Association adopts new advertising ethics rules

By Charles Lundberg
BridgeTower Media Newswires

At the ABA Annual Meeting last month, the House of Delegates approved sweeping amendments to the Model Rules of Professional Conduct governing lawyer advertising. To ethics nerds, this is a momentous and unprecedented development in lawyer discipline.

Some history: The four-year story of the development of these changes to the advertising rules sheds some light on the nature of what has changed, and why. The proposal originated as a committee report from the Association of Professional Responsibility Lawyers (full disclosure: I have long been an active member). In 2013, APRL created a Regulation of Lawyer Advertising Committee to analyze and study lawyer advertising rules. APRL’s committee consisted of former and current bar regulators, law school professors, authors of treatises on the law of lawyering and lawyer-experts in the field of professional responsibility and legal ethics. Liaisons to the committee from the ABA Center for Professional Responsibility and the National Organization of Bar Counsel provided valuable advice and comments.

With NOBC’s assistance, the APRL committee gathered substantial empirical data through a survey of bar regulators across the country regarding the enforcement of current advertising rules. That committee received survey responses from 34 of 51 U.S. jurisdictions. That 2014 survey resulted in some interesting and perhaps surprising conclusions:

• There are a dizzying number of state variations in the rules governing lawyer advertising and vast departures from the Model Rules between jurisdictions, a huge problem for lawyers who practice (and advertise) in more than one state;

• Complaints about lawyer advertising are rare;

• People who complain about lawyer advertising are predominantly other lawyers and not consumers;

• Most complaints are handled informally, even where there is a provable advertising rule violation;

• Few states engage in active monitoring of lawyer advertisements; and

• Many cases in which discipline has been imposed involve conduct that would constitute a violation of ABA Model Rule 8.4(c) (prohibiting dishonesty or misrepresentation).

APRL issued reports in June 2015 and April 2016 proposing amendments to Rules 7.1 through 7.5 to streamline the regulations while tightening the enforceable standard prohibiting false and misleading communications. The proposal was then sent to the ABA Standing Committee on Ethics and Professional Responsibility which spent the better part of two years studying and refining the changes and getting input and buy-in from a vast number of bar groups and constituencies.

The principal amendments: Resolution 101 at the 2018 Annual Meeting presented a history of the four-year drafting project, and a summary of the changes:

• Combine provisions on false and misleading communications into Rule 7.1 and its Comments and clarify key terms such as “misleading” and “truthful.”

• Consolidate specific provisions on advertising into Rule 7.2, including requirements for use of the term “certified specialist.”

• Permit nominal “thank you” gifts under certain conditions as an exception to the general prohibition against paying for recommendations.

• Define solicitation as “a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular
matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.”

• Prohibit live, person-to-person solicitation for pecuniary gain with certain exceptions. (The most significant new exception, of interest to business lawyers, incorporates a “sophisticated client” test: solicitation would be allowed of any person “who routinely uses for business purposes the type of legal services offered by the lawyer.”)

• Eliminate the labeling requirement (“Advertising Material”) for targeted mailings but continue to prohibit targeted mailings that are misleading, involve coercion, duress or harassment, or that involve a target of the solicitation who has made known to the lawyer a desire not to be solicited.

The rule changes passed overwhelmingly on a voice vote before the House of Delegates, with no announced opposition. That in itself is highly unusual—perhaps unprecedented for a proposal that will have as great a practical effect on the practice of law as these changes will. The last time the rules were changed, in 2016 (adopting Rule 8.4 (g), prohibiting sexual harassment and discrimination in the practice of law) there was vociferous, loud and organized opposition, and over the years a fight over any new ABA ethics provision has been more the rule than the exception.

Issues and debate going forward what to expect: The Model Rules now go to the states for consideration and adoption. One state - Virginia - adopted the changes even before the ABA did; other states including Washington and Oregon are already moving forward with even more progressive updates to their advertising rules.

On May 30, 2018, the Michigan Supreme Court adopted an amendment to Rule 7.2 of the Michigan Rules of Professional Conduct that takes effect September 1. The amendment is intended to identify at least one lawyer responsible for an advertisement’s content as a way to provide potential clients with important information when the services are advertised under the heading of a phone number, web address or trade name.
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Charles Lundberg is recognized nationally as a leader in the areas of legal ethics and malpractice. A former chair of the Minnesota Lawyers Board, he retired in 2015 after 35 years of practice with Bassford Remele. He now teaches at the University of Minnesota Law School and consults with and advises attorneys and law firms on the law of lawyering through Lundberg Legal Ethics (www. lundberglegalethics.com).