Practicing law is essentially a business, and as one aspect of this business, most lawyers and law firms engage in marketing and advertising to increase their market share or get new clients. In the age of social media, though, the ethical rules that govern advertising can sometimes be strict and hard to understand.
The ABA recently approved a series of changes to Model Rules 7.1 through 7.2, which are the rules that govern attorney advertising. The changes are supposed to address some concerns about the public’s access to justice and lawyers’ ability to make a living. Each state sets their own rules for lawyers in regard to whether they are permitted to advertise and to what extent. Despite each state determining to what extent they will adopt these model rules, these changes may show the direction in which the legal field may be expected to evolve.
Why Make Any Changes?
The rules governing attorney advertising can sometimes be strict and they comprise a great deal of bar complaints against lawyers. In truth, though, it’s been shown that such bar complaints were often coming from lawyers who were complaining about their competitors and not from affected clients or potential clients. Thus, while the rules are meant to protect the public, it may be that lawyers were using them defensively against other lawyers.
The ABA has noted, however, that if the rules on advertising are too strict and limiting, they may end up hurting both the public and lawyers. An example of this would be a lawyer who fails to advertise their services because the rules are simply drawn too narrowly, or because they are concerned about violating those rules, thus depriving the public of the ability to find legal services that may be available to them. If lawyers can’t reach potential clients, then those potential might even go without any legal representation, which is a disadvantage to the overall community.
What’s more, if lawyers are too hamstrung to advertise without breaking the bar’s rules, it could negatively impact their efforts to find new clients. Especially in the case of new lawyers, the inability to advertise their services could be devastating.
These issues favored the amendments brought to the Model Rules.
Avoid Any Misleading Statements
It’s self-evident that lawyers shouldn’t make misleading statements, but the Model Rules, as recently revised, reinforce that they may not make any misleading statements about their firms, not even in their letterheads.
The ABA has recommended eliminating Model Rule 7.5, which governed the use of a law firm’s name or letterhead, noting especially that lawyers may not adopt misleading firm names of professional designations. In trying to streamline the rules, the ABA has proposed that the contents of Model Rule 7.5 be relegated to a comment to Model Rule 7.1, which prohibits false or misleading statements.
Comment 5 to Model Rule 7.1 now states that “firm names, letterhead and professional designations are communications concerning a lawyer’s services.” The comment then goes on to clarify what exactly could make a firm name “misleading,” such as an implied connection with a government agency, with other lawyers who are in no way associated with the firm, or with public or charitable legal services organizations.
The ABA has thus suggested that firm names don’t require a separate rule to govern their propriety, but that naming should be a part of the requirements of lawyers under Model Rule 7.1 to not mislead the public in any way.
What Constitutes “Advertising?”
Model Rule 7.2 used to state that a “lawyer may advertise information regarding the lawyer’s services.” However, for some lawyers and firms, the definition of “advertising” proved to be a sticking point. Was a post on social media about a victory in court considered an “advertisement?” Or what about an article that described a lawyer’s experience with a certain legal issue?
Those concerns were addressed by the ABA by changing the word “advertise” to “communicate” in Model Rule 7.2: “A lawyer may communicate information regarding the lawyer’s services through any media.” The rule appears to allow any form of communication, provided that it is not misleading, without necessarily needing to review whether or not it is an advertisement.
The amendments also suggest that solicitations may not have to be considered “advertising material.” Disclaimers may still be necessary, though, if the communication in any way suggests that the results discussed could also be obtained for other clients.
The rules on advertising aren’t always very intuitive, which is why it’s always a good idea for lawyers to check their local rules before taking any action.
Some Types of Solicitation are Permitted
Many lawyers and bars adopted a kind of “know it when you see it” approach to attorney solicitations. In many jurisdictions there are fairly strict rules about the circumstances under which a lawyer may “solicit” potential clients.
Part (a) of Model Rule 7.2 has now been amended and it actually defines solicitation: “‘Solicitation’ 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.”
These revised rules also seem to allow in-person solicitation of sophisticated clients. Although lawyers are generally not allowed to solicit employment in person, the amended Model Rule 7.3 allows such contact directly to lawyers, to people who already have a relationship with the lawyer, or to anyone “who routinely uses for business purposes the type of legal services offered by the lawyer.” Lawyers are still not allowed to use any type of coercion of harassment and they may not solicit anyone who has made it clear that they do not want to be solicited. The ABA recognizes that sophisticated clients are probably in the best position to determine whether or not a contact should continue.