Reporter's Explanation of Changes
TEXT:
1. Paragraph (a): delete specification of types of public media and add reference to "electronic communication"
This change is proposed to accommodate the new technology that is currently being used by law firms to market legal services e.g., websites and e-mail. Examples of "public media" are being dropped from the Rule text and moved to Comment [3], obviating the necessity of changing the Rule to accommodate the next new public-communication technology. A specific reference to the Internet has been added to Comment [3].
A reference to electronic communication has also been added. To provide a specific example of this type of technology, a reference to e-mail has been added to Comment [3] with a cross-reference to the prohibition in Rule 7.3(a) of solicitation by real-time electronic contact.
2. Delete current paragraph (b)
The requirement that a lawyer retain copies of all advertisements for two years has become increasingly burdensome, and such records are seldom used for disciplinary purposes. Thus the Commission, with the concurrence of the ABA Commission on Responsibility in Client Development, is recommending elimination of the requirement that records of advertising be retained for two years.
3. Paragraph (b)(2): Replace reference to "legal service organization" with "legal service plan"
This change in terminology is intended to avoid confusion between a "legal services organization," which provides direct legal services to clients and is included in the definition of a law firm in Rule 1.0(c), and prepaid and group legal service plans, and other similar delivery systems, whose usual charges are excepted from the prohibition against a lawyer giving anything of value to a person for recommending the lawyer's services in Rule 7.2(b).
4. Paragraph (b)(2): Modify to permit lawyers to pay the usual charges of "a not-for-profit or qualified lawyer referral service"
This change is intended to more closely conform the Model Rules to ABA policy with respect to lawyer referral services. It recognizes the need to protect prospective clients who have come to think of lawyer referral services as consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. The effect of the proposal is to permit lawyers to pay the usual charges of a for-profit lawyer referral service, but only if it has been approved by an appropriate regulatory authority as affording adequate protections for prospective clients, preferably in conformity with the four core standards prescribed in the American Bar Association's Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act. Because the need for special regulation arises from the prevailing public perception of lawyer referral services, this special regulatory regime is only applicable to a for-profit organization that holds itself out to the public as a lawyer referral service. See Comment [6].
5. Paragraph (c): Modify to permit identification of law firm as entity responsible for advertisement
The Commission thinks that law firms should be able to designate the firm as the entity responsible for the contents of an advertisement. Such information, rather than the name of a specific lawyer in the firm, should be sufficient to enable disciplinary authorities to take action necessary to protect the public from misleading advertising.
6. Paragraph (c): Require identification of the address of the law firm or lawyer responsible for advertisement
Because Rule 7.5 permits the use of trade names and because lawyers frequently advertise in locations where they do not maintain an office, the Commission has added a requirement that each advertisement include an office address for the law firm or lawyer named in the advertisement. This information will help disciplinary authorities track down those who are responsible for an advertisement, but, more importantly, it will provide prospective clients with important information about where the lawyer or law firm is located - an important fact in this era of multi-jurisdictional advertising.
COMMENT:
[3] Although the Commission concluded that a specification of the various public media lawyers can use to market their services should not be included in the Rule text, it thought it appropriate to explicitly affirm the legitimacy of using electronic media, including the Internet and the World Wide Web. The reference to "lawful" electronic mail was included to require lawyers to comply with any law that might prohibit "spamming" — i.e., the mass e-mailing of commercial messages. A cross-reference to Rule 7.3(a) has been added to alert lawyers to the proposed prohibition of solicitation by real-time electronic contact.
[5] This Comment and the related caption have been deleted because current paragraph (b) was deleted from the Rule text.
[5] The discussion of advertising expenses has been modified to more accurately reflect the current state of client-development activities in law firms. To this has been added a cross-reference to Rule 5.3 as a reminder of the partner's and firm's obligations with respect to the conduct of nonlawyers involved in client development activities.
[6] In response to a concern about the ambiguity of the reference in paragraph (b)(2) to "a legal service organization," this new Comment defines a legal service plan to specifically include prepaid and group legal service plans, and also to include "a similar delivery system that assists prospective clients to secure legal representation." This clarifies that lawyers may pay the usual charges of not only traditional prepaid and group legal service plans, but also the usual charges of new hybrid plans that might undertake to provide a variety of services to prospective clients. Also by its definition of a lawyer referral service as an organization that holds itself out to the public as a lawyer referral service, the Comment precludes extension of the special regulatory regime governing lawyer referral services to prepaid or group legal service plans and other similar delivery systems. Finally the Comment articulates ABA policy with respect to the core characteristics of a qualified lawyer referral service.
[7] This new Comment alerts lawyers who accept assignments or referrals from legal service plans or referrals from lawyer referral services that they must act reasonably to assure that the activities of the plan or service are compatible with the lawyers' professional obligations.