You can call it updating, modernizing, changing, or fixing, but the ABA House of Delegates recently voted in favor of amending Rule 7 of the ABA Model Rules of Professional Conduct addressing lawyer advertising.
To learn about how we got here, read my recent (pre-vote) marketing column in the ABA’s July/August 2018 issue of Law Practice Magazine, titled “Law Marketing Model Rule Revisions—Better Late Than Never?” The column details the path to the August House of Delegates vote. I was slightly surprised that no one stood to oppose the amendment, considering that the subject matter has been a lightning rod of controversy since I’ve been a lawyer (and well before that, as attorney Abe Lincoln is often referenced in law marketing ethics lectures). Yet the real proof will be in the pudding in the months and years to come. Which states will adopt the revised model rules as-is? My guess is that most will choose to put their own unique spin on subsequent changes. And I’ll be pleasantly surprised if states look to be uniform in adoption and enforcement at some point before the internet changes yet again.
At August’s ABA Annual Meeting in Chicago, the House of Delegates voted to adopt Resolution 101, amending Model Rules 7.1 through 7.5 and their related comments of the ABA Model Rules of Professional Conduct regarding lawyer advertising rules.
As the late Phil Hartman used to say on Saturday Night Live, “this is something…this is nothing.” Yes, this is something (and better than nothing), far from perfect, but an improvement over the archaic and outdated advertising ethics rules that were still on the books.
Nothing changes today. Model rules are just that. States will take their time (some longer than others) in determining which pieces of the rule changes (and comments) they wish to adopt, enact, and enforce.
Why The Changes?
It should come as no surprise to you that lawyer marketing has changed a tad since 1977—and the U.S. Supreme Court decision in Bates v. Arizona. You might blame it on the internet, globalization, competition, or entrepreneurial lawyers skirting the rules. But to a great extent, blame the states. Because while the ABA rules may serve as models, the reality is that the different approaches, interpretations, oversight, and enforcement by states have made compliance a difficult task.
While I’ve heard some complaints about the two years it took to get these rule changes through the House, anyone who has ever shepherded a model rule change through knows that it is not an atypical amount of time. These changes are not designed in a vacuum. Quite the opposite, in fact—the process seems to seek weigh-in and perspective from virtually every interested party known to man. If your organization is remotely involved in the space, someone asked your opinion.
Most of the “changes” put forth amount to little more than an implementation of common sense in the legal marketplace. If you’ve had the pleasure of watching me present one or more of the hundreds of law marketing ethics CLEs I’ve taught for 20+ years, you know that my focus has always been on one core value—is an ad (or communication, as we now refer to it) “false or misleading?” Because in the end, isn’t that really what concerns us the most? The changes reflect a better sense of reality.
Now the real question is not only how quickly state bars act to review and adopt, but if we see a more consistent approach and interpretation across the map.
A Nominal Thank You
In corporate America, many businesses have rules about what you can and can’t receive from a vendor, salesperson, business referral, or colleague in exchange for what might amount to remuneration of some sort. While such “payments” were generally prohibited in legal circles, the new rules allow for a token gift for an employee or colleague. Of course, how much is nominal is wide open to interpretation.
Raise your hand if a consumer has complained about your law marketing, perhaps feeling deceived or misled. No hands? That would be because the bulk of complaints have come from angry (lawyer) competitors and/or some state bar disciplinary committees. While the claim has always been a need to protect the client, the reality is that it has been more often about protecting the profession from itself.
While the new rules may not fully flesh out many of the newer marketing issues we face—clarification regarding social media, online reviews, and referral-type businesses—they at least put some baseline concepts into place. One of the great advertising and solicitation disrupters, Avvo, is now in the hands of Internet Brands. The new owners quickly put up a white surrender flag for the controversial fixed-cost service that had many states up in arms. I’m not sure how much of a “disruptive” force the company will be in the future. But before being sold, it was a clear factor in forcing some of the issues involved in the updated model rules.
Social media channels have so many facets, with LinkedIn, Facebook, and Twitter (and others) that it is difficult to simply state which of the rules in 7.1-7.5 apply. The same holds true for reviews, and beyond a review itself, whether bad reviews are being siphoned off—something I’d say has a serious “deceptive and misleading” spotlight on it. State bars are sometimes a little less than objective when it comes to decisions regarding referral-type businesses because they often see it as their own (non-dues revenue generating) domain.
Nothing in these changes ensures consistency or standardization of oversight and enforcement across jurisdictions. Unless I missed some dramatic groundswell of support for states agreeing to work together and handle these issues in the same fashion, the problem with multi-jurisdictional compliance will remain.
Because you probably don’t want to read through all the rules and comments under Resolution 101, here are some highlights for the slightly interested attorney, with a little editorial spin.
- These amendments relate to Model Rules 7.1-7.5. We’ll now often refer to advertisements simply as “communications” because we live in a world where marketing ourselves is not reserved to the obvious “ad.” Blame it on various aspects of the World Wide Web, but “content marketing” is not as clearly delineated and defined as old-tyme commercials.
- If we did not change the rules ourselves, the FTC would change them for us—issues of antitrust, commercial speech, and stuff like that.
- These rules are designed to streamline and simplify, but most importantly, we need to focus on one core principle—is the ad or communication “deceptive and misleading?”
- “Office Addresses” are so brick-and-mortar last century. Now we “contact” each other—which could be via a virtual office or a laptop at the beach. Contact may be via e-mail, chat, messaging, or other ways that don’t involve meeting in person. The new rules remind you that a physical address or a landline is no longer assumed.
- Lawyer Referral Services—permissible or not—remain an area that will remain murky. I can assure you that some states will not cede control of their own interpretation (and cynically, perhaps, a revenue stream) to be consistent across the board.
- While you still can’t pay for recommendations, nominal “thank you” gifts are permissible. I don’t know about you, but is “nominal” a Chik-Fil-A gift card or two tickets to Hamilton? I’d accept both, but you might want to call your state bar ethics hotline (they will say yes to the sandwich, no to the show—but that is what you get for asking).
- Live person-to-person solicitation remains prohibited. Runners? What runners? Anyway, this includes viewing each other over an iPad. But it should correctly loosen the interpretation to allow solicitation/communication with what I’ll call “educated recipients” of the message—in-house counsel, corporate CEOs, and others who should know better.
- Eliminating the requirement to label targeted mailings as “Advertising”—which basically encouraged the recipient to throw it away without even opening it.
As states begin discussing and implementing these model rule changes, Law Practice Today will keep you informed of the progress. A few states, like Virginia, were ahead of the game in streamlining the process before the ABA’s suggestions. It is definitely a step forward, which is certainly better than nothing.
About the Author
Micah Buchdahl is an attorney who works with law firms on marketing and business development and is a past chair of the ABA Law Practice Division. Micah is a past editor-in-chief of Law Practice Today and a current member of the Board of Editors. He can be reached at email@example.com or by phone at 856-234-4334, and on Twitter at @mbuchdahl.