ABA Approves Changes to Lawyer Advertising and Other Rules

The ABA approved long-awaited changes to its Model Rules on legal advertising at its recent House of Delegates meeting. While the rule revisions do not go as far as some advocates had hoped, they serve to simplify, streamline, and modernize the guidelines for lawyers looking to advertise their services in the Internet era. While the Model Rules are not binding on lawyers, most states have implemented them in some form in their codes of attorney conduct.

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At its annual House of Delegates meeting last month in Chicago, the American Bar Association (ABA) approved a handful of revisions to the Model Rules of Professional Conduct (“Model Rules”) governing attorney advertising as well as other topics. The changes were the result of approximately two years of work by the ABA Standing Committee on Professional Ethics and Responsibility, which included open hearings and opportunities for public comment. While the rule changes related to legal marketing did not necessarily represent a large-scale substantive rewrite, they did serve to clarify, consolidate, and modernize some of the guidelines in this area. The Model Rules are not binding on attorneys, but most states have adopted them to some extent in implementing regulations governing lawyer conduct. However, there tends to be a greater degree of variation among states with regard to advertising as opposed to other ethics rules, which is one of the issues the new revisions sought to address.

Rule Changes Respond to Calls for Streamlined Regulations

The recent rule changes stemmed largely from efforts led by the Association for Professional Responsibility for Lawyers (APRL) to streamline regulations governing legal advertising. In 2014, the APRL conducted a survey of over 30 states to determine what proportion of lawyer disciplinary action was related to advertising across jurisdictions, and found that of the very few complaints regulators were receiving in that area, most were filed by other lawyers rather than consumers, and most pertained to the prohibition on false or misleading statements. Most issues were also easily corrected when regulators simply asked attorneys to make the necessary changes. Following this study, the APRL issued reports in 2015 and 2016 recommending a simplified approach to the rules, focused primarily on prohibiting false or misleading advertisements and modernizing solicitation guidelines, but removing many longstanding specific rules believed to be inhibiting innovation, particularly with regard to internet marketing. Virginia adopted the APRL’s approach to a large degree in 2017, and other states are contemplating similar changes.

ABA Revisions Are Limited But Seek to Simplify and Modernize Advertising Rules

The ABA Model Rule changes approved last month were not as broad as those recommended by the APRL, but were nonetheless consistent with advocates’ calls to consolidate and simplify advertising rules for lawyers seeking to market their services in the digital age. Some of the revisions to be aware of, but which again are not binding on attorneys until they are adopted by the individual states in which the attorneys are licensed, include the following:

• Model Rule 7.2 has been revised to allow lawyers to simply post “contact information” such as a website or email address instead of an “office address” on marketing materials.
• Following similar developments in Virginia and Florida, under Model Rule 7.2(c) (see new comment 9), lawyers may now state that they are “specialists” in a particular area based on experience, education, and training rather than needing a certification, provided that this assertion does not run afoul of the “false or misleading” standard articulated in Model Rule 7.1. Communication of fields of practice was previously addressed under Model Rule 7.4, which has been deleted.
• Under revised Model Rule 7.2(b), attorneys may now give “nominal” thank you gifts to people who recommend them to clients, as long as the gift is not expected or received as payment for the recommendation.
• In keeping with a similar change that has occurred in Oregon, Model Rule 7.3 no longer requires attorneys to label written marketing material as “advertising,” based on the notion that consumers are sufficiently accustomed to receiving paper and electronic advertisements to be able to distinguish them from other types of correspondence without a written notice.
• Model Rule 7.3 defines “solicitation” in new subsection (a), largely adopting Virginia’s definition of the term. The rule continues to prohibit live solicitation, which includes in-person or other real-time visual or auditory communication, but now permits real-time electronic solicitation via means such as texts or tweets on the theory that these methods are more like written advertisements than in-person solicitation because consumers can pause before responding and/or ignore them.

A number of other changes served to reorganize and consolidate existing advertising rules. Following the ABA’s revisions, a greater number of states may now begin to implement simplified legal advertising rules in keeping with these changes, or may go even further in the direction of the APRL’s recommendations by stripping advertising regulations down to a bare minimum of barring false or misleading communications and modernizing rules regarding solicitation of clients.

Rule changes unrelated to advertising that came out of the House of Delegates meeting included approving a simplified dues structure, and adopting a resolution urging government entities to limit court fines and fees for those who cannot afford them. Facing increasing opposition, a resolution that would have, among other things, removed the requirement that law schools collect admission test scores, was withdrawn.

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