Model Rules on Attorney Advertising Streamlined

Communications Subject to Prohibition on False and Misleading Statements Explained

Model Rule 7.1 previously stated that “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” A “false or misleading” communication is one that contains a “material misrepresentation of fact or law” or omits a fact necessary to make the statement accurate. This text remains unchanged.

Though the term “communication” remains undefined, the comments to Rule 7.1 now provide examples of covered communications, which include “firm names, letterhead and professional designations,” and advertising. These comments also subsume the provisions of the former Rule 7.5, which governed circumstances where names and designations could be considered misleading, and which is no longer permitted following the amendments. Specifically, comments 5 to 8 of Rule 7.1 (formerly Rule 7.5) hold that firm names implying a connection with a government agency, non-lawyer, charity, or an attorney who is not a firm member are impermissible.

Attorney Advertising Rules Now Apply to All Attorney Communications, Not Just Advertising

Model Rule 7.2, regulating attorney advertising, has been expanded in scope. The former Rule 7.2 was limited to advertisements and permitted attorney advertising through “written, recorded or electronic communication, including public media,” subject to the restrictions of Rules 7.1 and 7.3. It also prohibited lawyers from paying for referrals, with exceptions for paying a qualified lawyer referral service, or referring clients to another lawyer through a non-exclusive reciprocal referral agreement. In addition, the old Model Rule 7.2 required communications to include the lawyer’s office address.

By contrast, the new Rule 7.2 covers not just advertising communications but all attorney communications subject to Rule 7.1. However, lawyers may now give token gifts for recommending services if these gifts reflect appreciation, such as holiday gifts or those given for social hospitality. Another major change is that communications must contain the sender’s “contact information,” which is broader than the previous requirement of an office address.

The amended Rule 7.2 also prohibits attorneys from representing they are specialists in an area, unless they are certified and the communication includes the name of the certifying organization. This addition to Rule 7.2 essentially incorporates former Rule 7.4 on attorney specialization, which was deleted.

Attorney Solicitation Rule Is Relaxed

Amendments to Model Rule 7.3 dial back some limitations on attorney solicitations. Previously, the rule prohibited a lawyer from soliciting employment unless the person contacted was another lawyer, the lawyer’s relative, a person with a prior professional relationship with the lawyer, or a person who “is known by the lawyer to be an experienced user of the type of legal services involved for business matters.” The old Rule 7.3 also required inclusion of the words “Advertising Material” on every solicitation. It did not, however, define what constituted a solicitation.

The revised Rule 7.3 still prohibits most attorney solicitations but clarifies what is and is not permitted. Rule 7.3 now defines a solicitation as “a communication initiated by or on behalf of a law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.” While the amendment eliminates the “experienced user” exception, a new exception allows solicitation of those who “routinely use for business purposes the type of legal services offered by the lawyer.” Thus, according to comment 5 to the Model Rule, persons who may be solicited include in-house counsel who frequently hire outside counsel, entrepreneurs who regularly hire business lawyers, and business owners who routinely hire lawyers for lease or contract issues. Finally, the committee eliminated the “Advertising Material” requirement.

New Methods of Communications and Prohibitions on Solicitations and Gifts Clarified

Section of Litigation leaders agree that the changes were overdue. “The rules had not been updated substantively since 1985,” comments Lynda C. Shely, Scottsdale, AZ, member of the ABA Standing Committee on Ethics and Professional Responsibility. “We have had technology changes since then, so we had to make the rules more flexible in order to deal with new technologies and enable lawyers to use alternative methods of communications that hadn’t been contemplated 30 years ago, while still putting forth truthful information,” she explains. Thus, “Model Rule 7.2 recognizes that lawyers have all kinds of communications and the word ‘advertising’ may not account for all types of lawyer communications,” explainsJohn M. Barkett, Miami, FL, cochair of the Section’s Ethics and Professionalism Committee and a member of the ABA Standing Committee on Ethics and Professional Responsibility. For example, “If I hand out a pen with my law firm’s name on it, it is unclear whether it is advertising, but it definitely falls under the term ‘communication,’” says Shely.

The changes also address “confusion about who attorneys can or can’t solicit,” Shely observes. “The definition of ‘solicitation’ in Model Rule 7.3 establishes the generally understood concept that direct solicitation is regulated by the Model Rule if a lawyer knows or should know that the person he or she wants to communicate with about possibly hiring the lawyer needs legal services for a specific matter,” she says. “For instance, a lawyer is not prohibited from talking to a group of senior citizens about estate planning or a group at a community center about family law matters, if it’s a general gathering. But if the lawyer wants to target someone who probably needs legal services for a specific matter, such as a personal injury incident reported in the paper, dog bite report, or a police log of individuals charged with DUIs, then the Model Rule is triggered,” she concludes.

Similarly, the addition of the nominal gifts exception to Model Rule 7.2 “is meant to insulate what is a common courtesy that happens between lawyers all the time,” comments Barkett. “As a dinner guest, bringing a bottle of wine to someone’s house is fairly routine,” he notes.

Revamped Rules Provide Guidance

“While the Model Rules technically do not bind anyone, they are models that the states absolutely will look to for guidance, just like ABA ethics opinions, which are not binding precedent but provide guidance in interpreting similar provisions in states,” says Shely. The Model Rules “may play a role in court proceedings where advertising rules are in issue, as has been the case in some First Amendment challenges to state advertising rules,” adds Barkett.

These changes may induce changes to the states’ ethics rules as well. “Generally speaking, when the Model Rules are amended, that prompts the states to consider equivalent changes to state rules of professional conduct,” notes Barkett. “If the states follow the ABA’s lead, then there is hope for a consistent set of rules applicable to lawyers throughout the United States. That is especially valuable for lawyers who engage in multi-jurisdictional practices and law firms that have offices in multiple jurisdictions,” he says.

Catherine M. Chiccine is an associate editor for Litigation News.

Resources

• American Bar Ass’n Standing Cmte. on Ethics & Prof’l Responsibility, Report to the House of Delegates (Aug. 2018).
• Transcript of American Bar Ass’n Pub. Hearing, Vancouver, B.C. Canada (Feb. 2, 2018).
• Ass’n of Prof’l Responsibility Lawyers, 2015 Report of the Regulation of Lawyer Advertising Cmte. (June 22, 2015).
• Ass’n of Prof’l Responsibility Lawyers, Regulation of Lawyer Advertising Cmte. Supp. Report (April 26, 2016).

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