Attorney Advertising – New Ethical Rules

As is common in any other industry, lawyers are constantly on the lookout for new tactics to attract business and build their reputations. These days, technology can help lawyers target potential clients and promote their services in new and creative ways.

It’s important to remember, however, that advertising as a lawyer is by no means an “anything goes” type of matter. Lawyers must respect several ethical rules which limit what they can and cannot do when advertising their services, but these rules may sometimes be a bit confusing when faced with all the new advertising methods at our disposal.

The ABA recently approved some changes to the Model Rules of Professional Conduct which govern attorney advertising. These changes are supposed to make the rules more appropriate for modern times and come as a response to the many concerns among attorneys. Some states have already adopted these amendments, while others are still debating which of these if not all of them they should adopt. These new Model Rules serve as indications for how a state may respond to all the new methods of attorney advertising.

Policy

Unlike other cases of bar complaints, the data gathered by the ABA showed that most bar complaints targeting attorneys’ advertising actually came from lawyers who were complaining about their competitors, not from actual clients or potential clients. This suggested that while the rules were supposed to protect the public, lawyers also used them defensively against other lawyers.

The ABA noted that if these rules are too limiting, it can be detrimental to both lawyers and the general public. If a lawyer fails to advertise their services due to too narrowly drawn rules or because they are too concerned with not breaking those rules, the bar would possibly be depriving people of their ability to find legal services. If lawyers cannot reach potential clients, then those people might end up missing out on legal representation which could greatly help their cases.

Similarly, restrictions on lawyers’ abilities to advertise their services could have a negative impact on their efforts to attract new clients. This can be particularly problematic to lawyers who are new to the bar and find themselves unable to advertise.

New Rules Regarding Misleading Statements

An essential part of the rules which govern attorney advertising is the prohibition of misleading statements. Lawyers are not allowed to make any misleading statements about their firms, not even in their letterheads. In an effort to streamline the rules which prohibit misleading statements, the ABA eliminated several rules and consolidated all their provisions under one rule: Rule 7.1. In particular, Rule 7.5 used to govern a firm’s use of firm names and letterheads, noting that lawyers cannot adopt misleading firm names or professional designations. The ABA eliminated that rule and its contents were relegated to a comment to Rule 7.1.

Comment 5 to Model Rule 7.1 states that “firm names, letterhead and professional designations are communications concerning a lawyer’s services.” The comment then clarifies what would make a firm name misleading, such as implying a connection with a government agency, with lawyers who are not associated with the firm, or with a public or charitable organization that provides legal services.

The ABA decided that a separate rule that governed firm names wasn’t necessary, but that it could be addressed as a part of the overall requirement under Rule 7.1 to not mislead the public.

Defining “Advertising”

Model Rule 7.2 used to state that a “[l]awyer may advertise information regarding the lawyer’s services.” For some lawyers and law firms, the definition of “advertise” was controversial. There were questions of whether social media posts about successful outcomes for clients or maybe articles which described a lawyer’s experience with a specific legal issue were considered advertising.

These issues were addressed by changing the word “advertise” to “communicate” in Rule 7.2, which now states that “[a] lawyer may communicate information regarding the lawyer’s services through any media.” As such, the Rule now avoids any issues of whether communications qualify as advertisements and appears to allow any type of communication as long as it is not misleading.

Allowed Solicitation Methods

Since the rule on advertising isn’t always intuitive, it’s always a good idea to consult the local rules before taking any action. Attorney solicitations have historically been treated differently by each jurisdiction, many approaching them in a “know it when you see it” manner. Many also have very strict rules about when and how lawyers may solicit potential clients.

To clarify things, the ABA amended Rule 7.3(a) to specifically define solicitation. The rule states that “‘[s]olicitation’ or ‘solicit’ denotes 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.”

The revisions also seem to allow in-person solicitation of sophisticated clients. While lawyers are typically not allowed to solicit professional employment in person, the amended Model Rule 7.3 allows such contact directly to attorneys, to those who might have a relationship with the attorney, or to someone “who routinely uses for business purposes the type of legal services offered by the lawyer.” Although a lawyer may not coerce or harass and may not solicit those who have already mad e it clear that they are not interested, these changes reflect the fact that concern is not as great where the client is sophisticated and can determine whether contact should continue or not.

As such, for lawyers in those jurisdictions which adopt these new rules, reviewing them will be helpful to assess their impact.