The Standing Committee on Ethics and Professional Responsibility is presenting to the House of Delegates proposed amendments to the Model Rules of Professional Conduct, Rules 7.1, 7.2, 7.3, 7.4 and 7.5 to vote on in August at the ABA 2018 Annual Meeting in Chicago. You can read the proposal here.
ABA Model Rules addressing advertising have historically been prohibitory and focused on “lawyer professionalism.” In his seminal 1976 work, “Unequal Justice: Lawyers and Social Change in Modern America,” Jerold S. Auerbach noted the history of the ABA advertising prohibitions. The original 1908 ABA Canons of Ethics were drawn from the work of Pennsylvania Supreme Court Justice and law professor George Sharswood, who warned in the 1850s about “a horde of pettifogging, barratrous, money-making lawyers.” Sharswood insisted “Let business seek the young attorney.” And, it will if the lawyer will cultivate “habits of neatness, accuracy, punctuality, and dispatch, candor toward his client, and strict honor toward his adversary, it may be safely prophesied that his business will grow as fast as it is good for him that it should grow.”
Yet, even as Sharswood was proclaiming these attributes in the 1850s, Abraham Lincoln was offering comparable advice in his 1850 Notes for a Law Lecture. But at the same time (1856-59), Lincoln was advertising his services:
These contradictory perspectives on professionalism and advertising are difficult to reconcile. Henry Drinker, in his 1953 classic “Legal Ethics,” proclaimed that Sharswood did not say anything about advertising in his 1854 essay. Drinker claims that the origin of the prohibition on advertising goes back to the late 18th century when young Americans traveled to the British Inns of Court for legal training. There the tradition was that legal practice was akin to the public service of a seat in Parliament such that one would never be “blowing their professional horn and plotting to steal away one another’s clients.” It is worth noting that the first-ever opinion issued by the then ABA Standing Committee on Professional Ethics and Grievances in 1924 addressed “solicitation of business by circulars or advertisements, or by personal communication or interviews, not warranted by personal relations.” The opinion concludes that “[a]ny conduct that tends to commercialize or bring ‘bargain counter’ methods into the practice of law, lowers the profession in public confidence and lessens its ability to render efficiently that high character of service to which the members of the profession are called.” Given this “lawyer-centric” explanation, it is hard not to accept Auerbach’s alternative analysis that “constraints on publicity and advertising assured that knowledge would remain unevenly, and unfairly, distributed.”
The amendments proposed by the Standing Committee on Ethics and Professional Responsibility (SCEPR), prompted by the reports issued by the Association of Professional Responsibility Lawyers promote truthful, non-misleading communications to the public regarding legal services with only limited restrictions when necessary to protect the public from overreaching. SCEPR’s primary goal is to streamline the rules by placing similar concepts in the same rule, while adhering to both the constitutional limitations on restricting commercial speech and the public policy concerns of protecting the public from misleading information regarding legal services. The Amended Rules provide a model for all states to use to both inform and protect consumers.
The changes to the current Model Rules are, in summary:
1. Rule 7.1: Communications Concerning a Lawyer’s Services
- The black letter of Rule 7.1 is not amended.
- Additional guidance is inserted in paragraph  of the Comments to explain that truthful information also may be misleading if consumers are led to believe that they must act.
- New guidance in Comment  explains it is misleading for a communication to provide information about a lawyer’s fee without indicating the client’s responsibilities for costs, if any.
- The primary change to Rule 7.1 is the addition of Comments  through  incorporating the black letter concepts of current Rule 7.5 into Rule 7.1 Comments. Current Rule 7.5 addresses specific prohibitions regarding misleading communications in firm names and letterheads. Because the provisions of current Rule 7.5 are examples of possible misleading communications, the concepts already are addressed by the black letter of Rule 7.1 and are best presented as examples of misleading communication in the Comments of Rule 7.1.
2. Rule 7.2: Communications Concerning a Lawyer’s Services: Specific Rules
- Title of the Rule is changed from “Advertising” to that as noted above. Specific rules for advertising are consolidated in Rule 7.2.
- Paragraph (b)(5) authorizes a lawyer to present a nominal gift to anyone for recommending the lawyer’s services. Comment  elaborates that such nominal gift is that of social hospitality (a concept borrowed from the Model Code of Judicial Conduct Rule 3.13(B)(3)) given without expectation or as a form of compensation.
- The delineation of “certified specialist” is moved from current Rule 7.4 into Amended Rule 7.2(c) with further elaboration in Comments ,  and .
- Comments  and  are deleted as unnecessary. Advertising is constitutionally protected speech and needs no additional justification; that commentary provides no additional guidance to lawyers in fulfilling their ethical obligations.
- New language to renumbered Comment  provides the additional guidance that the term “recommendations” does not include directories or other group advertising in which lawyers are merely listed by practice area.
3. Rule 7.3: Solicitation of Clients
- New Rule 7.3(a) defines solicitation replacing the language currently contained in Comment .
- New Rule 7.3(b) revises the scope of prohibited solicitation of professional employment to prohibiting “live person-to-person contact,” but excludes one known to the lawyer to be “an experienced user” of the legal services in business matters. “Live person-to-person” is elaborated upon in amended Comment .
- Current Rule 7.3(c) requiring that written, recorded or electronic solicitations be labeled “Advertising Material” and related Comment  are both deleted.
- New Rule 7.3(d) and new Comment  clarify that the prohibition on live, person-to-person solicitation does not apply to communications authorized by law or ordered by court or another tribunal.
4. Rule 7.4: Communication of Fields of Practice and Specialization; Rule 7.5: Firm Names and Letterheads
- Both rules are deleted and the numbers are (reserved). The topics are addressed in Rules 7.1 and 7.2.
Some have commented that these amendments go too far while others argue the amendments should go further to remove restrictions. These positions are to be expected. Of all Model Rules, those addressing lawyer communication to the public are the most varied and least consistent from jurisdiction to jurisdiction across the country. One hopes that with these amendments this Balkanization of rules can find common ground. More information about the proposed amendments, including a recording and PowerPoint of a webinar from earlier this spring, are available here.
Comments and question regarding the HOD proposal can be submitted to: [email protected]. We encourage your support.