Photo Credit: Diego M. Radzinschi, The National Law Journal, https://www.law.com/id=1202749202171/Divided-ABA-Adopts-Resolution-on-Nonlawyer-Legal-Services/ (last visited Sept. 5, 2018).
By: Allie Segrest
Associate Editor, American Journal of Trial Advocacy
Introduction
“Another great victory in court today! My client is delighted. Who wants to be next?”[1] This post on a social media site is considered an attorney advertisement, and state bar associations have found this post to be in violation of their Rules of Professional Responsibility.[2] Mere words and sentences such as “victory” and “who wants to be next” are considered communications by an attorney as to his or her professional services, otherwise known as an advertisement, which subjects the entire post to scrutiny under the numerous professional rules of attorney advertising promulgated by each state.[3]
The American Bar Association (ABA) promulgates model rules relating to the professional conduct of attorneys.[4] States, in turn, typically implement the ABA’s Model Rules of Professional Responsibility as the state’s own prevailing ethics rules, which govern attorneys within that particular state.[5] Although the rules governing attorney conduct is left to each state, states typically rely on the expertise of the ABA and adopt the Model Rules.[6]
Rule 7 of the ABA Model Rules of Professional Responsibility governs attorney advertising in terms of how attorneys are permitted to advertise their professional services and solicit future clients.[7] On August 6, 2018, the ABA’s House of Delegates approved numerous changes to the then-current ethical rules governing attorney advertising after a four-year journey by both the Association of Professional Responsibility Lawyers (APRL) and the ABA to modernize the rules.[8] The Professional Rules on attorney advertising and solicitation of business has not been updated since the 1980s; thus, various groups, such as the APRL,[9] deemed a change was needed in updating and reorganizing the rules to fit the advertising needs of lawyers in a modern society of ever-changing technology.[10] Before discussing the substantive changes to the ABA model rules governing attorney advertising, a brief background on attorney advertising rules and Rule 7 specifically is likely helpful.
Background on Rule 7 of the Model Rules of Professional Responsibility
Until the late seventies, professional ethics rules governing attorneys mandated a total ban of lawyer advertising.[11] Long before the promulgation of the current Model Rules of Professional Responsibility, the ABA implemented the Canons of Professional Ethics in 1908 in which there was a complete ban on attorney advertising.[12] The policy behind the decades-long ban was that attorney advertising was seen as a threat to the reputation of the profession, as lawyering was seen merely as a method of service and not as a means of wealth.[13] In 1969, the ABA adopted the 1969 Code of Professional Responsibility, which did not change the total ban on attorney advertising, instead maintaining that attorney advertising was unethical and unprofessional.[14] It was not until the Supreme Court case of Goldfarb v. Virginia State Bar[15] in 1975 that the Court began to acknowledge that the practice of law is a business and not merely a career, although the case did not speak directly to attorney advertising.[16] One year following the Goldfarb decision, the Court heard Virginia State Pharmacy Board v. Virginia Citizens Consumer Council[17], where the Court held that advertising is protected under the First Amendment of the United States Constitution as a category of speech the Court called “commercial speech.”[18] Like Goldfarb, Virginia State Pharmacy Board did not specifically speak on the topic of attorney advertising, but it was an enormous milestone in the path to recognizing attorney advertising.
