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March 2018

Revised proposal for lawyer advertising rules gets warmer reception

Revised proposed changes to the ABA Model Rules of Professional Conduct regarding lawyer advertising received a better reception at the 2018 Midyear Meeting in Vancouver, B.C., than a year ago although there was overwhelming sentiment the revisions still do not go far enough to simplify rules on communication with clients.

A year ago at a similar forum, a batch of proposed changes in the works since 2013 triggered a much harsher critique, with some saying that the recommendations went too far and others not far enough. But on Feb. 2, the working draft of the proposed amendments of 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 received a stronger but not totally enthusiastic embrace.

“We would like to see the proposal go further [in simplification],” said Arthur J. Lachman, a lawyer in Seattle, who described ongoing changes in the Washington State Bar Association rules and was among those who suggested numerous tweaks to the revised recommendations.

The proposed amendments seek to encourage more national uniformity; simplify the rules that are actually enforced by state regulators, maintain the prohibition against engaging in false or misleading communications, and accommodate developments in the legal profession, technology and competition from inside and outside the profession

First proposed by the Association of Professional Responsibility Lawyers (APRL), the ABA Standing Committee on Ethics and Professional Responsibility plans to present a final proposal to the ABA House of Delegates at its meeting in August in Chicago. Barbara S. Gillers, chair of the standing committee and a New York School of Law legal ethics professor, said the final package should “target the most misleading and false advertising” without burdening lawyers and impinging on their free speech and the First Amendment rights.

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.

The comprehensive proposal specifically 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. In initially suggesting the changes, 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. 

As did other speakers, ABA staff counsel Will Hornsby, representing the ABA Standing Committee on the Delivery of Legal Services, suggested the model rules on advertising should be broad and simple to account for the changing environment in the practice of law. As an example, he observed that in past days personal communication among friends was primarily by voice and with machines by text.

Now, he added citing electronic assistants like Alexa, friends communicate by texts and people talk to machines. “We should not be drafting rules for 2009,” he added. “We should be drafting the rules for 2029.”

Several speakers said final revisions should lower barriers to access to justice for low-and-middle income clients as well even the playing field for younger lawyers, who often as solo or small firm practitioners find it difficult to compete against larger-firm lawyers.

George R. Clark, president of APRL and a D.C. lawyer, couched lawyer advertising as an “access to justice issue. … We think the public is entitled to know more about the services that lawyers can provide,” he said.

Eli T. Marchbanks, an attorney in Vancouver, Wash., noted that he is now developing his law practice and as a young lawyer and an entrepreneur, he views current Model Rule 7.3 that covers solicitation of clients as an obstacle. Changing this, he said, would be the “single biggest thing we can do as a profession to better connect supply and demand.”

In closing, Gillers asked the about 50 attendees how many support even less restrictive rules than the working draft proposes. Overwhelmingly, a show of hands suggested more changes would be preferred.

Written comments on the proposal will be due March 1. Comments may be emailed to [email protected].  All comments will eventually be posted on the ABA website.

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