February 28, 2018

The Rules of Professional Conduct pertaining to lawyer advertising, Rules 7.1 through 7.5, are under re-consideration by a number of organizations. You may recall that the Association of Professional Responsibility Lawyers (APRL) issued reports recommending a streamlining of the advertising rules in 2015 and 2016. Because the Model Rules of Professional Conduct are adopted by the House of Delegates of the ABA, APRL asked the ABA to take up their recommendations.

Individual state supreme courts may choose to adopt the ABA’s Model Rules or not. Illinois has mostly adopted the Model Rules.

Last year, the ABA convened a working group to discuss APRL’s recommendations and revisions to the Model Rules. As Chair of the ABA Standing Committee on Professionalism, I took part in working group meetings throughout 2017. In December 2017, the Ethics Committee published a report and Proposed Amendments that are available for public comment through March 1, 2018. Please send written comments to modelruleamend@americanbar.org.

As noted in the report, many states have adopted advertising rules that differ from the Model Rules and from the rules of other states. Attorneys who practice in more than one state may be subject to a dizzying array of different states’ advertising rules.

Several states are in front of the ABA in updating these rules. Virginia and Oregon have passed amended advertising rules and Washington sent a proposal for modifications to the lawyer advertising rules to the State Bar’s Board of Governors. If it is approved by that body, it goes to the Washington Supreme Court.

Many suggest omitting Rules 7.4, Communications of Fields of Practice and Specialization, and 7.5, Firm Names and Letterheads. Because those two rules are examples of false and misleading communications, covered by Rule 7.1, the language could be included in comments to Rule 7.1.  

Rule 7.2(b) has a lot of suggested revisions, and many of the proposals contradict each other.  This provision covers a smorgasbord of provisions about when it is acceptable to “give anything of value for recommending the lawyer’s services.” This is a hot button issue because left unaddressed in the current rule is whether lawyers may pay a for profit online service, such as Avvo, for recommendations. State ethics opinions, including New York and New Jersey have held that the marketing fee charged by Avvo constitutes an improper payment for a recommendation in violation of this rule. Should a model rule give more explicit guidance here?

Rule 7.3 prohibits solicitation, or, as explained in the comments to the current rule, a “targeted communication” “directed to a specific person” offering to provide legal services. (Thankfully, the proposal deletes the antiquated requirement in 7.3(c) that every communication soliciting professional employment include the words “Advertising Material” on the outside envelope.)

In light of the research showing up to 80% of the civil legal needs of low and moderate income Americans are not being met, we should question whether it make senses to prohibit lawyers from sending targeted communications to people who may need their services. If current regulations are contributing to the growing access to justice problem, rather than protecting the public, they should be changed.

After all, as stated in the Preamble to the Rules of Professional Conduct: “The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.”