In 1977, the Supreme Court ultimately heard Bates v. State Bar of Arizona,[19] which specifically permitted lawyer advertising.[20] Despite the Court’s invalidation of the total ban on attorney advertising in Bates, there remained room for regulations pertaining to attorney advertising.[21] After the landmark Bates decision, “the contest shifted from whether lawyers could advertise to how lawyers could advertise.”[22] Following Bates, many states interpreted the decision carefully in order to permit as little advertising as possible, while numerous other states did not change their state bar rules as to reflect the Bates decision at all.[23] In 1983, the ABA attempted to solve this problem by adopting its Model Rules of Professional Conduct, which expressly permitted attorney advertising.[24] Advertisements were, however, subject to the promulgated rules, which regulated the way and manner that attorneys could advertise.[25] Many states then subsequently embraced the expertise of the ABA by implementing their own versions of the ABA Model Rules on attorney advertising.[26] However, this left numerous differences among the individual states pertaining to their regulations governing attorney advertising.[27]
What Prompted Modernized Changes to the Rules on Attorney Advertising
In amending former model rules 7.1-7.5 governing attorney advertising, the ABA’s central objective was to promote simplicity amid the rules themselves, and as many states routinely use the ABA rules as a guide in promulgating their own rules, the ABA aspired to provide the states with modern rules they could adopt, thus encouraging consistency among the individual states’ advertising rules.[28] Furthermore, the ABA sought to update and redevelop the rules to accommodate attorneys’ advertising needs in present-day society.[29] For example, the ABA wanted the ethical advertising rules to reflect the constant change in technology and the social norms that accompany technology, such as advertising via social media.[30]
The ABA in fact stated multiple reasons for updating and modernizing the model attorney advertising rules in a recently released news report covering the changes in the model advertising rules.[31] First, the amended rule seeks to promote national uniformity among advertising regulations.[32] Many law firms and lawyers today have multi-jurisdictional practices; therefore, inconsistency among the states’ rules as to permissible advertising often leads to confusion, especially for those lawyers practicing in various districts.[33] To illustrate, “[w]hen a firm’s practice crosses state lines, all their marketing efforts must be reviewed to make sure they follow the new state’s rules.”[34] A second goal in updating the rules was to simplify them in such a way as to make them easier to enforce for state regulators.[35] Third, amidst the changes to the rules, the ABA wanted to ensure the new rules were drafted in such a manner as to preserve the strict exclusion of false or misleading attorney advertisements and communications.[36] Discussed, infra, the language of former Rule 7.1 stating that a lawyer cannot make a false or misleading communication in regards to an advertisement did not undergo any changes among the new rules.[37] Finally, the ABA’s changes attempted to accommodate continued growths in technology and the legal profession in general.[38] For example, ABA staff counsel Will Hornsby pointed out that the days of strict face to face, telephone, and even texting communication has passed and that new technologies are emerging such as electronic assistants like Alexa; thus, the model advertising rules should be drafted to keep up with changing technologies.[39] With these goals in mind, the ABA approved the changes made to the model rules governing permissible attorney advertising tactics.[40]
Former Model Rules on Attorney Advertising – Rules 7.1-7.5
Before examining and discussing the updated changes to the new, recently adopted attorney advertising rules, it is helpful to review the previous rules to enable an in-depth analysis of the changes to the rules. The former ABA model advertising rules were ranged from rule 7.1 to 7.5.
