In an effort to keep up with growing concerns about restrictions on truthful legal ads and lawyer advertising trends regarding cross-border practices, social media, and the internet, the American Bar Association recently published revisions to its ethics rules on lawyer advertising, hoping to promote simplicity and uniformity across the country.
The five advertising rules under Chapter 7 of the Model Rules regarding Communications Concerning a Lawyer’s Services were whittled down to three:
- Rule 7.1 still prohibits lawyers from misleading or lying in their advertisements, but these rules were consolidated significantly. Also, guidelines on law firm names, originally in Rule 7.5, were moved to the comments for Rule 7.1, along with a reminder of misconduct prohibitions in Rule 8.4(c).
- Rule 7.2 now contains all specific advertising rules, including restrictions on paying for recommendations and the old Rule 7.4 provisions on communicating lawyer specializations. Lawyers still cannot outright pay for recommendations, but the new Rule 7.2 allows for nominal gifts as an “expression of appreciation” so long as it is clear that the gift is not compensation for the endorsement.
- Rule 7.3 on Solicitation of Clients still prohibits ambulance chasing and in-person solicitation of clients. In an attempt to curb high-pressure sales tactics, the ABA now includes a definition of “solicitation” in this rule. The ABA also attempts to update the rule based on newer technology. The definition of prohibited “live person-to-person contact” now includes audio/visual platforms like Skype or Facetime conversations, but allows for “easily disregarded” written communications like texts or online chat rooms. Also, Rule 7.3 no longer requires advertisement solicitations to be labeled as “Advertising Material”.
The revision and restructuring of these rules provide a more unified and modern Code of Professional Responsibility. The amended rules were an outgrowth of the Association of Professional Responsibility’s (APRL) 2015 and 2016 Report on Attorney Advertising. The rules continue to focus on protecting clients from deceptive lawyers, while also freeing lawyers from frustrating regulations, like tediously labeling their advertising materials or not being able to give nominal gifts to those who promote their business.
Still, some lawyers feel more could be done to reflect modern-day practices and needs. For example, companies that attempt to pair lawyers with those in need of legal services find an ethics roadblock where lawyers cannot pay for recommendations under Rule 7.2 or share fees with nonlawyers under Rule 5.4. These roadblocks limit access to legal services. Moreover, the specific rules on advertising, beyond the prohibition of false and misleading advertisements, are being criticized as unnecessary and an attempt to micromanage.
Read the revised rules here.
