Hearing on proposed amendments to lawyer advertising rules

March 2018 | Eye on Ethics

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At the Midyear Meeting in Vancouver on Feb. 2, the ABA Standing Committee on Ethics and Professional Responsibility (SCEPR) held a hearing on its  proposal to amend the lawyer advertising rules. It is SCEPR’s intention to have a final proposal ready for submission to the ABA House of Delegates at the Annual Meeting in Chicago, Aug. 2-7.

This SCEPR proposal was sparked by a report submitted by the Association of Professional Responsibility Lawyers (APRL) in 2015 that called for a simplification and streamlining of the advertising rules to help facilitate the transmittal of information about legal services between lawyers and the general public, and to promote uniformity in the respective state versions of the advertising rules that have become balkanized and at times inconsistent with each other since the ABA adopted the Model Rules in 1983.

Further information about the initial APRL proposal and subsequent drafts and hearings held by SCEPR are available in the July 2016 ETHICSearch Tip of the Month, Lawyer Advertising: ‘Tis a Gift to be Simple? and in the March 2017 Eye on Ethics column, ABA Considers Amending Lawyer Advertising Rules.

The current SCEPR Working Draft of the proposed amendments to the ABA Model Rules of Professional Conduct on lawyer advertising approved by SCEPR and a Memorandum explaining those changes are now available on the CPR website, and the transcript of the hearing is available here.

Comments on the SCEPR draft proposal are available here, and SCEPR invites all interested parties to submit comments by the March 1, 2018, deadline.  Comments can be emailed to modelruleamend@americanbar.org and all comments will be posted on the CPR website.

Here is a sampling of what was said at the hearing:

Barbara Gillers, chair of the Standing Committee on Legal Ethics and Professional Responsibility, opened the hearings with general remarks emphasizing that the goals of the committee were to streamline and simplify the advertising rules and by so doing to encourage uniformity in the state versions of the rules, and to protect the consumers of legal services from false and misleading advertising while at the same time not unreasonably hindering lawyers from providing information about their services to the general public.

The first speaker was George Clark, current president of APRL. He talked about the driving forces that gave rise to the development of the APRL proposal that included simplifying the rules so as to encourage uniformity throughout the states and also the desire to lift some of the traditional restrictions on lawyer advertising so as to permit lawyers to get information about their services out to the public to help them make informed decisions about when to retain their services while at the same time protecting the public from false and misleading information.

Clark also recounted the results of an initial survey they sent out to members of the National Organization of Bar Counsel before they drafted the APRL proposal, the results of which indicated that there were very few complaints filed against lawyers for advertising issues and that almost all of them were filed by other lawyers.  Furthermore, most bar counsel indicated that they would rather not pursue advertising violations, but had other higher priorities – “things that were more important to their mission,” thus leaving the existing advertising rules largely unenforced.

He also noted that despite the lack of enforcement and absence of complaints, lawyers still want to follow the rules, but that as they exist now they are unduly restrictive and in effect pose an access to justice issue.  

When asked by one of the SCEPR panelists about whether the revisions go far enough, Clark suggested that in his view, all advertising issues could be covered under Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).   

Mark Tuft, chair of the APRL Advertising Committee, spoke next and emphasized the importance of the ABA being at the forefront of the push to simplify the advertising rules. He also stated that “the rules (as they exist now) are unworkable …and are causing problems [that] mandates the kind of change we’re discussing today.”  

Among APRL’s suggestions included moving the definition of solicitation out of Rule 1.0 Terminology and directly into the Rule 7.3 itself, since most practitioners don’t look at the definitions section of the rules; putting it in the rule itself would promote clarity. He also complimented the committee on its very narrow definition of solicitation, and recommended if the committee decided to keep Rule 7.4, it didn’t need to be its own separate rule but could made a part of Rule 7.2, noting that there was no history of disciplinary issues reported from the states regarding the enforcement of the specialization rules.

Tuft also recommended using the term “live direct” instead of “real-time communication” in Rule 7.3, since realtime communication does not adequately distinguish “between chatrooms and other forms of communication that are not truly live.”

His committee’s written comments are here.   

Will Hornsby, ABA staff counsel to the ABA Standing Committee on the Delivery of Legal Services spoke next, indicating that he would like to see a further streamlining of the rules. For example, he questioned whether there was still a need for that part of Rule 7.5 that states that a lawyer may state or imply that they practice in a firm when only when that is the fact. “Shouldn’t this be a given under the false, misleading standard of Rule 7.1?” he asked.

Recounting his experiences with new technologies, Hornsby also suggested that SCEPR consult with experts in technology so as to ensure that the rules as proposed can accommodate the ethical challenges posed by new and emerging technologies.

Art Lachman, former president of APRL, spoke next, describing the Washington State Bar ethics committee’s recent proposal to amend the Washington advertising rules. Further information is available in the Jan. 5, 2018, Report and Recommendation on the Lawyer Advertising Rules from the Washington State Bar Committee on Professional Ethics. One of the more significant departures from the SCEPR proposal is the proposed rule 7.3 that states:

RPC 7.3 SOLICITATION OF CLIENTS
(a) A lawyer may solicit professional employment unless:
(1) the solicitation is false or misleading;
(2) the lawyer knows or reasonably should know that the physical, emotional or mental state of the subject of the solicitation is such that the person could not exercise reasonable judgment in employing a lawyer;
(3) the subject of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(4) the solicitation involves coercion, duress or harassment.

Karen Gould, executive director of the Virginia State Bar, described the recent amendments to the Virginia State Bar advertising rules that were largely based on APRL’s recommendations.  Further information about the Virginia Rules is available here.

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