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Explained: Update to advertising, marketing rules

At its 2018 Annual Meeting, the ABA House of Delegates passed changes to the Model Rules of Professional Conduct, modernizing those rules relating to the often-confusing issues of lawyer marketing, advertising and solicitation. These changes were long overdue, says lawyer Micah U. Buchdah with HTMLawyers, Inc., in Moorestown, N.J., and were driven by changes in technology, competition, cross-border practices and public policy dealing with issues like unauthorized practice of law claims.

“The original rules were geared to some of the old-time concepts like the Yellow Pages, billboards, print ads and directories,” says Buchdah, who serves as moderator of the ABA webinar “Ethics Dos-and-Don’ts for Lawyer Marketing & Advertising in 2019.”  “But those are no longer relevant in today’s marketplace of cellphones, internet and social media.”

Changes to the Model Rules started in April 2015 with the report of The Regulation of Lawyer Advertising. Virginia was the first state to streamline lawyer advertising rules in April 2017 and the ABA Standing Committee on Ethics and Professional Responsibility followed with proposed rule changes for advertising that resulted in Resolution 101, which was adopted by the ABA in August 2018.

Buchdah says he often talks about the Model Rules and compliance in three words: false, deceptive and misleading. “They won’t protect you 100 percent of the time, but if you ask yourself whether or not the advertising is false or whether it’s deceptive or whether it’s misleading, you’re usually going to be good to go.”

Daniel J. Siegel, attorney with the Law Offices of Daniel J. Siegel, LLC in Havertown, Pa., discusses the changes in the Model Rules and what prompted them. He says the 2018 change is basically a “simplification” of the core five Model Rules. They are:

ABA Model Rules – Revised and adopted in 2018

Rule 7.1 — Communications Concerning a Lawyer’s Services. Lawyers can’t make a false or misleading communication about their services. The rule change adds a definition of false or misleading.

Rule 7.2 — Communications Concerning Specific Rules. Under the old rules, this section was called Advertising. It’s been renamed and focuses more on specific rules, including paying for recommendations, referrals, nominal gifts to thank referrers, specialists/certification and contact information.

Rule 7.3 — Solicitation of Clients. The revision, according to Siegel, codifies a variety of rules and policies of different bar associations that solicitation is a communication directed to a person and that a lawyer cannot solicit business unless it’s with a lawyer or person who has prior knowledge of the lawyer or uses the lawyer for business.

ABA Model Rules unchanged

Rule 7.4 — Communication of Fields of Practice & Specialization. This rule deals with lawyer representation about lawyers’ specialties. “This is still a contention among lawyers because the old rules and the new Model Rules both talk about what you can and can’t say about your specialty, but we’ve all seen the advertisements for firms that give the impression without stating their specialty,’’ Siegel says.

Rule 7.5 — Firm Names and Letterheads. The rule addresses what is in the firm name, including past members and trade name, and what must be on the letterhead.

While the changes try to bring uniformity to the rules, Buchdah and Siegel say every state has tweaked the Model Rules. A prime example is Florida, which they say is perhaps one of the toughest states for lawyers to advertise in. Panelist Elizabeth Clark Tarbert, ethics counsel for the Florida Bar in Tallahassee, doesn’t dispute that assessment.

“Florida believes we should spell out for lawyers what misleading is and give specific examples of that,’’ she says. “We start with the premise that it (advertising) can’t be false and misleading and then we tell you exactly what we think that is.”

Florida even has a requirement that lawyer advertisements be filed 20 days in advance of the schedule run date to allow the state bar to render an opinion on compliance. In addition, the state has rules about testimonials (firms can’t pay for them, they can’t be written for the person, the person writing them must be qualified to evaluate the lawyer and lawyers can’t edit them) and stricter requirements for email and texts and direct mail. In addition, lawyers must provide specific information about themselves and their qualifications and, unlike other states, Florida allows for-profit lawyer referral services.

“I like Florida’s definitions, and their rules make sense, but unless there is enforcement, it really doesn’t matter,” says Siegel.

Enforcement is the issue in most states, the panelists agree. The states have various levels of enforcement and each tweak the Model Rules to their satisfaction. “Many states don’t want to deal with the legal challenges and other issues that come with enforcement,’’ Siegel explains. “In Pennsylvania, we simply don’t see attorneys getting disciplined.”

The Model Rules also address areas such as ratings, rankings and online reviews in marketing strategies, including the use of blogs and social media platforms such as Facebook, Twitter and LinkedIn. Social media, the panelists say, can present a problem because it teeters on advertising and marketing.

The Florida Bar has issued guidelines on the use of social media. “We look at the content,’’ Clark Tarbert says. “If you use it to promote your services or to garner business or talking about yourself in the legal sense, then yes our rules apply. If you send a friend request, we look at that as being a direct person-to-person communication, especially if it’s somebody you haven’t had a prior professional or family relationship with. You have to comply with the direct mail rules in making that friend request because it is deemed an unsolicited request.”

Lawyer ratings and rankings, according to Buchdah, “is probably the area which has had the most ethics opinions issued” over the years. That’s because ratings and rankings can be manipulated, he says.

But even with the revised Model Rules, more may need to be done. “Are the new rules effective?’’ Clark Tarbert asks rhetorically. “Anytime you have others involved, there is compromise. Some people think the changes don’t go far enough and some think they went too far. It’s hard to say how much uniformity will come from this because many states were already modifying the rules and making changes.’’

Ethics Dos-and Don’ts for Lawyer Marketing & Advertising in 2019” is available on demand. The program is sponsored by the ABA Law Practice Division,  Center for Professional Responsibility and the ABACLE.

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