Rule 7.1, titled Communications Concerning a Lawyer’s Services, stated “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”[41] The rule further defined a false or misleading communication as “a material misrepresentation of fact or law” or omission of a necessary fact making the statement altogether misleading.[42]
Rule 7.2, titled Advertising, permitted a lawyer to advertise his or her services via “written, recorded or electronic communication, including public media.”[43] However, Rule 7.2 prohibited a lawyer from giving a gift of any value whatsoever to a person for referring his or her services to others.[44] There were a few minor exceptions to the prohibition on gifts of value such as a lawyer could pay “reasonable costs of advertis[ing]” and refer clients to another layer pursuant to a referral fee agreement.[45]
Rule 7.3, titled Solicitation of Clients, prohibited a layer from soliciting clients via in-person, telephone, or real time electronic contact if the lawyer’s central motive was for personal monetary advancement unless the lawyer was contacting another lawyer or an individual he has a personal relationship with such as family or close friend.[46] The lawyer was further prohibited from soliciting any individual or potential client by any means of contact if the individual has made clear to the lawyer he or she does not wish to be contacted, or the solicitation involved “coercion, duress, or harassment.”[47] Rule 7.3 further regulated advertisements by requiring every soliciting communication from a lawyer to include the words “advertising material” to make known to the intended recipient that the communication is an advertisement.[48]
Rule 7.4, titled “Communication of Fields of Practice and Specialization”, enabled a lawyer to communicate in an advertisement the specific field of law he or she practices; however, the lawyer is not eligible to simply state he or she is a specialist in a certain field of law unless he or she has been certified by an organization, such as a state bar association or the ABA.[49]
Rule 7.5, titled “Firm Names and Letterheads”, states specific rules that must be adhered to in terms of a law firm’s name, such as a multi-jurisdictional law firm may use the same name throughout each jurisdiction with the exception that attorneys specify the limitations of the jurisdictions in which he or she is specifically licensed to practice.[50]
Changes to the Rules
On first glance the most notable change to the ABA’s model rules on attorney advertising is that the five former rules have now been condensed to three rules.[51] Thus, the rules governing attorney advertising only contain rules 7.1, 7.2, and 7.3. The shortened rules accomplish the ABA’s goal of promoting simplicity. Among all changes to the rules themselves and comments alike, the most noteworthy changes are as follows: 1) “solicitation” is now defined in the model rules where it was previously undefined,[52] 2) an exception has been added to the former rule against live person-to-person solicitations specifically for experienced users of legal services, such as corporations,[53] 3) attorneys now have the ability to extend a small, token gift to show gratitude to someone who referred his or her services,[54] 4) solicitations of services are no longer required to be explicitly labeled as “advertising material,”[55] 5) new comments were added to rule 7.3 (solicitation of clients) to include specific examples of live person-to-person contact such as new technologies,[56] and 6) the office address of an attorney or law firm is no longer required on advertisements.[57]
As previously stated, rule 7.1 in the amended rules remains unchanged. The language of this rule remains true to the original to reinforce the strict principal that a lawyer’s communications about his or her services cannot under any circumstances be false or misleading.[58] Nor can the lawyer omit a fact about his or her services to make the statement as a whole misleading.[59]
Rule 7.2’s title was redrafted from “Advertising” to “Communications Concerning a Lawyer’s Services: Specific Rules.” Subsection (a) of the rule states a lawyer can communicate information about his or her services through any media.[60] This was changed from the previous rule, which stated a lawyer could communicate his or her services through written, recorded or electronic communication.[61] Additionally, amended rule 7.2 now reflects that a lawyer can give a small gift of gratitude to an individual in return for the referral of his or her services.[62] Third, the rule regarding an attorney’s specialization in a specific field of law has been transferred from previous rule 7.4 (which has now been omitted entirely) to rule 7.2(c). The substance of the rule on specialization did not undergo significant changes. Finally, the updated rule regarding required contact information of an attorney on advertisements is stated in rule 7.2(d), which merely requires the name and contact information of one attorney in the law firm.[63]
Rule 7.3’s title remains “Solicitation of Clients.” 7.3(a) denotes an entirely new subsection to the definition of solicitation.[64] Subsection (b) states the rule governing who an attorney can solicit by live person-to-person contact, and this subsection contains an added exception to the general prohibition against live person-to-person contact for individuals who routinely encounter legal services of the type the lawyer offers.[65] Former subsection (c) of rule 7.2 requiring the label “advertising material” to be on all lawyer communications was removed entirely.[66] Subsection (d) was added entirely to include communications that are ordered by a court or tribunal and are in no way prohibited by this rule.[67]
What’s Next?
