February 04, 2017

Proposal to amend lawyer advertising model rules receives mixed reviews

Proposed significant changes to the ABA Model Rules of Professional Conduct regarding lawyer advertising received mixed reviews Feb. 3 at a forum at the ABA Midyear Meeting in Miami, with some saying the recommendations went too far and others not far enough.

The proposal would amend ABA Model Rules 7.1, 7.2, 7.3, 7.4 and 7.5 addressing how lawyers provide the public with information about legal services. The key changes, proposed by the Association of Professional Responsibility Lawyers to the ABA Standing Committee on Ethics and Professional Responsibility, focus on model rule provisions related to false and misleading “communications” and solicitations by lawyers to prospective clients.

The recommendations drew criticism from some as too broad because it uses the term “communication” rather than advertising. Will Hornsby, staff counsel of the ABA Standing Committee on the Delivery of Legal Services, said his entity urges that any revision of rule 7.1 (false and misleading) specifies it applies only to “commercial advertising.” He expressed concern that in its current form the model rule “could be read to put limitations on political discourse” and recommended any revised rule should clearly limit it to  commercial speech.

APRL first released a 2015 report of its Regulation of Lawyer Advertising Committee on June 22, 2015, which included the first draft of model rule changes. It then supplemented that report in April 2016, recommending further amendments.

About a dozen lawyers from a range of stakeholders – from state bars to representatives of for-profit ventures Legal Zoom and Avvo – spoke at the 90-minute forum hosted by the ABA ethics committee. Written comments on this proposal will be accepted until March 1, and should be emailed to modelruleamend@americanbar.org.

The comprehensive proposal seeks to standardize the regulation of the model rules dealing with false and misleading communications about legal services. Specifically, it includes amendments to Model Rules 7.1, Communications Concerning a Lawyer’s Services; 7.2, Advertising; 7.3, Solicitation of Clients; 7.4, Communications of Fields of Practice and Specialization; and 7.5, Firm Names and Letterheads.

Similar to other model rules, those focused on advertising and communication are meant as guidelines for state ethics bodies to adopt. APRL hopes that the revisions will address concerns about overly restrictive and inconsistent state regulation of lawyer advertising, particularly in relation to today's diverse and innovative forms of electronic media advertising. 

Given that many lawyers practice in multiple jurisdictions, several speakers at Friday’s forum lauded the proposal for its purpose of achieving greater rationality and uniformity in regulatory enforcement of lawyer advertising and marketing in the United States.

Lisa D. Taylor, who is based in New Jersey, spoke on behalf of the ABA Health Law Section and noted that she has six state licenses and advertising rules differ in the states. “To encourage uniformity is something we support,” she said, before echoing Hornsby’s concerns that the recommendations are two broad and might be interpreted to affect talk at a “networking event or cocktail party.”

Another voiced concern is that the changes, if adopted by the ABA and eventually state licensing authorities, would encourage fee-splitting and conflict with ABA Model Rule 5.4 related to professional independence.

“These proposed changes unabashedly open the door to fee-sharing,” said Thomas Prol, president of the  New Jersey State Bar Association. He feared they might lead to a “slippery slope” and the end of ethical restrictions on sharing of fees.

Speakers from the ABA Young Lawyers Division reflected the diversity of opinion regarding the proposed revisions and the challenge APRL faces in drafting their final form. “On behalf of the YLD, there are two really clear positions … the rules go too far and then they do not go far enough,” said Christopher Brown, YLD’s committees director and an Ohio attorney.

Brown praised the changes for modernizing and embracing technology, although another YLD colleague opined that “what we need as an industry is disruptive innovation” and he feared that the rules would stifle that.

The working group hopes to have its final recommendations by late spring and the Standing Committee of Ethics and Professional Responsibility hopes to have proposed revisions by August.