility also supported the amendments, as well as the Legal Marketing Association.
The amendments to the rules adopted by the ABA House of Delegates in August 2018 are intended to streamline the Model Rules to continue to prohibit “false and misleading” communications while eliminating unnecessary and outdated restrictions. The following is a brief tour of the revised Model Rules.
The amendments retain the principal requirement in ER 7.1 that lawyers refrain from “false and misleading” communications. Note that the rule discusses “communications” and not “advertising” because the ethical requirement is that any communication about a lawyer’s services must be truthful and not create unjustified expectations about the lawyer’s expertise or the results that can be obtained. So, for instance, the “advertising rules” apply not only to websites and business cards, but also to letterhead, billboards, social-media accounts, television commercials, infomercials on YouTube, LinkedIn posts, booths at business expos, coffee mugs and other “swag” given to potential clients, office signage, and even firm “apps” where potential clients can click a link and speak with an attorney!
Rule 7.5, which addressed law-firm names, was merged into the comments to Rule 7.1 because the substance of Rule 7.5 really just gave examples of what may be “false and misleading” information about a firm name. For instance, if lawyers Alpha and Beta are sole practitioners who happen to share an office but are not partners, they cannot hold themselves out as “Alpha and Beta LLP,” because that would be false. Similarly, if a law firm practices in Anytown, USA, it may use a firm name of “Anytown Law Firm” but not “Every Town Law Firm” if that is not true.
Rule 7.2 contains specific requirements for communications, including the following:
- The amended rule continues the prohibition against giving anything of value to anyone for recommending a lawyer’s services (with some exceptions). The amended rule still prohibits for-profit referral services and paying for being “recommended” but added an exception for giving “nominal” thank-you gifts. Several states already have a similar exception.
- All communications must contain a lawyer or law-firm name and some “contact information” (not just an address). This amendment was based on Arizona’s existing Rule 7.2(c) provision and recognizes that a billboard, commercial, or coffee mug that has a law-firm name and website or telephone number on it is sufficient to identify who is responsible for the content of the advertisement (not to mention that it would be really bad advertising if the communication didn’t contain a firm name and contact information!).
- Amended Rule 7.2 incorporates in paragraph (c) the substance of Rule 7.4, regarding when a lawyer may identify himself or herself as a “certified specialist.” The standards set forth in Rule 7.4 for use of this phrase were merged into Rule 7.2.
Rule 7.3 is the rule that addresses direct solicitation of potential clients—either by “live person-to-person contact” or in writing. The following are the main components of revised Rule 7.3:
- Paragraph (a) added a definition of “solicitation” to clarify what is regulated by the rule.
- Direct “live person-to-person contact” solicitation continues to be prohibited, except with certain individuals, including people who routinely hire lawyers for business purposes.
- The “advertising material” label for written solicitation letters was eliminated.
These changes to Rule 7.3 provide clarification about the scope of the rule and incorporated amendments that already exist in several states. For instance, Massachusetts has a solicitation exception for lawyers to contact businesspeople directly about possibly retaining the lawyer for representation. The District of Columbia, Massachusetts, Maine, Pennsylvania, and North Dakota do not and have not required that direct-mail letters be marked with the words “advertising material,” and those jurisdictions have not indicated any significant consumer confusion over such letters. Given the amount of direct solicitation consumers receive these days on the internet through targeted marketing and tracking of our search histories, consumers are aware that they will receive marketing from many sources—including lawyers.
Some pundits opine that these changes were minor—they didn’t go far enough; it’s merely a reorganization of the same rules. All of that is probably true. But that doesn’t mean that the changes aren’t useful and a step in the right direction. Deliberate consideration of the implications that a rule change may have is how these amendments occurred—and hopefully there will be even more advances in the near future to help lawyers accurately communicate their availability to potential clients.
So, how do these amendments affect you? They do not—until your jurisdiction’s rules change. Any lawyer that has letterhead, a website, print ads, or other marketing should encourage their state to adopt these amendments to update their rules. Uniformity in regulating lawyer advertising is essential to ensure that the rules comply with First Amendment and antitrust requirements. More importantly, uniform, updated advertising rules facilitate lawyers communicating accurate information about the availability of legal services so that consumers can make informed decisions about how to find legal help. Such rule changes will help lawyers embrace new technologies and remain competitive in an increasingly diverse legal-services market.
Lynda C. Shely is with The Shely Firm PC in Scottsdale, Arizona, and is a member of the ABA Standing Committee on Ethics and Professional Responsibility and the Section of Litigation, and a past president of APRL.