Although the ABA passed and adopted the amendments, changes, and resolutions to the Model Rules governing attorney advertising, the rules have no legal effect on attorneys until the states adopt them.[68] The ABA rules are only model rules, meaning states are not required to adopt the ABA’s rules as their own. However, many states are highly persuaded by the expertise of the ABA and often rely on the model rules when promulgating their own.[69] “The next battleground is at the state level to get the jurisdictions to consider following suit.”[70] A few states have already taken the lead in beginning to adopt and incorporate the amended Model Rules including Oregon, Washington, and Virginia.[71] Commentators have predicted that due to the significant changes the ABA made to the Model Rules on advertising, jurisdictions will likely begin to follow suit and adopt the same or similar versions of the Model Rules.[72] However, it is to be determined whether the ABA’s goal of promoting uniformity across the states will come to fruition after the adoption of the amended, redrafted rules.
Additionally, the newly amended rules “fail to make any express adjustment” to whether lawyers are ethically able to pay referral fees to non-lawyer, online referral service companies, such as Avvo,[73] under the Model Rules governing attorney advertising and solicitation.[74] Avvo, a typical online referral service company, connects online customers with an attorney for a fee; Avvo sends the fee to the attorney and collects a specified amount of the fee that it charges in return for its services.[75] Multiple recent state ethics opinions have found attorneys who collect a fee from a referral company such as Avvo are in violation of the state ethics rules aligning with the former ABA Model rule 7.2(b), prohibiting the lawyer from rendering anything of value in return for the referral of his or her services.[76] Although the new amended rules allow an attorney to give a small token as appreciation for referring the lawyer’s services, the rule does not explicitly state whether an online referral service collecting substantial fees are permissible or impermissible. However, a new section to comment 2 of amended rule 7.2 was added to read, “directory listing and group advertisements that list lawyers by practice area, without more, do not constitute impermissible ‘recommendations.’”[77] This additional comment may be a step in the direction of addressing whether the online referral service companies are permissible or not; however, the new amendments to the ABA Model Rules do not currently address the question directly.[78] In a March 2018 webinar, Barbara Gillers, chair of the American Bar Association Standing Committee on Ethics and Professional Responsibility, stated that the ABA standing committee would address the referral fee issue “in the near future.”[79] Therefore, state bar associations and attorneys should likely look forward to a resolution of this question in the coming future.
Conclusion
In conclusion, the ABA’s recent approval and adoption of the Model Rules governing attorney communications, advertisements, and solicitations have made a huge pathway for states to significantly alter their advertising rules in the near future. The simplification and substantial alterations to the rules have begun paving the way for attorney advertising regulations to progress alongside the ever-changing technologies and futuristic practice of law.
[1] Mark L. Tuft, Rethinking Lawyer Advertising Rules, 23 The prof’l Lawyer 1, 2 (2016).
[2] Id. (citing Cal. State Bar Formal Opinion No. 2012-186) (concluding the statement “who wants to be next” is an advertisement, or communication, because it suggests availability for professional employment, thus it must be scrutinized under the advertising rules, and the statement violates the advertising rules because it contains a client testimonial that does not include a disclaimer alongside the statement).
[3] Id.
[4] ABA Comm’n on Ethics & Prof’l Responsibility, Report and Resolution 101 (2018), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/revised_redline_resolution_and_report_101_july_26.authcheckdam.pdf.
[5] Id.
[6] Id.
[7] Jason Tashea, Do Proposed Ad and Referral Changes Go Too Far, or Not Far Enough, Aba Journal (July 2018), http://www.abajournal.com/magazine/article/ad_referral_ethics_model_rules.
[8] Michael E. McCabe, ABA Approves Changes to Attorney Advertising Ethics Rules, https://www.ipethicslaw.com/aba-approves-changes-to-attorney-advertising-ethics-rules/ (last visited Sept. 2, 2018).
[9] See Association of Professional Responsibility Lawyers, https://aprl.net/about-aprl/ (last visited Sept. 4, 2018) (stating that the organization of the APRL is “comprised of more than 450 lawyers, law professors and judges holding an interest in lawyers’’ professional responsibility, legal ethics, legal malpractice, and the evolving law of lawyering, primarily through the application of the rules of lawyer ethics to the practice of law).
[10] See McCabe, supra note 8 (discussing the fact that an underlying reason for updating the ethical rules regulating attorney advertising was a result of technological changes that did not exist at the promulgation of the first set of ethical rules on attorney advertising).
[11]See Ass’n of Prof’l Resp. Lawyers, 2015 Report of the Regulation of Lawyer Advertising Committee 1, 6 (2015) [hereinafter APRL 2015 Report], https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aprl_june_22_2015%20report.authcheckdam.pdf (noting that before the Supreme Court ruled otherwise in 1977, there was a longstanding ban on attorney advertising altogether).
[12] Id.
[13] Id.; See also Rodney A. Smolla, Lawyer Advertising and the Dignity of the Profession, 59 Ark. L. Rev. 437, 441 (2006) (discussing the fact that a huge reason the courts, bar associations, and states alike struggle with the line between permissible and impermissible attorney advertising comes from wanting to uphold the “dignity of the legal profession”).
[14] Id. (citing Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal and Ethical Perspective, 65 Marq. L. Rev. 547, 550 (1982)).
[15] 421 U.S. 773 (1975).
[16] Goldfarb, 421 U.S. at 788 (“In the modern world it cannot be denied that the activities of lawyers play an important part in commercial intercourse, and that anticompetitive activities by lawyers may exert a restraint on commerce.”).
[17] 425 U.S. 748 (1976).
[18] Va. St. Pharm. Bd., 425 U.S. at 765 (holding that commercial advertising regards information about a product being sold, and the First Amendment protects the free flow of information of this type that would enlighten the public).
[19] 433 U.S. 350 (1977).
[20] See Bates, 433 U.S. at 383-84 (holding that attorneys are permitted to advertise their services under the First Amendment so long as the advertisements are not false or misleading in any way).
[21] See Id. (stating that the bar and states may put reasonable restrictions on advertising by attorneys to ensure the advertisements “flows both freely and cleanly”).
[22] Smolla, supra note 13, at 441.
[23] APRL 2015 Report, supra note 11, at 8.
[24] Id.
[25] See Model Rules of Prof’l Conduct r. 7.2 (Am. Bar Ass’n 1983) (For example, Rule 7.2(a) stated “[a] lawyer may communicate . . . [his or her] services through any media”; however, Rule 7.2(b) stated “[a] lawyer shall not . . . give . . . anything of value to a person for recommending [his or her] services.” Thus, a lawyer was permitted to advertise subject to the regulations within the rules.).
[26] APRL 2015 Report, supra note 11, at 8.
[27] Id.
[28] Mindy L. Rattan, ABA Revamps Lawyer Ad Rules, But Critics Want More, Bloomberg Law (Aug. 14, 2018), https://biglawbusiness.com/aba-revamps-lawyer-ad-rules-but-critics-want-more; see also Scott Flaherty, Attorney Advertising Rule Changes Among Proposals on ABA’s Agenda, The Am. Law. (July 24, 2018), https://www.law.com/americanlawyer/2018/07/24/attorney-advertising-rule-changes-among-proposals-on-abas-agenda/?slreturn=20180730230909 (noting that many state bar attorney licensing and disciplinary bodies often heavily rely on the ABA’s model rules when drafting their own regulations and rules governing professional conduct).
[29] Rattan, supra note 28.
[30] Id.
[31] At Public Forum, Revised Proposal for Lawyer Advertising Rules Gets Warmer Reception, ABA (Feb. 3, 2018, 11:10 PM), https://www.americanbar.org/news/abanews/aba-news-archives/2018/02/at_public_forum_rev.html.
[32] Id.
[33] Lisa Schmidt, Will the Proposed Changes to the ABA Model Rules on Attorney Advertising Affect Your Practice?, The Modern Firm (Aug. 9, 2017), https://www.themodernfirm.com/blog/qotw/proposed-changes-aba-model-rules-attorney-advertising.
[34] Id.
[35] At Public Forum, Revised Proposal for Lawyer Advertising Rules Gets Warmer Reception, supranote 30.
[36] Id.
[37] Model Rules of Prof’l Conduct r. 7.1 (Am. Bar Ass’n 1983); see Rattan, supra note 28 (stating Rule 7.1 remains unchanged in order to stay consistent in not allowing lies or false advertising information).
[38] At Public Forum, Revised Proposal for Lawyer Advertising Rules Gets Warmer Reception, supranote 30.
[39] Id.
[40] Id.
[41] Model Rules of Prof’l Conduct r. 7.1.
[42] Id.
[43] Id. at r. 7.2(a).
[44] Id. at r. 7.2(b).
[45] Id. at r. 7.2(b)(1)-(4).
[46] Id. at r. 7.3(a).
[47] Model Rules of Prof’l Conduct r. 7.3(b).
[48] Id. at r. 7.3(c).
[49] Id. at r. 7.4(a)-(d).
[50] Id. at r. 7.5.
[51] Rattan, supra note 28.
[52] See Karin Rubin, ABA Proposed Changes to Lawyer Ad Rules; But Referral-Fee Issue as to Avvo and Others Remain Open, The Law For Lawyers Today (Feb. 1, 2018), https://www.thelawforlawyerstoday.com/category/advertising-and-solicitation/ (stating solicitation is now defined in the terminology section of the rules, rule 1.0, as “offering to provide legal services to a specific person in a particular matter”).
[53] See ABA Report and Resolution 101, supra note 4, at r. 7.3(b)(3) (listing an exception as to who a lawyer is prohibited to contact via live person-to person communication as a “person who routinely uses for business purposes the type of legal services offered by the lawyer”).
[54] Id. at r. 7.2(b)(5) (stating a lawyer is permitted to give a gift as “an expression of appreciation” for referring the lawyer’s services).
[55] See Id. at r. 7.3 (omitting the subsection of the rule requiring that written communication be explicitly labeled as “advertising material” in its entirety).
[56] See Id. at r. 7.3 cmt. 2 (defining live person-to-person contact as “in-person, face-to-face, live telephone or other real-time visual or auditory person-to-person communications where the person is subject to a direct and personal encounter without time for reflection. Such…contact does not include chat rooms, text messages, or any other written communication that can be easily disregarded.” The first draft specifically stated Skype and FaceTime as examples of such person-to person communication, but it was omitted, as the definition is certainly written to include any visual or auditory person-to-person communications, which impliedly includes applications such as Skype, FaceTime, Tango, and Google Duo).
[57] See Id. at r. 7.2(d) (omitting the requirement of the lawyer’s office address on marketing communications).
[58] ABA Report and Resolution 101, supra note 4, at r. 7.1.
[59] Id.
[60] Id. at r. 7.2.
[61] Model Rules of Prof’l Conduct r. 7.2.
[62] ABA Report and Resolution 101, supra note 4, at r. 7.2(b)(5).
[63] Id. at r. 7.2(d).
[64] Id. at r. 7.3(a).
[65] Id. at r. 7.3(b)(3).
[66] See Id. at r. 7.3 (omitting former subsection (c) of rule 7.3).
[67] Id. at r. 7.3(d).
[68] McCabe, supra note 8.
[69] ABA Report and Resolution 101, supra note 4.
[70] Rattan, supra note 28.
[71] McCabe, supra note 8.
[72] Id.
[73] See Rubin, supra note 49 (Avvo is an online company that provides legal services by a simple website search as to a client’s desired legal services; Avvo connects the online customer with a lawyer for a specified fee).
[74] Id.
[75] Id.
[76] Id. (citing Model Rules of Prof’l Conduct r. 7.2(b)).
[77] ABA Report and Resolution 101, supra note 4, at r. 7.2 cmt. 2.
[78] See Rubin, supra note 49.
[79] Rattan, supra note 28.
American Journal of Trial Advocacy 